Illiberalism in Hungary and the European Union’s sanction mechanisms
In his speech at Băile Tuşnad (Romania) of 26 July 2014, Viktor Orbán, the Hungarian Prime Minister since 2010, stated shortly after his re-election that “the new state that we are building is an illiberal state, a non-liberal state”1.
As a member state of the European Union (EU), the measures taken by Viktor Orbán’s illiberal state have often been decried by the EU. The majority of these measures go against the liberal values enshrined in the Treaty on the European Union (TEU) by article 2. Thus, tensions between EU and Hungary have been increasing since Viktor Orbán’s election in 2010. It culminated in 2017 when the European Parliament adopted for the first time a resolution demanding a vote on the activation of the preventive tool of Article 7 of the TEU on the grounds that the ‘current situation in Hungary represents a clear risk of a serious breach of the values’. But in fact, we will see that the activation of this procedure is far from easy and the EU intervention to bring back democratic and liberal values in Hungary has many limits.
In this respect, it is worth analysing what measures the EU could undertake when a Member State takes an illiberal turn.
First, we will define the key concept of this essay: illiberalism. As what raises issues with the EU is its application in Hungary, it may be important to have a clear definition from the beginning and to know what the specific characteristics in Hungary are. Then, we will see how the EU manages –or not- to deal with an illiberal state by analyzing the tools existing and their impacts, with a focus on the procedure of Article 7 of the TEU.
The definition of illiberalism and its application in Hungary
To correctly understand the key concepts of the problem, illiberalism should first be defined. As it is a quite complicated but also discussed term, shrugging its definition off in introduction would have been too rapid. Then, the case of Hungary as an illiberal state and the implications in terms of civil liberties, political rights and freedom will be analyzed.
Definition and criticism of the concept of illiberalism
Indeed, an illiberal state is a state where the government or the political elites are against the principles of liberalism. The term “illiberal democracy” was first defined by Fareed Zakaria in “The rise of illiberal democracy”, in 1997. In this article, Zakaria asserts that democracy is flourishing but independently from constitutional liberalism. Therefore, contrary to what some scholars thought, democracy is immutably unlinked to liberalism. In fact, illiberal democracies are states where the government is elected freely but then diminish the justice, independence and civil rights, imposing harsh restrictions on speech and assembly. Pierre Rosanvallon, a French historian and sociologist adds to this definition that “citizens do not enjoy equal treatment before the law, nor sufficient protections from the state or private actors2.” The politician scientist Anton Shekhovtsov adds that in illiberal states, the government puts pressure on the media through different methods, ranging from mild to grave3.
Both in Zakaria’s 1997 article and in more recent papers, scholars and political scientists agree there is not just one type of illiberal state. Illiberalism is more or less embedded in the constitution and affects various areas, with different intensities. For Zakaria, the ranking starts with “modest offenders’ ‘, represented at the time by Argentina, and ends with near-tyrannies like Kazakhstan and Belarus. Some countries are however in between; trying to reconcile a substantial degree of democracy with a substantial degree of illiberalism, like for example Romania and Bangladesh. In 2015, he updated his words by adding Turkey under Recep Tayyip Erdoğan as a textbook case of illiberal democracy. Russia under the rule of Vladimir Putin and Singapore are also used as examples of illiberal democracies. But the characterization as illiberal isn’t fixed in time. With the election of Donald Trump and its mandate between 2016 and 2020 in the United States, some political scientists as Michael Beckley were afraid of the emergence of an illiberal state in the USA4, but this fear seemed to disappear with the election of Joe Biden.
But debates exist among scholars. If the definition of illiberalism can be understood with all its diverse shades, the concept of “illiberal democracy” is much more discussed. Taking the example of Turkey, described as an illiberal democracy by Zakaria in 2015, the country had actually worse records on civil liberties than some countries that are not considered as democracies. For instance, in the Freedom House report on “The freedom in the world 20155” Togo, Mozambique and Nicaragua obtained a rating of 3 (1 represents the most free and 7 the least free rating) in civil liberties even though they don’t have the status of an electoral democracy, whereas Turkey had a democratic status but a rating of 4 in civil liberties.
Therefore, the concept of “illiberal democracy” can be seen as an oxymoron6 since countries such as Poland can lack many of the democratic prerequisites and are anti-pluralistic, anti-deliberative, and hostile to minorities. For Steven Levitsky and Lucan Way, the concept of illiberal democracies only “muddies the waters” because the traditional characteristics used to define them correspond to non-democratic systems since they don’t have independent justice institutions and media and weak or no opposition party.
Surpassing the debate on the relevance of the use of illiberal democracy, we can still analyse one of its possible applications with the study case of Hungary, then presenting the impacts it had on civil liberties and political rights.
Study cases in Central Europe: Hungary illiberal state
Hungary remains a subject of study for the analysis of illiberalism, since Viktor Orbán explicitly described Hungary as an illiberal state.
In Hungary, illiberalism corresponds to the rejection of Europe and the subjugation of the judiciary and the media. Hungary displays unique and distinctive features7. These particular characteristics include among others populist politics, which implies the relativization of the rule of law and democracy principles, and of human rights protection.
The first manifestation of illiberalism in Hungary and Poland actually took place with the change of the Constitution. As the Constitutional Court retained the ultimate power to reject amendments to the Constitution, both the Polish and Hungarian governments tried to control it. We may underline that even though Poland would sometimes be taken as another example of illiberalism for comparison purposes, it has many differences with Hungary8. One example among others is that while Orbán came to power in 2010 on the back of an economic crisis, Kaczyński was elected amid an economic boom.
According to the political scientists Anton Shekhovtsov9 ; during its first mandate as Hungary’s Prime Minister between 2011 and 2014, Viktor Orbán and the Fidesz party tried and finally managed to turn the Constitutional Court into a loyal body. The dependence of the Constitutional Court to Fidesz is marked by the appointment of 11 of the 15 court judges by the party and its minor coalition partner, without any consultation with the opposition.
The illiberal changes however don’t end with the control of the constitutional court. In Hungary, Fidesz party affirmed its attendance on the electoral system, the media, and several sectors of the economy and recently on the universities. Concerning the economy, the Government restored for instance a national preference. About the electoral system, the Parliament amended the law on the right to vote in 2012, enabling Hungarian minorities in neighboring countries to vote. In the 2014 general elections, almost all of these Hungarians voted for Orbán’s Fidesz party10. Furthermore, according to the Bertelsmann Stiftung’s Transformation Index (BTI) 2020, the national election commission (NVB) consists in mostly pro-government members elected in 2013 for nine-year terms. However, there are numerous other elements that consistently favor the Fidesz party and the government can run a virtually unrestricted electoral campaign under the guise of public service advertisements. On the contrary, opposition parties have few opportunities to broadcast political advertisements on commercial TV and radio channels11.
Without itemizing all the measures taken by Viktor Orbán’s Government, we can finally mention the control of universities. In an article in the Economist on the 30th of April 2021, we learnt that Viktor Orbán passed a law in order to transfer the control of the 11 main state universities to public foundations. The boards of these foundations are actually appointed by the Fidesz Ggovernment and the rulers and members of the foundations are mainly Fidesz members or sympathizers. The foundations are supposed to help finance the university but have in fact much more influence. In the Spring of 2017 the Orbán government passed a law to shut down the Central European University of Budapest in the name of “equality” with state universities. Viktor Orbán’s government now also controls state universities, making further education a politicized domain.
Beyond the assessment of the international press, we can observe a real degradation of democratic values in Hungary, regarding the international indicators. With the analysis of the Bertelsmann Stiftung’s Transformation Index (BTI), we can observe that Hungary has a lack of stabilized democratic institutions and of consensus building, to which is added the threat of the rule of law. As shown in figure 1 and 2, Hungary lost more than 1 point in political transformation and about 1 point in economic transformation between 2014 and 2020.
Figure 1: Hungary Country Report 2014, Bertelsmann Stiftung’s Transformation Index
Figure 2: Hungary Country Report 2014, Bertelsmann Stiftung’s Transformation Index
As for the Freedom House’s survey, Freedom in the World, Hungary’s status turned from free in 2017 and 2018 to partly free in 2019, losing seven points in five years in the global score, as shown in Figure 3.
Figure 3: Scores and Status of Hungary from 2017 to 2021, Freedom House, Freedom in the World
Regarding the reports, Political Rights correspond roughly with democracy and Civil Liberties with constitutional liberalism. The 2021 report underlines that “the Fidesz-led government has moved to institute policies that hamper the operations of opposition groups, journalists, universities, and nongovernmental organizations (NGOs) who criticize it or whose perspectives it otherwise finds unfavorable.” Moreover, the sanitary crisis in 2020 was an opportunity in Hungary to tighten the law against the dissemination of information deemed false or distorted during a state of emergency. These acts are now punishable with a five-year prison sentence due to the offense of “scaremongering” and once again restrict civil liberties.
All in all, Hungary’s status is deteriorating, whether in terms of political rights, the rule of law or respect for civil liberties. Hungary, being only partially free according to the Freedom House report, is becoming increasingly illiberal. Knowing that Hungary is part of the European Union, and that the latter advocates and guarantees democratic and libertarian values, raises the question of the sanction mechanisms the EU has at its disposal.
EU sanctioning illiberalism: possible mechanisms and limits
Obviously, when civil liberties and political rights deteriorate in a country, liberal and democratic values are threatened. However, the case of Hungary is all the more problematic as these liberal and democratic values are guaranteed by Article 2 of the EU Treaty, of which Hungary is a full member.
Thus, it is a question of the EU sanctioning countries when these fundamental values are not respected by one of the member countries, as the very foundations of the Union are no longer respected. Although there is a sanction mechanism through Article 7 of the TEU, we will see that the EU is struggling to put pressure on illiberal states such as Hungary to improve the lot of its European citizens.
The use of the article 7 of the Treaty on European Union
The European Union has a procedure for sanctioning states that do not respect the common values of the Union: the breach of democracy. The aforementioned common values of the Union are listed as follows:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
These values, which are enshrined in the TEU and established as a condition for membership of the European Union in the Copenhagen criteria (European Council in Copenhagen, 1993), must be respected by all member states of the Union. If these values were to be no longer respected by a state that was already a member of the Union, then the procedure of Article 7 of the TEU, provided for in the Treaty of Amsterdam of 1997, would be triggered; that was the case with Hungary in 2017. This article states:
(ex Article 7 TEU)
“1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 2, after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council […].
Article 7 of the TEU was adopted in 1997, that is to say a year before the start of negotiations with Cyprus, Czech Republic, Estonia, Hungary, Poland, and Slovenia concerning EU enlargement and only a few years after their official application – from 1994 for Hungary and Poland to 1996 for Czech Republic and Slovenia. In view of the historical context, it was essentially a question of testing the consistency of the Eastern democracies over time, which had rapidly acceded to so-called « Western » democracy but whose long-term stability had yet to be proven12.
However, although today the use of this procedure seems necessary against some Eastern European countries; its first use was against Austria in 1999 about a governmental coalition between the ÖVP, the Christian Democratic People’s Party and the extreme right-wing FPÖ of Jorg Haïder. On this occasion, the Union reached the limits of the Article 7 of the EU Treaty which could not be used since there was no pure and simple violation of the principles of Article 2, but only a prior presumption that they would be violated. The Union would have liked to act preventively, but Article 7 was clearly inoperative.
Article 7 was therefore amended in 2001 to allow preventive action. It stipulates that, under binding conditions, the Union may act if there is “a clear risk of a serious breach by a Member State of the values referred to in Article 2”.
Nonetheless, even with this update of the Article 7, it remains challenging to use. It requires a unanimous vote in the European Council (excluding the country subject to the proceedings), something that is nearly impossible. Moreover, once there are two ‘illiberal’ states in the EU – Poland and Hungary – determined to assist each other, this makes the deployment of the ‘biting’ clause of Article 7 impossible unless both countries are tackled de concert13.
But we may underline that sanctions can also backfire. In the case of Austria, they had to drop the sanctions taken by member states – not by the EU as a such – after six months because they led to the rise of Eurosceptic attitudes in Austria14. These types of political issues, but also the sophistication of the mechanism linked to the article 7 of the TEU, explain partly why it is often unused.
The Limits of EU intervention
The European Parliament adopted a resolution calling for a vote on the activation of the preventive arm of Article 7 of the Treaty on European Union (TEU) on the grounds that the ‘current situation in Hungary represents a clear risk of a serious breach of the values’ in 201715. Despite this, most scholars who have analyzed the post-2010 relationship of Hungary and the EU agree that the EU was not capable of standing up effectively to the constitutional engineering process which has led Hungary in an illiberal direction16.
Instead of using Article 7, the EU used three different measures in order to bring about changes in specific practices and legislation that infringed liberal democratic principles in Hungary: social pressure, infringement procedure and issue linkage17. Social pressure consists in public criticism and name-shaming. The infringement procedure is another procedure than those of Article 7, here included in Articles 258 and 260 of TEU. It refers to non-compliance with few specific values of Article 2, with their own legal basis. Finally, issue linkage is the threat of withholding rewards from the Member State in cause in another issue area than the one where the non-compliance is observed. In addition, the European Commission adopted a “Rule of Law Framework”18 in 2014, activated for the first time in January 201619 against Poland.
In Hungary, the EU’s attempts to stem democratic backsliding focused in particular on the independence of the media, the data protection authority and the central bank, as well as on the retirement age of judges. The EU used almost all its tools against Hungary: social pressure about the Media law, infringement procedures including threat of European Court of Justice Fines with respect to central bank and the data protection authority independences. Issue linkage linked with International Monetary Fund loans were used against the decrease of the central bank independence. The European Commission also proposed the introduction of a new type of “broad political dialogue” with Hungary due to serious concerns about the recent antidemocratic turn20.
But the results were not here: the changes in compliance with EU demands were minor or incremental21. As for the Rule of Law Framework implemented by the EU commission, it was designed for Hungary but used only with Poland. However, it simply delays the time when Article 7 TEU might be invoked until after the critical consolidation of power has already occurred22.
The EU has much less influence when it uses social pressure only, as it was observed with the Media Law issue. The EU can be determined but slow in getting its way. This provides Orbán’s government enough time to present both the EU and the concerned parties in Hungary with a fait accompli over such issues as the independence of the Data Protection Office. Moreover, open confrontation between the European Commission and the Hungarian government emerged only in a limited number of cases, often controversial.
Illiberal states as defined by scholars today, whether or not with a consensus, pose a challenge to the European Union since its membership should be conditioned to the respect of democratic and liberal values as mentioned in its fundamental Treaties.
The strongest procedure, the one of the Article 7 of TEU is too challenging to use due to its requirements but also to the time EU institutions take to be engaged in the beginning of the procedure. Well, the EU puts pressure on Hungary, uses infringement procedures and issues linkage, it struggles to sanction the illiberal actions of the Hungarian government.
Nevertheless, we may underline and add in conclusion that despite effective intervention by the EU; it did help to slow down and prevent the undermining of liberal constitutionalism and the concomitant curbing of human rights and liberties in Hungary, especially thanks to the European Court of Human Rights (ECtHR) with the joint efforts of the Council of Europe. Effectively, the number of applications by Hungarian citizens to the ECtHR increased by 1,177 per cent, from 436 to 5,569 between 2010 and 2016, while Hungary’s share of total applications to the court rose from 0.71 per cent to 10.41 per cent in the same period. These figures support the claim that the ECtHR plays an increasing, systemic role in the external protection of Hungarian citizens’ fundamental rights. Consequently, it is fair to say that membership in the EU matters: the EU has structurally constrained the illiberal regime in Hungary23. It is in this sense worth examining across future studies the risks and implications of Hungary leaving the EU.
1 Full text of Viktor Orbán’s speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014 : https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/
2 Pierre Rosanvallon, « La démocratie illibérale (le césarisme) », dans La Démocratie inachevée. Histoire de la souveraineté du peuple en France, Paris, Gallimard, 2000.
3 Interview for the journal Eurozine, “Patterns of illiberalism in central Europe, A conversation with Anton Shekhovtsov”, 22 February 2016. https://www.eurozine.com/patterns-of-illiberalism-in-central-europe/
4 Michael Beckley, “Why This Could Be an Illiberal American Century”, Foreign affairs, October 2020.
5 “Discarding Democracy: Return to the Iron Fist”, Freedom in the Word 2015; The Freedom House, 15th of January 2015
6 Sadurski, Wojciech (2019). « Illiberal Democracy or Populist Authoritarianism? ». Poland’s Constitutional Breakdown. Oxford University Press. pp. 242–266. doi:10.1093/oso/9780198840503.003.0009
7 Drinóczi, T., & Bień-Kacała, A. (2019). Illiberal Constitutionalism: The Case of Hungary and Poland. German Law Journal, 20(8), 1140-1166. doi:10.1017/glj.2019.83
8 For further information, see Andras Boz´oki & Daniel Hegedűs, “An externally constrained hybrid regime: Hungary in the European Union”, 25 DEMOCRATIZATION 1173 (2018). The authors do not treat Hungary and Poland together because they are in a different state of development see also Roman Krakovsky, Ivan Krastev, Stephen Holmes, and Jacques Rupnik “lliberal democracies”, Cairn’s Dossiers, Volume 3, Issue 10, November 2019.
9 Anton Shekhovtsov (2016), op. cit.
10 Krakovsky Roman, « Illiberal democracies in Central Europe », Études, 2019/4 (April), p. 9-22. DOI: 10.3917/etu.4259.0009. URL: https://www.cairn-int.info/journal-etudes-2019-4-page-9.htm
11 Bertelsmann Stiftung, BTI 2020 Country Report — Hungary. Gütersloh: Bertelsmann Stiftung, 2020.
12 Pech, L., & Scheppele, K. (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, 3-47. doi:10.1017/cel.2017.9
13 Pech, L., & Scheppele, K. (2017). Ibidem, p 12.
14 Anton Shekhovtsov (2016), op. cit.
15 Resolution of 17 May 2017 on the situation in Hungary (2017/2656(RSP)), para 9.
16 András Bozóki & Dániel Hegedűs (2018) op. cit.
17 Ulrich Sedelmeier (2014), Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession, JCMS 2014 Volume 52. Number 1. pp. 105–121. DOI: 10.1111/jcms.12082
18 COM(2014) 158 final, A New EU Framework to Strengthen the Rule of Law.
19 European Commission, ‘Readout by First Vice-President Timmermans of the College Meeting of 13 January 2016’, SPEECH/16/71.
20 European Commission, Opening remarks of First Vice-President Frans Timmermans in the European Parliament debate on Hungary, SPEECH/17/1118, 26 April 2017: ‘We also considered that given the wider situation … a broader political dialogue between the Hungarian authorities, other Member States, and the European Parliament and the Commission should take place.’ This speech includes no less than ten references to the need for or the benefits of a ‘dialogue’.
21 Ulrich Sedelmeier (2014), op. cit., p115.
22 Pech, L., & Scheppele, K. (2017), op.cit., p6
23 András Bozóki & Dániel Hegedűs (2018) op. cit., pp 1178-1179
Academic, book and journal articles
Drinóczi, T., & Bień-Kacała, A. (2019). Illiberal Constitutionalism: The Case of Hungary and Poland. German Law Journal, 20(8), 1140-1166. doi:10.1017/glj.2019.83
Pierre Rosanvallon (2000) « La démocratie illibérale (le césarisme) », dans La Démocratie inachevée. Histoire de la souveraineté du peuple en France, Paris, Gallimard.
Roman Krakovsky (2019), « Illiberal democracies in Central Europe », Études, 9-22. DOI: 10.3917/etu.4259.0009. URL: https://www.cairn-int.info/journal-etudes-2019-4-page-9.htm
Roman Krakovsky, Ivan Krastev, Stephen Holmes, and Jacques Rupnik “lliberal democracies”, Cairn’s Dossiers, Volume 3, Issue 10, November 2019.
Wojciech Sadurski (2019). « Illiberal Democracy or Populist Authoritarianism? ». Poland’s Constitutional Breakdown. Oxford University Press. pp. 242–266. doi:10.1093/oso/9780198840503.003.0009
On Hungary and the EU
András Bozóki & Dániel Hegedűs (2018), An externally constrained hybrid regime: Hungary in the European Union, Democratization, 25:7, 1173-1189, DOI: 10.1080/13510347.2018.1455664
Antoaneta L. Dimitrova (2018), Enlargement and Europeanisation in Central and Eastern Europe: accession and beyond. In: Fagan, Adam and Petr Kopecký: The Routledge Handbook of East European Politics. London: Routledge, 333-344.
Bojan Bugarič (2014), Protecting Democracy and the Rule of Law in the European Union: The Hungarian Challenge, LEQS Paper No. 79/2014, 3-44.
Dimitry Kochenov, Europe’s Crisis of Values (May 29, 2014). 48 Revista catalana de dret públic 2014, 206-118., University of Groningen Faculty of Law Research Paper 2014-15, Available at SSRN: https://ssrn.com/abstract=2443363
Körtvélyesi, Z. (2020). The Illiberal Challenge in the EU: Exploring the Parallel with Illiberal Minorities and the Example of Hungary. European Constitutional Law Review, 16(4), 567-600. doi:10.1017/S1574019620000322
Mickey, R. (2018). Illiberal Practices: Territorial Variance within Large Federal Democracies. By Jacqueline Behrend and Laurence Whitehead. Baltimore: Johns Hopkins University Press, 2016. 344p. Perspectives on Politics, 16(2), 481-483. doi:10.1017/S1537592718000828
Pech, L., & Scheppele, K. (2017). Illiberalism Within: Rule of Law Backsliding in the EU. Cambridge Yearbook of European Legal Studies, 19, 3-47. doi:10.1017/cel.2017.9
Ulrich Sedelmeier (2014), Anchoring Democracy from Above? The European Union and Democratic Backsliding in Hungary and Romania after Accession, JCMS 2014 Volume 52. Number 1. pp. 105–121. DOI: 10.1111/jcms.12082
Bertelsmann Stiftung, BTI 2014 —Hungary Country Report. Gütersloh: Bertelsmann Stiftung, 2014.
Bertelsmann Stiftung, BTI 2010 — Hungary Country Report. Gütersloh: Bertelsmann Stiftung, 2009.
Bertelsmann Stiftung, BTI 2020 Country Report — Hungary. Gütersloh: Bertelsmann Stiftung, 2020.
Freedom in the World ; The Freedom House, reports from 2017 to 2021 on Hungary.
“Discarding Democracy: Return to the Iron Fist”, Freedom in the Word 2015; The Freedom House, 15th of January 2015
Full text of Viktor Orbán’s speech at Băile Tuşnad (Tusnádfürdő) of 26 July 2014 : https://budapestbeacon.com/full-text-of-viktor-orbans-speech-at-baile-tusnad-tusnadfurdo-of-26-july-2014/
Interview for the journal Eurozine, “Patterns of illiberalism in central Europe, A conversation with Anton Shekhovtsov”, 22 February 2016. https://www.eurozine.com/patterns-of-illiberalism-in-central-europe/
Michael Beckley, “Why This Could Be an Illiberal American Century”, Foreign affairs, October 2020.