This was the response many expected. The governments political agenda of preventing the “forced settlement of foreign populations in Hungary” was inserted into the Fundamental Law (Hungarys constitution) in 2018 shortly after Orbáns party, Fidesz was re-elected for a third time. The Hungarian government is famous for its resistance to a common European solution to the refugee crisis based on relocating asylum applicants. In order to defend Christianity in Europe, the government operates the Hungary Helps Program to keep potential – preferably Christian – asylum seekers safe in their countries of origin.
Thus, it appears at first that with closing the transit zones, the Hungarian government did what it was least expected to do: it complied with the judgment of the CJEU in a manner that goes much beyond the bare minimum.
On closer inspection, however, it appears that in doing so, the Hungarian government masterfully flipped a key premise of the EU legal order – and thus, of EU membership. Compliance with judgments of the Court of Justice is a legal obligation, the behaviour member states agree to adhere to by default when they join the Union. Making it sound as if giving effect to a Luxembourg judgment was a question of open political discretion turns a key premise of the EU legal order on its head. This is exactly what President Koen Lenaerts of the EU Court of Justice warned about in a recent interview when he said that, “the first member state that ignores a judgment could unravel the entire European legal order.”
The political profits of the Hungarian governments move are exceptionally high and immediate, while its risks are negligible.
The political profits of the Hungarian governments move are exceptionally high and immediate, while its risks are negligible. Hungary badly needed some positive press, after the drama around the Enabling Act, both from the Commission and in the parliament in Budapest. Still, this gesture will hardly move the needle on fixing the EUs “greatest inadequacy” – to quote German foreign minister, Heiko Maas — the distribution of asylum seekers, an idea Hungary sharply opposes. Also, those asylum seekers who were moved out of the transit zones are now under the umbrella of the European human rights regime.
Here, the standards of protection have become Byzantine due to the ECHRs self-proclaimed preference for following a “practical and realistic approach” that is mindful of “present day conditions and challenges.” The most the Hungarian government risks is a few cases down the line before the European courts concerning the rights of asylum seekers represented by human rights defenders. Thus, the immediate political rewards of compliance clearly outweigh its potential risks.
In short, the Hungarian governments decision to comply with the Luxembourg courts judgement makes perfect sense in the illiberal calculus of strategically resetting the terms of EU membership. Conveniently, the German Constitutional Courts recent judgement assisted the Hungarian government to flip a fundamental premise of Union law on its head, turning compliance with a judgment of the Court of Justice into the discretionary political decision of a national government. And so, the unravelling of the European legal order is underway.