On September 12, 2018, Members of the European Parliament (MEPs) of the European Union adopted a resolution asking the Council of the European Union to determine if the government of Hungary has initiated measures and engaged in activity that present “a clear risk of a serious breach” of the fundamental values of the EU (source in English).
This resolution was contained in a report articulating concerns about the state of democracy, the rule of law and civil liberties in Hungary submitted to the European Parliament (EP) by MEP Judith Sargentini of the Netherlands, a member of the Greens-European Free Alliance EP political group.
The European Parliament’s endorsement of the so-called Sargentini Report was the second of three steps in the European Union’s warning mechanism specified in Article 7 of the Treaty on European Union.
Article 7 of the Treaty on European Union (also known as the Maastricht Treaty), one of two main agreements upon which the EU is founded along with the Treaty on the Functioning of the European Union (also known as the Treaty of Rome), establishes mechanisms for the EU to warn and sanction member states determined to have violated the fundamental values of the European Union.
Article 2 of the Treaty on European Union (TEU) specifies the fundamental values of the EU: “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” (source in English).
The European Union established the sanctions mechanism of Article 7 via the 1999 Treaty of Amsterdam that amended the Treaty on European Union (source in English). The European Union introduced this mechanism one year after beginning negotiations regarding accession to the EU with post-communist countries of Eastern Europe in order to provide the union with a means of penalizing these future member states if they reverted to authoritarian political practices in violation of the fundamental values stipulated in Article 2 of the TEU (source in English).
The Article 7 sanctions mechanism represents the European Union’s most severe means of penalizing a member state. Suspension of voting rights in the Council of the European Union and the European Council (see “European Union Political Institutions” below) represent the harshest penalties that can be imposed on an EU member state via this sanctions mechanism. The European Union has no institutional mechanism for expelling a member state from the EU.
The European Union established the warning mechanism of Article 7, known formally as the “preventative mechanism,” via the 2001 Treaty of Nice that again amended the Treaty on European Union (source in English). The European Union introduced this mechanism one year after the formation of a coalition government in Austria that included the Jörg Haider–led far-right FPÖ party in order to provide the EU with a means of warning member states found to be at risk of violating the fundamental values of the union rather than penalizing them via the sanctions mechanism (source in English).
The European Union’s Article 7 warning and sanctions mechanisms are independent of one another: that is, engagement of the sanctions mechanism against an EU member state does not require the prior warning of that state via the preventative mechanism (source in English).¹
European Union Political Institutions
There are four European Union political institutions, all of which play a role in Article 7 procedures. These institutions are composed of two legislative bodies—the European Parliament and the Council of the European Union—and two executive bodies—the European Commission and the European Council.
The European Parliament is composed of 751 MEPs distributed proportionally among European Union member states according to national population. MEPs are affiliated with eight different political groups that represent the socialist, green, liberal, conservative, Christian democratic and nationalist ideologies. The European Parliament is the equivalent of the lower house in a bicameral legislative system.
The Council of the European Union is composed of one cabinet minister from the national government of each European Union member state who deals with the specific policy domain under consideration, such as foreign affairs, economic and financial affairs, agriculture, justice, etc. The Council of the European Union is the equivalent of the upper house in a bicameral legislative system.
The European Commission is composed of one representative from each European Union member state and functions under the leadership of a president. The European Commission is the equivalent of a government cabinet and the president of the European Commission is the equivalent of a prime minister in a dual-executive system.
The European Council is composed of the heads of state or government of each European Union member state. The European Council is the equivalent of a president or collective presidency in a dual-executive system.
Article 7 Warning Mechanism Procedure
The Article 7 warning mechanism is composed of three steps: one, either the European Parliament (EP), the European Commission or the Council of the European Union must “determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2”; two, the European Parliament must endorse by a two-thirds majority of votes cast and an absolute majority of all MEPs the finding of the EP, the European Commission or the Council of the European Union that such a risk exists; and three, the Council of the European Union must confirm the existence of this risk by a four-fifths majority in a vote in which the representative of the member state in question cannot participate (sources A, B and C in English).
Article 7 Warning Mechanism Procedure against Hungary
On May 17, 2017, the European Parliament adopted by a vote of 393 in favor to 221 against with 64 abstentions a resolution submitted by socialist, liberal and green EP political groups to trigger the Article 7 warning mechanism against Hungary (source in English).
A total of 67 members of the European People’s Party EP political group to which the parties in Hungary’s governing alliance—Fidesz and the Christian Democratic People’s Party (KDNP)—belong voted in favor of the resolution, while 93 members of this conservative–Christian democratic political group voted against the resolution and 40 abstained (source in English).
The text of the resolution, which stated that “developments in Hungary have led to a serious deterioration of the rule of law, democracy and fundamental rights over the past few years,” specifically requested that Hungarian authorities repeal the Law on National Education (Lex CEU) and withdraw the subsequently enacted Law on the Transparency of Organizations Supported from Abroad (the NGO Law).
The resolution instructed the European Parliament’s Committee on Civil Liberties, Justice and Home Affairs to draw up a report on “the political situation in Hungary” to serve as the text for a subsequent EP vote to determine if there exists a clear risk that the country’s government will violate the fundamental values of the European Union.
The European Union had never previously launched its Article 7 procedure—neither the warning mechanism nor the sanctions mechanism (source in English).
On July 11, 2017, the European Parliament Committee on Civil Liberties, Justice and Home Affairs appointed Judith Sargentini of the Netherlands, a member of the Greens-European Free Alliance EP political group, as the rapporteur responsible for writing the report on the political situation in Hungary (source in English).
On June 25, 2018, the Committee on Civil Liberties, Justice and Home Affairs adopted the report that Sargentini had written over the intervening period by a vote of 37 in favor to 19 against. Of the 37 committee members who voted to approve the report, 8 belonged to the European People’s Party (source in English).
On September 12, 2018, the European Parliament approved by a vote of 448 in favor to 197 against with 48 abstentions a resolution contained in the Sargentini Report asking the Council of the European Union “to determine, pursuant to Article 7(1) of the Treaty on European Union, the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded” (source in English).
A total of 115 members of the European People’s Party EP political group to which Hungary’s Fidesz-KDNP governing alliance belongs voted in favor of the resolution, while 57 voted against it and 28 abstained (source in English).
On October 16, 2018, the Council of the European Union discussed the next steps to be taken in the Article 7 warning-mechanism procedure against Hungary. The representatives of Hungary at the meeting stated that the Orbán government would provide a “written contribution” to the issues raised in the Sargentini Report in accordance with the Article 7 stipulation that the council “shall hear the Member State in question” before deciding if it is at risk of violating the fundamental values of the EU (sources A and B in English).
The Sargentini Report
The Sargentini Report grouped “concerns related to the situation in Hungary” into the following 12 categories (source in English):
-functioning of the constitutional and electoral system;
-independence of the judiciary and of other institutions and the rights of judges;
-corruption and conflicts of interest;
-privacy and data protection;
-freedom of expression;
-freedom of religion;
-freedom of association;
-right to equal treatment;
-rights of persons belonging to minorities, including Roma and Jews, and protection against hateful statements against such minorities;
-fundamental rights of migrants, asylum seekers and refugees;
-economic and social rights.
The Sargentini Report identified the following specific issues, frequently in reference to previous findings of the Council of Europe,² the United Nations and the Organization for Security and Cooperation in Europe, within the above-listed areas of concern (source in English):
-“the endangerment of the separation of powers and the weakening of the national system of checks and balances”;
-restriction of the authority of the Constitutional Court and the changes to the procedure for selecting judges that have made it possible for the Fidesz-KDNP governing alliance to appoint all the judges on the court;
-excessive power of the president of the National Judicial Office;
-“serious irregularities” and “conflicts of interest” with regard to EU-financed public-procurement tenders to install LED street lighting at various locations in Hungary that a company operating under the ownership of István Tiborcz, the son-in-law of Prime Minister Viktor Orbán, won in 2014 and 2015;
-insufficient legal guarantees against possible unlawful secret surveillance for national security purposes (see Counter Terrorism Center);
-inadequate guarantees of freedom of expression in the Law on Freedom of the Press and the Fundamental Rules of Media Content and the Law on Media Services and Mass Media adopted a few months after the Fidesz-KDNP governing alliance came to power in 2010;
-procedures regarding the election of the Media Council that fail to ensure fair representation on the body and the political neutrality of its members and president;
-provision of the Hungarian News Agency MTI with the “exclusive right” to provide news for public television and radio;
-public television and radio news regarding the 2018 National Assembly election campaign that “clearly favored the ruling coalition”;
-the publication in the pro–Fidesz-KDNP weekly Figyelő on April 11, 2018, of the names of 2,000 people in Hungary who are allegedly working to “topple” the Orbán government;
-constraints on academic freedom via the 2017 Law on National Higher Education (Lex CEU);
-“stigmatizing rhetoric used by politicians questioning the legitimacy of NGO work in the context of audits [of] NGOs which were operators and beneficiaries of the NGO Fund of the EEA/Norway Grants”;
-the apparent “attempt to discredit certain NGOs, including NGOs dedicated to the protection of human rights in Hungary” and restriction of foreign donations from NGOs in Hungary via the 2017 Law on the Transparency of Organizations Supported from Abroad (the NGO Law);
-stipulations in the 2018 “amendment of certain laws connected to measures against unlawful immigration,” unofficially known as the “STOP Soros law,” that serve to “deprive people who are forced to flee their homes of critical aid and services, and further inflame tense public discourse and rising xenophobic attitudes”;
-“the constitutional ban on discrimination does not explicitly list sexual orientation and gender identity among the grounds of discrimination”;
-“ women are underrepresented in political life and there are no legal requirements to promote gender equality in elections”;
-“deterioration of the situation as regards racism and intolerance in Hungary, with anti-Gypsyism being the most blatant form of intolerance, as illustrated by [. . .] violence targeting Roma people and paramilitary marches and patrolling in Roma-populated villages. [Also] despite positions taken by the Hungarian authorities to condemn anti-Semitic speech, anti-Semitism is a recurring problem, manifesting itself through hate speech and instances of violence against Jewish persons or property”;
-“the Roma community continues to suffer from widespread discrimination and exclusion, unemployment, housing and educational segregation”;
-“the prevalence of hate crimes and hate speech in political discourse, the media and on the internet targeting minorities, in particular Roma, Muslims, migrants and refugees, including in the context of government-sponsored campaigns”;
-“policies and practices that promote intolerance and fear and fuel xenophobia against refugees and migrants [and] the increasing number of allegations of abuse in Hungary against asylum-seekers and migrants by border authorities, and the broader restrictive border and legislative measures, including access to asylum procedures”;
– “restrictive practices of admission of asylum seekers into the transit zones of Röszke and Tompa often make asylum-seekers look for illegal ways of crossing the border, having to resort to smugglers and traffickers”;
– “asylum procedures, which are conducted in the transit zones, lack adequate safeguards to protect asylum seekers against refoulement to countries where they run the risk of being subjected to treatment contrary to [the] ECHR [European Convention on Human Rights]”;
– and the stipulation of the 2018 amendment to the Fundamental Law that “designates many public areas as out-of-bounds for ‘sleeping rough’ and effectively punishes homelessness” (see Orbán Government Homeless Policy).
Orbán Government Reaction
On September 17, 2018, Minister without Portfolio in Charge of the Prime Ministry Gergely Gulyás announced that the Orbán government would submit a challenge to the validity of the European Parliament vote on the Sargentini Report to the European Court of Justice on the grounds that abstentions should have been counted as “votes cast,” thereby reducing the proportion of MEPs who voted in favor of the report to under the two-thirds majority required for its adoption (sources A in Hungarian and B, C and D in English).
Also on September 17, 2018, Gulyás and Fidesz National Assembly caucus leader Máté Kocsics submitted a resolution “on the defense of Hungary’s sovereignty and the rejection of slander against Hungary” (source in Hungarian). In addition to voicing rejection of the Sargentini Report, this resolution asked the Orbán government to take legal action aimed at nullifying the European Parliament’s adoption of the report:
The Sargentini Report attacked the decisions, Fundamental Law, legislation and personal decisions that the democratically elected Hungarian parliament ratified within its own sphere of authority. With this, it [the report] transcended its sphere of authority and violated Hungary’s sovereignty. [. . .] We reject the slander contained in the mendacious pro-immigration indictment called the Sargentini Report. We reject this report which attacks Hungary because it did not admit immigrants, rejected the quota, built a legal border barrier and made the organization of illegal immigration punishable. [. . .] We call upon the government of Hungary not to submit to blackmail: reject the false accusations against Hungary and take legal measures against the fraudulently adopted report slandering Hungary!
On October 16, 2018, the National Assembly adopted this resolution by a vote of 129 in favor to 26 against with 18 abstentions (source in Hungarian). All Fidesz-KDNP National Assembly representatives and four independent representatives who recently withdrew from the nationalist opposition party Jobbik voted in favor of the resolution, while all representatives from socialist, liberal and green opposition parties voted against the resolution and Jobbik representatives abstained (source in Hungarian).
¹ The European Union member-state rights that may be suspended via Article 7 are not specifically defined. Some argue that imposition of the Article 7 sanctions mechanism might also entail suspension of EU Cohesion Fund, Regional Development Fund and Common Agricultural Policy subsidies (source in English at bottom of page 4).
² The Council of Europe is a 47-member international organization that aims to uphold human rights, democracy and the rule of law in Europe and to promote European culture. It is not the same as the European Union, though all members of the EU are also members of the Council of Europe.