Hungary’s controversial new anti-LGBTQ law which took effect on July 7 has blown open tensions within the EU over what to do with a rogue member state.
The new bill – which includes the new Child Protection Act and the Family Protection Act – was initially designed to protect children from paedophiles following a scandal last year when the Hungarian Ambassador to Peru received just a small fine for possessing thousands of indecent photos of minors. The problems started, however, when Hungary’s governing party Fidesz added amendments in June to restrict LGBTQ education and rights, including outlawing information perceived as promoting homosexuality or gender change to minors in schools, in adverts and even on TV shows before the 10pm watershed.
This move has provoked a furious response from fellow EU leaders. Dutch Prime Minister Mark Rutte took the firmest stance, stating on June 24 that Hungary deserved to be ejected from the EU and pledging to bring Hungary “to its knees” on the LGBTQ issue. The new law is seen to undermine Article 2 of the founding treaty of the EU, which states that discrimination against anyone on the basis of sexuality, ethnicity and gender are not allowed under the terms of membership.
Hungary’s democracy is young. The country emerged out of Soviet Communist control in 1991 and rapidly sought to pivot to the West, embracing free markets. Its entry into the EU in 2004, with a landslide 83 percent approval in a people’s referendum, should have further cemented Hungary’s position within Western democratic philosophy. But that hope was short-lived.
The Hungarian government’s stance towards the LGBTQ community is just the latest infraction of the EU’s rules and values by Hungary. Since the far-right Prime Minister Victor Orbán came to power in 2010, institutions designed to curb the powers of the state, such as a free media and an independent judiciary, have been actively eroded.
On the first day of 2012, his government started to centralise the judiciary and dramatically dropped the age of retirement for judges from 70 to 62, forcing more than 200 to retire. The European Commission noticed and the European Court of Justice ruled it unlawful in November 2012. Orbán eventually repealed the retirement rule, but while the legal ruling gave dismissed judges the right to compensation or reinstatement of their judicial status, it did not guarantee a return to a senior role, effectively ending their careers. As a result of this loophole, 90 percent of the judges, many of whom were viewed by Orban as too independently minded for the government, were not re-instated.
The Hungarian government has also strengthened its control of the media by consolidating regulation of the media into one single body – the Media Authority, overseen by the Media Council, whose president is directly appointed by the prime minister.
Orbán took a similar approach to controlling Hungary’s 11 state-funded universities, previously the strongholds of anti-government and social liberal thought, by transferring the institutions’ governance from independent trustees to new educational foundations run by Orbán allies and endowed with billions of euros. The trustees of these foundations are also directly appointed by the government.
The EU is well aware of Hungary’s democratic backsliding under its increasingly authoritarian leader. Former EU Commission President Jean-Claude Juncker used to greet Orbán as “Mr Dictator” in person during EU summits. Orbán is not even trying to hide his actions, openly advocating as he does for an “illiberal democracy” and repeatedly attacking Western liberal democracy as being incapable of protecting the public’s wealth and interests in the way that his flavour of centralised governance can.
Furthermore, Orbán appears to positively relish antagonising the EU, regularly vetoing EU attempts at a unified front on foreign policy, including recently preventing the EU from unanimously calling for a ceasefire between Israel and Hamas to provide access for humanitarian aid for Gaza, undermining its role as an influencer. Orbán, a close ally of Israel’s then-Prime Minister Benjamin Netanyahu, felt the draft statement was too one-sided against Israel.
Earlier this year, amidst angst over the EU’s slow vaccine rollout, Hungary also struck out on its own, being the first EU state to accept both Russian and Chinese vaccines before the approval by the EU medicines regulator. In fact, there is no EU rule to stop members doing this, but it undermines the EU’s leadership in this matter.
As well as being adept at giving the EU grief, Orbán is a wily strategist. He has helped navigate Hungary to become the second-largest net beneficiary of the EU budget, receiving more than 5 billion euros ($5.9 billion) more than it contributes back into the EU budget per year. Yet, at the same time, he is able to frame the EU’s criticisms of his rule as “foreign meddling”, pandering directly to his right-wing base. Alongside tilting elections in his favour with aggressive gerrymandering of parliamentary constituencies, so far his strategy has proved popular, and he has maintained a two-thirds majority for his party in the Hungarian National Assembly, giving him overall control of Hungary’s legislative agenda.
With a member state no longer following EU rules while also happily taking EU money, the situation for other members of the EU has become intolerable. The EU is built on rights and obligations which are guarded jealously as it strives to harmonise rules, reduce barriers to trade and transfer power away from individual states to the EU centre to fulfil its dream of an “ever-closer union”. Members breaking any article ought to be the equivalent of a member state failing to apply EU standards to goods and services while remaining in the single market.
However, so far, the EU’s usual approaches to encourage member states to toe the line have been woefully ineffective. EU leaders squabble all the time over a range of topics from fisheries to foreign migrants and budget proposals. The EU normally employs the occasional stern press release, a rebuke from a speaker podium or a vote in the EU parliament to get leaders around a negotiating table for the sake of unity.
Despite regular frustrated speeches by EU leaders and in the Parliament denouncing Hungary’s moves, none of these approaches have stopped Hungary from drifting away from EU ideals.
The EU could instigate a cumbersome infraction process for non-compliance with EU law, leading to fines of up to 100,000 euros ($118,000) per day. This will likely happen now, as a consequence of the new anti-LGBTQ law. Furthermore, on July 9, Members of the European Parliament voted overwhelmingly (459 in favour, 147 against, 58 abstentions) in favour of the European Commission taking Hungary through the European Court of Justice over the new law.
Yet, as it has done before, Hungary could simply play for time or find loopholes to undermine any ruling against it.
For more meaningful effect, the EU could resort to a sanction mechanism known as Article 7, to address serious and persistent breaches of EU values, including the rule of law, democracy and the respect for human dignity and human life. This could lead to removing voting rights for the offending country. Both Hungary and its close ally, Poland, which is also engaging in a degree of democratic backsliding of its own, have faced the Article 7 process, but ironically, it is EU rules themselves which have prevented the EU from taking any meaningful action, as sanctions require a unanimous agreement from EU states. Hungary and Poland simply veto their respective cases to look after each other. There is also, bizarrely, no mechanism to kick out an EU member state against its will and, therefore, little incentive for Hungary to change its win-win formula. This heavily undermines the democratic requirements for EU membership, and may encourage candidate EU members, such as those in the Balkans, to view those requirements as optional post accession.
Orbán will have to lose the next election in 2022 to be unseated and, even then, the opposition would have to win two-thirds of parliamentary seats – highly unlikely – to reverse the illiberal reforms he has entrenched in the Hungarian constitution. Hungary will therefore continue to undermine the EU’s ability to credibly influence other countries on democratic norms or demand alignment with its rules and obligations in trade negotiations. Hungary’s behaviour will also provide a template for right-wing populists within other EU member states to foment the next wave of political agitators.
The EU could slow down Hungary’s authoritarian slide. Just as Hungary has been creative in undermining the EU, the EU is gradually waking up to the fact it needs to resort to similar tactics. As well as dragging Hungary back through the European Court of Justice on the latest LGBTQ law, EU officials now appear more willing to cut funding to the country, including withdrawing crucial COVID recovery funds to heap pressure on Orbán. This approach could hurt ordinary Hungarians, but would show the EU’s increasing desperation to get Hungary back in line with the rest of the EU; it knows well that the future of the entire EU project is now at stake.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial stance.