EU as Arbiter of Ideological Elegance? The European Conservative – The European Conservative

Fifteen EU member states, including France, recently joined the infringement procedure initiated by the European Commission against Hungary before the European Court of Justice concerning the countrys controversial law on the protection of minors. According to Brussels, by prohibiting sexual content, including homosexuality and gender ideology, for children under 18, this law would violate the common values foreseen in the Treaty on European Union, notably the principle of non-discrimination.

It is rare to see fifteen countries follow the Commissions lead against another member state. That they should do so to attack a national law in the name of common values is a firstone which, beyond the facade of consensus, raises many questions. Whatever one thinks of the Hungarian law that has been in the news since 2021, a crucial but neglected question remains: In what way is the sexual education of Hungarian minors a competence of the European Union? On what legal basis does the EU claim the right to challenge this law?

The answer is, it is precisely in the name of these common values that are so often invoked but never defined. Even if, at first glance, the Commissions approach might appear justified, it could be that this vague notion serves as an ideal legal alibi to justify the imposition of an ideological line. Strictly speaking, the Union has no mandate to interfere in these matters. The Treaty is clear on this point, stating that the EU must fully respect the responsibility of the Member States for the content of teaching and the organisation of education systems. And yet, an infringement procedure has been launched, fifteen countries have responded, and the EU Court of Justice will deliver its judgment in 2024.

When the EU lacks an explicit competence regarding a particular issue, the Commission has demonstrated an unfortunate tendency to tailor one for itself by invoking disparate legal bases that are detached from the main complaint. In this case, the Hungarian law is said to be contrary to the free movement of goods, the freedom to provide services, the protection of personal data, and European audiovisual laws. Therefore, a national law merely needs to come close to any one of the tens of thousands of European laws to bring it within the competence of the EU and judge it according to these undefined European values. This only occurs ifand only ifthe Commission so wishes, of course, because in order to add a layer of legal creativity, we should not forget that the Guardian of the Treaties has the exorbitant power to launch an infringement proceeding or to refrain from doing so, on demand and against whoever the Commission desires, without any justification.

It is true that, for decades, the Commission has used this prerogative carefully and sparingly. But it would seem that, in this age of extreme ideologisation and loud messianism, the zeitgeist is to give precedence to values over legal rules. In this way, the latter are invoked in an abusive manner to better circumvent the rules and provide a veneer of legality for steps that might not be legal. Has the EU taken on the role of arbiter of ideological elegance, based on a margin of discretion so great that it becomes arbitrary?

Lets imagine for a moment that Brussels determines that secularism is discriminatory and Islamophobic, and therefore contrary to European values. In reality, there is no point in speculating: even if this vision is slowly making its way through the halls of power in Brussels, such a proceeding would be unimaginable, in light of Frances political weight. In theory, however, such a proceeding would be possible, and would open the door to many abuses, allowing the EU to suck up national competences under futile and sometimes ideological pretexts. In such an instance though, France could rely on its political clout. But what about the majority of other countrieswould they be able to do the same? Would political weight therefore become the main criterion for being subject to or escaping legal proceedings? In the name of common values, this would not be the only such paradox.

This messianic reflex is all the more worrying when one considers that Brussels recently acquired a formidable weapon with imprecise contours: financial conditionalityor, the possibility of withholding the entirety of the European financial manna upstream, if violations of the principles of the rule of law undermine or present a serious risk of undermining the sound financial management of the Unions budget. In cases of fighting fraud and preventing the misuse of the EUs financial resources, the Commission would be able to withhold all of the EUs money upstream if such violations are identified. If it was indeed only about fighting fraud and preventing the misuse of EU funds, how could anyone oppose it? But if, on the contrary, this mechanism was used as a lever to impose constitutional changes on a country or to unravel national educational reforms, then it would look more like a blatant abuse of power. A recent example illustrating this is the exclusion of 180,000 Hungarian students from the Erasmus programme beginning in September, even though no evidence of fraud or potential risk has been found.

In short, this is an opaque mechanism that allows the imposition of extremely severe sanctions for hypothetical or even imaginary, offencesthis time in the name of another all-purpose value: the rule of law. Moreover, the fact that since 2021, Turkey has been an integral part of this flagship Erasmus programme and its membership has never been questioned, further demonstrates just how this just in case exclusion, in the case of Hungary, is perplexing.

It is also worrying that these abuses are taking place in the midst of a paradox of broader public indifference towards the EU in parallel with general acclaim for the Union. For instance, the war in Ukraine is in full swing and the EU is playing a decisive role in it, which has enabled it to regain its image in the eyes of public opinion. But we should be concerned that such abuses are taking place in the shadows of a major geopolitical crisis, during which the European budget has been transformed on the sly into an instrument of political pressure, blithely violating the law precisely in the name of the rule of law.

Some people are satisfied that the EU is being built on the basis of crises and are delighted with this ever closer Union which is being forced from above rather than desired from below. They are forgetting that in this way, the EU will remain, democratically speaking, a giant with feet of clay. Others argue that by joining the Union, each new member state commits itself to respecting those common values so vaguely described in the Treaties, the interpretation of which has miraculously become clear and one-sided. In the face of these elucidations, let us recall without ambiguity that the real keystone of the European edifice is the principle of attribution of competences, a golden rule according to which any competence not attributed to the Union in the Treaties belongs to the Member States. This principle is clear and precise, yet it is widely trampled on. One sometimes wonders whether, in their role as troublemakers, certain central European countries, far from breaking the rules of the game, are in fact merely reminding us of their relevancean insolence that they pay a high price for and in hard currency, in the name of common values and the rule of law.

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