Hungary’s drubbing in Luxembourg shows why the sovereigntists are half right: EU members can’t just do what they want. That’s a good thing.
The European Court of Justice rarely sits as a Full Court. On April 21 it did so to deliver a comprehensive drubbing to Hungary. Its 2021 ‘child-protection’ law (which, among other things, barred minors from encountering audiovisual content that ‘promotes’ homosexuality or gender transition) breached four separate layers of European law. The judges found infringements of the internal market’s services directives, of four articles of the Charter of Fundamental Rights, of the GDPR and, in a first, of Article 2 of the Treaty on European Union itself: the provision which sets out the Union’s foundational values. The Commission had been joined in the case by 16 member states. The judges, for good measure, added that Hungary could not invoke its national identity to justify the law. In plain English, it must go.
Lawyers will spend months picking over the finding on Article 2. It has never before been wielded as a stand-alone ground of infringement against a member state, and Advocate General Tamara Ćapeta called it a “red line” issue in her opinion last June: cross it and membership itself is in play. Politicians in Budapest are already treating the ruling as a to-do list. Péter Magyar, whose Tisza party ended 16 years of Fidesz rule at the polls on April 12, has not yet moved into the prime minister’s office but has spent the past week shuttling between Brussels and Budapest with reform plans in hand.
On the facts of this week’s ruling, the sovereigntists are right. A law duly passed by an elected Hungarian parliament, and energetically defended for five years by the man who put it on the books, has been struck down in Luxembourg. Foreign judges have indeed overridden domestic democracy. Where the sovereigntists go wrong is next: in concluding that they have been hard done by.
On joining the Union in 2004, Hungary signed up to precisely this sort of treatment. It did so by negotiating its way through 35 separate chapters of the acquis, which every candidate spends the best part of a decade wading through. Ukraine began its own march in June 2022. Britain, meanwhile, has been learning what leaving costs. The Office for Budget Responsibility still puts the long-run productivity hit from Brexit at around four per cent, and British lorry drivers making the run to Calais get reacquainted with customs paperwork every morning. Exit turns out to be a way of recovering sovereignty at a price most voters would now, on reflection, rather not have paid.
The only adult in the room
For members in good standing, the arithmetic runs the other way. Hungary has roughly 17 billion euros of recovery and cohesion money tied up in rule-of-law disputes, and stands to lose close to 10 billion euros of it for good if Magyar’s government fails to move before August. Anti-corruption legislation, accession to the European Public Prosecutor’s Office, the restoration of judicial independence, an overhaul of public procurement: the incoming prime minister’s opening bid to Brussels reads like the Commission’s own grievance file, read back to it with interest. “Hungary wants to be a country where no one is discriminated against because they think differently or because they love someone who is different from the majority,” Magyar said on the eve of the verdict. Six months ago, with Fidesz still in office, that sentence would have been treated in Budapest as a declaration of war.
The Union has also, on occasion, been the only adult in the room for minorities. The 100,000 Hungarians who turned up to Budapest Pride last June, in deliberate defiance of Orbán’s ban, were asserting a right that Luxembourg has now catalogued in treaty law. The same Court has in recent months told Poland to recognise same-sex marriages performed elsewhere in the bloc, and ordered Bulgaria to let a trans citizen living in Italy amend her documents. One does not have to be sentimental about Brussels to notice that this is mostly work national legislatures and courts should have done themselves.
None of which argues for an activist court in Luxembourg. The judges took the best part of four years over this one, and the timing of the verdict (nine days after Fidesz lost the election) was probably not entirely a matter of docket management. Member states retain most of their sovereign heft, including in taxation, defence and pensions, where Brussels cannot tread without treaty change. Article 2 will not be invoked for every squabble between a capital and the Commission; its use here was unusual, and likely to stay so. But it does, now, have teeth.
The real lesson of April 21 is simpler than the legal commentary suggests. The Court did not tell Hungary to become Sweden. It told Hungary to stop pretending it had joined a different club. Members who find the house rules intolerable are free to leave; one did. Those who stay might reflect, as Mr Magyar plainly has, that the bargain on offer (a bit less sovereignty in exchange for a bit more protection from your own worst impulses, plus the largest single market on earth) is really rather a good one. Particularly when there are 17 billion euros on the table.
Photo: Dreamstime.