Protecting Democracy Inside the EU: On Article 7 TEU and the Hungarian Turn to Authoritarianism, in CLOSA

The European Union is facing a unique historical situation: a political club of democratic regimes established primarily to promote peace and prosperity in post-World War II Europe is confronted with the first EU member state ever sliding into an authoritarian illiberal political regime. The Fidesz government achieved a fundamental revision of the rules of the constitutional and political order in Hungary. In only five years it managed to transform Hungary from one of the success stories of the transition from Communism to democracy into a semi-authoritarian regime based on an illiberal constitutional order by systematically dismantling checks and balances, undermining the rule of law, limiting independence of judiciary, almost destroying press freedom, attacking civil society and increasing executive power. As a consequence, the new Hungarian constitutional order is in a direct conflict with the ‘fundamental values’ of the EU “political” constitution, such as democracy, the rule of law and respect for human rights. One of the most important legal questions facing Europe today is how well is the EU equipped, legally and politically, to defend democracy and the rule of law in its member states?While EU constitutional law contains a legal provision designed to deal with such a situation, this provision is often criticized as largely inadequate to provide for a toolkit with which to intervene effectively in the internal matters of member states. A major problem surrounding the debate whether to use or not to use Article 7 in case of Hungary has less to do with the legal intricacies of Article 7 than with the absence of political will to use it. The current EU economic and political crises have weakened the ability of the EU institutions to effectively tackle the Hungarian problem. With trust in EU at an all time low and with unwillingness of the EU political elites to adequately acknowledge the gravity of the Hungarian problem, it is quite unlikely that sanctions, even if imposed, would actually achieve desired results.