By Márk Némedi
“Do you want the European Union to be able to prescribe the mandatory settlement of non-Hungarian nationals to Hungary even in lack of the consent of the National Assembly?”[i] – this is the question Hungarian voters will be asked to respond to on 2 October 2016. Speculations and verbal sparring have been strengthening about what may lie ahead, and not without reason. It appears that the possible legal and political implications of a valid vote could be broader than usual. At the least, referenda should pose concrete questions which invite an answer giving political institutions a well-circumscribed mandate. They should not give national governments a blanket authorisation and a political salvus conductus to freely choose what the will of the people requires. This contribution will look at how these principles fare in the upcoming referendum on the migrant quota and what the broader implications may be for both Hungary and the Union.
Fitting the trend?
Roughly a year ago, the unprecedented influx of migrants through, amongst others, the Balkan route prompted the EU to adopt a comprehensive package of proposals on a quota-system for their EU-wide distribution. Hungary opposed the plan harshly despite the fact that it included also the relocation of masses of migrants from its territory to other Member States. Often criticising the speed and appropriateness of EU action, the Hungarian Government launched a large-scale campaign, a petition to ‘protect the country’, fenced Hungary’s southern border to divert future migration, enforced illegal border crossing with criminal penalties and made other changes to its legislation on migration.
By now, the overwhelming majority of migrants left Hungary. Nevertheless, the country just very recently extended the state of emergency due to mass immigration until 8 March 2017. The poster-campaign of the Government rages on and on in the last moments before the referendum. Facts and possible consequences concerning ‘Brussels’ intentions’ are cherry-picked and distributed on posters into every corner of the most frequented public spaces. Hungarian voters are presented with what seems to be a coherent story, summarised by the dedicated homepage of the Hungarian Government explaining the context of the referendum. The website weaves a unitary narrative, emphasising the extent of the threat, the steps taken by the Government and the financial sanctions that could be imposed by Brussels on non-compliant Member States.
At first sight, the question of the referendum indeed responds to the EU proposal and the complicated set of earlier events. It is easy to come across headlines calling the Hungarian vote ‘Brexit-inspired’ or stating outright that it is a covert referendum on the exit of Hungary from the EU (using the term ‘Huxit’). Whatever the extent and toll of calling out causal connections, it pays to isolate this referendum from the circumstances and focus on its more unique characteristics.
Recently, a post of Christopher Harding on this blog showed how the campaign before the Brexit-referendum and the outcome created unprecedented spawning ground for a Europhobic and xenophobic discourse in the traditionally divided UK. Conversely, xenophobia was stimulated beforehand in Hungary by the events around the crisis. Hard feelings towards outsiders show a historically significant increase in 2016. The Hungarian referendum, unlike the one on the Brexit, is scheduled in the aftermath of the rise of that sentiment which should be the first premise to consider.
The second difference between the Brexit-vote and the Hungarian referendum appears to be the latter’s forward planning attitude. The chief question appears to be how broad an authorisation the Government will receive from an answer given to the carefully tailored question.
Finding the right question
The immediate history of the referendum starts with the withdrawal of an earlier initiative, which would have asked voters whether they agree that Hungary should not implement the quota proposal of the EU. Once the initiative was withdrawn, the Government submitted its own initiative on the same day, 24 February 2016, containing the slightly different question we know today. The former question was clearly focussed on blocking the effects of a specific EU policy; its constitutionality, while not decided upon by the authorities, was questionable. But it is not certain whether the Government’s initiative, backed by the National Election Commission and the Curia, the Supreme Court of Hungary, manages to overcome all difficulties either.
In accordance with Article 8(2) of the Fundamental Law of Hungary, the question must reflect what lies in the competence of the Parliament on which the answer will be binding. Thus, perhaps the most striking feature is the question’s idiosyncratic understanding of the competences of the Hungarian Parliament. That is no surprise at first, as to oppose an EU policy a divergence of the goals is a must. However, beyond the political, the product of such a stance widens the possibilities of what might come later.
Interestingly, a stricter, grammatically accurate reading of the question shows that the voters’ opinion is sought on what powers they want the EU to have in Hungary. Within the current allocation of competences inherent in the Treaties, a national Parliament cannot unilaterally determine this. Hungary already took available measures to oppose the quota, the referendum was called for following the fact that the country, alongside Slovakia, filed an action against the proposals with the European Court of Justice (Hungary v Council of the European Union [Case C-647/15]).
A different, apologetic reading of the question suggests that the ‘competence’ of the Hungarian Parliament is interpreted broadly, fulfilling the constitutional condition to initiate the referendum, which is now less relevant, and in terms of how the answer of the voters will be interpreted. This would re-cast the question as being broader and relating to the possible reactions of the Government to the outcome.
As for the consequences, at this stage, a direct legislative obligation does not appear to arise from an answer. The national legislation only prescribes, for this case, that the results be binding for three years following the referendum. Thus, a ‘no’ vote would bind the Parliament to oppose an eventual quota proposed within the following three consecutive years. It is true that the question itself mentions the ‘consent’ of the Parliament, but establishing a ‘consent procedure’ is not among its realistic options.
The national legislation on referenda is, however, silent on the issue of what needs to be done where a referendum calls for potentially legislative action not directly upon being held, but later in course of the three years. Coupled with the breadth of the question, the legal-argumentative potential of the long-term barrier it creates is high. It is a barrier which future EU migration action might crash into and create opportunities for opposition. In fact, it will bind Hungary to oppose future measures and trigger a process of ex post interpretation of the ‘duties’ of the national Parliament. This makes it practically impossible to predict what the ultimate measure in the hands of the Parliament will be, in particular as the term ‘mandatory settlement’ remains undefined.
Outcome and implications
Polls conducted by renowned institutes, with samples of 1,000 voters, have shown a support ranging from 77 (Nézőpont Intézet) per cent among the population to 92 (Republicon) per cent among stable voters of the governing party in favour of the answer ‘no’ to the above specific question. All predictions are in favour of this outcome, provided that the vote will be valid. The latter requires that at least half of those entitled to vote cast their votes validly.
The referendum directly calls into question whether Hungary will continue to observe the principle of the primacy of EU law. In particular, the referendum highlights that national law must have been applied, insofar as possible, so as to avoid a conflict with a Community rule (see Marleasing, Case C-106/89  1 ECR 4135, para 8). It appears that the national legislator is using the national institution of referendum here as strictly as possible to oppose the EU’s proposals. Likewise, any concrete legislation adopted on the basis of the ‘authorisation’ received from the referendum could chip away on the effect of EU law in Hungary and compliance with the obligations resulting from the Treaties, provided that it is not set aside by the institutions of Hungary.
An often heard prediction is that the referendum and the propaganda of the Hungarian Government could prompt a domino-effect among Member States calling for anti-migration referenda. A broader opposition could grow to become an effective counter-measure of the quota-system and highlight the ultimate effectiveness of a series of well-composed referenda as a new style of shaping supranational policy.
Finally, to mention Brexit one more time, is that the UK vote opened up a chapter of a more honest discussion about xenophobia and tackling the otherness of others in the UK. This vote in Hungary appears to engrain, without much discussion, a solid opinion of the constituency directly into the constitutional fabric. The referendum which does not seem to trigger, but does not preclude either, legislative consequences appears to assign to the past the strict constitutional requirement of concreteness. A negative result will give latitude to the Government to shape not just public opinion and the migration policy of Hungary, but its relationship with and relationships within the European Union.
[i] Translation by this post’s author of the following, original Hungarian text: ‘Akarja-e, hogy az Európai Unió az Országgyűlés hozzájárulása nélkül is előírhassa nem magyar állampolgárok Magyarországra történő kötelező betelepítését?’