what are the two major compromises of the constitution
Constitutional change in Hungary: what can the EU do?
An earlier version of the below article appeared in the UK Constitutional Law blog on 17 January.
On 18 January of this year, in the face of EU pressure, Hungarian Prime Minister Viktor Orbn agreed to review some of the fundamental changes his government has wrought on Hungarys constitutional framework. But what powers have the EU in the face of democratically implemented constitutional change? The answer is: quite a lot.
The European Commission, the executive of the EU, has commenced legal proceedings against Fidesz (the party which currently holds government in Hungary) to challenge the three pieces of legislation enacted under the new Constitution they see as the greatest threat to democracy in Hungary: those that affect, respectively, the independence of the judiciary, the Central Bank and the data affairs ombudsmen. It commenced these proceedings under the authority of Article 7(3) of the Treaty of the European Union, which allows the EC to act preventively in the event of a clear threat of a serious breach of the common values of the EU. The EU has given Orbns government a month to respond to the criticism and the EU Justice Commissioner, Viviane Reding, has said that only actual changes to the legislation in question, or their immediate suspension, will be able to accommodate the Commission's legal concerns.
The EC considers legislation allowing Cabinet ministers to participate in Central Bank meetings, requiring the meetings' agendas to be sent to government representatives in advance and obliging members of the Central Bank to sign an oath of loyalty, violates Articles 127(4) and 130 of the Treaty on the Functioning of the EU. It points to the compulsory retirement age of judges as an infringement of Council Directive 2000/78/EC, which prevents discrimination in the workplace. This is interesting, because other EU member states require their judges to retire by a certain age. For example, Lord Sumption, the newest member of the UK Supreme Court, will be required to retire upon his 70th birthday. Compulsory judicial retirement is also commonplace outside the EU: for example, it has applied to every appointee to a federal court in Australia since 1977. The ECs real issue is likely to be that the new Constitutions lowering of the retirement age will force around 300 judges to retire in the coming year. The new President of the newly-created National Justice Office, Tunde Hando, is a family friend of Prime Minister Orbn and the wife of an influential Fidesz politician. Ms Hando has the power to appoint new judges and it is not unreasonable to expect that these appointments will have a distinctly partisan flavour.
The EC also challenges the decision to create a New Data Protection Office, throwing out the current Commissioner and enabling members of the Executive to fire the new supervisor for arbitrary reasons. There are numerous EU Law authorities that defend the independence of data protection, as well as EU case law that establishes that data protection supervisory authorities have to remain free from any external influence.
!doctype>