Orban Eyes Legal Umbrella to Fend Off EU Democracy Criticism

(Bloomberg) -- Hungarian Prime Minister Viktor Orban, under attack in the European Union for democratic backsliding, is considering establishing a legal umbrella to defend against what his government says is interference in domestic affairs.

In a public radio interview on Friday, Orban said his administration is embarking on a “broader” constitutional change, without giving specifics. At the heart of the changes may be an attempt to enshrine ideas on national identity in the constitution, which Budapest will argue should be legally protected from the purview of EU courts, a spokesman said.

“There are core values that can be set down in the constitution that can’t be overwritten by an EU court,” Zoltan Kovacs said by phone Friday, referring to a line of argument that’s also been used by the German top court. “This is particularly useful to counter what we see as creeping EU legislating that’s in the end trying to create a federal Europe by undermining the powers of national governments.”

Orban is one of the most prominent EU standard bearers of a euroskeptic, anti-immigrant political movement that has propelled populists to power from Italy to Poland. After winning a constitutional majority in April elections, he’s moving to tighten his grip on power over the few state institutions that remain independent as part of his pursuit of an "illiberal state" that has put him on a collision course with the EU.

In a separate bill to modify the country’s legal charter, Orban is proposing to establish public administration courts parallel to existing tribunals. Opposition parties and some judges have said the measure may undermine the judiciary’s autonomy. The government is also preparing to pass a law that would impose jail terms for those seen as helping “illegal” immigration.

German Page

Orban’s new constitutional gambit would take a page from Germany, which has been critical of his accumulation of power and his crackdown of non-governmental organizations and the media.

Germany’s Federal Constitutional Court has said that in "extreme cases" German government agencies have a duty to deviate from EU action if it’s not authorized in the bloc’s treaties, as that would encroach on the rights of member states. The judges also said some core values, like the rule of law or human dignity, can never be overruled by the EU as that would put the nation’s "constitutional identity" into question.

While the German justices have elaborated on that concept in various judgments, they have always shunned putting that idea into action by not following rulings of the bloc’s European Court of Justice. Under EU rules, the ECJ’s rulings trumps those of national courts.

It’s a recurring complaint from Orban, whose government is currently fighting a commission plan to tie the bloc’s multi-year budget -- a major source of funding for Hungary -- to meeting rule-of-law criteria. Orban has also fought EU attempts to introduce mandatory quotes for taking in refugees.

“It’s time to review the EU and Hungary’s relationship," Agoston Samuel Mraz, the head of Nezopont Intezet, a think-tank which advises the government, said by phone. "A constitutional review would probably have to reflect on this.”

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