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By Elizabeth Pond
Prime Minister Viktor Orban is doing more than just biting the hand that feeds Hungary with millions of euros in development funds. He is forcing a crisis of democratic identity on the European Union. Or at least he is finally provoking the EU to devise ways to limit the damage from democratic lapses by the club's member states.
On March 11, Orban abandoned his repeated promises of restraint to EU interlocutors. His right-nationalist two-thirds majority in the Hungarian parliament passed constitutional amendments that constrict media reporting and confine the constitutional court's future reviews of legislation to procedural issues alone. The amendments effectively [throw out earlier court verdicts overruling laws that enhanced centralized power in the hands of the prime minister.
This action defied repeated warnings from the European Commission and EU member states. The admonitions—urging Orban not to shrink rule of law, human rights, or the checks and balances of domestic institutions like the courts and central bank—induced him to retract similar legislation last year. The new reinstatement of the measures in the form of binding constitutional amendments—after Orban recently replaced both the president of the constitutional court and the head of the Hungarian central bank with officials who are more amenable to guidance from his Fidesz party—throws down the gauntlet to the EU.
José Manuel Barroso, the European Commission president, and Thorbjorn Jagland, secretary-general of the Council of Europe, the continent's top human-rights watchdog, instantly issued a statement raising "concerns with respect to the principle of the rule of law, EU law, and Council of Europe standards." German Foreign Minister Guido Westerwelle declared that Europe is a community built on values and ... we expect these values to be upheld within the Union." German officials further pressed Hungarian President Janos Adel during his previously scheduled visit to Berlin not to sign the legislation. And the conservative former Hungarian president and former chief justice of the constitutional court Laszlo Solyom compared parliament's action to the "Communist one-party system in Hungary" in the daily Nepszabadsag, Reuters reported.
In practice, however, there is at present little the EU can do to to discipline members who stray from its standards of law and democracy. Earlier clashes between European Union institutions and its mainstream democratic members on the one hand and Romania, Bulgaria, and Austria on the other—have showcased this impotence. So has EU abstention from even trying to curtail Silvio Berlusconi, who in nine years as Italy's prime minister cemented his virtual monopoly on TV news coverage and repeatedly had special interest laws passed that shielded him from being convicted in multiple (ongoing) lawsuits. When Orban asserts Budapest's sovereignty in resisting EU pressure, the European Union at this point can resort only to suspending Hungary's vote in EU councils or cutting off development funds to it.
The European Union never dared employ such a nuclear option to counter the rampant corruption that Romania and Bulgaria promised to curtail before joining the EU but ignored after they became members. The EU did impose a probationary period on the two in their initial years of membership, though, and when corruption showed no sign of abating, it recently denied Romanian and Bulgarian citizens inclusion in the Schengen area of free travel within the EU without personal checks at national borders.
Nor did the EU apply the nuclear option to big member Italy or in the Union's first clash over democratic standards in 1999, when Jörg Haider's far-right, anti-Semitic Freedom Party joined a coalition government in Austria. In that case, the EU protested loudly but futilely. In the end, it just had to wait for change through a later falling out among the Austrian far right and a shift toward the center in voter sentiment.
The EU's still improvisational structure, its past practice, and political realities hobble its effectiveness. While the Union is far more than just an international organization of regional states, it remains far less than a federation with central authority to enforce basic political rights in sovereign member countries. In trade issues EU member states have legally combined their sovereignty to gain clout; they no longer negotiate as individual states in international tariff negotiations. There is no such agreed "pooling" of sovereignty in human-rights issues, though.
To fill this gap, explains a senior European diplomat, the German, Dutch, Danish, and Finnish foreign ministers are proposing "to develop a mechanism" for taking issues of member states' departure from rule of law and democracy to the Council of Ministers, the EU's top inter-state conclave. Only if its peers' disapproval failed to persuade an errant member to reform would the nuclear option be employed.
Such a process would not provide a fast resolution to today's Hungarian-EU confrontation. No European Union processes are fast. As with most improvisations in the never-finished European Union, it could, however, limit the damage the next time around.
[Photo courtesy of the European People's Party]