As a new affront to European values, Hungary
on Tuesday passed a bill to ban the "promotion" of homosexuality among minors.
Clearly, it will no longer be possible to put up an advertisement showing two men kissing, or to broadcast extracts from films and series evoking homosexuality.
A text that risks “further stigmatizing LGBT people, exposing them to greater discrimination in what is already a hostile environment,” said the director of Amnesty International in Hungary, David Vig.
In recent years, Hungary has consistently restricted the rights of the LGBT community.
Last December, the very rightist Prime Minister Viktor Orban had already banned adoption by same-sex couples and included the traditional notion of the family in the constitution.
A policy which is difficult to pass within the European Union, whose charter of fundamental rights prohibits any discrimination based on sexual orientation.
Thus, the former communist country, member of the EU since 2004, is regularly singled out by Brussels for its attacks on the rule of law.
No exclusion from the EU
“At the foundation of European construction, a few countries which shared the same democratic values have formed a common market. Since then, the enlargement of the EU has continued with this economic objective, to the detriment of social cohesion ”, analyzes Tania Racho, lawyer in European law at the University of Paris II. The result: Hungary, like its historic ally, Poland, is seen as an anomalies within Europe. Can we therefore ostracize them? "Nothing in the treaties makes it possible to exclude a member state from the EU", objects the specialist.
In the event of a violation of fundamental values, there are only two paths, long and winding.
First, the Commission can take a country to the European Court of Justice on a specific point of law.
It had done so on the limited independence of Hungarian judges or more recently on asylum procedures for migrants.
"A seizure of this order can also be considered on the issue of discrimination against the LGBT community", observes Tania Racho.
In the event that the country does not change its legislation, despite its warning, the Court can then impose financial penalties on it.
Article 7, a "nuclear weapon"
Another more radical outcome is the use of Article 7 of the EU Treaty, nicknamed by some "nuclear weapons". Very rarely used, this procedure makes it possible to suspend the voting rights of a member state within the Twenty-Seven. The European Parliament had also launched it against Hungary in 2018, judging that Budapest constituted a "systemic" threat against the values of the EU. However, the measure is unlikely to succeed: it would require a unanimous vote of the 26 other countries. Hungary can count on the unwavering support of Poland.
Is Europe then powerless?
To explain the weakness of this arsenal, the environmental MEP Gwendoline Delbos-Corfield reminded the Parisian that "the European Union is an immature democracy, which does not even have a century".
Likewise, some states hardly want to be too interventionist by sanctioning, judge Laure Neumayer, lecturer at the Sorbonne, specialist in European policy.
"Many countries retain an attachment to their sovereignty and do not want an institution to interfere in their political life," she remarks, seeing "a form of latent euroscepticism".
The fear of seeing Pandora's box open
Finally, other states still fear “seeing Pandora's box open” once Hungary has been severely sanctioned. “Poland, Slovenia and Austria do not want to get involved too closely in these debates, for fear of seeing themselves sanctioned in their turn. Condemning a counterpart can leave traces ”, assures the academic. Faced with these difficulties, European integration can no longer be considered in the same way as twenty years ago, say specialists. For the moment, five official candidates for enlargement are recognized: Turkey, North Macedonia, Montenegro, Serbia and Albania. But the negotiations are stalling. And for good reason.
“There is a reluctance to bring in new countries today that are not ready. The requirements for judicial independence have been more clearly stated to them than before, ”adds Laure Neumayer. But is the enlargement of the Twenty-Seven a desirable horizon? “These integration difficulties force us to ask ourselves what the EU is today and where it is heading,” says Tania Racho. In the meantime, the EU hopes somehow to move towards better social cohesion. The proof: its post-Covid recovery plan should now be conditional on respect for the rule of law. In other words, to receive European money, each country will have to attest, among other things, to the independence of its justice system.An unprecedented requirement which proves that a "change of nature is already underway in old Europe", believes the lawyer.