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2nd Dec 2021

EU court tells Hungary to allow judges to ask for guidance

  • The European Court of Justice said "EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling" (Photo: curia.europa.eu)
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Domestic judges in EU countries cannot be forbidden from seeking guidance from the EU's top court, or be disciplined for doing so, the European Court of Justice (ECJ) ruled on Tuesday (23 November).

The ECJ ruled in the case of a Hungarian judge, Csaba Vasvári, who in 2019 asked for a preliminary ruling from the EU top court on the country's judicial independence.

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His request was challenged by Hungary's prosecutor general, Péter Polt, a close ally of the country's nationalist prime minister Viktor Orbán.

After Polt's appeal, Hungary's Supreme Court ruled that the judge's request was unlawful. Disciplinary proceedings were launched against the judge, but later halted.

In its ruling, the ECJ said the EU treaty "precludes a national supreme court from declaring, […] that a request for a preliminary ruling submitted by a lower court is unlawful".

"The principle of the primacy of EU law requires the lower court to disregard the decision of the supreme court of the member state concerned," it added.

The court also said that "EU law precludes disciplinary proceedings from being brought against a national judge on the ground that he or she has made a reference for a preliminary ruling".

Interestingly, the court did not make a clear stance as to the country's judicial independence following Vasvári's request - which is a separate case and was not dealt with in the Tuesday ruling.

In 2018, another Hungarian judge, Gabriella Szabó, asked for a preliminary ruling at the EU's top court that at the time went to the heart of Orbán's migration policy.

Earlier this year, her mandate as a judge was not renewed, and she claimed it was because of her ECJ request.

Tuesday's ruling is one of many cases in which the EU's top court has recently found against Hungary, and Poland, the other EU member state that has been at loggerheads with the bloc and its other members over rule-of-law issues.

Democratic backsliding

Poland and Hungary, along with Slovenia are the three EU countries, where there has been the greatest declines in democracy, according to a report published on Monday (22 November) by the International Institute for Democracy and Electoral Assistance (IDEA), a Stockholm-based intergovernmental organisation.

Serbia, whose bid to join the EU is staunchly supported by Budapest, has also seen a deep regression, according to the report.

"The 2010s were a decade of missed opportunity for democratic consolidation" in Europe, the IDEA study notes, adding that democratic deficits intensified in Poland and Hungary in 2020.

"These declines have created a deep and dangerous cleavage in the EU's internal fundamental consensus on liberal democratic values, and highlighted the lack of effective tools to promptly address democratic backsliding within the EU," the report concludes.

However, the "formal institutions of democracy in Europe, such as elections, parliaments, and political parties, were resilient in the face of the grave challenges presented by the pandemic," the study said.

"Hungary is a very low-performing democracy, with all the formal structures in place of a democracy that tick all the boxes, but it lacks the elements that allow the checks and balances to work," Sam van der Staak, the head of International IDEA's Europe programme told EUobserver when asked if Hungary still qualified as a democracy.

Van der Staak said said he was optimistic that the EU can grow out of the rule-of-law and democracy crisis, and further contagion beyond Hungary, Poland, and Slovenia will not happen as the EU leaders had now woken up to the issue.

One of the key lessons of recent years is that democracy can be reversed, van der Staak noted.

"Democracies can be destroyed from the inside, they don't protect themselves, they need maintenance," van der Staak said.

Van der Staak said polarisation was the biggest threat to democracies, and Covid-19 had further eroded citizens' trust in governments and institutions.

He added that delivering for citizens on the issues that concerned them, educating citizens about what democracy can do for them, and opening up the political discussions to include them were some of the tools to help democracies.

Damaging pandemic

The IDEA study notes that worryingly the US has also seen concerning democratic decline.

The global trends are concerning. 2020 was the worst on record, in terms of the number of countries affected by deepening autocratisation.

"The number of countries undergoing 'democratic backsliding' has never been as high," the study said, referring to the regressive turn in areas including checks on government and judicial independence, as well as media freedom and human rights.

IDEA said 70 per cent of the global population now live either in non-democratic regimes or in democratically regressive countries.

"The pandemic thus has had a particularly damaging effect on non-democratic countries, further closing their already reduced civic space," it said.

"Democratically-elected governments, including established democracies, are increasingly adopting authoritarian tactics. This democratic backsliding has often enjoyed significant popular support," IDEA said.

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