Since the advent of COVID-19, Hungarian Prime Minister Viktor Orbán has taken full advantage of the crisis to strengthen his hold on power in Hungary. In the past days, the Hungarian Parliament has passed measures that allow Orbán to rule by emergency decree indefinitely, suspend by-elections, and threaten those who spread “false” information (as defined by the government) with jail time. International condemnation was swift, with U.S. Rep. Eliot Engel, Chair of the House Foreign Affairs Committee, calling the move “an affront to democracy. ”Yet the response from European leaders has largely been muted. Despite the European Union’s relative silence, there are measures the EU can take to punish Orbán.
In truth, the lackluster response to Orbán’s seizure of power in Hungary stems from the fact that it is actually quite difficult to punish member states who fail to uphold the EU’s values. There is no straight forward path to expel a member state, as suggestedby former Italian Prime Minister Matteo Renzi. Member states can vote to suspend a member state’s voting rights through infringement proceedings, such as Article 7 of the Treaty of the European Union. Indeed, the European Parliament already votedin 2018 to trigger a rule of law investigation of Hungary. Yet stripping Hungary of its voting rights would require a unanimous vote by the European Council, which consists of heads of state of EU countries. Undoubtedly, this measure would be vetoed by Poland, which faces separate Article 7 proceedings. Yet the EU has other policy options to punish Orbán for the illiberal path he has taken. Not using them now risks encouraging what is a burgeoning autocracy in the EU’s ranks.
First, the European Union and key national leaders should condemn Hungary’s recent moves. In her statement on emergency measures, Commission President Ursula von der Leyen failed to criticize Hungary’s recent law or even mention Hungary. Similarly, 13 EU member states issued a joint statement underscoring their concern that emergency measures taken to combat coronavirus could infringe on the “rule of law, democracy and fundamental rights,” without mentioning Hungary. A strong statement from the European Union would only be strengthened by similar condemnations from member states. Several members of the European People’s Party (EPP),the European political grouping for Orban’s Fidesz Party, have denounced Hungary’s emergency decree. However, there are notable absences; Germany’s Christian Democratic Union have failed to speak out against Hungary’s illiberalism.
Second, the EPP must expel the Fidesz Party immediately. In February 2020, the EPP agreed to suspend Fidesz indefinitely. This decision allowed Fidesz to remain in the EPP, in hopes thatkeeping Fidesz close would allow the EPP to maintain some influence with Orbán. Not only did this strategy fail, but it now runs the risk of signaling to other illiberal political parties they can receive “cover” by the EU by joining a popular political bloc. The EPP needs to send a clear message that they will not tolerate the Orbán government’s illiberal measures and will no longer support Fidesz politically.
Thirdly, the European Union should make all futuredisbursements of EU funds conditional on the rule of law.EU member states are currently renegotiating the Multiannual Financial Framework for 2021-2027, the EU’s long-term budget.An important component of the EU budget is the allocation of agricultural and development funds to EU member states. Despite his rejection of European values, Orbán has been content to pocket European funds, often using them to enrich friends and punish political enemies. Development funds in particular amount to 4% of Hungary’s GDP and thus provide significant leverage for the European Union.
Hungary will already face a reduction in cohesion funds in the next EU budget due to Brussels’ need to pinch pennies post-Brexit. The renegotiation process, however, provides anopportunity for the EU to attach rule of law conditionalities to its funds. It is important to ensure that the implementation of these measures cannot be blocked by the countries it targets. For example, Hungary and Poland could take advantage of a recent proposal put forward by European Council President Charles Michel. The proposal gives them the opportunity to create a coalition of like-minded countries to prevent the approval of funding cuts proposed by the Commission. Instead, the Council should act quickly and consider the regulation backed by the European Commission, which minimizes Hungary and Poland’s ability to coordinate.
Finally, the European Commission should pursue a case in the European Court of Justice (ECJ) against Hungary. The Commission should provide a reasoned opinion to Hungary outlining how the new emergency decree fails to uphold theEU’s values of democracy and the rule of law. If Hungary fails to implement changes, the Commission can escalate the case to the ECJ, which can require a state to end the infringement and/or can impose a financial penalty for non-compliance. The Commission used this mechanism when Poland failed to suspend legislation lowering the retirement age for judges, which led to the law’s suspension and a change in Poland’s behavior.
With the Article 7 process in gridlock, the EU must explore creative solutions to deal with democratic backsliding. The clock is ticking on turning back the erosion of democracy in Poland and Hungary, where the rule of law has further decayedsince European Parliament triggered the Article 7 procedure.With expulsion off the table, there are steps the European Union can take to show they are serious about safeguarding the rule of law.
Carisa Nietsche is a Research Associate at the Center for a New American Security. Sam Denney is an Analyst in European Affairs at a Washington think tank. The views expressed are the authors' own.
