"EU leaders have to realise that once things turn nasty it is not enough to solely rely on a guardian of the treaties which they practically castrated over the past couple of years."
Hungary’s recent anti-LGBTQ law has once again put in the spotlight all the challenges Viktor Orbán’s semi-authoritarian regime poses for the European integration.
His recent legislation that prohibits sexual education programs with LGBTQI content and bans media contents depicting homosexuality and sex reassignment to people under 18 appears to be a watershed event in Hungary’s relation with the rest of the European Union.
For his very reason, following the old playbook that proved to be wrong on several occasions would be a strategic failure on the part of the EU leaders who hurried up to condemn the Hungarian move and vowed to defend European values.
No oppression, no autocracy
Years of human rights violations in Hungary failed to reach a critical mass that may have provoked a committed European response. In fact, the Hungarian government not only shred the rights of asylum seekers, but it gradually restricted religious and academic freedom just as the freedom of association and assembly, to mention only a few examples.
However, despite the obviously shrinking spaces in Hungary, the perception prevailed at European level that one of the few remaining differences between Orbán’s Hungary and a full-fledged autocracy is the lack of serious human rights abuses.
The new law that equates homosexuality with paedophilia and straightforwardly discriminates EU citizens based on their sexual orientation might have challenged that long-time ruling perception. This was clearly mirrored by the intense debates around the issue in the European Council last Thursday and by the Benelux-led declaration joined by 17 countries that condemned the Hungarian legislation prior to the two-day summit in Brussels
Following the lip-service paid to human rights, non-discrimination and the demonstration of Orbán’s obvious isolation on the issue, now the European Commission is stepping in to address the violation of EU law with its own means, according to the usual modus operandi of the EU.
The political conflict triggered by the authoritarian turn of a member state is once again being channelled into the legal realm in order to deescalate.
But that's exactly what should not happen on this occasion – for two good reasons.
First of all, because the human rights violations caused by the Hungarian law cannot be fully mitigated under the umbrella of EU law.
The letter that EU commissioners Didier Reynders and Thierry Bretton sent to Hungary’s justice minister Judit Varga demonstrates that gap very well. It is no wonder that the letter mostly refers to the violation of the Audio-Visual Media Services Directive, the E-Commerce Directive and the freedom to provide services in the EU.
The prohibition of discrimination based on sexual orientation is far from being a general rule in the EU legal order; in fact it is limited to the sphere of employment. One of the main reasons of this restriction is because, since 2008, member states have been unable to agree on the proposal to guarantee equal treatment for persons irrespective of sexual orientation beyond the workplace.
The usual references to the EU Charter of Fundamental Rights do not help either: the Charter is only binding for member states when they implement EU law. Therefore, it may be applicable in connection with internal market rules, but, as demonstrated above, there is unfortunately no relevant EU law that would cover, for example, the sexual education projects provided in schools.
Thus, important aspects of the Hungarian law, like the ban on sexual education programs with non-heterosexual content, cannot be addressed by the Commission itself, which means the violation of the human rights of EU citizens and their discrimination cannot be mitigated either.
The submissive guardian
The second reason why EU leaders need to take action personally is the fact that the European Commission is not in the position to solve the situation, mostly due to the permanent attempts from the capitals to curtail the executive's independence and autonomy over the past decade.
It is commonplace to declare that power has shifted away from the European Commission in recent years towards member states. The actual “political Commission” is definitely weaker than the old “technocratic” European Commission used to be.
There could be indeed a legal way out of the struggle with Hungary. The Commission should embrace the European values enshrined in the EU Treaties (Article 2 TEU) as provisions with full legal power and use them as reference in the infringement procedure.
However, the Commission repeatedly refused to make this bold move, as national governments constantly discouraged legal references to EU values. In the Council’s understanding, the violation of EU values (and Article 2 TEU) can only be addressed via the notorious Article 7 procedure.
So what to do in the current situation? Keep it political.
EU leaders have to realise that once things turn nasty it is not enough to solely rely on a guardian of the treaties which they practically castrated over the past couple of years. If leaders seriously believe that the violation of EU values can only be addressed via the Article 7 procedure, then it is their primary obligation to get the best out of the process when human rights of EU citizens are at stake, especially if those rights simply cannot be protected by the Commission alone.
EU leaders have to exploit the political momentum and conclude the ongoing Article 7 procedure against the Hungarian government, which is virtually stalled due to the unanimity requirement.
They shouldn’t be afraid to declare that there is a clear risk of serious breach of the EU's fundamental values in Hungary. In light of the recent developments, there might be 22 Member States which agree on this diagnosis.
Article 7 is definitely not a nuclear option: it is only a warning mechanism and it shall be used as such.
The European public will understand that it is politically impossible to reach the consent required to the introduction of sanctions under the Article 7 procedure. But it is increasingly difficult to understand the disregard for available political and legal options.
Of course, the upcoming Slovenian EU-presidency will do everything to protect Budapest from any Article 7 related developments. However, Ljubljana cannot disregard scheduling a vote if a considerable group of member states is asking to include one in the Council's agenda.
If EU leaders want to ensure that any violation of the human rights of EU citizens, such as discrimination on the basis of sexual orientation, is impermissible inside the European Union, they have to act accordingly. And they have to act on their own, not least because the European Commission which themselves castrated is far from being an effective guardian of the treaties any more.
Daniel Hegedüs is Transatlantic Fellow at the German Marshall Fund of the United States