Currently, the rule of law debate stands as one of the most prominent subjects in the European Union. Primarily, it involves a political discourse that highlights the legal profession’s arguments from both sides. However, in this discourse, one part of Europe, swayed by a one-sided concept of the rule of law, slowly became convinced that the opposing side cannot be right. 

This is concerning since this one-sided interpretation of the rule of law seems to offer a favorable chance to erode the constitutional identity of member states and subject them to financial and constitutional supervision, particularly when the visions of their governments for the future of the European Union diverge from federalist perspectives and principles.

Ever since the migration of the concept of the ‘rule of law’ from the exclusive realm of legal academia and instruments to the contentious arena of everyday political discourse, it is apparent that the European Commission, acting as the ‘Guardian of the Treaties’ – as the saying goes – ‘flexes its political muscles’.

The Case of Hungary – The Proverbial ‘Snowball in Hell?’ 

A ’snowball’s chance in hell’ is an idiom, denoting an extreme unlikelihood or impossibility. This idiom aptly encapsulates the situation of Hungary, a member state that has been relentlessly portrayed by the international media as the only EU country exhibiting the most severe breaches of the rule of law. Now, let’s take a look under the hood and provide a more nuanced perspective.

On 5 July, as scheduled, the Commission released its latest report on the Rule of Law, including the country chapter on Hungary — a highly anticipated one for those who keep following the developments of the rule of law debate between Budapest and Brussels. 

Rumors had it that the Commission would appropriately evaluate the efforts made by the Hungarian legislature, together with the Hungarian government, to partially reform the country’s legal system; thus a more balanced portrayal of Hungary was expected. Carefully analyzing the report, it becomes clear that the findings not only fail to validate the ‘bona fide’ attitude of the Commission but actually support the opposing viewpoint.

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 EU. 

However, let us set aside this point for now and let us be fair — it is just the Abstract after all: the Article 7 procedure is indeed underway, while the process remains largely within the realm of diplomatic exchanges characterized by dialogue and symbolic gestures. 

The point is not exactly ‘what’ the European Commission takes into account, but rather ‘how’

Also, let’s not discuss here the allegations surrounding the European Commission’s repeated mentions of specific rule of law anomalies, as some argue that these stem from a perceived lack of understanding regarding the peculiarities of the Hungarian legal system. The problem, apparently, starts with the inkling that the Commission does not even want to understand the Hungarian legal system.

A closer examination of the report unveils the intriguing interplay between the main text and the footnotes, shedding light on interesting revelations:

Claim:

’Concerns have been raised regarding the lack of transparency of case allocation in lower courts. The case allocation schemes in the five regional appeal courts, the 20 regional courts and the 114 district courts are established by the court presidents.’

Footnote support:

’In the case of district courts, the case allocation scheme is established by the president of the regional court. The judicial council of each court gives a non-binding opinion (contribution from Alapjogokért Központ for the 2023 Rule of Law Report, p. 13).’

Claim:

’The law provides for a wide range of exceptions to the rules without establishing guarantees against their inappropriate application.’

Footnote support:

’Contribution from Amnesty International Hungary; (…) Eötvös Károly Policy Institute; (…) the Hungarian Helsinki Committee (…)’

Claim:

’European standards require that the allocation of cases within a court follow objective pre-established criteria in order to safeguard the right to an independent and impartial judge.’

Footnote support:

’Committee of Ministers of the Council of Europe Recommendation (…)

Claim:

’Stakeholders note that case allocation schemes can be modified at any point of time; according to stakeholders, such modifications are carried out regularly, sometimes even from one day to another.’

Footnote support:

’Contribution from Amnesty International Hungary; (…) Eötvös Károly Policy Institute; (…) Hungarian Helsinki Committee.’

The example above highlights an interesting evidence-gathering ‘routine’:

a) The European Commission unveils a ‘devastating’ statement concerning Hungary;

b) then supports its claim by referring to data provided by a prominent conservative think tank, only to create a sense of objectivity (in this case, Alapjogokért Központ or in English, Center for Fundamental Rights),

c) the European Commission follows up with yet another ‘devastating’ statement, bolstered by the viewpoints of critics known for their consistent and often politically motivated opposition to the Hungarian government.

To heighten the intensity, the European Commission incorporates an official document from another EU body — in this case, the Committee of Ministers of the Council of Europe — only to be followed by yet another opinion by one of the constant critics of the Hungarian government.

The Commission follows a similar strategy when drafting another ‘devastating‘ statement later on:

’Smear campaigns continue to exert undue pressure on judges, affecting their freedom of expression. Stakeholders report that in autumn 2022, pro-government media launched smear campaigns against two judge members of the National Judicial Council.’

Footnote support:

’Contribution from Eötvös Károly Policy Institute; (…) Liberties (…). In October 2022, further attacks were launched by pro-government media and government officials against the National Judicial Council’s spokesperson and its member responsible for international relations. Their independence was questioned for meeting the US ambassador in their capacity as representatives of the Council, to discuss the situation of judicial independence in Hungary.’

Of course, the alarming nature of a situation where the ambassador of a country extends an invitation to two judges for an exchange of ideas is beyond doubt. Sadly, this occurrence is not mentioned in the footnotes of those statements by the European Commission providing information on the public sentiment related to the independence of Hungarian judges (relying on the outcomes of public opinion polls conducted using a methodology that has also raised controversy).

Meanwhile in Spain…

Currently, Spain is governed by a progressive-socialist administration that adeptly harmonizes its policies with the preferences of the political bodies of the EU. Moreover, its prime minister is a prominent advocate of Euro-federalism. Could the European Union be in more capable hands than it is currently, especially before Hungary assumes the EU presidency? Everyone has the opportunity to answer this question in light of the following.

According to the country chapter discussing Spain, ’no progress on addressing the challenges related to the length of investigations and prosecutions to increase the efficiency in handling high-level corruption cases’. 

Moreover, ’No further progress on strengthening the statute of (sic!) the Prosecutor General, in particular regarding the separation of the terms of office of the Prosecutor General from that of the Government, taking into account European standards on independence and autonomy of the prosecution’. 

Furthermore, according to Brussels records referred to in the country chapter about Spain, the Spanish population has a favorable opinion of the independence of judges only at 34 per cent.

High-level corruption, concerns about the independence of the chief prosecutor, and the autonomy of judges are recurring topics often associated with Hungary, too. In fact, the scrutiny and criticism directed towards Hungary by several NGOs, both small and large left-wing international media outlets and prominent politicians predominantly revolve around these issues, contributing to what is commonly known as ‘Hungary bashing’.

Interestingly, there seems to be no equivalent level of scrutiny directed towards Spain. Setting aside the question of the credibility of impression-based opinion polls driven by political motives, it is worth noting that even Spanish judges find fault with the independence of their judiciary (as recently as in 2022).

This unfortunate situation can be primarily attributed to the recurring problem that the European Commission consistently raises with Madrid on a yearly basis. This holds even in 2022 when the rule of law conditionality procedure was initiated against Hungary. 

In Spain, the General Council of the Judiciary (Consejo General del Poder Judicial, CGPJ) is an independent constitutional entity that safeguards judicial independence and supervises the administration of justice. Its pivotal functions encompass the appointment of judges, handling disciplinary proceedings within the judiciary, and guaranteeing the effective operation of the Spanish judicial system.

The CGPJ continues exercising its functions ad interim since December 2018. The progressive-socialist government of Pedro Sánchez has resorted to politically motivated measures to fill this legitimacy gap. The governing party, although failed, has even resorted to advance legislation that would grant Congress the authority to appoint members of the CGPJ with a simple majority, potentially enabling them to ‘pack the court’. This can be easily deemed unacceptable according to the standards of the rule of law (of course ad interim operation of a constitutional body in itself is going against the standards since all of its actions are quasi unconstitutional). 

But let me cite here another — this time successful — example, closely related to this topic. 

Undoubtedly, according to the standards of the rule of law, regime-driven court packing is viewed by the academia as an undesirable solution. One of the well-known strategies of court-packing is the ‘swapping strategy’, which aims at replacing sitting judges. Well, that’s exactly what happened in Spain last winter. For background: the Spanish Constitutional Court consists of 12 justices. Four of them are nominated by the lower house of the parliament (the Congress), four by the upper house (the Senate), two by the government, and two by the judicial administration body (CGPJ). 

The latter — as mentioned above — has been struggling with serious problems and has been continuously failing to nominate its candidates for the Constitutional Court positions until December. All this prompted the current government, hoping to be reelected this year, to look for a political solution (described in detail by Henry T. Edmondson on Law&Liberty). 

Finally, the CGPJ, ‘almost out of nowhere’, but presumably as a result of political compromises, finally nominated a conservative and a progressive person to the Constitutional Court, which paved the way for the current government’s two progressive-leaning candidates. As a result of this, the Spanish Constitutional Court now has a progressive majority, and it also has the former justice minister and another former member of his government on board.

In Spain, the opposition, rather than the government, is held responsible for the most significant rule of law anomalies.

Reading the report on the rule of law situation in Hungary, alongside the other country chapters, remarkable and clearly tangible differences arise in reporting on the public sentiment regarding the rule of law in the different member states. The example of Spain — described below — illustrates how adeptly the European Commission manages the evaluation of the situation of the rule of law in member states, distinguishing between those perceived as ‘recalcitrant’ and those deemed ‘friendly’.

All of the developments mentioned above effortlessly pass through the European Commission’s filter without any particular consequences. Undoubtedly, within the country chapter dedicated to Spain, the rapporteurs of the European Commission briefly depict the embarrassing situation around the CGPJ at hand; but in the attached footnote, they attempt to rationalize the ad interim situation with the following: ‘On that day the main opposition party decided to suspend negotiations.’ 

However, what the Commission failed to disclose to the public is that this action was prompted by the socialists’ submission of a series of highly objectionable bills to the parliament. Among others, the package passed by the Senate scraps the crime of ‘sedition’ for one of public disorder and reduces sentences for some ‘embezzlement’ convictions.

Based on all of this, it could be argued that there is an inherent ‘rule of flaw’ that is apparent from the methodology by which the Rule of Law Report has been edited this year. This also supports the argument that the scrutiny (or lack thereof) of the correlation between the current Report’s main text and the footnotes in the case of the Hungarian country chapter seems deliberate. So, the following question arises:

Are these reports of a professional, or rather political nature?

Before I provide you with my answer, let’s take a moment to delve into the EU regulation concerning the rule of law conditionality procedure, which states the following:

‘Appropriate measures shall be taken where it is established by Article 6 that breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way.‘

Hungary remains subject to the rule of law conditionality procedure and has yet to receive any funds from the suspended amounts. Meanwhile, Spain conveniently falls within the extensive blind spot, spanning at least 504,782 km², of the current rule-of-law-obsessed political leadership in Brussels — a region of Europe seemingly immune to the scanning rays of the European Commission. 

In stark contrast, Spain has been continuously receiving the respective EU funds despite the many issues that I presented above, which should at least raise some concern from thinkers across that country and across the European institutions as well. Instead, we experience a very apparent sleight of hand happening. In what terms?

The Commission deceptively exerts a dominant influence over the concept of the rule of law, making sure that the European public remains unaware of its manipulation. Oxford Dictionary defines manipulation is defined as ‘to control or influence someone or something, often in a dishonest way so that they do not realize it.’

According to the official communication, the primary objective of the European Commission in publishing these reports is to diligently monitor the state of the rule of law across the European Union member states. Furthermore, the reports aim to identify and highlight issues and areas requiring improvement that directly pertain to the fundamental principles of the rule of law. The problems mentioned above definitely fit this bill. 

But still, the European Commission is an institution comprised of bureaucrats whose politicization appears to intensify over time. As long as reports of this caliber continue to emerge from the ranks of the Commission, the rule of law reports seemingly serve no purpose other than the deliberate construction of well-tailored political narratives and actions serving the short-term political goals — be it federalism or other — to be furthered by the Commission.The Treaty on European Union dictates that the Union and the Member States shall mutually respect and assist each other by the principle of loyal cooperation. Well, the 2023 Rule of Law Report tends to paint a different picture, fitting the mold of its predecessors.

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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.