Challenges to EU Values in Hungary : How the European Union Misunderstood the Government of Viktor Orbán

The national-conservative government of Hungary has been heavily criticised for its violation of EU values, primarily, the rule of law in recent years. This book looks to the bigger picture in examining the rule-of-law debate between Hungary and the EU. It explores how certain elements of various Hungarian constitutional reforms are interrelated and how the EU has failed to address the situation properly. It is argued here that the reason the EU has been unable to enforce its values effectively in Hungary stems from the misunderstanding that Hungary kept the institutional design of liberal democracy but made it dysfunctional. The debate with the EU is characterised as a dialogue of the deaf as the EU insists on advancing the rule-of-law agenda, while the Hungarian government defends itself by alluding to its democratic legitimacy. The author contends that the Hungarian government is in fact playing a charade, while the actions of the EU maintain this drama. The book will be of interest to students, academics, and policymakers working in the areas of constitutional law and politics, EU law, and populism. Cover Half Title Series Page Title Page Copyright Page Dedication Table of Contents Acknowledgement Introduction: The virtuous EU versus the villainous East? Chapter 1 Values instead of rules, politics instead of constitutionalism 1.1 Rule of law and/or democracy? A question of priority or a question of proportion? 1.1.1 Majoritarian and ‘liberal’ democracy 1.1.2 Why the EU stands for liberal democracy and prioritise the rule of law 1.1.3 EU rule of law, liberal democracy, and (legal) constitutionalism 1.2 The concurring paradigms of legal and political constitutionalism 1.2.1 Legal constitutionalism: when the pouvoir constituant empowers the courts 1.2.2 Political constitutionalism: unreasonable trust towards the legislative power? 1.3 Article 2 TEU as a provision for legal constitutionalism Chapter 2 The attempt to enforce ‘common values’ 2.1 Article 7 TEU: a political bomb, proven not to be nuclear 2.1.1 The background of the Article 7 TEU sanctioning mechanism 2.1.2 The functioning of the mechanism 2.1.3 The main shortcoming of Article 7 2.2 The inevitable failure of soft political tools 2.2.1 The weaknesses of the Rule of Law Framework 2.2.2 The failed idea of a scoreboard for EU values 2.2.3 Instead of a scoreboard: Annual rule of law reports made by the Commission 2.3 Buying the rule of law? The new conditionality mechanism 2.4 The potential of the ECJ and the EU Charter of Fundamental Rights 2.4.1 Independent judges and the rule of law: from Portugal to Poland 2.4.2 The Polish government is afraid of judges rather than of Article 7 2.4.3 How the issue of the Polish judiciary escalated 2.4.4 The end of mutual trust? 2.4.5 The ECJ and the Hungarian judiciary 2.4.6 Laws designed for enemies and the EU Charter of Fundamental Rights Chapter 3 Article 7 TEU in practice, or misunderstanding Hungarian ‘illiberalism’ 3.1 The Hungarian Basic Law is not an ‘illiberal’ constitution 3.2 The waves of the Basic Law: The ‘Tavares report’ 3.2.1 The circumstances of constitution making and amending 3.2.2 The extensive use of cardinal laws 3.2.3 Limiting the competences of the Constitutional Court 3.2.4 Particular institutional reforms: the Budget Council and the Data Protection Authority 3.2.5 The first changes regarding the judiciary system 3.2.6 Electoral reform 3.2.7 Media freedom 3.2.8 Fundamental rights and rights of minorities 3.2.9 The main effect of the Tavares report: a chance for sham cooperation 3.3 Activating Article 7 TEU: the ‘Sargentini report’ 3.3.1 How MEPs failed to see the big picture 3.3.2 The constitutional system and the judiciary: between superficial repetitions and relevant details 3.3.3 Fundamental rights: political manifesto without proper analysis 3.3.4 Discussing political hot topics without understanding the background 3.3.5 A procedural flaw: the debate over abstentions 3.3.6 The effects of the Sargentini report: late, indirect, and purely political 3.4 The essence of the misunderstanding: believing the legal constitutionalist charade and forgetting about democracy Chapter 4 Elements of the Hungarian legal constitutionalist charade 4.1 The stage: Laws designed for friends and enemies 4.1.1 Selected lex enemies 4.1.2 Selected lex friends 4.2 Sometimes a set, sometimes a prop: the Constitutional Court 4.2.1 Why the Constitutional Court could not defend the Basic Law 4.2.2 How to interpret a chaotic constitution coherently, moreover, with limited competencies? 4.2.3 The Constitutional Court in the fight between the government and the EU 4.2.4 Surviving strategies under a two-thirds majority 4.3 The prompters: the judiciary system 4.3.1 Conflicts within the judiciary: legal loopholes and controversial practices 4.3.2 A point where Orbán stepped on the back foot: the administrative courts 4.3.3 Enhancing the influence of top courts over ordinary courts 4.4 The director and the actors: playing democracy 4.4.1 Tricky changes in the election system 4.4.2 Making the election campaign more difficult for the opposition 4.4.3 Dealing with the opposition: shaping their election strategy and silencing them in parliament 4.4.4 Government propaganda broadcasted by ‘privately owned’, concentrated media 4.4.5 Decreasing the relevance of direct democracy 4.4.6 Weakening representative democracy through a strange outsourcing practice 4.5 A special scene: the state of danger during the COVID pandemic Chapter 5 Awkward questions instead of catharsis 5.1 A community of values or a community of money? 5.2 What if there is no public demand for the rule of law? 5.3 Could the public demand for constitutionalism be externally created? Index "The national-conservative government of Hungary has been heavily criticised for the violation of EU values, primarily, the rule of law in recent years. This book looks to the bigger picture in examining the rule-of-law debate between Hungary and the EU. It explores how certain elements of various Hungarian constitutional reforms are interrelated and how the EU has failed to address the situation properly. It is argued here that the reason the EU has been unable to enforce its values effectively in Hungary stems from the misunderstanding that Hungary kept the institutional design of liberal democracy but made it dysfunctional. The debate with the EU is characterized as a dialogue of the deaf as the EU insists on advancing the rule of law agenda, while the Hungarian government defends itself by alluding to its democratic legitimacy. The author contents that the Hungarian government is in fact playing a charade, while the actions of the EU maintain this drama. The book will be of interest to students, academics and policy-makers working in the areas of Constitutional Law and Politics, EU Law, and Populism"-- Provided by publisher