The EU Commission should stop accepting symbolic compliance from the Hungarian government and enforce substantive agreements by making the burdensome infringement procedures more efficient.
After the far-right Eurosceptic populists did not perform as well as it had been predicted, the Orbán government postponed the introduction of the administrative court system indefinitely due to concerns from the EU.
Since the new system would undermine the separation of powers and limit the freedom of judges to interpret the law, an infringement procedure was in the EU’s pipeline right before the Hungarian government dropped the law.
Whilst Viktor Orbán has been orbiting a broader Eurosceptic and populist alliance that questions the fundamentals of the EU integration, now he is making significant concessions to stay in the European People’s Party.
A crime in the making
But we shouldn’t fool ourselves: despite these latest concessions, Viktor Orban wouldn’t backtrack on almost a decade of authoritarian system-building that has led to an unprecedented centralisation of power and an uneven playing political field.
This has been mirrored accurately by his latest move; although the National Judicial Council (OBH) turned to the National Assembly to remove the head of the OBH from her position because she had been exercising her authority without constitutional oversight
and breached the principle of controlled authority clearly detailed in the Constitution, the Assembly confirmed Tünde Handó in her position on Tuesday. Thus, Orbán has successfully protected the majority of his efforts to transform the Hungarian political system for the past nine years.
Nothing will stop the ruling party from continuing to take over all the research institutes of the Hungarian Science Academy and bending it to the will of a new organisation called the Loránd Eötvös Research Network.
Although formally it won’t be subject to the supervision of the government, one should have no doubt that it will be under the cabinet’s sway as its leader will be nominated by Orbán and half of the body will be filled by the government’s appointees.
The reason behind this restructuring operation is the changing macropolitical environment in the EU that is about to introduce changes in the direct EU payments to restrict misuse of EU funds and cronyism in the member states.
As István János Tóth, the director of the Corruption Research Centre Budapest has rightly pointed it out, the main goal of the Orbán government is twofold: to ensure for the efficient absorption of EU funds and to maintain the long-term sustainability of systemic corruption in order to finance its clients loyal to the regime.
As EU funding cannot undermine academic freedom which is guaranteed by Article 13th of the EU Charter of Fundamental Rights, the EU Commission urged the government to refrain from any such decisions that limit the scientific and academic freedom in the country.
Nonetheless the EPP will make its final decision about Fidesz’ status only in November. Manfred Weber said that in order for Fidesz to remain in the EPP, Orbán has to stop its campaign against Brussels and the EU, he has to apologise to the members of the EPP and Orbán has to ensure that Central European University’s Budapest campus can remain open.
Whilst the first two has been absolved, the Hungarian government still has not changed its mind about CEU as it is obviously sabotaging an agreement that was made between the university founded by George Soros and the Technical University of Munich. According to the deal orchestrated by Manfred Weber, three professorships will be established in partnership with the Technical University of Munich (TUM) and jointly funded by BMW and the Bavarian government.
The entire agreement, however, depends on whether the Hungarian government will ratify an international agreement guaranteeing the freedom of CEU to operate in Budapest as a US degree granting institution.
It is very telling that it still has not lived up to its commitments and keeps smoke screening by claiming that the agreement could not unfold in practice due to Bavarian regulations. Which means that Orbán plays the same old cat and mouse game that has effectively led to the expulsion of an American university from EU territory.
No real consequences
Now that Fidesz has made a U-turn and fully supports Weber to be re-elected as the head of the EPP, the agony surrounding the CEU might be complex and vague enough to provide space for them to comfortably manoeuvre, since the EPP has quite a short memory when it comes to the tactical moves of Orbán.
Given that Brussels has launched an infringement procedure against the Hungarian government in December 2017, in the end of the day, it will be the European Court of Justice that will make a final, presumably negative decision. However, this will only allow for Orbán to backtrack again and restore the education law (which stripped the Hungarian Academy of Sciences its autonomy) without suffering any political consequences.
The lesson should have been learnt by the EPP was that Orbán can easily continue to play this game of “tightening-loosening” his autocratic control over Hungary for a long time with the Commission.
Furthermore, it is rarely examined how informal exercise of power and complex clientelism contributes to the long-term sustainability of the Orbán regime in the heart of the EU.
Based upon a study conducted by two researchers from Yale University, four different types of clientelism prevails in Hungary: vote buying, the provision of public benefits in exchange for votes, coercion through threatening receipt of benefits, and economic coercion involving threats from non-state actors, such as moneylenders and employers.
One of the most effective tools that has been used for clientelist exchange is the so-called “workfare programme” that become a highly politicised resource in the recent election: currently, it is a source of both promises and coercion. In 2011, the benefit of the program was around 75,000 HUF per month, which almost reached the level of minimum wage in Hungary. According to the research, the Hungarian government is using it as a coercive tool to multiply the support of Fidesz’ candidates.
In the Hungarian countryside, people have reported that in order to be able to participate in the workfare program they had to vote by open ballot during the parliamentary elections to show that they are actually supporting Fidesz.
Furthermore, local moneylenders also have an important role in this coercive clientelist system as they can also “ask favours” in order to be cooperative when needed. Therefore, the essence of Orbán’s system is that it is dissolving social autonomy on every level through the establishment of feudal relationships of dependence.
The Commission – which cannot consequently enforce substantive compliance with EU values – often settles for symbolic results and, importantly, is lacking the necessary tools to restrict Orbán in connection to this practice.
In contrast to Poland – where the PiS government openly violated the constitution while approving more than 13 laws which subjugated the judicial branch under the executive, affecting essentially the whole spectrum of the judiciary – Orbán didn’t have to act in such a blatantly illegal fashion due to his constitutional majority.
For him, it was enough to operate effectively in the grey zone. The Hungarian government is “untouchable” for Brussels partly because – for instance – the EU procedures aimed at monitoring the institutional and legal systems cannot deal with Orbán’s informal power politics.
Therefore, it is more important than ever that the EU Commission should stop accepting symbolic compliances of the Hungarian government and enforce substantive compliance with EU values by making burdensome infringement procedures more efficient regarding Hungary.
The Commission should employ more targeted legal arguments so that the EU Court of Justice will have way more space to manoeuvre to interpret the EU Treaties in an effective manner.
Even though PiS has not given up on its long-term transformation of the entire judicial system, what we have seen in the case of Poland is that the infringement procedure – and not Article 7 – which had at least slowed down the authoritarian system-building efforts of the government.
*This article was amended on 19.6.19 to reflect that the benefit programme mentioned above was in reference to the year 2011.