Law students and young lawyers from the European Union are reporting for JURIST on law-related events in and affecting the European Union and its member states. Jacky-Long Mouthuy recently graduated from Maastricht University. He files this dispatch from Maastricht, Netherlands.  

The European Parliament last Thursday officially triggered a procedure under Article 7(2) TEU (Treaty on European Union) calling on the European Council to determine the existence of a serious and persistent breach by Hungary of EU values listed under Article 2 TEU, especially the respect of fundamental rights, the rule of law and democracy.

The Parliament’s resolution comes as an outcry against the European Commission’s decision to lift €10.2 billion of frozen EU budget to Hungary. The Commission previously decided to freeze the funds under the Conditionality Regulation which conditions the grant of EU funding to the respect of the rule of law. Commission President Ursula von der Leyen justified the lift by the fact that Hungary sufficiently addressed the issues relating to the independence of its judiciary; which the Parliament contests. However around €21 billion remain suspended because Hungary is still in breach of several aspects of the rule of law, such as academic and press freedom, the right to asylum and child-protection law. Also Thursday, the Parliament also adopted its yearly fundamental rights report which points out Hungary’s use of spyware like Pegasus and oppression of the LBTQI+ community.

The truth is that Hungary PM Vikor Orbán vetoed a reform of the EU long-term budget that included a €50 billion aid to Ukraine last December and threatened to do so until the Hungarian share of the EU budget gets unfrozen. Orbán maintains close ties to Moscow and has been reluctant to aid Ukraine since the beginning of the war in 2022. When voting on the opening of EU accession talks with Ukraine in December, Hungary abstained. That is why the Commission’s decision is seen as a concession to get Hungary on board rather than a real reward for its efforts to address the rule of law. If the Commission releases the said funds, the Parliament threatened to “use any of the legal and political measures at its disposal” and reminds that “the Commission is politically accountable before Parliament”.

If the European Council follows the Parliament’s finding and confirms the existence of a serious and persistent breach of the rule of law by Hungary, its voting right may be suspended in the Council, where national ministers meet on thematic issues including the EU budget. Such finding would pull out a thorn in the EU decision-making side. However this is unlikely to happen as the Council rejected the Parliament’s request to find  a clear risk of a serious breach of the rule of law by Hungary in 2018, under Article 7(1) TEU. Whereas much has changed over the course of the past five years, EU Member States remain reluctant to name and shame one another as they might need their support in other policy areas. For this reason, the so-called nuclear clause under Article 7 TEU has never been successfully triggered to date.

Moreover Hungary is due to hold the European Council’s rotating presidency from July to December. The Member State in charge of the rotating presidency sets the institution’s agenda, chairs its meetings and represents it before the other institutions. Many fear that the Hungarian presidency will slow down the EU current plans to welcome new Member States like Ukraine, to pursue environmental-friendly policies and to enhance the enforcement of fundamental rights and the rule of law. European Council President Charles Michel decided to run for the European Parliament elections on June 9 which means that he will have to step down from the presidency before the end of the term due in December. He will thus leave an empty seat that is feared that Hungary will temporarily fill in until the end of the term.

Although that scenario is not foreseen in the Treaties, that is the most probable alternative in the absence of a President for a period of five months. Should Orbán take over the European Council presidency in addition to its rotating presidency (yes EU institutions are complicated), he will have to also represent the EU on the international scene. This gloomy prospect puts all the more pressure on the current rotating presidency held by Belgium to push forward the agenda until end of June.