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Nov 09, 2018

Note by the Hungarian Government on the Resolution adopted by the European Parliament on 12th of September 2018 on Hungary

The European Parliament adopted its Resolution of 12 September 2018 on a proposal calling on the Council to determine, pursuant to Article 7(1) of the Treaty on European Union (TEU), the existence of a clear risk of a serious breach by Hungary of the values on which the Union is founded (hereafter: Resolution).

As a next step, the procedure continues in the Council of the European Union where it is up to the Council as a body to assess the issue at hand and decide if necessary. In this phase and in order to respond to the invitation of the European Parliament Member States have to take their own position whether they see a clear risk of a serious breach of the values of the Union by Hungary, as stipulated in Article 2 TEU.

As regards the procedural aspects of the Resolution of the European Parliament, the Hungarian Government’s position is that the method of calculating the voting on the Resolution constitutes a manifest breach of the essential procedural rules and is deemed to be legally non-existent and void. Therefore, the Hungarian Government has brought a legal procedure to the Court of Justice of the European Union seeking for annulment of the Resolution. Thus, the validity of the Resolution is to be decided by the Court of Justice of the European Union. In its action Hungary argues that the European Parliament has breached Article 354 (4) TFEU as well as Article 178 (3) of its Rules of Procedure by excluding abstentions when calculating the votes cast. If abstentions had been counted as votes cast, the Resolution would not have been adopted.

Irrespective of the validity of the Resolution, it contains severe and serious allegations against Hungary which the Hungarian Government rejects. The procedure and the decision of the European Parliament were politically motivated. Instead of perceptions, emotions and subjective assessments, the Council should base its decision on facts, precise legal provisions and objective analysis. This puts an enormous responsibility on the Council to re-establish confidence, fact based approach, exclude double standards, provide equality of Member States and give an appropriate application of the Treaty rules. It should also be carefully considered that by making unfounded allegations against a Member State/Member States or by referring to the breach of the values of the Union just because of political /ideological motivation, the unity of the European Union is severely undermined and the confidence among Member States or between Member States and European institutions is seriously damaged.

As regards the findings of the Resolution, the Hungarian Government is of the view that they are unjustified. They lack and deny basic facts, are misleading and give false interpretation of the situation in Hungary. As a result, the Resolution draws unfounded conclusions by declaring that there is a clear risk of a serious breach by Hungary of the values of the Union.

The motivation of the European Parliament was deeply political and should be considered in the context of party politics and ideological divisions between different European political forces as to the future of Europe and diverging answers to the migration challenges less than one year before the May 2019 European Parliament’s elections. The procedure in the Council, under Article 7(1) TEU, has a clear legal nature and should follow the facts, rules and the principles of the Treaties.

This is the first time that the European Parliament initiated the Article 7(1) TEU procedure. As such, we expected an evidence-based, legally sound, detailed and impartial preparation with the possibility for the Hungarian Government to voice its official position even in a highly political investigation. Instead, what we experienced was that the European Parliament did not carry out its own research on a given policy field, it based its findings on the opinion of government critical NGOs and presented the report of different international organisations on a selective and distortive manner that resulted in an arbitrary compilation, called reasoned proposal.

We believe that it is important for all you to know that the European Parliament adopted its Resolution on Hungary offering limited possibility to the Hungarian Government to provide full information and its position on the issues raised during the preparatory process. The representative of the Hungarian Government was provided only 1 x 10 minutes and 1 x 15 minutes to publicly present its points of view during the elaboration of the Resolution since it was assigned to the rapporteur in July 2017. Besides that the Hungarian Permanent Representative was invited only to one shadows’ meeting out of ten all held behind closed doors. Moreover, the Hungarian Government has not received any reply or reaction from the Rapporteur to the official background documents and information sheet containing the comments of Hungary on the draft report which were sent to the Members of the LIBE Committee, nor were any of the remarks or comments taken on board at any stage. Instead of following the usual transparent practice, there was no official EP delegation or fact finding mission sent to Hungary. Ahead of the plenary vote, representative of the Hungarian Government requested bilateral meeting with the Rapporteur who refused setting up such a meeting.

The Hungarian Government condemns this approach, in particular because the European Parliament refers to the rule of law but demonstrated total lack of openness for engaging in a dialogue during the process with the subject of the report, namely Hungary. The allegations and rule of law concerns of the Resolution are related to our constitutional and legal system. However, the European Parliament was not interested in studying these rules in detail and did not try to understand them taking into account the constitutional tradition of the Member State as provided by the TEU. This is a disappointing experience and we all should draw our conclusions.

You will also find that the Resolution has a Christmas tree approach. In its 77 paragraph it mentions all kind of issues ranging from very different policy areas regardless of their relations to the values of Article 2 TEU. By using attractive titles, the Resolution gives such a false impression that there are exceptionally serious problems in Hungary. However, when you study the different chapters and the „concerns”, you will find that a large part are closed or settled cases, many others are ongoing proceedings before national or European Court and the rest needs simply further clarification.

It is a fact that the European Parliament scrutinised the developments since 2010 but not before. One cannot disregard the political motivation behind this. In the Resolution the European Parliament lists all kind of critical voices of the last 8 years against Hungary regardless of the fact that most of them have become obsolete as these cases have been solved or closed in the meantime. In addition, the European Parliament does not give any justification or explanation how the different questions raised represent a clear risk of a serious breach by Hungary of the values of the Union. It is more like a compilation of concerns, allegation and perceptions by other European or international fora edited by the European Parliament but it is not a reasoned proposal at all. Article 7 TEU is a serious procedure, therefore it should not be used on an arbitrary way but strictly in compliance with the Treaties. During the whole process in the Council, we must keep in mind that Article 7 calls for determining whether there is a clear risk of a serious breach by Hungary of the values on which the Union is founded and whether there was convincing evidence for such a statement.

The Hungarian Government invites all Member States to consider the following crucial guiding principles and approaches during the procedure:

- The present procedure is applied to Hungary. However, as this is the first such case upon the Resolution of the European Parliament, the modalities and the approach to be applied now set a precedent for the future. In this context, it is crucial and lies in the interest of the Union as a whole to clearly declare that any procedure related to the rule of law must be strictly based on the principles of rule of law. As a basis of any procedure with legal (or even political) consequences, it is important to guarantee that the Member State subject to Article 7 TEU or related procedure have the right of defence, i.e. fair opportunity to clarify any aspect at any stage.

- It is also a fact that the content and scope of values of the Union and the rule of law are not based on a commonly agreed full body of legislation approved by Member States. Therefore, prudence and cautiousness in rule of law assessments is necessary and the procedural guarantees contained in the TEU must be strictly applied.

- Hungary is strongly committed to the TEU in general and to the principles enshrined in Article 2, in particular. Democracy, rule of law, market economy, respect for minorities are all values enshrined in the Fundamental Law of Hungary in accordance with the free will of the Hungarian people and not as a set of principles which need to be enforced by external powers. Despite the repeated criticism since 2010, free, democratic and general parliamentary elections three times resulted in an unprecedented majority for the governing coalition. This democratic legitimacy reached as a result of free, democratic and general parliamentary elections is by far the highest in Europe. This empowerment can only be based on the experience and judgement of the people, the rightness of which is difficult to question. Should there be a threat to democracy and the rule of law, it would be the Hungarian people first who would recognize and stand up against it.

- Since 2010, in-depth structural reforms have been introduced in Hungary often having an effect on political and economic interests both domestically and abroad. These legislative changes have always been in the focus of attention in general and also of the European institutions, in particular that of the European Commission. No Member State has ever been subject to such a thorough scrutiny by the European Commission as Hungary was during the last 8 years. The European Commission raised many issues as a matter of concern between 2010-2014, but after detailed consultations between Hungary and the Commission all were settled. As a result of these consultations, in a number of cases the Hungarian legislation, including even the Fundamental Law of Hungary was modified. In other cases, the Commission accepted the clarification provided by the Hungarian Government and closed the case. In the remaining cases, the judgement of the Court of Justice of the European Union was requested, and the judgement was duly implemented. It was confirmed that none of the issues raised by the Commission between 2010-2014 remained open. These facts are crucial as the Resolution adopted by the European Parliament entirely disregard them causing serious disturbance and misinterpretation of the basics.

- It is important to note, that the issues raised concerning Hungary were not and are not ‘per se’ rule of law concerns. It is unacceptable and misleading to conclude that just because of the political and media attention, infringement cases can automatically be qualified as rule of law issues. Rule of law is the basis of our democracies, our societies, therefore, we must use with great caution any allegation undermining its respect by any of our Member States. Regarding Hungary, the European Commission, as guardian of the Treaties, repeatedly confirmed both during the European Parliament’s procedure, and also after that that it does not deem it necessary to launch the Article 7 (1) procedure against Hungary.

- When you study the concerns raised by the European Parliament we would like to invite the Members of the Council to consider the different statements, arguments taking into account the constitutional traditions common to the Member States, moreover the well-established case law of the Court of Justice of the European Union that the internal organisation of the State does not fall under EU law. Just because something is modified in accordance with the relevant constitutional, legal provisions and is contested in the media by representatives of the opposition, it does not mean that it raises concerns of breaching the values of the European Union. This is also true in case some international organisations, NGOs or associations present critical voice on the changes. Equality of Member States also means that the same regulation should be assessed against the same criteria.

- Besides the equality of Member States, other basic principles provided by the Treaties shall also be strictly respected as enshrined from the well-established case law of the Court of Justice of the European Union. According to Article 4(2) TEU, the Union must respect essential State functions, which undoubtedly include what might be defined as the State’s internal self-organisation. Furthermore, the principle of conferral of powers laid down in Article 5(1) and (2) TEU have not conferred on the Union the power to intervene in the internal organisation of its Member States.

- We all belong to the same Union, but we have different constitutional traditions. Therefore, simply having different rules as regards our constitutional order, it does not justify questioning each other’s position on the basis of the values of the European Union. On the contrary, the Treaty itself calls for the respect of the Member States constitutional traditions.

- As regards the role of the European Parliament, Hungary fully shares the legal opinion of the Council Legal Service. According to this legal assessment Article 7 TEU clearly stipulates the role of the European Parliament, whereby it only provides two possibilities to intervene: it can trigger the procedure; and at a later stage, it has to give its consent to possible future Council determination. Any further role of the European Parliament in this procedure would not be in line with the Treaties.

It is the position and assessment of the Hungarian Government that none of the concerns, allegations of the Resolution provides serious threat of breaching the values as stipulated in Article 2 of the TEU. Under such circumstances, it is important to follow the principles agreed with consensus by the Council in its conclusions from December 2014. Non-discrimination; equality of Member States; evidence-based and non-partisan approach must serve as guiding principles in this and all other similar procedures. Double standards must be excluded in order to avoid undermining public confidence in our common institutions. All concerns may be raised, but opportunity should be given to clarify allegations, including the possibility to convince the Members of the Council in a fair and transparent procedure.

The Hungarian Government stands ready to engage in a dialogue with members of the Council. It is ready and willing to clarify allegations and misunderstandings and provide facts in the procedure ahead of us. When discussing the Resolution in the Council, it should be taken into account that some Member States are under constant scrutiny because of their newly introduced legislation regardless of the content and their constitutional traditions, while in other Member States the same or equivalent rules are applied without any critical voice. This brings us to double standards. Political opinions and comments about some Member States’ legal and constitutional provisions or changes are very much present in the media and in political statements. It would be important to analyse how that particular question under scrutiny is regulated in all Member States be it from the western, eastern, southern or northern part of Europe, or whether it is a small, medium or big Member State. Equal approach, equal treatment would significantly strengthen our unity.

Finally, the general public in Hungary and in other Member States closely follows the process. It is essential to maintain public support as well as confidence in public institutions and in Member States’ relations. Therefore, it is the responsibility of the Council to demonstrate that the Article 7 process is objective, transparent, provides the equality of the Member States, still focuses on unity and on mutual respect and it is in line with the Treaties.

Hungary deems its accession to the European Union as a historical success. Therefore it is appalling that existing and legitimate political debates are framed as rule of law issues.