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The constitutional and political developments in Hungary in
the last few years have stirred a lot of controversies and also raised
significant academic attention. This blog has provided not only a wonderful
forum for an exchange of different views, but it has also produced original and
thought-provoking proposals for tackling the Hungarian problem.
However, the “reverse
Solange” idea, the call for the establishment of a special Copenhagen
Commission, for a straightforward supremacy
of the Charter and other insightful
proposals, all appear to be addressing the Hungarian dilemma from within
the constitutional register. This is, of course, a legitimate choice, but it is
neither exclusive nor neutral.
As the Lindseth-Halberstam exchange
in particular demonstrated, the answers sketched for the resolution of the
Hungarian dilemma are heavily dependent on the assumed or the desired character
of the European Union. Without engaging with the merits of the
constitutional account of the European Union and without necessarily taking
sides, I would like to use this post to explore – out of intellectual curiosity
– the Hungarian dilemma from a pluralist perspective.
The European Union as a pluralist entity is a union (der
Bund). It is composed of autonomous national and supranational
constitutional sites, which form a non-hierachical common whole, founded on a relational
principle of primacy, rather than supremacy. In a pluralist Union boundaries,
jurisdictions and competences matter. They do so not merely because of the
formal reasons (eg since the Treaty stipulates so), but because they are a
guarantee and a sign of respect for autonomous development: for a veritable
self-government of the Union’s constituent entities.
Therefore not every constitutional conflict inside a Member
State is automatically turned into a supranational EU affair. A national
constitutional conflict can trigger an EU reaction, if it causes negative
externalities: be it to the other Member States, to the EU or to the EU
citizens. It should also lead to the EU reaction when a Member State
violates the normative spirit of pluralism, by undermining the double
commitment: to the plurality and to the common whole, both at the same time.
The EU’s intervention should be therefore exceptional,
rather than a rule, and it should be exercised with self-restraint too. This is
so for three reasons: the legal-jurisdictional; the reasons related to
substantive democratic legitimacy; and the reasons related to the Union’s
pluralist character.
First, the Union is based on the principle of conferral of
powers. The EU can only act when it is authorized to do so. It can therefore
start an (legal) action against a Member State only in explicitly enumerated
cases.
Second, the EU has traditionally suffered from a democratic
deficit. This indicates that it lacks not only strong legal grounds for the
intervention against the Member States, but also substantive legitimacy to do
so. In contrast with the classical federal states, such as the USA or Germany,
the locus of democratic legitimacy in the EU still rests on the national rather
than on the supranational level. Therefore, if in a classical federal system a
state level is looked upon with suspicion, it might be still the other way
around in the EU.
Third, the Union is a legally pluralist entity because of
the value pluralism that it embodies. Legal orders as forms shield different
understandings of the substance of the values in the constituent entities of
the Union. Following the pluralist understanding, there is no value unity or
uniformity in the Union. A great majority of the fundamental constitutional
values is shared, but they are not identical or homogeneous across the Union.
Even if nominally the same, they are – due to each entity’s distinctive
episteme – understood and practiced differently.
In other words, pluralism allows to each entity of a
pluralist construction to strike its own balance of fundamental values.
Simultaneously, each entity is entitled to its own irreducible epistemic core,
to its own constitutional identity, which is unamendable or non-derogable lest
the entity’s autonomous character is lost. Moreover, in a pluralist
constellation there is also no ultimate authority to decide for all the
entities involved on a single correct balance of fundamental values or on the
ultimate suitability of a given constitutional settlement.
The implications of this are the following. In case of a
Member State purely internal constitutional conflict the EU should first
approach it with a degree of trust that a national polity is able to resolve it
by itself. This is after all its right if the autonomy of a polity shall
preserve any meaning. Only when the conflict creates externalities or when it
affects the alleged fundamentals of a constitutional order, the EU can and
sometimes indeed should act.
In doing so, its measures should be guided by the principles
of subsidiarity and proportionality. They should match the gravity of the
alleged national violation. The measures should be used incrementally: ranging
from the least to the most stringent ones. If these were depicted as on a
continuum, they should consist of soft diplomatic measures, political
pressures, initiation of legal proceedings, actual filing of applications
before the CJEU, economic sanctions, suspension of voting rights.
Indeed, the pluralist vision allows for an integral approach
to sanctioning a Member State, but this must be done in accordance with the law
and, more broadly, in accordance with the pluralist character of the Union. Any
EU intervention must be taken with a reminder that the EU too lacks legal
powers; that it lacks legitimacy; that there should be no uniform
constitutional model across the Union and that even the most fundamental
constitutional values might be legitimately understood and practiced
differently in different Member States.
A pluralist vision therefore rejects the extension of the EU
competences beyond the enumerated powers. Indeed, as argued by Daniel
Thym, there should be no more room for the integration by stealth, as it
was practiced in the 1960s and 1970s. As the union is a pluralist entity, the
Member States have to be taken seriously. The textual constraints to which they
have subjected the EU institutions should be heeded. The Court should be aware
of its institutional limits. The Commission should act in accordance with the
law. Any action taken by the European Parliament should be conducted with the
political divisiveness of the situation in mind. But once again, in purely
internal situations it should be first for the national political and overall
constitutional process to find the right answers.
However, having said that, the pluralist nature of the Union
should not used by the recalcitrant Member State as an excuse for its measures,
corrosive of the fundamental constitutional values. Pluralism leaves no room
for complacency, for self-sufficiency, for self-closure, but it requires the
ethics of a dialectic open-self. Irrespective of the cause of a constitutional
conflict inside a Member State, its government or a ruling coalition has to be
able to justify it in a dialogue with the domestic opposition as well with its
counterparts in the Union. In this process of justification, the Member State
(actually its governing coalition) must genuinely consider the counter-arguments
and be open to reconsider its own position and to amend it.
In other words, any Member State, which in defence of its
own constitutional autonomy (even identity), invokes the pluralist structure of
the Union, it can only do so after it has heeded pluralism inside its own
constitutional polity. In that way, pluralism can endogenously create the
environment constructive of a sound national constitutional development. This
is different from the constitutionalist account that in a statist-federalist
manner imposes (or creates an impression of imposition) of “foreign”
constitutional values top-down.
However, as the historical experience of failed unions
teaches us, pluralism is a demanding normative order, since it always (in most
abstract terms) oscillates between the openness to the other and the complacent
self-closure. If a country, such as Hungary, indeed decides for a slide into
authoritarianism, as alleged and feared by many, this will reveal that it has
given up on a normative spirit of pluralism.
In such a case, there are not many alternatives left.
Pluralism may be reclaimed through the national political process. It can be,
indeed, imposed top down by the EU. Yet, this is a monist, constitutional
solution which teaches a Member State a lesson in “the right” pluralism, while
the latter has given up its own autonomous pluralist self. And finally, such a
country can leave a pluralist entity and continue in all respects a monistic
and therefore ever more authoritarian journey.
Obviously, the first alternative is the best solution.
Pluralism is either endogenous or it makes no sense. If the European Union is
to remain a pluralist entity – the EU, the Member States, and in particular
Hungary, should be aware of the fragility of its construction and act
accordingly. If they do not, the system will be either constitutionalized
top-down or subject to disintegration. In either way something of great
importance to the European project will be lost.
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