I. Where is the problem?
It is largely the purview of the member states to define the political system for allocating collective goods. The EU protects the constitutional autonomy of its member states (Art. 4(2) TEU). The new Hungarian constitution also enjoys this protection, although it may have received a nationalist hue reflecting the Orbán government’s majority. In principle, the EU should respect the democratic decisions of member states, as part of its legitimacy rests on this. But European democracies cannot and must not be understood merely as expressions of majority rule; they must also provide sufficient protection for minorities. To the extent that a minority is hindered from becoming a majority, there is no longer democracy to speak of, and this is the problem, alongside Europe’s many difficulties with the Hungarian patriotism of the autocratic governing Fidesz party.
It is not merely by intimidating the opposition and through staffing decisions that the Fidesz “system” is to become permanently rooted in Hungarian society. And it is not only contentious laws – such as the much-discussed media law, for example – that are at odds with European human rights. In addition to attempts to establish political controls over the media, the judiciary and the election system, particularly problematic are policies designed to ensure that the government’s political decisions cannot be reversed even under future changed majorities. The fossilisation of the current political circumstances beyond the legislative period makes national constitutionalism à la Hungary a problem for European constitutionalism.
The issue is becoming virulent in the case of freedom of the press. Democracy in the EU is at risk if EU citizens in member states can no longer freely express their opinions, or inform themselves through independent media – all the more so, since democracy in Europe rests with good reason on safeguarding individual rights. While a functionalist understanding of fundamental and human rights supporting the creation of a “supranational” democracy may have its limits, transnational democracy is not possible without effective protection of EU citizens’ rights in the member states – which long ago ceased to be constrained to market freedoms. This, at least, is the German experience. Thus, in the safeguarding of EU citizens’ basic liberties for which Europe is responsible, the conditions for political change must emerge, and political forces on the ground will have to take responsibility for them.
Meanwhile, as the debt crisis has made clear, not only the structural weaknesses of the treaties are palpable. It is also a political failure to have pressed for fulfilment of the accession criteria initially, but then to have neglected the long-term conditions for a European perspective in the new member states, and to have left the monitoring of human rights and the development of democracy to the Council of Europe. The latter has called upon the EU to become active in safeguarding freedom of the press in Hungary, and – as in the euro crisis –there is a growing consensus that new paths forward must be explored. But what could a “rescue facility” for basic rights and democracy look like?
To pose this question behind putative fiscal necessities could prove devastating for the EU, but the leverage of economic sanctions could also be employed in the service of democracy to end authoritarian tendencies in member states. Where the preservation of a freely and democratically constituted structure in the member states is concerned, the political actions taken by EU institutions look rather scanty thus far, and a dangerous imbalance has arisen with the EU on the one hand driving a democratically elected government out of office (Greece), and on the other hand passively looking on as fundamental freedoms deteriorate not only on the periphery (Ukraine) but also in the heart of Europe (Hungary). Under Art. 2 TEU, member states are obligated to protect human rights, and under Art. 7 TEU they are subject to a mechanism of political sanctions. This mechanism is indeed tied to strict pre-conditions, and experience hitherto – for example, in connection with the Haider affair – has revealed reluctance among member states and EU institutions alike to pillory a disagreeable government in this manner. What then can be done in this situation? Should the protection of human rights be left to the ECHR – and consequently to a judicial regime under international law? Can the EU look the other way in order to survive as a regional grouping with limited powers in the intergovernmental politics of cross-national cooperation? Surely, a remedy must be expected primarily from institutions in Hungary, particularly since there is a lively, albeit discordant, opposition there. But what support and assistance can public institutions in Hungary expect from the EU in protecting EU citizens’ rights?
II. Various options
There are various options to consider in answering the question of how systematic risks to democracy in Europe should be confronted:
- A distinction should be made between short-term and long-term measures. The Commission is content with the traditional approach of prompt admonition for infringements. Accordingly, it launched an infringement proceeding against Hungary over breaches of the national data protection authority’s independence. But it appears that there are no strategies designed to protect democracy in member states in the long term.
- A distinction should also be made between options contrived in the logic of the integration scheme and a new process that may require changes to treaties. As a non-hierarchical organisation, the EU is based on voluntary compliance with European law. Not force, but the reciprocal recognition of rights and obligations is the basis of the European project. This favours continuing to rely on decentralised mechanisms to enforce the rule of law in order to strengthen the ability of institutions in member states to formulate a European perspective. Only this will enable European values to be accepted not as foreign values, but as member states’ own values.
- Idealistic, normative conceptions are pitted against realistic proposals which are resilient in practice, yet remain cognizant of the limits of the integration project. It is precisely because the legitimacy the EU’s political authority cannot be construed in a manner analogous to that of states that the EU remains rather dependent on functioning political systems in the member states; proposals must thus take the specific structure into account when integrating levels. A distinction can also be made here between constitutional principles and administrative mechanisms more strongly targeted at improving governance structures and at effective monitoring.
- In this connection, the question of who should be called upon to protect democracy is important. Insofar as individual freedoms are at issue, the courts cannot be denied a special responsibility to protect fundamental and human rights, and this applies to national as well as European courts. Since judicial solutions offer only limited compensation for the structural weaknesses of political measures, the jurisprudence of European courts is all the more marked by restraint vis-à-vis the political process. However, as important as it is to distinguish between political and legal solutions, these are not necessarily incompatible: Under Art. 7 TEU, political solutions have high opportunity costs, but will hardly make it unnecessary to engage the courts. On the other hand, legal measures activated by the courts to protect basic freedoms and which are enforceable in national courts by EU citizens must observe the limits of judicial protections extending beyond human rights.
III. Between politics and law: Ways out of the crisis
There is no doubt that political solutions need to be sought, but the conservative parties associated in the EPP Group in the European Parliament have obviously not managed to exercise effective influence on the Orbán government. In particular Germany and the CDU, as well as the CSU – which has not sufficiently distanced itself from the “national revolution” in Hungary – have a special responsibility here to prevent the Hungarian government from sliding into a nationalism which systematically disregards basic European values.
After all, it is one thing to pursue a consistent policy of anti-communism based on the aspirations of the freedom-loving Hungarian people and to want to hear no more of the reformed 1989 constitution, but it is quite another to place national policy above EU law in order to garner political capital. It is therefore unacceptable to enact retroactive laws, accuse former members of government of a “political crime” over increased public debt and throw them in prison. “No penalty without a law” is a European legal principle which cannot be overridden by a crude form of nationalism, and the EU and its member states must ensure that it is respected. In many respects, Eastern Europe seems closer to developments in Russia than Europe would like.
One of the EU’s characteristics is that its basic values are formulated abstractly in Art. 2 TEU, while their implementation with the large bazooka of Art. 7 TEU involves a lengthy and complicated process, requiring a unanimous finding in the European Council of a “serious and persistent breach”. The revocation of voting rights in the Council requires extreme circumstances comparable to a military coup, and would thus rest on shaky ground in the case of Hungary. None of the measures implemented or planned by the Orbán government could rise to this level unquestionably. Moreover, such a proceeding may be in vain due to lacking or poor experience with the Art. 7 mechanism, and state indictment under Art. 259 TFEU hardly has practical meaning.
Nevertheless, the EU cannot and should not simply look the other way when the cumulative effect of many individual measures aimed at making the political circumstances of the Fidesz system “unassailable” is resulting in deteriorating standards of democracy and the rule of law in the sense of Art. 2 TEU. The legal codification of the “constitutional culture” which exists under the present majority constitutes a systemic risk, which, if deprived of political change, threatens the fundamental values of democracy common to all member states under Art. 2 TEU. Although there may be a range of technical options short of Art. 7 TEU for exercising a certain amount of pressure on the Hungarian government which are not inconsiderable in their practical relevance, political sanctions under Art. 7 TEU are subject to elevated risk reminiscent of passing UN Security Council resolutions, as the approval of nationalist-oriented governments for collective action against Hungary will hardly be easy to secure.
Art. 7 TEU sets a high bar. There must be a “serious and persistent breach” by a member state of the fundamental values specified in Art. 2 TEU. A “clear risk” of such a breach can be established at the request of one-third of the member states, of the European Parliament or of the Commission by the Council with a four-fifths majority – i.e. presently 21 member states – following approval by the European Parliament. The European Council must rule unanimously that such a breach has truly occurred and then the Council, in turn, can resolve with a qualified majority to suspend certain rights of the member state in question, including suspension of voting rights of the government’s representative in the Council. It must be viewed as questionable whether a politically astute government refusing to cooperate with EU institutions would be impressed by the threat of such a sanctions process. It does not provide for the exclusion of a member state; rather, Its significance lies in the preventive function of averting the renunciation of the EU’s common values. It makes clear that a member state’s claim to protection of its constitutional identity under Art. 4(2) TEU is subject to the proviso that the fundamental values of Art. 1 TEU must be upheld.One thus poses the question of whether there isn’t an alternative to this “central” mechanism. At least for the protection of individual rights as they have been challenged by the Hungarian media law, a reverse Solange proviso may be an option. The Solange argument is a central conflict-resolution mechanism under which the German Federal Constitutional Court, among others, has deferred to the EU in reviewing the latter’s exercise of sovereign power with respect to compliance with German fundamental rights, as long as sufficient protection of fundamental rights is ensured generally at the European level. In view of the precarious situation of minorities and migrants, as well as the growing threats to freedom of the press in the European jurisdiction, international and European law scholar Armin von Bogdandy and his team from Heidelberg’s Max Planck Institute for Comparative Public Law and International Law have proposed, in an opinion for the German Foreign Office, the reverse application of the Solange doctrine vis-à-vis member states. Accordingly, EU citizens cannot appeal to fundamental EU rights, as long as there is a presumption that the substantive content of such fundamental rights, as guaranteed under Art. 2 TEU, is ensured in the relevant member state. This presumption can be refuted, however, and in such a situation the “core” of EU citizenship applicable to domestic matters under recent ECJ jurisprudence would have been established.
In the meantime, there has been lively discussion on the pros and cons of this judicial construct (cf. www.verfassungsblog.de). Placing the safeguarding of individual rights in the hands of the courts is in line with common European tradition, although jurisprudence linking fundamental EU rights with the institution of EU citizenship has been rather restrained hitherto. Nor has the considerable expansion of EU citizenship in the ECJ’s jurisprudence as an emergent concept alongside national citizenship been without criticism. And in any case judicial protection of individual rights cannot replace political discussions on the progress of integration. One thing is certain: The protection of fundamental rights cannot simply compensate for democratic procedures, as unwieldy as they may be. Without sufficient safeguarding of human rights in member states, democracy in the EU is at risk, for it is not sustained by a homogenous collective, but by its citizens.
The objections to a reversed Solange proviso are considerable. Is this not another attempt to conceal a weakness in the political system, as the treaties stipulate, with a judicial construct? Doesn’t the very jurisprudence run up against functional and performance limitations? Are the issues of legitimacy to which an extensive judicature of national or European courts is subject being disregarded? Doesn’t Europe need more politics – understood as a facilitator of collective legitimacy – which cannot be achieved simply by maximising individual legitimacy? In addition to safeguarding the fundamental rights of individuals, this also requires the democratic processes which create legitimacy.
But what is to be done if political institutions are unable to counter massive breaches of fundamental rights in member states? Insofar as the Commission has referred to the restricted scope of application of fundamental EU rights, which are binding on member states under Art. 51 of the Charter of Fundamental Rights of the European Union “only when they are implementing Union law”, it can be understood as averting a unitarisation of protections for fundamental rights at the EU level, but this is only of limited relevance. One reason is because member states are obligated – beyond the scope of application of the Charter – to “respect human rights” under Art. 2 TEU; another is the fact that it is not obvious why this obligation should be enforceable exclusively through the process stipulated in Art. 7 TEU. Grave infringements upon the substantive content of fundamental rights affect the basic status of citizens in the European jurisdiction. The ECJ has recognised that the “core” of EU citizen status also encompasses domestic matters, and is therefore binding on national sovereignty regardless of its transnational basis.
The standard of a core of status rights, however, is just as vague as the substantive content of basic rights stipulated in Art. 2 TEU in respect of member states. Jurisprudence would be accorded a scope of interpretation which with good reason could be subject to politics in the process under Art. 7 TEU. However, since Art. 2 TEU – unlike the rights stipulated in the Charter – is uncontroversially binding on every exercise of official authority in member states, at issue here – as the Heidelberg proposal emphasises – is not the allocation of judicial authority between the EU and the member states, but rather the institutional competence of the ECJ. But the latter also extends to Art. 2 TEU and to ensuring observance of the law (Art. 19 TEU). In other words, Art. 7 TEU as a political process has no limiting effects vis-à-vis the judicial safeguarding of the fundamental rights of EU citizens, which – if they are systematically breached and EU citizen status is deprived of its practical effect – must not be subjected to the vagaries of political institutions.
Not every breach of fundamental rights, but only those limitations of the substantive content of human rights per Art. 2 TEU applied under the system of the relevant member state which cannot be eliminated through simple corrective measures constitute a refutation of the presumption in Art. 4(2) TEU, applied out of respect for the identity of member states, that the member state is in compliance with its obligations under Art. 2 TEU. There is much evidence that under such – limited – circumstances the rights resulting from EU citizenship status are affected at their core. If the presumption of the observance of basic human rights can be refuted, the individual can appeal in a national court to national fundamental rights and the European Convention on Human Rights, but also to the core of EU citizenship including the European enforcement mechanism. Notably, this results in the right, or rather the obligation on the part of the national court, to bring such questions of application to the ECJ for a preliminary ruling. The referral of questions determined under national constitutional law is not a general practice of national supreme courts, however, as the German Federal Constitutional Court’s practice of not referring such cases demonstrates. But if this were to be abandoned, every member state would be able to define the contents of Art. 2 TEU according to its own interpretation, and thus to nullify it.
This is a decentralised mechanism, for the option of referring cases to the ECJ in critical situations will afford “cover” to national courts. This should not be misunderstood as a simple extrapolation of “integration through law”, as the cooperation of the courts is riddled with preconditions and cannot replace the political process. In this respect, the situation is distinct from the early phase of integration, which was significantly characterised by the establishment of a community under the rule of law. Political problems require political solutions, and little can be expected in the short term from a near-judicial solution. The EU’s political system is not properly set up to address domestic threats to democracy. At most, criticism on the part of EU institutions is restricted to areas where there are immediate issues of European law. For this reason, empowering citizens to present their concerns as European concerns before the institutions of their home countries is an important mode for making political solutions possible in a community obligated to uphold human rights, democracy and the rule of law.
The primary responsibility for ensuring individual rights and democratic openness rests with national courts and national politics. This does not mean, however, that a subsidiary safety net to cope with systemic threats to fundamental European values can be considered unnecessary, so that a country like Hungary – should its government reject political cooperation with EU institutions – can step into a European rescue facility for basic rights. Surely no judicial ruling will be able to seize the democracy problem by its roots, and it should be emphasised again that effective protection of basic liberties is a necessary but not sufficient condition for democracy in Europe. But with Hungary in mind it would be a mistake to assume that all state institutions are on an anti-European path. While national courts may not always subordinate themselves to the ECJ’s requirements, this is acceptable under constitutional pluralism, where there can be no last word. That he Hungarian Constitutional Court has not allowed itself to be brought into line with the Fidesz “system” was demonstrated, for example, with a ruling on the unconstitutionality of parts of the controversial media law. Why not support this courage at the EU level? Why not place the fate of European democracy in the hands of EU citizens who have rights in their own member states which can be brought to bear against a slide into overreaching nationalism?
This would be a European way that would not replace political solutions but would place pressure on member states and EU institutions alike to justify a reciprocal policy of looking the other way, and would provide a safety net in the event of an escalation of the crisis and a failure of political solutions.--
Claudio Franzius has been a private lecturer in the law department of the Humboldt University in Berlin since 2008 and is currently filling in as department chair at the University of Hamburg. Before this, he worked at the Universities of Bremen, Constance und Frankfurt/Main. Claudio Franzius teaches the legal basis of policy at the Otto Suhr Institute of Political Science at the Free University of Berlin. His research focuses on European constitutional law, national and administrative law and European domestic policy. Current publication: "Strukturfragen der Europäischen Union" (with Franz C. Mayer and Jürgen Neyer; Nomos 2010).
English translation: Petra and Evan Mellander
 See Bogdandy et al., Ein Rettungsschirm für europäische Grundrechte, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 72, 2012, 45 ff.