We often speak of the Hungarian financial negotiations as if the Orbán government’s sole negotiating partner was the International Monetary Fund. Even Viktor Orbán in his Friday radio interview talked only about the IMF. The IMF is “our bank,” he said, and therefore, in his opinion, it is obliged to give Hungary a loan without any preconditions.We need not parse that bizarre financial logic. Moving on, perhaps he doesn’t want to face the fact that beside the IMF there is a more formidable negotiating partner: the European Union. It is more formidable because the EU can make political demands on Viktor Orbán’s government while the IMF can require only financial guarantees. Yesterday, the abrupt suspension of the negotiations was at the insistence of Olli Rehn, European Commissioner for Economic and Financial Affairs. And the reason for breaking off the negotiations was political: interference with the independence of the Hungarian National Bank.
Practically all analysts predict that the tougher negotiating partner will be the European Union. A taste of what may await Tamás Fellegi and his two fellow Hungarian negotiators is the letter and an attached annex that Tibor Navracsics, justice minister and deputy prime minister, received from Viviane Reding, EU commissioner for Justice, Fundamental Rights and Citizenship.
The letter was written on December 12 and Reding demanded an answer by December 16. In the letter Reding reminded Navracsics that at the beginning of the year the European Commission conducted a review of the new Hungarian constitution to check whether it is consistent with Union laws, in particular with the Charter of Fundamental Rights. The cardinal laws that have been passed since “raise serious concerns from an EU law perspective.” In closing, Reding wrote: “I would also ask you to ensure, in the interest of legal certainty, that no measure is implemented until doubts about their compliance with EU law have been removed.”
In the lengthy attachment Reding asked Navracsics to provide answers to the issues raised because the new constitution will come into force on January 1, 2012.
Reding is particularly concerned with four issues: (1) retirement age for judges, (2) president of the National Judicial Office, (3) transformation of the Hungarian Supreme Court into Curia, and (4) the Data Protection Supervisor.
1. Retirement age for judges. Reding reminds Navracsics that the retirement age in Hungary is 62, which will be raised to 65 between 2014 and 2022. Moreover, retirement is not compulsory at the age of 62. It simply means that one is eligible to draw a pension after the age of 62. In the case of the judges, however, they will have to retire whether they want to or not. But “according to Directive 2000/78/EC, discrimination on grounds of age is generally prohibited, but can be objectively justified by a legitimate aim, if the means of achieving that aim are appropriate and necessary.” Reding would like to receive information about the justification for the lowering of the retirement age for judges. First and foremost, “what is the objective pursued by lowering the mandatory retirement age of judges” especially since it will be raised again from 2014 on? “For which reason has the general retirement age been made mandatory for judges whilst it is not mandatory for other categories of workers?” She further asked “for which reason has the mandatory retirement age of 70 years not been lowered for other similar categories of public servants (e.g. public notaries, university professors) and for civil servants in general?”
2. President of the new National Judicial Office. Viviane Reding outlines the structure of appointing judges after January 1, 2012. “The Commission understands that the President of the new National Judicial Office will have sole competence as regards operational administrative management of the court system, including the power to appoint all judges. The National Council of Judges appears to be a consultative body to the President of the National Judicial Office. It appears therefore that there is a concentration of power in the person of the President of the National Judicial Office.” Reding raises the following question: (1) What are the objectives of the reorganisation of the judiciary and what precisely is the role of (i) the President of the new National Judicial Office, (ii) the National Judicial Office itself and (iii) the National Council of judges? (2) What are the guarantees provided for ensuring the independent administration of the courts? and (3) Which authority has a decisive influence on the appointment and promotion of judges and on disciplinary measures against them, and what is the decision making process?
3. The transformation of the Hungarian Supreme Court into Curia. The European Commission realizes that the current mandate of the President of the Hungarian Supreme Court will expire on December 31, 2011, before the end of his regular term. Reding would like to receive the following information: “(1) What is the competence of the Curia and the power of its President in comparison to the existing Supreme Court? (2) Why will the mandate of the Chair of the current Hungarian Supreme Court terminate before the end of the regular term? and (3) Given the importance of an independent judiciary in upholding rights enjoyed under EU law, how is it ensured that the ending of the mandate before the end of the regular term does not effectively put in question of the independence of the judiciary?”
4. The Date Protection Supervisor. In Hungary they call him ombudsman. The current one, András Joóri, was appointed to the post in 2008 for a six-year term but his position is being terminated because a new office will be established as of January 1, 2012, the National Agency for Data Protection and Freedom of Information. The head of this new office will be nominated by the prime minister and appointed by the president for a period of nine years. “His assignment shall end only if certain conditions are fulfilled.” However, “the current EU data protection legislation in force, Directive 95/46/EC, and the Charter of Fundamental Rights of the European Union require that the data protection supervisory authorities in the Member States act in complete independence.” Therefore the Commission would like to receive the following information: (1) Why was it decided to replace the current supervisory authority with a new one? (2) What are the reasons for not providing any interim measures until the term of the current data protection supervisor is due to end in 2014? (3) How is it ensured that early ending of the Data Protection Commissioner’s Office does not put in question the independence of the data protection authority as provided in EU law? The Commission would like to receive information on the scope and the meaning of the following conditions: (a) Failure to meet the conditions necessary for the appointment of the supervisory authority; (b) Determination of incompatibility of the supervisory authority; (c) Discharge; and (4) Disqualification from holding office.
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Most people even vaguely familiar with the Orbán government’s actions in the last eighteen months or so know the answers to practically all the questions Commissioner Reding is posing here. I have the feeling that Viviane Reding herself knows the answers only too well. The question is what is she going to do about the current situation? Is the European Commission willing to put pressure on the Hungarian government via the financial negotiations for a much needed IMF-EU loan? Apparently, Fellegi does not have a free hand to negotiate about “organizational” matters. But naturally Orbán may change his mind if it is the question of his own survival.