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Responding to Judit Varga: Separating facts from propaganda about the rule of law ǀ View

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Recently, Euronews published an opinion piece by the Minister of Justice in Viktor Orbán’s government purporting to explain a number of “Facts You Always Wanted to Know about Rule of Law but Never Dared to Ask.” Her article, which takes the form of a series of questions she poses and answers, is replete with falsehoods and distortions.

Normally, we do not respond to statements from ministers or other representatives of the Orbán regime. Exceptionally, in this instance, we thought it important to counter the misinformation Minister Judit Varga is deliberately spreading and to explain why the Orbán regime is so worried that the EU will finally take more robust action to defend the rule of law. Before we answer the questions Varga posed, we begin by providing some background on the ongoing debates about the rule of law in the EU.

For several years now, EU leaders have been struggling to find a way to address attacks on the rule of law and on democracy itself by Orbán’s government and by the Law and Justice party (PiS) government in Poland. While the EU dithered, Orbán succeeded in dismantling Hungary’s democracy and replacing it with what political scientists call a competitive authoritarian regime. The Organization for Security and Cooperation in Europe (OSCE) found the last two parliamentary elections in Hungary (in 2014 and 2018) to have been decidedly unfair, with Orbán’s Fidesz party using state resources to tilt the playing field in its favour.

In 2019, “due to sustained attacks on the country’s democratic institutions,” Orbán’s Hungary became the first EU member state to be downgraded in Freedom House’s ratings from “free” status to only “partly free.” Orbán’s success emboldened Jarosław Kaczyński and his PiS regime in Poland. Their ongoing battle with the Polish judiciary is part of an effort to consolidate a durable, single-party system in the Orbán mould.

Over the last year, there have been signs the EU may act to defend rule of law norms against these regimes, with the European Court of Justice taking a more robust approach to defending beleaguered national courts. Meanwhile, the governments of Hungary and Poland are racing to extinguish the last vestiges of judicial independence. Just a week before Justice Minister Varga penned her article for Euronews, her government submitted a bill that would tighten political control over the judiciary and, according to Amnesty International Hungary, “guarantee judicial decisions favourable to the government in politically sensitive cases.”

The Hungarian government is lashing out against the idea that the rule of law is an enforceable norm in the EU legal order because it is afraid that EU may finally be ready to cut off the flow of EU funds to governments that systematically violate that norm.
R. Daniel Kelemen, Laurent Pech, Alberto Alemanno
Professors of law

With movement on other initiatives including the Commission’s new Rule of Law Review cycle to enhance EU oversight, the Article 7 procedure against Hungary (which is back on the Council agenda for December), and proposals to introduce new rule of law conditionality provisions to the EU budget, it appears that EU leaders may be growing weary of subsidising increasingly authoritarian regimes. In Hungary’s case, more than 4% of GDP comes from EU funding. The Hungarian government is lashing out against the idea that the rule of law is an enforceable norm in the EU legal order because it is afraid that EU may finally be ready to cut off the flow of EU funds to governments that systematically violate that norm.

With this background in mind, we address Minister Varga’s questions:

Is rule of law a set of universally applicable objective criteria? Yes, it is. While there is variation across countries in the precise institutions and practices underpinning the rule of law, there is a broad consensus on the core meaning of the concept. In addition to the UN, the Council of Europe and the European Commission have both articulated definitions emphasising that the rule of law entails compliance with key legal principles, such as legality, legal certainty, prohibition of arbitrariness of the executive powers, independent and impartial courts; effective judicial review including respect for human rights, and finally, equality before the law.

Not only is rule of law a well-established concept of universal validity with clearly identified core elements, respect for rule of law is also a legal obligation for EU member states established in the EU Treaties and in the case law of the European Court of Justice. Why then is the Orbán regime so desperate to dismiss the “rule of law” as a buzzword and to seed doubt about its very existence as a shared norm? The reason is quite simple. As evidence that Orbán’s government has been systematically and deliberately undermining the rule of law accumulates, they are worried that they may finally be excluded from the generous flow of EU funds. To challenge the legitimacy of any such EU action, the Orbán regime hopes to call into question the very existence of the concept of rule of law.

The real issue is that the Orbán government wants to say “no” to the rule of law while saying “yes” to EU funding.
R. Daniel Kelemen, Laurent Pech, Alberto Alemanno
Professors of law

Is rule of law really under pressure in the EU? Yes, but not for the reasons Orbán’s justice minister claims. The rule of law has already been gravely undermined by the governments of Hungary and Poland, with serious breaches in other member states as well. The evidence is overwhelming. In the World Justice Project Rule of Law Index 2019, Hungary is ranked dead last in the EU, EFTA, and North America region. In the 2019 edition of the Sustainable Governance Indicators, Hungary and Turkey occupy the two bottom places out of 40 countries when it comes to the rule of law.

In the 2019 edition of The Global State of Democracy, Hungary was, for instance, listed among the “democracies that have seen the most widespread democratic erosion in the past five years,” and presented as one of “the most severe cases” of democratic backsliding alongside Poland, Romania, Serbia and Turkey. The top EU judicial networks also recently and rightly noted “several member states are systematically undermining the core values on which the Union is based. In particular, the independence of the judiciary is being severely threatened, and the separation of powers between the executive branch and the judicial branch is being dismantled.”

Dismantling the rule of law is indeed a key goal of autocrats and kleptocrats. Establishing governing party control over the judiciary and undermining the rule of law are crucial steps in the autocrat’s playbook. To replace a democracy with a hybrid authoritarian regime or “electoral autocracy,” as Orbán has done, the governing party must undertake a number of actions, including limiting media pluralism, consolidating control over independent institutions, placing restrictions on civil society organisations, and tilting the scales against political opponents. However, an independent judiciary might threaten to block any of these moves. Therefore, establishing political control over the judiciary and ending the rule of law is a crucial first step.

Does the EU have general competence in rule of law matters? Not a general competence, but this is not the issue. Varga deliberately seeks to muddy waters here so as to mislead readers into thinking that when it comes to national rule of law matters such as the organization of national justice systems, there is no place at all for EU law. This is quite simply false, yet it is a misconception that autocrats keen on destroying judicial independence are understandably keen to promote. Asked to verify the independence of the Polish Supreme Court in a recent case, the European Court of Justice stated:

“[A]lthough, as the Republic of Poland and Hungary point out, the organisation of justice in the Member States falls within the competence of those Member States, the fact remains that, when exercising that competence, the Member States are required to comply with their obligations deriving from EU law … Moreover, by requiring the Member States thus to comply with those obligations, the European Union is not in any way claiming to exercise that competence itself nor is it, therefore, contrary to what is alleged by the Republic of Poland, arrogating that competence.”

In other words, while national governments are responsible for organising their own judiciaries, this does not give them a carte blanche to violate EU law at will. As for the claim that the European Commission cannot monitor EU countries’ adherence to the rule of law and other principles and values protected by EU law, this is an old argument which has been rebutted many times. In short: since the Commission has the power to initiate a special procedure against national authorities endangering the EU’s foundational values, it logically follows that it “has the power to clearly define the practical means for the exercise of its power through gathering evidence and substantiating (or not) its rule of law concerns.”

The Orbán understands there is more public support for its restrictive migration policies than there is for its underlying goals of dismantling democracy and replacing it with a hybrid, competitive authoritarian regime.
R. Daniel Kelemen, Laurent Pech, Alberto Alemanno
Professors of law

Is the debate actually about issues related to rule of law? Yes. In answering this question, Varga deploys a tired technique of the Orbán regime. She claims that Hungary is being persecuted by the EU because of its migration policies. To be clear, the dispute between the EU and Hungary over the rule of law is not about migration policy. Why then does the Orbán regime keep changing the subject? Because it understands there is more public support for its restrictive migration policies than there is for its underlying goals of dismantling democracy and replacing it with a hybrid, competitive authoritarian regime.

Hungarians may support much of Orbán’s migration agenda, but they do not support the construction of a single party electoral autocracy, attacks against judicial independence or the channelling of public funds – including EU funds – into the pockets of regime insiders. Focusing on immigration while spreading conspiracy theories should be seen for what it is: an attempt to distract from the oligarchic capture of the state apparatus and the misuse of EU and national taxpayers’ money.

Are rule of law criteria necessary for the protection of the financial interests of the EU? Yes, of course! Clearly, a country that does not have an independent judiciary and does not respect rule of law norms cannot be trusted to effectively manage the distribution of EU funds and to protect the EU’s financial interests. One can debate whether or not new measures are needed. Indeed, one of us has argued that the flow of structural funds to states with profound rule of law problems can be suspended under existing structural fund regulations. What is indisputable, however, is that rule of law criteria are necessary for protecting the EU’s financial interests and preventing EU taxpayers’ money from being misappropriated by kleptocratic governments.

Have rule of law-related initiatives in the EU contributed to the community of values so far? In her response to this convoluted question, Varga suggests that EU efforts to defend the rule of law via new initiatives are harmful as they would allegedly undermine trust and cohesion amongst member states. This is a bit like saying that exposing and punishing criminals is harmful to society because it undermines trust. But, of course, it is the lawbreakers, not those who expose and sanction them, who are to blame for any loss of trust. It is not the EU but the Hungarian government that threatens the EU’s community of values with its attacks on academic freedom, media pluralism, the rule of law, and liberal democracy itself. To claim that it is the EU which is undermining trust as the foundation of the Union is not only the ultimate gaslighting, but also part of a broader Orbán-led effort at reframing what the EU integration process is and should be about. This new doctrine targets neo-nationalists who no longer want to fracture the EU, but instead seek to control it from the inside and have it pursue their agenda.

Am I a bad European, if I say no? This is a strawman type of question, which does not really deserve an answer. Suffice it to say that Varga here is trying once again to pretend that the Orbán regime is only the subject of widespread criticism because it says “no” to Brussels. The real issue is that the Orbán government wants to say “no” to the rule of law while saying “yes” to EU funding. As Michael Ignatieff, the rector of the Central European University which Orbán forced out of Hungary, once put it, Orbán wants to, “Run against the EU from Monday to Friday; cash its cheques on Saturday and Sunday.”

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