Get out of the EU if you don‘t like it, demissionary Prime Minister Rutte told his Hungarian counterpart Orbán. According to Rutte, EU Heads of Government had been touched to tears in the heated discussion on Hungary’s much-talked anti-gay law on Thursday evening. But what options does the EU have against a Member State that has been tapped so many times?
European Commission President Von der Leyen said this week that she will “use all powers”. Experts expect a new legal process from Brussels against Budapest anyway. Because the Orbán Government has been litigating from the European Union for years for eradicating the rule of law and restraining the media.
“I have often heard tough words from Brussels towards Hungary,” says Kees Sterk, former Vice-President of the Council of Justice and former President of the European Network of Councils for Justice.
“So far there hasn‘t really been bitten. There are plenty of tools for the lack of political will, particularly in the Commission.” But even among Member States, there is rarely a consensus to tackle another hard.
What’s going to happen now?
Von der Leyens warning letter to the Hungarian Government is likely to lead to a new infringement procedure. “That is a hard way to demonstrate that the Commission believes that there is an infringement of fundamental rights within the Union,” says Linda Senden, Professor of European Law (UU). “Think of it as a political and legal jousting.”
The Commission is proposing that Hungary violates the principle of anti-discrimination. But the government strongly contradicts that and says that the law in question is intended to protect children. Experts tell DecceIT that the fuss play Orbán in the approaching parliamentary elections.
If the two parties do not come out through the infringement procedure, the European Court of Justice will decide who is right. In case of conviction, a fine (one-time amount, often in the millions) or penalty payment (additional fine per day or week as long as the law is not amended) may be imposed.
“There‘s no limit on that fine, so it can potentially be a lot of money,” says Sterk. Ultimately, the ball lies with the Commission what amount is being claimed.
“The Commission has a lot of freedom in how fast the procedure is going,” Senden adds. That makes it hard to tell how long it’s going to take. Usually such a case takes a number of years from start to finish.
How special is this situation?
An infringement procedure is not exceptional: hundreds are initiated annually. Recently, for example, one against the Netherlands, because the Commission believes that the government is doing too little against expressions of racism and xenophobia.
Several infringement proceedings have also been launched against Hungary in ten years. “But they haven‘t led to fines yet,” says Sterk.
He believes it is special that the Hungarian anti-gay law is on the agenda of EU leaders of government. And that, according to Rutte, the emotions have risen so high.
Rutte said Luxembourg Prime Minister Bettel made a “very emotional plea” about what it was like for him to get out of the closet:
“It’s really exceptional that legislation goes so far,” says Senden, who also specializes as a lawyer in the field of equal treatment. The law signed by Orbán this week falls within a pattern, according to her. “We see that there is a conservative trend going on in more Central and Eastern European countries, putting pressure on gender equality.”
Hungary is not only in the discussion. Orbán receives support from Slovakia, Slovenia, Bulgaria and Poland.
What else can Brussels do?
If the Commission wants it, it could cut Hungary to the approximately six billion euros of subsidy that the country receives annually. This has been legally possible since 1 January if the government of a Member State fails to comply with European rule of law rules.
“But Poland and Hungary have started a case at the Court to delete that legal instrument,” says Senden. Nevertheless, Brussels could already use it. As long as the court has not declared it unlawful, the measure is valid, the professor explains.
Gay rights are under pressure in Europe.Cceit on 3 explains in this video:
Ultimately, there are all sorts of interests that, at least so far, Brussels has been relatively mild for Hungary, according to Sterk. With its veto, for example, the country can stop the EU budget or other major decisions.
“It is therefore difficult to say whether this issue is the prelude to a harder attitude towards Hungary, or whether it is just an emotional burst for the work.”
What about the Article-7 procedure?
againstHungary is already running a process to deprive voting rights within the European Council. This Article 7 procedure is considered to be the most severe penal measure possible. Poland and Hungary are the first Member States it started against.
But three years after a large majority in the European Parliament voted for it, it has led to nothing concrete yet.
The reason is that it takes only one Member State to block these severe penalties. So Poland can save Hungary, or vice versa, and so has happened so far. “So with these teeth, Brussels can hardly bite in practice, even if it wants to,” says Senden.
Can Hungary be expelled from the EU if necessary?
No, that‘s pretty much impossible. There is no treaty that can do this. If a country wants it itself, it’s possible: look at Brexit. But Hungary has little benefit from getting out of the EU voluntarily.
In theory, a treaty can be drafted for expulsion of an EU country. However, all other Member States have to agree unanimously. And as long as Poland or another EU country, for example, continues to support Orbán, it is not in it. By the way, Rutte also opposes the import of such an article, he said this week.