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Rule of Law Warming the Bench: Democracy, EU Citizenship and Discrimination Issues Induced by the Special Status of Hungarians Beyond the Borders

Citizenship
Democracy
European Union
Policy Analysis
Differentiation
Euroscepticism
Voting Behaviour
Rule of Law
Anita Kovacs
Université de Liège
Anita Kovacs
Université de Liège

Abstract

In order to address the European Union’s rule of law crisis in some of its Member States, including Hungary, the institutional approach based on values is insufficient. By contrast, economic conditionality has been proving increasingly effective as an EU law tool. However, there are also peripheral situations which, although they directly affect the EU’s political and legal development, are not covered by EU law and the conditionality mechanisms it imposes. This paper deals with one such case: a preferential regime intended to grant Hungarian citizenship, voting rights and other benefits to “Hungarians beyond borders”. According to Hungarian law, “Hungarians beyond the borders” (or “Hungarians living in neighbouring states”) are entitled to preferential naturalisation without any requirement of residency in Hungary or proof of Hungarian descent. This entails the automatic granting of EU citizenship and its associated rights, including free movement within the EU, creating similar circumstances to those in the Maltese golden passport cases. In that regard, statistical analysis based on available data on naturalisations and parliamentary elections demonstrates that granting voting rights to “Hungarians beyond the borders” has influenced election results in a favourable manner to Fidesz in the past decade and a half, leading to an even greater distortion of democratic representativeness in a mixed electoral system pre-configured to serve a larger party’s interests. In addition, all travel, educational and cultural benefits that only “Hungarians beyond the borders” enjoy by law raise explicit discrimination concerns. Despite the obvious deepening of the EU’s rule of law crisis through such cases of arbitrariness in Member States, the only possible application of EU law, including both de jure and de facto harmonisation options based on both treaty provisions and political will, is currently limited to the use of internal market law and its fundamental economic freedoms, the regulation of which remains a shared competence between the EU and the Member States, not in the hands of the latter. This paper charts to what extent those freedoms can play a role in the context of such preferential regimes and calls for new directions to be set in order to bring such peripheral cases more firmly within the scope of both EU harmonisation initiatives and the EU’s rule of law framework.