Betraying Academic Freedom and Freedom of Association: the Hungarian Constitutional Court’s Decisions on Suspending the Constitutional Review of the ‘Lex CEU’ and the ‘Foreign Agent NGOs’ Act

by Gábor Halmai*

On 5 June the Hungarian Constitutional Court issued two injunction decisions, almost identical in their texts, in which the judges suspending the constitutional review procedures against two laws enacted in early April, 2017 by the Hungarian Parliament, outside the normal legislative process. The first, an amendment to the Act on National Higher Education was challenged by a constitutional complaint, the second, the Act of the Transparency of Organizations Receiving Foreign Funds by 60 opposition MPs of the Hungarian Parliament with an abstract norm control notion. The Constitutional Court did not have a single hearing in neither case in the almost one year passed since the petition’s arrival. Instead, in the first time of its more than quarter century history, without any legal or internal regulatory basis the Court established a ‘scientific’ committee to help the judges to prepare to decide the cases. In the meanwhile, also the European Commission initiated infringement procedures based on Article 258 TFEU in each case against Hungary before the European Court of Justice. More than half a year after this procedure started, all of the sudden the Hungarian constitutional judges decided to suspend their (in practice not yet started) review procedure and wait for the judgment of the CJEU, helping the government to force the Central European University (CEU) out of the country. Namely, despite the constitutionally problematic nature of the law (to say the least), CEU fulfilled all the conditions to get its license to operate further in Hungary. They opened an additional campus in the State of New York, where the original accreditation comes from. Since months, the State of New York is ready to sign the necessary contract with the Hungarian Government, which refuses and playing with time until CEU has to give up, not being able to live in limbo for too long. The Act on the ‘foreign agent’ NGOs without having this time constrain is also related to the war against foreign supporters, especially George Soros, founder of CEU, and supporter of many civil society organizations, including the ones providing legal aid to asylum-seekers. This is the cynical political game the packed Constitutional Court is part of with its decision to refuse its duty to decide a case brought before it.

Even though the Act on the amendment to the National Higher Education is formulated in normative terms, the only targeted institution is CEU, hence I call it ‘Lex CEU’. The law uses legal tricks to force CEU to cease operation in Budapest. The most onerous was the mentioned opening of an additional campus in the State of New York, which wasn’t a condition in 1995, when CEU, holding a charter from the New York State Education Department received its license to operate in Hungary from the Ministry of Culture and Education. Like other international universities chartered in the US, CEU does not maintain any academic or other programs in the United States. The other unacceptable and even legally impossible requirement of the new law was that the Hungarian government sign an agreement with the US federal government. Only after the latter told its Hungarian counterpart that they cannot possibly intervene in the jurisdiction of the states regarding higher educational issues, such as the operation of CEU in Hungary, the government in Budapest accepted New York State as signing partner.[1]

The Act on Transparency of Organizations Supported from Abroad shows striking resemblances the Russian Law on Foreign Agents, critically reviewed by the Venice Commission in its opinion of 27 June 2014. Under the law, a civil society organization have to declare that it became an organization supported from abroad within 15 days, if the allowance received from abroad reach the threshold of 7.2 million Hungarian Forint (approximately 24,000 Euros) in a given tax year. The consequence of receiving such foreign funding is that the organization has to register as a ‘foreign funded organization’ on the court register, indicate it on its website and on any publications issued by the organization. In case the organization did not fulfil its obligations under the law, the second time the public prosecutor can initiate the imposition of a fine and later a lawsuit against the organization for the cancellation thereof. All in all, the law stigmatizes NGOs on the basis of the fact that they receive foreign funding from abroad.

Following a debate on the overall situation in Hungary by the European Parliament in April 2017, the EP stated in a resolution that “recent developments in Hungary have led to a serious deterioration in the rule of law, democracy and fundamental rights, which is testing the EU’s ability to defend its founding values”[2]. Therefore, the resolution among other things calls for: „the Hungarian Government to repeal laws tightening rules against asylum-seekers and non-governmental organizations, and to reach an agreement with US authorities, making it possible for the Central European University to remain in Budapest as a free institution”.[3] As a consequence of this parliamentary resolution, the European Commission started an Article 258 TFEU infringement action first on the ’Lex CEU’ and later on the ’Foreign Agent NGOs’ Act, and after a thorough analysis of Hungary’s response to the Commission’s letters of formal notice in both cases has decided to send a reasoned opinion, and as Hungary haven’t taken any measures to remedy the situation regarding neither law, finally turned to CJEU.[4] Whether with the infringement procedures the Commission has chosen the most effective tool to remedy the two grave violations of EU values, or whether the EU has such tools and the necessary political will, it is to be seen.

But Viktor Orbán after the Hungarian Constitutional Court decision issued in December 2016 (ab)using the constitutional identity argument against the Council’s relocation plan[5], has again demonstrated that he can always rely on his packed Constitutional Court to refuse to comply with EU values. Paradoxically and cynically the same judges who defended the Hungarian historic constitution against the EU Treaty, this time based the suspension of their review on ’constitutional dialogue’ with the CJEU, and the possible enforcement of EU law. These, overwhelmingly university professor constitutional judges by abandoning their constitutional duties to decide cases brought before them came to the rescue of their lord and commander, the Prime Minister’s again, this time betraying their fellow professor’s academic freedom, and freedom of association of their fellow lawyers working as human rights defenders.

* Professor and Chair of Comparative Constitutional Law, European University Institute, Florence; [email protected]

[1] The details of the law see in my previous blog post: https://verfassungsblog.de/much-ado-about-nothing-legal-and-political-schooling-for-the-hungarian-government-on/

[2] The resolution was adopted by 393 votes to 221 with 64 abstentions, which means some members of European Peoples Party (EPP), the party group of Fidesz, the Hungarian governing party did not vote against the resolution. Manfred Weber, the president of the EPP-group also harshly criticized the Lex CEU. According to its press-release «the EPP wants the CEU to remain open, deadlines suspended and dialogue with the US to begin«. EPP also stressed that «NGOs are an integral part of any healthy democracy, that they represent the civil society and that they must be respected«. http://www.epp.eu/press-releases/prime-minister-orban-to-comply-with-eu-laws-and-epp-values-following-meeting-with-epp-presidency/

[3] http://www.europarl.europa.eu/news/en/press-room/20170511IPR74350/fundamental-rights-in-hungary-meps-call-for-triggering-article-7

[4] About the details of the infringement proecedure see my previous piece: https://verfassungsblog.de/much-ado-about-nothing-legal-and-political-schooling-for-the-hungarian-government-on/

[5] See also my earlier post: https://verfassungsblog.de/the-hungarian-constitutional-court-and-constitutional-identity/