Distorted and unjust Tovares report going against Hungary’s sovereignty guaranteed in the EU Treaty

From the Memorandum, Remarks of the Government of Hungary on the Report of the European Parliament on the Situation of Fundamental Rights in Hungary [Government of Hungary, July 2, 2013] I will just quote here the remark about the constitutional changes as essentially that criticism is the only one specifically described at least in the news by the European Parliament (see later)

as "Constitutional changes in Hungary have been systemic and they have a general trend that moves away from EU values enshrined in EU Treaty Article 2, … Parliament regrets that the process of drafting and adopting Hungary’s constitution "lacked the transparency, openness, inclusiveness and, ultimately, the consensual basis that could be expected in a modern democratic constituent process” and deplores the fact that the institutional changes “resulted in a clear weakening of the system of checks and balances". Thus you can decide for yourself how much the Tovares report is distorted and unjust. Here is the response from the Government of Hungary to that also supported by the resolution of the Hungarian parliament (see in the last part of this post):

Reform of the constitutional system of Hungary
Another important conclusion of the Report is that, abusing its two-third majority in Parliament, the Hungarian Government practices a quasi “constitutional dictatorship”. In the evaluation of the Report the governing majority has, in an act of constitutional “coup”, adopted a new Fundamental Law without popular consultation and against the will of the opposition. Subsequently, the governing coalition, in a matter of few weeks, has ossified its own power structure through so-called cardinal laws (acts requiring two-third majority in Parliament).
The Report thus identifies a “systemic and general trend of repeatedly modifying the constitutional and legal framework in very short time frames” that seriously jeopardises the rule of law, a core principle of European integration.
The historic context is the following: the last time a new constitution was formally adopted in Hungary prior to the 2011 Fundamental Law was in 1949, shortly after the communist takeover of the country by force. The 1949 constitution was substantially amended by the last communist Parliament in 1989, just before the first democratic elections. The text adopted was thus meant to be provisional even by its own preamble. The socialist-liberal coalition of 1994-1998, that also enjoyed a two-third majority, chose to shape the constitutional system of the country by constitutional amendments and the adoption of a large number of cardinal laws. Among the countries of the former Soviet bloc Hungary was the only one where no new democratic constitution was adopted after 1990. The approval of the new Fundamental Law in 2011 must therefore be seen as the fulfilment of a 20 year old promise, the symbolic conclusion of the political changes of 1990.
As regards the circumstances of the adoption of the Fundamental Law, the Report fails to mention a number of critical facts that have been communicated to the rapporteur by the Hungarian Government. Thus, the Report ignores the fact that the preparation of the Fundamental Law took place over a year through a large number of political, policy and popular fora and events. Over one million citizens participated in a written form in the national consultation process launched by the Government on the main features of the new constitution. The Hungarian Parliament dedicated all its sittings at the 2011 spring term to debating the Fundamental Law, no other legislation was discussed at that time. Against that background it is grossly misleading to claim, as the Report does, that the new Hungarian constitution was concluded over merely 35 days. The rules of adopting the constitution have always required two-thirds of the votes of the Members of Parliament. The fact that two of the opposition parties called off from the preparatory process based on their own political choice does not influence the legitimacy of the process and the text adopted.
The description in the Report of the fourth amendment to the Fundamental Law (adopted in March 2012) is also false. The fourth amendment served a single purpose: to create a clear constitutional situation following a decision of the Constitutional Court on the status of the so-called Transitional Provisions of the Fundamental Law. In that judgement the Court concluded that the some of the Transitional Provisions were indeed permanent in nature and for the formal reason it annulled them. It also called on the legislator to integrate all such provisions into the Fundamental Law itself.
The finding of the Report that the fourth amendment elevated provisions into the Fundamental Law that had been previously found unconstitutional is also seriously misleading. The Venice Commission itself concluded in its opinion, adopted on 14 June 2013 on the fourth amendment of the Fundamental Law at the request of the Hungarian Government, that the fourth amendment did not overrule the decisions of the Constitutional Court (CDLAD(2013)012). Instead, in reaction to the various decisions of the Court, the legislator introduced into the Fundamental Law new legal institutions that take account of the relevant rulings of the Court.
Furthermore, the conclusion of the Report that the governing coalition regulates a wide range of issues of the daily life of its citizens in cardinal laws, thus compromising any future Government’s room of manoeuvre to act, also fails the test of reality. It must be pointed out that the system of cardinal laws in Hungary is the heritage of the 1989 constitutional amendment. The range of issues to be covered by cardinal legislation has remained more or less the same since 1990. In this context the Report also fails to mention that cardinal laws come under the full review of the Constitutional Court.
With regard to the “extensive” use of cardinal laws, it also deserves mention that the socialistliberal coalition that governed Hungary with a two-third majority between 1994 and 1998 amended the constitution six times, adopted 20 completely new cardinal laws and 19 cardinal law amendments, irrespective of the opinion of the opposition. This exceeds the legislative activism – criticised strongly by the Report – of the current Parliament in the aftermath of the adoption of the Fundamental Law.
To conclude, it must be underlined that the comprehensive reform of the Hungarian constitutional system is over. What happens today is merely the fine-tuning of the new constitutional framework. The past two years have shown that the Fundamental Law and the new cardinal laws provide a suitable framework for the transformation of Hungary into a modern and successful country.


Parliament divided over constitutional changes in Hungary
[European Parliament/News, July 2, 2013]

MEPs debated the situation of fundamental rights in Hungary with Hungarian Prime Minister Viktor Orbán on Tuesday. Most MEPs felt that the constitutional reforms adopted by the Hungarian government set a "dangerous trend" moving the country away from EU values. Others said the Tavares report tabled for a vote on Wednesday was "politically motivated" and that Parliament would be exceeding its powers if it adopted it

Most MEPs argued that the current tools in the Treaties to tackle breaches of EU values (namely Article 7) did not work properly and that new instruments were needed. Others said Parliament was applying double standards by criticising practices in Hungary and not in other EU countries.

Further information:

Related information:

1. Remarks of the Government of Hungary on the Tavares report [Government – Ministry of Foreign Affairs – News, July 3, 2013]

The Government of Hungary has recently issued a Memorandum in response to the report drafted on the state of fundamental rights in Hungary by rapporteur Rui Tavares.

Please see the full document in the attached file.

2. What was a "dangerous trend" even in EP became “democracy crisis” for those who want directly supervise the EU member nations based on this, not proven at all pretext [this same szoclib.wordpress.com blog, July 2, 2013]

3. The Tavares Report is a Threat to the European Union [What is really up in Hungary?, July 4, 2013] from which it is important to include the following quote here:

The Tavares Report, which may pass a vote of the parliament, attacks several changes the Hungarian government has carried out. What’s the problem with that? Two things: the content is political and, as the prime minister clearly stated, the procedure raises serious questions concerning violations of EU law.
On content, after the first draft of the Tavares document began circulating in early May, the Hungarian government issued a detailed position paper and then an array of MEPs – non-Hungarian and Hungarian – proposed more than 500 modifications to the draft. Most of these – even those that correct factual mistakes – were voted down by the left-wing majority of the committee.
But just as serious is the problem that, according to the EU’s own treaties, the European Parliament is not the body authorized to guard those treaties. That’s the European Commission’s job. And Hungary – as is entirely normal when a country undertakes so many legal changes during a period of reform – is engaged in an active and open discussion with the European Commission about new laws that may infringe upon EU laws. As a result of that back and forth, Hungary has even announced plans for a 5thAmendment to the Fundamental Law to tweak parts that have been criticized by the European Commission, a fact that Commission President José Manuel Barrosso himself pointed out yesterday when addressing the assembly.
Similarly, the Hungarian government requested an expert opinion from the Venice Commission of the Council of Europe, while firmly opposing the Council’s Monitoring Committee. The reason for that is simple: the Hungarian government is open to fact-based, rational debates within the relevant international forums but does not accept politically motivated debates in international bodies on what are Hungary’s internal matters. In these incidents, we see the Monitoring Committee and the European Parliament being exploited for short-term political interests.

Hungary must abide by EU values, say MEPs [European Parliament/News, July 3, 2013]

The Hungarian authorities must remedy any breaches of key EU values swiftly, said MEPs on Wednesday. If they fail to do so Parliament’s leaders should consider asking the Council of the EU to determine, under EU Treaty Article 7.1, whether there is a clear risk of a serious breach, MEPs say. They also want a high-level group to monitor compliance with the EU’s values in all member states.

In the resolution, adopted by 370 votes to 249, with 82 abstentions, Parliament stresses that the EU is founded on key values such as respect for human dignity, freedom, democracy, equality and the rule of law, as enshrined in Article 2 of the EU Treaty.

"Constitutional changes in Hungary have been systemic and they have a general trend that moves away from EU values enshrined in EU Treaty Article 2," said rapporteur Rui Tavares (Greens/EFA, PT) in the debate on Tuesday. "Democracy is about the rule of the majority, but not about majoritarianism," he added.

Parliament regrets that the process of drafting and adopting Hungary’s constitution "lacked the transparency, openness, inclusiveness and, ultimately, the consensual basis that could be expected in a modern democratic constituent process” and deplores the fact that the institutional changes “resulted in a clear weakening of the system of checks and balances”.

Recommendations to the Hungarian authorities

Parliament urges the Hungarian authorities to remove from the constitution those provisions already declared unconstitutional by the Constitutional Court, to reduce the recurrent use of cardinal laws, to apply the recommendations of the Council of Europe’s Venice Commission, to ensure the widest possible participation of all parties in the constitutional process and to fully guarantee the independence of the judiciary.

On media laws, Parliament asks Hungary to set up objective, legally binding procedures for the appointment of heads of public media and regulatory bodies. MEPs also call on the Hungarian authorities to “finally assume their responsibilities towards the homeless”, adopt a broader definition of “family” and do more to integrate Roma communities.

Resorting to Article 7.1

The resolution asks Parliament’s Conference of Presidents (president plus political group leaders) to “assess the opportuneness of resorting to mechanisms foreseen by the Treaty, including Article 7.1" should the replies from the Hungarian authorities "appear not to comply” with EU values. Article 7.1 of the Treaty would enable the EU Council of Ministers to determine whether there is a clear risk of a serious breach of EU values.

Copenhagen mechanism

To prevent breaches of EU values in the future, MEPs call for a “Copenhagen mechanism” to be set up to ensure compliance with EU common values and continuity of pre-accession criteria. This mechanism, which could take the form of a "Copenhagen Commission" or high-level group, would be independent from political influence and avoid any risks of double standards, says the text..

Additional information

Procedure: Non-legislative resolution


The Hungarian Parliament adopted a resolution on Thursday, 5th of July, arguing that the Tavares report severely violates Hungary’s rights as an EU member state and disregards the European Parliament’s powers.

The resolution was supported by 213 votes from Fidesz, 33 votes from KDNP and 20 votes from Jobbik. The MSZP with only 48 votes in the Hungarian Parliament and also being actively involved in the political activities behind the Tovares report was absent. There were also 3 independent MPs supporting the resolution , 6 other green MPs (so called LMP) were rejecting that, while 20 other MPs, belonging to radical left and green political groups, were absent as well.  That means the resolution was supported by 269 votes against 6, see the ballot results in Hungarian.

Here is the accepted resolution in English as it was submitted (see in Hungarian as well):

MEMBER OF PARLIAMENT
Independent Motion of Members of Parliament

Resolution No. …/2013 (…)
of Parliament
on the Right of Hungary to Equal Treatment

1. We, Hungarians joined the family of the European peoples more than a thousand years ago by virtue of the foundation of the State and the adoption of Christianity.
We, Hungarians have often stood up and fought for European values. There were times when we defended these values against external attacks with our blood. In 1956, we took up arms against the communist dictatorship. In 1989, we made our fair share of contribution to the reunification of Europe by tearing down the iron curtain.

We, Hungarians joined the European Union of our own free will.

We did so in the hope that we shall join a community that is based on the foundations of law, justice and freedom.

We, Hungarians do not want a Europe again where freedom is restricted, rather than extended. We do not want a Europe where larger counterparts abuse their power; where the sovereignty of nations is violated and where only the smaller nations must respect the bigger ones.

We had enough of dictates during the 40 years we spent behind the iron curtain. We, Hungarians have always respected the dialogues that the duly authorised institutions of the European Union initiated and have always been ready to embrace agreements conceived in the spirit of reason.

Therefore, we rightfully expect the institutions of the European Union to manifest the respect and equal treatment that Hungary is entitled to.

We expect the European Union to honour and respect all our rights which are our due also after our accession; the same as all other Member States.

The Hungarian Parliament voices its surprise in the wake of the fact that the European Parliament has adopted a decision which it had no right to adopt, and by virtue of which the European Union extends beyond its powers. It arbitrarily defines requirements, arbitrarily introduces new procedures and creates new institutions which stand in violation of Hungary’s sovereignty guaranteed in the EU Treaty.

By doing so, the European Union goes against the European values and guides the European Union onto a dangerous path.

It further gives rise to concern that there are business interests behind the abuse of power that Hungary is a victim of.

Hungary is reducing the price of household energy consumed by Hungarian families. This may infringe the interests of several large European corporations which, by exploiting their monopolistic situation, have generated excessive profits in Hungary for many years. It is unacceptable that the European Parliament should attempt to exert pressure on our country in the interest of large private businesses.
The Hungarian Parliament believes it is a major threat to the whole of Europe if the interests of business groups are enforced in the European Union unchecked and may overwrite the rules laid down in the Treaty.

On the present day, we are adopting a resolution to defend Hungary’s sovereignty and the equality of the Hungarian People in Europe.

We hereby call upon the Government of Hungary not to yield to the pressure of the European Union, not to allow the curtailment of the country’s rights guaranteed in the Treaty and to continue to pursue its policy of making life easier for Hungarian families.

2. This Resolution of Parliament shall enter into force on the day following its publication.

Reasoning

Electors in Hungary decided in favour of Hungary’s accession to the European Union with an overwhelming majority at the referendum held on 12 April 2003. Hungary has been a full member of the European Union since 1 May 2004. By virtue of its accession, the Hungarian State acquired rights and undertook obligations that arise from its membership, As Article E)(1) of Hungary’s Fundamental Law lays down, “In order to enhance the liberty, prosperity and security of European nations, Hungary shall contribute to the creation of European unity.” Pursuant to Article E)(2), “With a view to participating in the European Union as a member state, Hungary may exercise some of its competences arising from the Fundamental Law jointly with other member states through the institutions of the European Union under an international agreement, to the extent required for the exercise of the rights and the fulfilment of the obligations arising from the Founding Treaties.”

Therefore, the limit to the exercise of competences jointly with other Member States, through the institutions of the European Union, is the extent required for the exercise of the rights and the fulfilment of the obligations arising from the Founding Treaties. The right of constitutional legislation is the sole and exclusive right of the national legislature in all Member States of the European Union. Based on Article 3(6) of the Treaty on European Union, “The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.” Pursuant to Article 4(1), “competences not conferred upon the Union in the Treaties remain with the Member States”.Therefore, in all instances where any of the institutions of the European Union intervenes in issues related to constitutional legislation, it exceeds the powers conferred upon it which the institutions of the European Union are entitled to exercise jointly with the Member States.

The Tavares Report adopted by the European Union simultaneously constitutes a gross withdrawal of powers and the exceeding of competences. It represents a withdrawal of powers because the guardian of the Treaties is not the European Parliament but the Commission, and therefore, from among the institutions of the European Union, it is the European Commission that is authorised to proceed in all instances when the European Union or any of its institutions presumes that any national legislation stands in violation of Community law. It also entails an exceeding of competences because the report includes a number of findings which solely constitute the subject-matter of national legislation and, in particular, because it creates an institution for the investigation of presumed Community law violations which does not exist under the Founding Treaties.

Hungary took part in the creation and passage of the Lisbon Treaty, that entered into force on 1 December 2009, as a full member. Article 48 of the Treaty on European Union clearly stipulates that any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties regulating the functioning of the European Union. These proposals are submitted to the European Council by the Council composed of the Heads of State or Government of the Member States, and the national Parliaments are notified simultaneously. If the European Council adopts a decision in favour of examining the proposed amendments, the President of the European Council convenes a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. At the end of the procedure comprised of a number of stages, the core treaties of the European Union may only be amended if the amendments are ratified by all the Member States in accordance with their respective constitutional requirements. Article E(4) of the Fundamental Law of Hungary requires to this end the two-third majority vote of all Members of Parliament.

The European Union did not even submit an initiative for the establishment a new EU body for the examination of the fulfilment of the Copenhagen criteria; therefore, a report without any binding legal force cannot possibly substitute for the procedure set forth in Article 48 of the Treaty on European Union.

The Tavares Report approved by the European Parliament does not only contain untrue and insulting claims about Hungary but also grossly violates Community law when it delegates competences not conferred upon the European Union to a body that does not exist under the Treaties. By proceeding within its own competence, the Hungarian Parliament wishes to draw the attention of Hungarian and European public opinion with this resolution to this uniquely blatant example of the arbitrary abuse of power and infringement of Community law contrary to national sovereignty, also with regard to the principle of subsidiarity.

MEMBER OF PARLIAMENT
Attention László Kövér
Speaker of Parliament
To be delivered locally
Honourable Speaker,
Based on Section 28(4) of Act XXXVI of 2012 on Parliament, we hereby submit the following Resolution of Parliament “on the Right of Hungary to Equal Treatment”.
Budapest, 4 July 2013
Antal Rogán
Fidesz – Hungarian Civic Union
Dr Gergely Gulyás
Fidesz – Hungarian Civic Union
Dr Máté Kocsis
Fidesz – Hungarian Civic Union
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