Hungary has suffered a further setback at the Court of Justice of the European Union after Advocate General Michal Bobek considered that the European Parliament’s opening of a procedure on European values in September 2018 under Article 7 of the Treaty was “well founded”, in conclusions delivered on Thursday 3 December (Case C-650/18).
The Hungarian government of Viktor Orbán had challenged the ‘Sargentini’ report which had launched the procedure before the Court, all the while agreeing to play the game of hearings in the Council of the EU under Article 7 (see EUROPE 12094/14, 12097/27). The Advocate General ruled here that Budapest was entitled to challenge the proceedings.
As a reminder, the adoption by the European Parliament of its resolution under Article 354 TFEU required a two-thirds majority of the votes cast representing a majority of the MEPs. The Hungarian government, for its part, relied on the fact that Article 354 does not specify whether, in determining whether a text is adopted or rejected, account must also be taken of abstentions in addition to votes ‘for’ and ‘against’.
Parliament had decided to follow its Rules of Procedure, which provide that, except where the Treaties provide for a specific majority, abstentions are not taken into account. The resolution had been adopted by 448 votes in favour and 197 against, with 48 MEPs abstaining. If these abstentions had been taken into account, a two-thirds majority of the votes cast would not have been reached.
The Hungarian Government had therefore exploited the loophole and argued that abstentions should be taken into account when calculating whether a two-thirds majority had been reached. By not doing so, the European Parliament had, in its view, failed to meet the requirements of Article 354 .
In his Opinion, the Advocate General first held that the Hungarian application was admissible. The Court has jurisdiction not only over a vote of the EU Council under Article 7 (a specific jurisdictional act which determines the risk of a violation of values), but also over the European Parliament resolution which initiates the procedure, as this is not a mere “preparatory act devoid of any legal effect”.
The triggering of an Article 7 procedure already has, for example, an impact on mutual trust and recognition within the area of justice, in particular for the execution of European arrest warrants.
Hungary therefore has a clear interest in acting against the contested resolution.
As to the substance, the Advocate General considers, first, that, from a linguistic point of view, the terms ‘abstention’ and ‘vote cast’ are mutually exclusive. While a person abstaining asks that his or her vote not be counted for or against a proposal and wishes to be treated as if he or she had not voted, the words “vote cast” imply that the person has actively expressed his or her opinion by voting for or against a proposal.
The Advocate General also took the view that, since the MEPs had been duly informed one and a half days before the vote that abstentions would not be counted as votes cast, they were aware of the rules relating to the procedure and were therefore able to exercise their voting rights in full knowledge of the facts.
Finally, Mr Bobek rejects Hungary’s argument that, by not seeking the opinion of the European Parliament Committee on Constitutional Affairs on the interpretation of the Rules of Procedure relating to voting, the European Parliament President has failed to fulfil his obligations. “The Parliament’s Rules of Procedure do not contain any obligation to consult that committee in order to interpret the voting rules”, notes the Advocate General.
Link to the conclusions: https://bit.ly/2IbqOh0 (Original version in French by Solenn Paulic)