Lex CEU: The Hungarian government’s war on two fronts

August 16, 2017

CEU’s new “N15” building on Nádor Street.

The Fidesz government is waging a battle on two fronts over modifications to Hungary’s law on higher education, commonly known as Lex CEU. On one hand, the government is openly defiant of numerous directives issued by the European Union, the European Commission and the Venice Commission, which have all demanded that certain discriminatory elements of the law be rescinded to comply with European rules. On the other hand, the government’s position is softening dramatically in its negotiations with the State of New York over the fate of the law’s main victim, Central European University in Budapest.

In mid-July, the European Commission announced that it would take the next step in an infringement proceeding against Hungary over Lex CEU. The commission announced that it had sent Hungary a “reasoned opinion” letter regarding the law, and that it expected an answer by August 14, after which it would turn to the European Court of Justice.

“The Hungarian Higher Education Law disproportionately restricts EU and non-EU universities in their operations and needs to be brought back in line with EU law as soon as possible,” said European Commission First Vice-President Frans Timmermans in July. “We expect a reaction from the Hungarian authorities within a month. If the response is not satisfactory, the Commission can decide to go to the Court.”

On August 11, three days before the deadline issued by the EC, Hungary responded to the commission’s “reasoned opinion” letter, and refused to make any changes to the higher education law.

At a press conference Monday, Parliamentary State Secretary of the Ministry of Justice Pál Völner said, “It is hardly our fault that these restrictions are contrary to George Soros’s interests”, but not even George Soros could stand above the laws in Hungary, referring to the Hungarian-American billionaire financier who is the founder of CEU.

Völner added that in his view, the EC’s opposition to Lex CEU was primarily political, not legal, in nature, and “they are systematically and arbitrarily curtailing our right of defence; this, too, indicates that they want to adopt decisions in these cases as soon as possible, in martial law fashion.”

In light of Hungary’s refusal to re-examine the law, the EC will now likely forward the case to the European Court of Justice.

The government has also shot back at criticisms of Lex CEU by the Venice Commission, an advisory body of the Council of Europe. The Venice Commission released a preliminary opinion on August 11 declaring that the expedited procedure by which Lex CEU was passed in April was unjustified, calling it “clearly questionable in the light of the principles of transparency, inclusiveness, democratic legitimacy and accountability.”

“The reason given for using the expedited procedure was that it was urgent to adopt the law to allow it to enter into force before the next academic year,” the opinion reads. “This reason seems not very convincing since there was no urgent need to change the applicable rules.”

The commission also argued that numerous elements of the law placed undue burden exclusively on CEU, raising the suspicion that the university was being specifically targeted by the legislation.

The Government Communication Center responded sharply to the Venice Commission’s opinion, declaring “our opinion is that, concerning the mentioned requirements, we can’t accept the double standard. Hungarian law must apply to all higher education institutions, including the Soros university and other universities too.”

Once upon a time in New York

The government’s tough talk when responding to the demands of European institutions stands in sharp contrast to the conciliatory tone lately taken in its negotiations with Albany, the capital of New York State. After insisting for months that a bilateral agreement be reached between the national governments of Hungary and the United States, Hungary appears to have finally conceded that (as the US government repeatedly asserted) the federal government has no jurisdiction in matters of higher education, which are under the purview of the states.

The Hungarian Ministry of Foreign Affairs has thus reportedly been negotiating with New York and could be within days of signing a bilateral agreement which, according to reports from hvg.hu, is far more permissive than the government’s tough talk would suggest.

For example, the government conceding to negotiate with Albany instead of Washington, D.C. (as stipulated in Lex CEU) is itself a retreat of sorts. Further, the soon-to-be-signed bilateral agreement reportedly contains a passage that would allow CEU to reach a simple agreement with a US-based university to conduct “higher education activities” on that campus, rather than requiring CEU to operate an entire campus of its own in the US as required by Lex CEU. The agreement reportedly even extends the December 31 deadline, giving CEU more time to conclude such an agreement with an American university.

As reported by hvg.hu, CEU leadership has greeted the developments with caution. While leaders are glad that some of Lex CEU’s requirements that appeared likely to force the university to close its doors are increasingly unlikely to do so, they worry how the Educational Office might interpret the contradictions between Lex CEU on the one hand, and an international agreement with Albany on the other.