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Gergely DOBOZI: Barbed Hooks and the Rule of Law

Probably everyone has seen a hook in their life regardless if it is barbless or barbed. On the latter, the barb serves to secure the hook in place once it has pierced the fish’s mouth. Well, the Rule of Law Framework within the European Union operates exactly the same way: from the moment a member state becomes hooked at the ‘giving end’ of a rather one-sided interpretation of the rule of law, their room for maneuver becomes restricted. Here, I am talking about a bond that distressingly resembles the one between a partially self-governing province and a central federal government.

Considering the direct effects of the framework, and the case of Hungary, the interconnections of three dimensions are relevant here: the rule of law conditionality mechanism that was initiated against Hungary last April right after the domestic elections, the blocked Hungarian Recovery and Resilience Plan, and the partnership agreement. The latter two can be considered ‘prisoners’ of the former. Although these issues are not organically related to each other, they can only be resolved if the conditionality mechanism is abolished in relation to Hungary.

Apparently, The Rule of Law framework has set the stage for unlawful political and constitutional guardianship

Starting in 2020, the European Commission, setting the stage for a successful ‘fishing season’, has been issuing yearly reports that delve into the condition of the rule of law within each member state of the European Union. On 5 July this year, as scheduled, the Commission released its latest package, including the country chapter on Hungary.

The political framing of the report starts right from its Abstract, subtly suggesting that Hungary not only falls under the scope of the Article 7 procedure triggered by the European Parliament but is also viewed as a country under the guardianship of the political bodies of the European Union—especially considering that Vera Jourová, the Vice President of the European Commission for Values and Transparency has just mentioned in a private press conference that the European Commission is already preparing to investigate the Hungarian education reform, despite lacking clear authority in this matter. LSE’s Damien Chalmers wrote more than 10 years ago in his interpretation of the German Lisbon ruling by the BVerfG that the EU “violates central parts of a national constitutional identity even when acting within its powers by curtailing the role of the Bundestag by legislating in core areas [such as] fundamental elements of fiscal policy and the Sozialstaat, and culturally important fields, notably family, education and religious law.” So we can easily make the argument that education policy typically constitutes a fundamental aspect of the constitutional identity of EU member states under Article 4(2) TEU.

According to Article X of the Fundamental Law of Hungary, the freedom of education is guaranteed by Hungary alone – no other state, body, entity, or organization is responsible for safeguarding these rights. Nevertheless, this value is not only in line with the Hungarian Fundamental Law and the TEU but finds further affirmation in another crucial EU-level stipulation. 

Within the Treaty on the Functioning of the European Union, Article 6 governs the supporting competences of the EU, encompassing education as well. In this playing field, legally binding EU acts are not permitted to mandate the harmonization of laws or domestic regulations among the Member States. 

However, the attitude of the Commissioner responsible for EU Values and Transparency implies that the rule of law mechanism is a proper opportunity for the Euro-federalists to send a message to all the member states: ‘now is the time to align yourselves with us, or we will force you to do so.’ Or – tailored for hard-liner Star Trek enthusiasts’ understanding – ‘Resistance is futile’.

Do we need a ‘superstate’ like this?

Arguably, the European Commission’s notion of ‘rule of law’ can be perceived as a ‘backslid’ form, leaning more towards ‘rule by law’ rather than the original public meaning of the concept [see for example Jens Meierhenrich’ & Martin Loughlin’ work titled ‘The Cambridge Companion to the Rule of Law’ (Cambridge University Press 2021)]. Ironically, among other signs, it is the flaws found within the rule of law reports themselves that bolster this assertion.

The significance of these reports lies in their particular importance because according to the official communication of the Commission, the annual Rule of Law reports are crucial sources of information for the Commission to establish whether the conditionality regulation should be triggered. 

The Hungarian equivalent of the term ‘rule of law’ is ‘jogállamiság’. Upon closer examination of these two correlating terms, the latter is not only about the rule of law; one might envision a state that operates ‘by and for the law’ and for the benefit of the constituting entities. In such a state the rule of law permeates all core functions by determining inherent limits to the exercise of public power. 

Even though the European Union, fortunately, is not a state, the ambition to turn it into one has significantly influenced the bloc’s politics for decades. Ideally, the goal of this endeavor would be to create a functional state, operated just as the Hungarian concept assumes. By contrast, the thoughts shared above were to enlighten how deep the disappointment might be. 

Despite the relatively low legal quality of these rule of law reports, they can be excellent ‘hooks’ from a political perspective. Only time will reveal whether, in the case of Hungary, the fish or the hook will prove stronger. However, undoubtedly, a hook does not bode well for fish – especially when hung in a fishbowl. And remember: currently, 27 fishes are in this tank.

Gergely Dobozi is a commentator and editor holding a law degree from ELTE University. Currently he is a Research Fellow at Danube Institute and editor-in-chief at Hungarian Conservative Online. He began his career as a commentator at Mandiner in 2020 where he maintained the column titled ‘Precedens’ that covered and analysed developments in the world of law. As a third-year PhD student at the University of Public Service, his areas of expertise include state sovereignty, judicial activism, international and EU law.

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