How the EU is punishing Hungary for its migrant policy

We are set for another high-profile tussle between Budapest and Brussels. Yesterday the European Union Court of Justice chose to impose a whopping $200 million fine on the Hungarian government for failing to apply EU asylum laws, a fine that increases by $1 million for every day the infringement continues. 

Politics is never very far from the surface with the EU court

The legalities as ever were murky, but essentially Brussels’s complaint was this. EU law requires that asylum seekers be allowed into a member state to seek protection and to stay there until their claim is handled. Originally Hungary had prevented this by corralling applicants in border reception centers, until the court decided in 2020 that this was not good enough. Subsequently, Budapest made it almost impossible to claim asylum in-state in a different way, by physically excluding would-be claimants and refusing to progress asylum claims unless the applicant had previously applied for a travel permit at an embassy abroad, for example in Belgrade. As a result in-state applications fell drastically. This, together with some more technical matters, has now been held to amount to a failure to fulfill the 2020 judgment: hence the fine.

Politically (and recall that politics is never very far from the surface with the EU court), both sides clearly see this as a legal showdown. Besides predictably castigating the judgment as “outrageous and unacceptable.” Hungary’s prime minister Viktor Orbán has pointed out that his country’s supreme constitutional court has yet to rule on how far it can follow the European court’s demands. 

The Luxembourg court for its part clearly wants to make an example of Orbán and show him who’s boss. The fine it imposed was a good deal bigger than even the EU Commission had demanded, because, as the court put it, Budapest had been guilty of “an unprecedented and exceptionally serious infringement of EU law” and its conduct was “a significant threat to the unity of EU law and to the principle of equality of the member states.”

Legal considerations aside there is a good deal to be said for the Hungarian position. A small country with an almost unique drive to preserve its distinctive language, culture and ethnically cohesive population of ten million, it believes, even if Brussels does not, that mass immigration poses an existential threat. Furthermore, a fine of $200 million amounts to $20 per head. In a country with less wealth than the EU average, this looks suspiciously like an attempt to pressure the electorate to vote against the ruling party Fidesz and for a party more amenable to Brussels. (Not for nothing did a German member of European Parliament gloatingly refer to the judgment as making Orbán “the most expensive Hungarian prime minister in history.”)

What will happen now? European progressives will clearly press the EU to extract its kilo of flesh in full and keep up the pressure for political change. In practice, however, one suspects a way will be found out of the impasse.

For one thing, whatever Brussels or Luxembourg may say, Budapest is unlikely to budge substantially on immigration. True, Orbán has not said in so many words that he will not pay (he can’t very well do that anyway, since Hungary is a net recipient of EU funds). But his close associate Balázs Orbán (no relation) said yesterday on social media that Hungary would not give in and would continue to say “no” to immigration. It also won’t have escaped those in the Berlaymont building that since the Euro-elections, there are now more members in the parliament building who will welcome such views.

Secondly, Brussels needs to keep Budapest at least minimally sweet for when Hungary takes over the rotating EU presidency next month. Even though the presidency has little formal power, it does have formal control over the agenda of the EU Council and could make mischief either by downplaying matters it wants kicked into the long grass (such as intervention in social matters) or by holding up calls for urgent action when it comes to say Ukraine or China.

Thirdly, if Brussels puts too much financial pressure on Hungary, there are other less savory regimes — notably China, which is already heavily invested there — who may well fill the void. They will, correctly, see a chance to get a foothold for influence in the EU at a bargain basement price. Brussels, for all its bellicosity, is well aware of this.

What kind of a fudge will we see? Possibly a slight relaxation by Budapest, for example by making a few formal legal changes and admitting some would-be refugees under strictly-controlled conditions, to be immediately deported once their applications have failed. Something like this could neatly save the EU’s face. And the Budapest government would remain able to do what it is elected to do — rather than following the dictates of an undemocratic technocracy 850 miles away in Brussels. 

This article was originally published on The Spectator’s UK website.