Questions of Integrity

Many have rightly criticized the Commission for failing to robustly defend the EU’s founding values from academic freedom, to media freedom, to judicial independence, to the rights of refugees or the LGBT community. In these discussions, the Commission’s failure to take action against another form of discrimination is generally ignored: discrimination against national minorities. Looking at the example of Hungarian communities in other member states, this post highlights the Commission’s asymmetric idea about the EU’s founding values and its appalling failure to defend ethnic/national minorities against discrimination. This is in stark contrast with the fact that the protection of and respect for minorities is a founding value of the EU, ranked equally to democracy, rule of law and human dignity.

What remains under the Commission’s radar?

The contemporary application of the Beneš Decrees in Slovakia, which provide, among others, that the property of ethnic Germans and Hungarians can be confiscated (without compensation), is probably the most egregious example.((Decision No 104/1945 of the National Council of the Slovak Republic on the confiscation and accelerated redistribution of agricultural property owned by Germans, Hungarians and the traitors and enemies of the Slovak nation, and the related Dekret presidenta republiky 12/1945 ze dne 21. června 1945 o konfiskaci a urychleném rozdělení zemědělského majetku Němců, Maďarů, jakož i zrádců a nepřátel českého a slovenského národa.)) The Beneš Decrees were adopted after the Second World War and have never been repealed. Quite the contrary, they were confirmed and declared untouchable by the Slovak Parliament in 2007. Slovakia is still applying these explicitly discriminatory provisions to confiscate the property of ethnic Hungarians. One of these cases reached the ECtHR in Bosits v. Slovakia. The Beneš Decrees have also been used to confiscate around 60 plots to build the D4 highway (instead of expropriating them in the constitutional way: with compensation), while the EU is financing the project through the European Investment Bank. In these cases, Slovakia uses “grandfathering”: the ancestors of the owners were ethnic Hungarians, hence, the property should have been taken from them without compensation, if it had been taken, the owners would not have it today.

What is striking about this case is not simply that a Member State openly discriminates on the basis of ethnicity, but the Commission’s indifferent reaction. The Beneš Decrees have been the subject of various petitions in the European Parliament (see e.g. question E-001388/2021 and the Commission’s answer), the most recent of which explicitly referred to the ECtHR’s confirmation in Bosits v. Slovakia of the contemporary application of the Beneš Decrees. In its answer, the Commission went to great length to duck the question and sweep the problem under the rug. It refused to take any action and maliciously referred the victims to the Slovak authorities to have their fundamental rights protected. That is, the Commission suggested that the victims seek remedy before the very authorities that discriminated them because of their ethnicity. Not surprisingly, the Commission’s reaction staggered the Hungarian community in Slovakia, which considered the reply a smack in the face and started doubting the Commission’s sincerity in protecting European values.

In another case, Slovakia provided restitution for property confiscated during the socialist era but limited this to those who had Slovak citizenship and place of residence. It was not difficult to see a salient violation of EU law in this case (as it involved express discrimination based on citizenship), let alone that the law appeared to be discriminatory also on the basis of ethnicity: as a lot of Germans and Hungarians were expelled from Slovakia after WW2, the exclusion hit them the most. The victims had two avenues to have their rights enforced under EU law. They could assail the law before Slovak courts and seek a reference to the CJEU. Unfortunately, although obliged under EU law, the Supreme Court of Slovakia refused to make a reference. Hence, the only chance of the victims was to have resort to the Commission and seek its intervention. The Commission refused to act for “geopolitical reasons”. As it was the Supreme Court of Slovakia that debarred the victims their rights under EU law, it appeared quite cynical for the Commission to say that “it is primarily for the Slovak courts to assess the need to request a preliminary ruling in the specific cases pending before them.”

Probably the most shocking recent experience was the Commission’s silence when Romanian President Klaus Iohannis publicly engaged in hate speech against Hungarians. The president wanted to cater to the ultra-nationalist Romanian voters: it humiliated the Hungarian community in Romania by mocking its language and incited hatred by endorsing the conspiracy theory that they work to “secretly steal” the western half of Romania (which is a particularly absurd claim given that Hungarians account for 6,5 % of the population). President Iohannis’ hate speech reacted to a parliamentary proposal (tabled several years before) for regional devolution of power and ripped up an old sore, as the conspiracy theory that “the Hungarians want to steal Transylvania” was one of the slogans with which the communist Romania justified the persecution and systematic discrimination of ethnic Hungarians. The Romanian Anti-Discrimination Council found that the discriminatory statement amounted to hate speech and violated the human dignity of Hungarians in Romania and imposed a fine on the basis of Romanian anti-discrimination law. The decision was affirmed by the Court of Appeal in Bucharest.

It very well showcases the European hypocrisy concerning ethnic minorities that soon after his hate speech against a sizeable ethnic community of his country, President Iohannis received the International Charlemagne Prize, among others, for the “protection of minorities and of cultural diversity”. At the award ceremony, Charles Michel, President of the European Council, praised him for “vigorously and fervently defend[ing] the respect and inclusion of all minorities”. One may wonder what a politician would have to do to become unworthy of the International Charlemagne Prize, if ethnically motivated hate speech does not suffice?

Against this backdrop, it did not come as a surprise that the Commission rejected the Minority SafePack European Citizens’ Initiative, notwithstanding the European Parliament’s backing with a ¾-majority and the clear support of a number of national parliaments, such as the Bundestag, the Dutch parliament and the Hungarian national assembly. The Commission’s contradictory reasons revealed the lack of political will: according to the Commission, ethnic minorities are not a matter of EU law and they are sufficiently protected by EU law. Loránt Vincze, president of the Federal Union of European Nationalities, put this disappointment very well: “The Commission has now let down the approximately 50 million citizens of the Union who belong to national and linguistic minorities. Millions of them live in a situation of inequality in their own country already, now the European Commission, which is supposed to be the guardian of democracy, the rule of law, dignity, and justice, is also turning its back on them.”

Interestingly, the disregard for the rights of ethnic minorities is peculiar to the Commission and does not feature EU institutions at large. The European Parliament is much more empathic to ethnic minorities, suggesting that the EU does have the moral impetus, it is only the Guardian of the Treaties who refuses to guard these values.

No cherry picking

Besides the moral issues it raises, the Commission’s ignorance has an important drawback: it gives a chance to its opponents to portray the “founding values” policy as insincere and may alienate a good part of the electorate, who may otherwise be the natural supporter of the European integration. Indigenous ethnic minorities (approximately 50 million European citizens) have a good reason to find the Commission’s asymmetric inaction a sign of abandonment. They see that the Commission vapors about being the implacable protector of the founding values, while it countenances their discrimination. They see that if the Commission has a will, it has a way. Arguably, tenuous legal bases no longer dissuade the Commission, which does not shy away even from some legal finesse to intervene, as long as it wants to. These communities are puzzled by the perception that when it is about other rights and values the Commission is ready to pick up the gauntlet, but when it comes to indigenous ethnic minorities, even discrimination is quite in order.

Given that Hungary’s neighbors accommodate sizeable Hungarian communities (approximately one out of five Hungarians live there), who have a long history of being persecuted and discriminated against, this disappointment is a real asset for illiberals, who are given a chance to portray the Commission’s efforts as an insincere political chicanery and its “founding values” policy as a set of asymmetric rules that is over-enforced against Hungary and under-enforced for Hungarians. Hungarian communities in the adjacent countries could reasonably have high hopes that accession to the EU would improve their situation, enhance the protection of their rights, abate ethnic and linguistic discrimination and glottophobia and push back chauvinistic and discriminatory language. Such hopes proved to be vain. This is highly unfortunate, as Hungarians are as much interested in the enforcement of the founding values, as the Hungarian government is not interested in it. Currently, the Hungarian government uses a highly effective rally-round-the-flag communication to generate electoral support. The Commission’s insincerity and double standards (a euphemism for discrimination) are a cornerstone of this strategy. The experience that the EU’s founding values not only restrain but also protect Hungarians could, instead of inciting nationalistic resistance, take the wind out of the sails of illiberalism.

Textbooks are full of famous cases that were brought to the court and where rights triumphed (or did not). Cases that never reached the court do not make it to the textbooks, as if they had never existed. The numerous cases where the Commission, notwithstanding its competence, failed ethnic minorities may not reach the sensation level of European publicity, but they are part of the day-to-day life of a good part of EU citizens. For instance, in case of the Slovak law on restitution, the Commission played down the significance of Slovakia’s exclusion of Hungarian nationals. The Commission confirmed that the explicit discrimination obviously violated EU law and was aware that the Slovak Supreme Court blocked the matter’s way to the CJEU. It also remained silent when Slovakia banned the use of the Hungarian language, among others, between doctors and patients in public hospitals, even though it recognized that the Slovak language law affected interstate trade and the Venice Commission established that this violated international law (it is needless to note that EU law is supposed to provide a higher level of human rights protection than customary international law). The hypocrisy of the Commission’s approach is very well portrayed by the fact that it made the protection of linguistic diversity a separate commissioner’s portfolio and had a Commissioner for Multilingualism between 2007-2010, while it countenanced that Slovakia prohibited (or as the Economist put it: “criminalized”) the use of Hungarian in several segments of the public sphere. These contradictions may very much undermine the Commission’s moral high-ground.

Recently, President Ursula von der Leyen, in her indignant reaction to the Hungarian anti-gay law, announced in the European Parliament that “Europe will never allow parts of our society to be stigmatised: be it because of whom they love, because of their age, their ethnicity, their political opinions, or their religious beliefs.” It would be good if this was more than empty words and the Commission took the wind out of the sails of illiberals by showing sincerity. Accusations of sanctimony and insincerity could be avoided if the Commission appeared as a credible and unbiased enforcer of European values. Nonetheless, for that, it should avoid even the suspicion that it uses double standards.