It may come late, but triggering Article 7 and cutting off EU funding for the next seven-year spending plan are the EU’s last shots at saving the rule of law in Hungary, and to stop an illiberal domino effect among the member states.
Homeless people are criminalised by law, opposition newspapers are shut down, hate-filled propaganda is spread through taxpayer-financed public broadcasters, while democracy and rule of law are eroding at massive scales. The de-democratisation process in Europe became most visible after the election victory of Hungary’s Viktor Orbán in 2010, who has by now adherers all over Europe. Politicians of governing parties and increasingly popular far-right movements alike speak highly of Europe’s new strongman, while the EU’s idleness conveys a clear message: there are no repercussions for disrespecting the rule of law.
More than just business as usual
At first, the Hungarian case seemed like nothing more than a minor backlash of the kind that is common in new democracies: bureaucrats deemed loyal to the old government were fired, the public broadcasters were restaffed, and the constitution was rewritten without consulting the opposition. Seemingly typical in the region, as one might argue that it takes more than a few decades to unlearn old habits.
Orbán has also done a good job reassuring Eurocrats and Western politicians that nothing he is doing is unprecedented in Europe: all criticised passages of his new laws have their equals in the legislations of other countries – even if not in such a dense composition (following the international criticism of the media law, the Hungarian media authority has published a long document pointing at other member countries that can, among others, oblige journalists to reveal their sources or impose monetary fines on offending newspapers). In case such arguments were not enough, and the international criticism turned out to be too harsh, the Hungarian government offered to scrap the most controversial passages of its laws last minute to show that it is willing to compromise.
The Hungarian government’s so-called ‘peacock dance’ (taking two steps ahead only to take one step back in response to criticism) has diverted attention away from the fact that this is not just one member state trying navigate its way in (or take a break from) the unstoppable stream of democratisation. The Hungarian government has understood that the process of democratisation is faltering worldwide. While the West was still applauding a seemingly hopeful Arab Spring, an EU member state was waging a systemic attack on European values, actively sabotaging liberal democracy from inside of the Western ‘club’.
Not the only game in town
By then, commentators were already trying to draw attention to the worrying trend. Thomas Carothers, a renowned expert on democracy support, was among the first to argue that the belief that all countries that moved away from dictatorship are heading towards democracy, the ‘third wave’ of democratisation, did not hold true. After the 1990s, many countries found themselves in a grey zone which analysts and scholars started to label with a number of ‘qualified democracy’ labels, such as ‘illiberal democracy’, ‘semi-democracy’ or ‘pseudo democracy’. While some of these countries did not intend to democratise to begin with, others were quickly rolling back earlier efforts that aimed at establishing liberal institutions. A reason for this trend has been the discovery that the link between economic development and liberal democracy was much weaker than previously assumed, with the economic success of the BRICS country regimes or Venezuela under the leadership of Hugo Chavez showing that economic growth can even be used to strengthen oppressive regimes, at least in the short-term.
the EU’s idleness conveys a clear message: there are no repercussions for disrespecting the rule of law
This strategy of authoritarian growth was supported through the suppression of the people’s so-called ‘coordination goods’, which the political scientists Bruce Bueno de Mesquita and George Downs defined as “those public goods that critically affect the ability of political opponents to coordinate but that have relatively little impact on economic growth.” By these goods, the authors refer to repressions on human and political rights, to limits on the free press, and to creating barriers to the access to higher education – many of which are now also under threat in some EU member states. This is especially the case when the country has natural resources such as oil, or to unconditional aid such as EU cohesion funds.
What happened under Orbán?
Viktor Orbán and his right-wing Fidesz party have been enjoying a two-thirds supermajority in Parliament for most of the last nine years, which has allowed him to make hard-hitting legal and constitutional changes and thereby consolidate power over independent institutions, without encountering effective resistance from a political opposition.
By now, the Constitutional Court, the Supreme Court, and the prosecution are dominated loyalists of the government, while the election legislation was redesigned in a way that favours Orbán’s governing party – thereby making a possible change in government much harder to achieve. In addition, opposition parties are having a harder time to finance their activities: while the far-right Jobbik party has to tackle high fines it was hit with prior to the last election, the state funding of the liberal and left-leaning parties Párbeszéd and Momentum was suspended by the Hungarian Audit Office, measures widely seen as politically motivated.
Dissent is also less and less welcome in Hungary: amendments to the law on the freedom of assembly make it harder for citizens to organise protests, and the government has also approved a law that requires NGOs that receive more than 23 000 euros a year from foreign donors to register as “organisations funded from abroad”. Nonprofits that work on issues related to immigration are expected to pay an extra tax of 25 per cent. In addition, amendments to the higher education law have forced the renowned Central European University – an English language institution with a diverse student body from all over the world, which is seen by many Eastern and Central European populists as an incubator for dissidents in the region – to move its educational activities abroad, while schools and public universities experience increasing government influence, and a number of independent media were forced to shut down due to state pressures.
Taming the beast
Throughout the years, there have been numerous attempts to constrain the Hungarian government, most of which were without effect. This was in part due to the limits of existing mechanisms. Constitutional law professor Dmitry Kochenov refers to many of them as “soft law of questionable quality.” Laurent Pech and Kim Lane Scheppele mention that the European Commission has for many years only looked at individual cases in which the government has violated EU law, but not at the bigger picture – and, in addition, its “default preference was to use the infringement procedure, which, given the way it has been deployed, has not produced any meaningful results because it aimed to reverse facts on the ground, something it did not have the power to accomplish.”
The Tavares report of 2013 (prepared by former Green MEP Rui Tavares) was the first important effort that managed to call attention to the fact that Orbán is systematically misusing his power so that he can make a change in leadership almost impossible. However, the report, which was passed with 370 votes in favour, 248 against and 82 abstentions, turned out to be overly optimistic, as neither the Council of the EU nor the European Commission took any steps to implement the measures recommended, thereby giving the Hungarian government no incentive whatsoever to start complying with EU values.
the spread of illiberalism is an everyday reality in the EU. Acting against it is unavoidable if the people of Europe do not want to risk the European project falling to pieces.
Apologists of Orbán were in the meantime arguing that there is no need for serious acts, as the best the EU and its institutions can do is to keep him inside the club and under a watchful eye. But as it turned out, the taming potential of simply being a member of the EU was limited, and Orbán continued to disrespect European values.
As political scientists András Bozóki and Dániel Hegedűs point out, Hungary is an “externally constrained” hybrid regime – due to its embeddedness in the EU. They argue membership in itself indeed has some constraining effects, since being part of an alliance of democratic states makes it harder for the country to drift into an autocracy. However, they add that the constraining effect is mainly limited to fundamental freedoms. The EU context, as well as the governing party’s membership in the European People’s Party (EPP) – not to mention that one of the Vice-Presidents of the European Parliament is a member of Viktor Orbán’s Fidesz party – also acts as a legitimiser of the current government.
The inaction of Europe’s leaders has, in effect, whitewashed the Hungarian government and turned it into a role model for illiberal political parties, such as Law and Justice in Poland, the Northern League in Italy, the Freedom Party of Austria, or the Alternative for Germany.
This is the context in which the Sargentini report (prepared by Green MEP Judith Sargentini) was adopted last September (with the support of 115 EPP members). The report listed 12 major concerns that seriously violated the values of Article 2 of the Lisbon Treaty, which clearly signals, according to constitutional law professor Gábor Halmai, that Hungary is currently an “authoritarian regime.” What is more, the vote also led to the launch of an Article 7 procedure, which leads to the most serious political sanction to date that can be imposed on a member state: the suspension of the right to vote on EU decisions.
Since the Hungarian government has, for the last nine years, step by step blurred the boundaries between what is acceptable and what is not, sending clearer signals was long overdue.
Of course, Orbán and his party know quite well that Article 7 is far not as ‘nuclear’ as it is often made out to be in commentaries, not to mention that the procedure will most likely never get to the point of sanctions – there will always be likeminded or opportunistic member states in the Council who are willing to block the procedure against the country (and EPP members are well aware of this). In this sense, the successful vote in the European Parliament came late compared to four or eight years ago when it might have had a restraining effect. However, for the Hungarian people (and the rest of the EU citizenry) even this largely symbolic measure can be an important sign. The continuation of the process can signal that the community is not going to tolerate Orbán’s disruptive behaviour any longer – and this might still ring a bell in a country where more than 80 per cent voted ‘yes’ in a referendum about joining the EU in 2003. But this is still far from being enough.
Additional steps are needed
More important for the democratic future of Hungary and the EU are the two legislative proposals the European Parliament voted on in January 2019. According to the proposals, the EU’s next seven-year spending plan, the Multiannual Financial Framework could take into consideration the state of rule of law in its member states, On the one hand, by providing funds to rights groups to take governments to court when they are taking away civil liberties, and, on the other hand, by cutting the funds of governments that are interfering with the judiciary of courts and the prosecution (or, if the Parliament’s proposal goes through in any case where violations of fundamental rights can risk the proper use of EU funds).
None of these measures will inevitably force the current Hungarian government to change its course. With Orbán already nine years in power, it might be too late for that, even with hard-hitting sanctions. But the sanctions will make it harder for the government to go on with business as usual: to enrich loyalists with stolen EU funds, to sabotage the work of the EU, to spend fortunes on propaganda, and to buy the loyalty of voters by pointing at the country’s (EU-financed) economic success and effectively hamper the formation of opposition.
Once the easy money is gone, there might also be a growing demand for change in power – and in turn, for a new democratic alternative. Not to mention that a struggling Hungarian autocrat is less of a role model for would-be authoritarians than the current blooming Orbánism. The governance of Orbán is by now more than just an internal Hungarian issue; the spread of illiberalism is an everyday reality in the EU. Acting against it is unavoidable if the people of Europe do not want to risk the European project falling to pieces.
 Carothers, Thomas (2002). The End of the Transition Paradigm. Journal of Democracy, Vol. 13, No. 1. pp. 5-21.
 The term was used by Samuel Huntington in 1991 to denote democratisation processes in Latin America, Southern Europe, and post-Socialist Central and Eastern Europe.
 Bueno de Mesquita, Bruce, and Downs, George W. (2005). Development and Democracy.
Foreign Affairs, Vol. 84, No. 5 (Sep. – Oct., 2005), pp. 77-86.
 Kochenov, Dimitry (2017). Busting the Myth Nuclear: A Commentary on Article 7 TEU. EUI Working Paper LAW 2017/10.
 Pech, Laurent, & Scheppele, Kim Lane (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, pp. 3–47
 Kim Lane Scheppele. In Praise of the Tavares Report. Available at <https://eutopialaw.com/2013/07/04/in-praise-of-the-tavares-report/>.
 Bozóki, András & Hegedűs, Dániel. An Externally Constrained Hybrid Regime: Hungary in the European Union. Democratization, Vol. 25, No. 7, pp. 1173-1189.
 The report lists, among others, concerns regarding the constitutional and electoral system; the independence of the judiciary; corruption; privacy and data protection; freedom of expression; academic independence; freedom of religion and association; the right to equal treatment; the rights of minorities, migrants, asylum seekers, and refugees; and the abolition of economic and social rights.