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by Boldizsar Nagy, Central European University     CEU

“The result of a referendum on a future initiative or decision of the European Parliament, the Council or the Commission held in a Member State is as such neither binding for the EU institutions nor can it affect the obligations of that Member State under Union law” – this was the answer delivered by the President of the European Commission, Mr Juncker on behalf of the Commission to the written question raised by a member of the EU Parliament. End of story. We could stop here, if the aim was to write the shortest contribution about the referendum held in Hungary on 2 October 2016 concerning the relocation of asylum seekers and/or any future plan on intra EU solidarity concerning forced migrants.

But this referendum, initiated by the Hungarian Government on 24 February 2016, deserves more attention for it raises larger questions, partly purely domestic, political and constitutional, partly related to the forms of resistance against a majority decision adopted by the EU, bringing in issues of loyal cooperation according to Article 4 (3) TFEU, which inter alia provides that “Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”

The anti-refugee process surrounding an equivocal question

Let us start with the domestic aspects. The translation of the referendum question into English is not simple.  The government used “Do you agree that the European Union should have the power to impose the compulsory settlement of non-Hungarian citizens in Hungary without the consent of the National Assembly of Hungary?” Obviously it expected a resounding “no” as the response of the people. The Hungarian term that was employed in the official question is “betelepítés” which means “make to settle into” and is used either to refer to importing large foreign population groups at the invitation of the sovereign after the Tatar and Ottoman devastation in order to permanently repopulate abandoned villages and cities, or to planting trees in a wasteland or introducing fish or other animals artificially into a habitat, like into a fish-pond.

Evidently, that is not a word used in the EU acquis as both resettlement and relocation are translated differently (“áttelepítés” and “áthelyezés” in Hungarian). As the requirement of the Hungarian law on referenda is unequivocality, the decision of the National Electoral Committee to accept this wording was contested in the Supreme Court. In a less than convincing argument, the Court found that although “betelepítés” (“make to settle into”) is neither part of Hungarian law nor of EU law, it can be understood to mean “a longer term placement/accommodation of the persons affected by Council Decision [2015/1601].”  At the same time it stressed that the object of the referendum was Council Decision 2015/1601 on the relocation from Greece and Italy of 120 000 asylum seekers in clear need of protection.

Beyond the ill-defined question, there was a second ambivalence related to the attacked EU measure: was it the single Council Decision of 2015 ordering the relocating 120 000 asylum seekers from Greece and Italy, or was it aimed against any future solidarity mechanism, such as for example the corrective allocation mechanism envisaged in Chapter VII of the Commission’s proposal to recast (again) the Dublin Regulation? The Supreme Court unequivocally stated that the question only related to the Council Decision on relocation, while the Government’s propaganda constantly referred to the plans of Brussels to adopt general distributive rules with no cap in the future.

Ignoring all these uncertainties, probably the largest ever Hungarian advertising campaign was started following the anti-refugee discourse initiated in early 2015. Around 50 million euros were spent on the campaign and organisation of the referendum, more than all the political parties’ expenditure at the last national elections in 2014.

The language used by the government was brutal. A 20-page booklet was delivered to every household containing a mixture of fear-mongering, direct lies and distorted information. “Instead of stopping peoples’ mass immigration Brussels further on plans the settling-in of tens of thousands of migrants” reads the first page, under the heading “we have the right to decide with whom we want to live together”. “We refuse the coerced settlement as it would increase the terror threat” the booklet rambles on, showing the number of victims of the recent Paris, Brussels and Nice attacks. A map of “no-go zones” in Western Europe is followed by a warning of a 78 million Forints (250 000 euros) “fine per immigrant” to be meted out by Brussels “on states that do not wish to settle-in immigrants”.

The campaign – in the words of Nils Muiznieks, the Council of Europe Commissioner for Human Rights – “demonized” refugees, “portrayed migrants as a danger to the Hungarian society” and promoted “deceptive messages”.

A gigantic fiasco for the government

The enormous effort of brainwashing notwithstanding, the result of the referendum was a gigantic fiasco for the government and a relative victory for the large groups still showing solidarity with asylum seekers and other migrants escaping unbearable conditions. Roughly 5 million eligible voters resisted the Government’s urge and either did not vote or cast an invalid or a yes vote.

Therefore, the referendum proved to be invalid, meaning its outcome had no legal significance, strictly speaking as if it did not happen at all. According to the relevant provision of the Constitution (Fundamental Law) of Hungary, 50% of those entitled ought to have registered valid votes. Instead, only 3.4 million of the total of the more than 8.3 million eligible voters cast a valid vote, which is equal to 41%. More than 98% of the valid votes were “no”, heeding the government propaganda. The 200,000 invalid votes expressed that no reasonable answer was available.

As expected, the invalidity of the outcome did not prevent the government from communicating a great success and from an intention to amend the Fundamental Law. In a letter sent to Jean-Claude Juncker, President of the Commission, Prime Minister Orbán assured the Commission that “the constitutional amendment proposed by the Government will be in full harmony with EU law and Hungary’s international commitments.”

The proposed amendment to the Constitution

As stressed, the referendum did not create any obligations for Parliament or Government. Moreover, the question literally addressed an action of the EU, which is not in the realm on which a referendum may be held. According to Hungarian law, the referendum question must affect the competence of the Hungarian Parliament. This was not the case, so even if the outcome had been valid and binding, the Parliament could not have adopted anything anyway, as the no votes would have objected to an EU decision, which in itself cannot be overruled by a domestic act. But the referendum was invalid, so these questions are moot.

Then what kind of amendment was in the making? The futility of the referendum is all the more underlined by the fact that the Government nevertheless submitted a proposal to amend the Constitution, which could have been done without spending 50 million euros and inciting xenophobia.

The text of the constitutional amendment did not use the language of the referendum question and entailed a strategic move by combining national/constitutional identity and migration with the hope that, if those are combined in the constitution, then resistance against any future EU legislation may be marshalled along the lines of the Spanish and Polish Constitutional Court’s and other constitutional courts’ aspirations which in connection with the European Asylum Warrant or the Lisbon treaty carved out an untouchable sphere of national/constitutional identity, refusing the absolute priority of EU law.  The judicial dialogue between the national constitutional courts and the CJEU is ongoing as proven by the Melloni case in which the CJEU rejected the Spanish position and reconfirmed that in its view “it is settled case-law that, by virtue of the principle of primacy of EU law, which is an essential feature of the EU legal order […]  rules of national law, even of a constitutional order, cannot be allowed to undermine the effectiveness of EU law on the territory of that State.”

Two of the proposed four changes stressed the constitutional identity of Hungary, the third set limits to the competences handed over to the EU and the fourth addressed migration. The limits to the EU exercise of competence were meant to express the constitutional identity. They referred to Hungary’s “inalienable right to command over its territorial integrity, population, form of government and state structure” which is an intended reminder of Article 4(2) TEU, even if «commanding » with the population may not be a prerogative the EU wishes to ascribe to its Member States.  Two paragraphs made the protection of the constitutional identity the task of the state and its organs.

The fourth element in the proposal, the seemingly direct consequence of the referendum, was an utmost awkward paragraph. The proposed norm was this: “Foreign population shall not be settled in the territory of Hungary. Foreign citizens – not including citizens of the countries of the European Economic Area – may live in the territory of Hungary under an application individually examined by the Hungarian authorities in their proceedings as regulated by an Act adopted by the National Assembly”.

Surely this is a very far cry from rejecting the relocation of individual asylum seekers for the sake of conducting refugee status determination procedure. The term “foreign population” has no meaning in law but was obviously used in an effort to link it with those elements forming ‘constitutional identity’ over which Hungary would have had exclusive control and where the EU’s competence would have been limited by the constitution itself, had the amendment been adopted.

This attempted amendment concerning migration was bleeding from many wounds. Not only did the proposed text not make sense, but the second sentence of the above quoted paragraph demanding an individual examination of an application in the case of non-privileged nationals was already part of the law in force (although the expression “live in the territory of Hungary”, again, is not a legal term as Hungarian immigration law uses “residence” and “settlement”). Students of EU law will note that exempting only the citizens of the European Economic Area from the planned restrictions leaves all the Swiss nationals and all the third-country nationals having the right of freedom of movement within the EU as family members in a category where they do not belong, as they are not ‘simple’ third-country nationals from the point of view of EU law.

As FIDESZ (Orbán’s right-wing political party) does not command a two-thirds majority in Parliament, it cannot push through the amendment alone. Jobbik, the far-right party, had made an offer according to which it would support the bill in exchange for stopping the residency bond scheme allowing anyone who invested 300,000 euros to acquire permanent residency in Hungary. The government seemingly refused to accept this but had already introduced a bill which in fact could have meant the end of the scheme.  On 8 November 2016, the Hungarian Parliament voted against the draft amendment to the constitution. It is now to be seen how the government will respond to this failure.

Conditionality of receiving structural funds and the duty of loyal cooperation – the EU dimension

This blog-entry is not about the crusade of Mr Orbán and his few allies against any compulsory relocation scheme of asylum seekers, whose plight and need for international protection he simply denies. Rather, it is about the disquieting tendency of flatly rejecting the duty to implement any future decision on intra-EU solidarity, the discourse identifying Brussels with socialist Moscow, centre of a dictatorial empire, the intention to exercise political pressure on the EU decision making by referring to the will of a minority of the eligible voters as if it expressed a new national unity against an EU plan, and about the move of replacing politics in the courtroom expressed by the attack of the 2015 relocation decision in the CJEU with the direct pressure of the misinformed population – all of which certainly raises questions about the sincerity of Hungary’s co-operation with the EU and other Member States as required by Article 4 (3) TFEU.

This question was forcefully articulated by the Italian Prime Minister, Matteo Renzi, who according to reports raised the possibility of withholding structural fund payments from those states which are reluctant to participate in the common EU effort of providing protection to those in need of it and returning those who are not. If a debate emerges within the EU on the conditionality of receiving support from the structural funds, then the meaning of loyal co-operation will become the subject of an interesting and forward-looking scrutiny. The invalid referendum in Hungary and the driving force behind it may have set into motion a train of yet unknown destination and certainly not with Mr Orbán at the helm.

A new battle between states that are reluctant to show genuine solidarity with each other and with the Commission and the Council and those that seek an overarching response to the arrival of forced migrants and others is unfolding. The outcome is uncertain, but in the end there will be only losers, and not only the asylum seekers.