Who determines the values in the EU “community of values”?

by Dr iur. Marianne Wüthrich

17 EU heads of state have recently written a letter to the EU Commission criticising a “law on stricter action against paedophilia and for the protection of children” passed by the Hungarian parliament. The law, they say, discriminates against people on the basis of their sexual orientation and is therefore unacceptable. The heads of state called on the Commission, as “guardian of the treaties”, to ensure compliance with EU law. In response, Commission President Ursula von der Leyen said the Hungarian law violated “the fundamental values of the European Union” and was “a shame”. She announced possible infringement procedures against Hungary.
  For a Swiss legal expert this proceeding raises a number of questions: What is the denounced law about? The EU has 27 member states: What is the opinion of the other nine states (besides Hungary) that have not signed the letter – or, put another way, who determines the values in the EU “community of values”? And how do the EU leaders deal with the diversity of cultures in the Union?

What is the Hungarian Child Protection Act about? The parents’ rightto educate their children

What exactly it says is not easy to find out if you don’t understand Hungarian, because in the media the actual content of the law is mixed with free interpretation and emotional comments higgledy-piggledy. One can filter out that it is about the protection of children and young people. The law prohibits printed matter and videos about non-heterosexual activities aimed at children and young people under 18. Advertising homosexuality, transsexuality and gender reassignment to minors is also prohibited. There are no restrictions for adults over the age of 18.
  What is the aim of the law? According to the German Tagesschau, head of government Viktor Orbán explains that the law is not directed against homosexuality; he himself defends the rights of homosexuals. Rather, the meaning of the regulation is that the Hungarian state recognises the right of parents to educate their children. For example, parents have the right to decide how to raise their children with regard to sexuality.1 Many people in Europe, including Switzerland, share this understanding of education.

Democratic debate on values between the member states must be guaranteed

17 EU heads of state have criticised Hungary’s new law, only two of them from Eastern Europe (Estonia and Latvia). That means nine governments did not sign the letter to the EU Commission: Bulgaria, Croatia, Lithuania, Poland, Romania, Slovakia, Slovenia, the Czech Republic and Malta. Some, like Poland and Slovenia, openly side with Hungary. This shows that the views in the different cultures on family and child-rearing issues are different.
  Hungarian lawyer and publicist Soma Hegedős writes: “The big question is whether Hungary or any other member state in this situation still has the right, as a member state of the European Union, to take a particular political view on these issues.”2 Hegedős points out that “the European Union was created on the basis of international treaties according to which the member states – within the framework of a confederation of states – accept certain values as common [Art. 2 TEU], while at the same time preserving their own constitutional identity” [Art. 3 and 4 TEU]3.
  Because the member states signed the founding treaties of the European Union as equal contracting parties, “the possibility of a democratic debate on values between the member states must be respected and guaranteed”, Soma Hegedős explains the legal situation.

All EU states are equal, but some are more equal
(loosely based on George Orwell)

In glaring contrast to the legal situation is the way different cultural values are dealt with in the European Union today. Some Western European governments have risen to impose their view of “common values” on other countries. Some expressions used towards Hungary have no place in a union of states committed to peace in Europe. In addition to Commission President von der Leyen, who was heard in all the media in and outside Europe (“The Hungarian law is a shame.”), Luxembourg’s Foreign Minister Jean Asselborn declared that Orbán was “hopeless”, that he would “no longer get on the European track”. This is unfortunately a fitting image: If 27 states are to be shunted onto a “European track”, there is no more room for different gauges. Dutch Prime Minister Mark Rutte even found that Hungary no longer had any business in the EU (dpa News, 25 June 2021).

How to force recalcitrant member states onto the “European track”

The rulers in Brussels cannot kick Hungary out of the EU without further ado, but they have invented other punishment mechanisms: the withdrawal of voting rights, for example, if the European Council unanimously determines that “there has been a serious and persistent breach by a member state of the values referred to in Article 2” (TEU Art. 7 para. 2 and 3). This means that it would take the votes of all the heads of government of the other 26 states to bring Hungary to its knees.
  Most recently, however, the Council and the Parliament of the EU have added a few more wrinkles: On 16 December 2020, they adopted a “new policy instrument” that would “allow [the EU] the suspension of budget payments to a member state violating the rule of law”.
  For many EU states, this is a real hammer blow – after all, most of them are dependent on money from Brussels. In order to discipline Hungary, Poland or Slovenia, for example, the EU bodies have overturned the unanimity principle here: “The decision on the suspension will have to be taken by the Council acting by a qualified majority on the proposal of the European Commission.”4 Hungary and Poland have filed a complaint with the European Court of Justice because of the lack of legality of this regulation. Whether they will be proven right there is doubtful based on previous experience with the ECJ.
  In the third thesis of his speech of 19 June 2021 (see box: “We are racing towards an imperial European Union”), Hungary’s head of government Viktor Orbán characterises this “rule of law mechanism” as a purely political instrument of power. In a first step, the Commission was transformed from a politically impartial guardian of the Treaties into a political body. In a second step, it produced so-called “rule of law reports” on the individual member states, the data for which was supplied by “fake civil-society organisations” such as George Soros’ network. Based on this, the democratically elected governments of the member states would be evaluated and – if “necessary” – punished. Orbán concludes: “This is an abuse of power, the power which the member states have granted to the Commission.”
  For the Swiss legal expert, too, it is clear that the EU “rule of law mechanism” has little to do with the rule of law. Rather, its purpose is to bring states that want to save a piece of their sovereignty and their cultural values over the period of their EU membership onto the “European track”.

Recommended to the Swiss population for reflection

The Swiss Federal Council did well to break off negotiations on an institutional framework agreement with the EU. Those who had hoped for “more legal certainty” through such an agreement should take note of how the power clique in Brussels deals with its own member states. In its dealings with other states, including major powers, the small state of Switzerland relies best on its independence, its strengths and its flexibility. It is better not to rely on the legal certainty promised by a major power!  •

1 “Orbán hält an LGBTQ-Gesetz fest” [Orbán sticks to LGBTQ law]. In: Tagesschau of 24 June 2021
2 Hegedős, Soma. “Gastkommentar. Regelung gegen pädophile Straftäter. Ungarns Ziel: Gender-Ideologie darf in Europa nicht zur Staatsdoktrin werden”. [Guest commentary. Regulation against paedophile offenders. Hungary’s goal: Gender ideology must not become state doctrine in Europe]. In: The Epoch Times of 25 June 2021
3 Article 3 (3) TEU: “It [the Union] shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.” Article 4 (2) TEU: “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. […]”
4 European Parliament. “Rule of law: new mechanism aims to protect EU budget and values. EU affairs. Updated: 08-07-2021 (Qualified majority under the Lisbon Treaty: at least 55% of member states comprising at least 65% of the EU population).

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