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EU may apply Rule of Law mechanism to Hungary as new issues arise, says Emmons

Princeton doctoral candidate Cassandra Emmons studies regional international organizations and their tools of enforcement for democracy.  She says there are 13 regional organizations in the world whose mandate stipulates that their members be democracies, and that they possess a variety of tools for enforcing democracy in instances of democratic backsliding.

With regard to the European Union, Emmons says there is a spectrum of options ranging from the informal to the EU’s new Rule of Law mechanism, infringement procedures and, as a last resort, Article 7 of the EU Treaty, which provides for Member States violating democracy, rule of law and/or respect for human rights to lose their privileges as a member of the European Union.

Emmons says there has been much discussion of possibly using Article 7 in the case of Hungary and Poland, whose governments have devised “hyper-legal tools to protect themselves from external criticism” at the expense of the rights of their people.

With regard to Poland, where the EU is already employing the Rule of Law mechanism in response to concerted efforts on the part of the Szydło government (often refered to as the Kaczyński government after PiS Chairman, Jarosław Kaczyński) to dismantle checks and balances through an attack on the country’s institutions, including its Constitutional Tribunal. Emmons believes this could be a stepping stone towards applying Article 7 to Poland.

Emmons says the reason the Rule of Law mechanism hasn’t been applied to Hungary is two-fold: (1) It did not exist when the democratic backsliding there began, and (2) as a legal instrument, there is reluctance to apply it with retroactive effect.  However, she thinks it is likely that the Rule of Law Mechanism will be applied to Hungary as new issues arise.

The October 2 referendum

Emmons says US media coverage of the October 2 referendum accurately reported that the referendum was invalid, and that many media outlets were taken aback by the number of invalid votes cast in protest.

“This was an important opportunity for the Hungarian people to come out and say ‘we don’t agree with you even if we don’t agree with the way the EU is handling (the refugee crisis)’,” says Emmons.

EU Rule of Law mechanisms

According to the website of the European Parliament’s Think Tank,

Article 7 of the Treaty on European Union provides mechanisms to enforce EU values, based on a decision by the Council with the participation of the Commission and Parliament. The current mechanism is said to be unusable due to the high thresholds needed to adopt a decision in the Council, as well as Member States’ political unwillingness to use it. Various new approaches have been proposed by academics and by political actors, from a new independent monitoring body – the ‘Copenhagen Commission’, through extending the mandate of the EU Fundamental Rights Agency (FRA), to introducing the possibility for the EU to suspend national measures suspected of infringing EU law. In 2014, the Commission adopted a new ‘Rule of Law Framework’ featuring a structured dialogue between the Commission and the Member State concerned and Commission recommendations and follow-up. On 13 January 2016, the Commission decided for the first time to initiate such an assessment of the situation in a Member State, with regard to two Polish laws – on the powers of the constitutional court and on the management of state TV and radio broadcasters. The European Parliament launched the idea of a ‘European fundamental rights policy cycle’ with the cooperation of the EU institutions, Member States and the FRA, as a ‘new Copenhagen mechanism’ to monitor the situation in Member States. At present, Parliament’s Civil Liberties and Justice Committee is drafting a legislative own-initiative report on an EU mechanism on democracy, the rule of law and fundamental rights, relying on common and objective indicators.

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