A state governed by the Rule of law means that all people are subject to the law, i.e. the principle that rules must be followed and that the law cannot be partial. The Rule of law means that not people rule over people, but the law does, which – in contrast to individuals being often biased – measures everyone by equal, just, and impartial standards.
If democracy and the principles of the Rule of law, keeping the will of the majority continuously under control, stand in balance, they can guarantee the reconciliation of social will and the rights of citizens and minorities, thus the peace of society. If this balance is disrupted however, and shifted in either direction, such imbalance can easily endanger the democratic state. Excessive legislation that has no regard for the rights of the individual and of certain communities results in wide-spread social dissatisfaction and conflicts, while the hyperbolic application of elitist Rule of law measures hinders the government’s ability to act and erodes the belief of people in democratic institutions. We Hungarians know examples to both cases all too well.
The topic of the Rule of law has continuously been on the agenda ever since the fall of communism. Our societies, which fought to achieve freedom, free political competition, and free elections in 1989-1990, considered democracy and majority elections a primary and incontestable value. Those helping and influencing the process from the West have considered it important from the beginning that along the principle of majority democracy, a system of institutions that curtails “nationalism” and the potential tyranny of the will of the majority, so to speak, as well as the Rule of law and the protection of fundamental rights become a basic, active factor in the new constitutional systems of these countries.
In Western countries, it was around that time that it has become a dominant trend for Constitutional Courts originally established in a sense of Hans Kelsen for solely hierarchic and state organisations purposes, to attribute to themselves additional substantive and fundamental rights protection powers and duties that went far beyond their original function. As a consequence of judicial procedures or ones of a judicial nature but in reality concealing a kind of “negative legislation” being forced, the danger of disturbing the balance between the powers and the principle of checks and balances arose, since such processes have kept pushing deeper into the territory of legislation that until that point had had a fundamentally majoritarian, democratic type of legitimacy. It was around that time that institutions protecting fundamental rights, of ombudsmen and of international tribunals has also proliferated, undermining national and state powers by their soft rules and orders of reasoning, they in a problematic way from a legal certainty standpoint, while their influence has grown to an unprecedented extent. Some considered countries that have only recently regained their independence, a particularly suitable training ground for trying out such and similar constructions. The creation e. g. of four different ombudsmen in Hungary, the forcing of inaccessible, self- governing judicial systems negating the checks and balances of the powers, the creation of a Romanian type of public prosecutor’s office for priority cases, the excessive powers of Hungarian and Polish Constitutional Courts, unprecedented in other countries, the superfluous, often unrealistic guarantees of the independence of national banks, hindering rational cooperation, are all illustrious examples of the eclectic imitation of certain “Rule of law” institutions without having any regard to historic roots, of the exaggeration of Rule of law considerations, of the weakening of the executory and legislative powers. They also testify to a conceptual confusion, to a lack of intellectual rigour, to a colonial mentality, to the exercising of pressure and to the debunking of politically biased, semi-scientific aspirations being ideological in nature, to the underestimation of democracy and of majority decision- making, and at times, to panic fear that certain elites and political groups losing their ground feel of the power of the demos.
Aspects of the Rule of law need to be applied to all institutions consistently. None of the bodies exercising any power can be an exception to that. That is how principles of fundamental rights and of the Rule of law have been included into the legislation of the European Union, protecting citizens against the Community institutions and authoritarian legislation. This is what the Charter of Fundamental Rights is all about. Since the European Union is not a state, but a special, treaty-based organization, it has not yet been capable of fully meeting the conditions of democracy or of the Rule of law, and since important basic conditions are missing, in a certain respect, it is never going to be able to meet them entirely. The most important and strongest democratic legitimacy component of the Union, the cornerstone of Europe’s democracy and its ultimate guarantee, remains even today the free election of Member States’ legislative assemblies following the majority principle. The European Parliament as a quasi- representative institution was not able so far to counterbalance the sui generis democratic deficit of the Union and the weakness of democratic legitimation inside the community – even decades after its creation. In the meanwhile, the common institutions of the Union have actively resisted to a Rule of law control to be created over them. Over the past years, meanwhile they were criticising the Member States for the same, in turn, they ruled out even the weakest efforts to external control over themselves. They disregarded guarantees, they aggressively transgressed the limitations set forth by the principle of subsidiarity and continued to treat and shape systems aimed at reducing the Union’s democratic deficit in ways that would not threaten their own powers in any way. The right of national parliaments to have their say in EU legislation created by the Treaty of Lisbon has been a spectacular failure. No less the citizens’ initiative, which has a threshold of a million signatures to be initiated. In the last decade since these rules have been in force, they have not been able to produce successful examples. EU institutions simply shook off the initiatives they did not like, aimed at curtailing their powers.
Thus, we can say quite bluntly that the Union is at odds with the Rule of law and with the principles of the supremacy of the Rule of law.
The European Parliament is adapting the rules on the counting of votes according to its current interests, by a distorting interpretation the founding Treaties, and guidelines enacted by its internal legal service of an obscure legal status; as happened both in case of the Sargentini report, and was the case with the removal of a Polish MEP not favoured by the European mainstream from his seat of Vice-President of the Parliament. Furthermore, the European Parliament adopted the Sargentini report on Hungary, concerning many elements of which it openly admitted not having any legal basis under EU law.
The latest robust example is that due to the COVID-19 crisis the EP Bureau introduced a remote electronic voting system in contradiction to the Rule of Procedure which by default explicitly requires the presence of Members. On the basis of this serious infringement one might question the validity of all votes cast by the Parliament since March 2020. The Parliament’s Rules of Procedure can be changed or amended only by the absolute majority of members, not by any partial body or by the President. Furthermore the EP openly disregards the court rulings that oblige it to have at least twelve plenary sessions in a year in Strasbourg.
Commission is not any better. During the Juncker Commission when appointing a new Secretary-General of the European Commission – it would have been more accurate to use the term “coup” for this Machiavellian operation – the Commission applied a “creative” interpretation of the rules applicable, and when the Parliament criticized this legal abuse in a resolution, it persisted, led by a kind of strange EU solidarity, at a disapproving nod without any sanctions, toothless, actually cementing this situation created by a miscarriage of justice.
The Commission started to prepare annual reports on the Rule of law-situation of the member states. It is more than telling that such kind of reports on the functioning of the Union institutions – Commission, Parliament, Council etc. – are nonexistent. Evidently not because they have no problems in these domains… In fact nobody speaks about that the Rule of law-principle in Article 2 applies to them, too! In fact it applies primarily to union institutions.
It is no wonder, then, that the EU institutions prefer to apply Rule of law regulations that have been originally created to be applicable to them – rather to Member States instead of themselves. The different written materials, proposals, and recommendations on Rule of law mechanisms discussed in the past decade and particularly in the recent months under the banner of Rule of law-conditionality in detail, hardly ever addressed the functioning of the EU bodies themselves. They do not care about the Rule of law in their own operation, because the real goal of the Rule of law-debacle is to discipline Member States, to increase EU competences to the detriment of the member states, in other words, they are thinly veiled attempts to exercise political and financial pressure and blunt federalist assumptions. The superficies, the appearances and imitation of principles of fairness and impartiality should not let us deceived! Clearly demarcated, identifiable institutional, ideological, party political selfishness, and group interests of certain member states have already marked the course along which punitive, disciplinary proceedings are underway or to be initiated against Hungary, Poland, Bulgaria, Romania, Czechia…
The motivations, the asymmetric, dominant, influential relations between the West and the East, which have been present in the EU from the very beginning, can also be actively seen since all the initiatives so far or plans still on the table, all target countries that acceded to the Union in the 2000s. Meanwhile, they quietly overlooked the Western examples by a type of purposeful selectivity speaking for itself; the fraudulent violation of the Austrian presidential election in deep violation of the Rule of law, the police crackdown employed against the so-called yellow-vest protestors in France, the fatal abuse of Belgian police authority against a Slovak citizen…
It is well known and supported by experience that the application of a double standard is the worst enemy of the Rule of law, of cooperation and of equality. It is toxic. It undermines the confidence of Member States and of citizens in the European Union.
We should see right through these pretences.
First of all, in order to discuss our common European issues, we need clarity, everyone needs to reveal concealed hidden intensions and the by no means fair practices used for gaining political and ideological advantages.
Our EU membership is of existential importance to us, but we know that in the absence of solid plans and unless undertaking struggles and conflicts, without exercising effective counterpower, the Community might ignore its members’ interests.
We need to overcome the newly proliferating, dictating, sanctioning, coercive and commanding EU. It is time to return to a free cooperation of equal European nations, which has already brought so much success to Europe!
Europe can only safeguard its peace, unrivalled influence, its power, and prosperity built upon strong nations. Many people in the Brussels bubble think that it is a zero sum game. They think that the EU can be strong only if the member states are weakened. History proves us the opposite. The Union can be strong only if it is built on strong members. This could be a win-win game – again.
But then one of the first lesson is: Rule of law should apply also to the EU institutions. No double standards! Parliament is not exempt – either! Article 2 of the Treaty applies to the whole EU. It is time to get things straight! Parliament should first get its own house in order before shouting off others!
József Szájer
Member of the European Parliament (Fidesz)
