Hungary feels the heat in EU court hearing

LUXEMBOURG — Hungary faced a grilling Monday as the EU’s highest court heard a case involving firearms, allegations of political interference and criticism of the country’s judicial system.

During a more than two-hour-long hearing at the Court of Justice of the European Union (CJEU), Miklós Fehér, a senior official at the Hungarian Justice Ministry, faced questions from red-robed judges about allegations the country had tried to muzzle a government-critical judge. The criticism was amplified by the governments of the Netherlands and Sweden, which joined in to express their concerns about the state of rule of law in Hungary.

Hungary has been accused for several years of undermining the independence of its judiciary and backsliding on the rule of law.

The European Commission has launched several infringement procedures against Budapest — most recently in October over asylum policies — and the European Parliament passed a resolution in 2018 triggering Article 7 disciplinary proceedings (which is stuck in the Council of the EU, where some countries have shown reluctance to take steps that could lead to sanctions).

The case heard on Monday is one of several sensitive proceedings that the top EU court will need to rule on this year, giving it a potentially important say in the bloc’s intensifying rule of law battle.

The case involves a Swedish citizen who was charged with misusing firearms and ammunition in Hungary, and whose attorney complained that the trial in Budapest was not fair because the defendant was not given full access to interpretation in Swedish.

It morphed into a highly political affair when the judge at the Budapest court, Csaba Vasvári, submitted the complaint to the EU top court alongside questions of his own about the independence of Hungary’s judiciary. Vasvári asked whether the president of the National Judicial Office — a close ally of Prime Minister Viktor Orbán — should be allowed to have far-reaching powers over courts, and whether the allegedly low pay of Hungarian judges — which can be topped up with bonus payments at the discretion of the judicial office president — could make them receptive to political interference.

Hungary’s Supreme Court ruled that Vasvári’s submission to the CJEU was unlawful, and Vasvári was subsequently threatened with disciplinary action. Although the Hungarian government says disciplinary measures were never formally launched, critics said the threat alone could discourage other judges from speaking out.

“We must banish any risk that disciplinary proceedings be used as a way of exerting political control over the content of juridical decisions,” Jurian Langer, a lawyer for the Dutch government, told the court hearing via video link.

But Hungary’s Fehér, also speaking via video, rejected the criticism and said the CJEU should dismiss critical questions about the rule of law because they are “in no way related” to the case against the Swedish citizen. “These are textbook hypothetical questions,” Fehér said in his opening statement, which was read by an interpreter as the Hungarian government official struggled with connection problems at the start of the hearing.

A question of admission

It is still unclear whether the CJEU will allow the critical questions put forward by judge Vasvári to become part of the case. If it does, the judges will have to rule on highly sensitive rule of law issues, as they will also have to do this year in another case involving the independence of Polish judges.

Swedish government lawyer Hanna Shev urged the court not to dismiss the questions. “There are grounds that indicate that all of the questions referred to in this case are admissible,” she said.

However, the European Commission came to the defense of Hungary. Speaking in person in the wooden-paneled courtroom, Adrián Toká from the Commission’s legal service said many of the questions were “inadmissible” because they weren’t “necessary for the resolution of the dispute.”

This doesn’t mean that the Commission is letting Hungary off the hook. “The Commission continues to monitor the independence of the Hungarian courts and raised concerns regarding the powers and functioning of the National Judicial Office,” Toká said.

The 15 judges in the courtroom, led by Belgian court president Koen Lenaerts, gave no indication of their thinking but used the hearing to grill Hungary’s Fehér.

“I’m trying to understand what the objective is” of the Hungarian Supreme Court intervening to rule that the appeal to the CJEU was unlawful, asked Croatian judge Siniša Rodin.

“This is a very specific situation … It’s an atypical case,” Fehér replied.

The CJEU will give a first indication of the direction of its ruling on April 13, when a non-binding opinion from an advocate-general is released. Those opinions often mirror a final court ruling a few months later.

In his closing statement, Dutch lawyer Langer urged the judges not to lose sight of the bigger picture: “We would like to ask the court to look at the content, the subject matter of the independence of the judiciary in Hungary.”