By Dániel G. Szabó and Beáta Bakó
A legislative amendment tabled by Fidesz MPs on 21 March would allow for withdrawing the mandate of Hungarian members of the European Parliament (MEPs) if they intentionally provide false information in their asset declaration. As Fidesz has a two-thirds majority in parliament, its bills almost always become law. Here, we argue that because the European Parliament (EP) is a prime source of democratic legitimacy for the EU, strong EU-level supervision is needed when Member States remove an MEP. This is even more true for countries facing a rule of law and democracy crisis, such as Hungary. In short, the Court of Justice of the European Union (CJEU), and not national courts, should have the final say on the legality of removing an MEP.
An MEP’s removal is a concern for the EU as a whole
Article 13(3) of the 1976 Electoral Act allows for the removal of MEPs, and it is not unheard of for an elected parliamentarian to be ejected for a serious transgression. Different models exist, mostly involving the national constitutional courts. The EP Member’s Research Service notes that national and EU constitutional provisions interplay here, because some national provisions on the termination of the mandate violate EU law. For example, losing national citizenship while keeping another EU nationality cannot be grounds for losing mandate because it would violate Article 22 TFEU.
However, the EU’s democratic legitimacy hangs in a large part on the EP, and therefore, all MEPs’ mandates should be a concern for all EU citizens. In a system “founded on representative democracy”, the EP is the only directly elected body, complemented by the Council consisting of democratically accountable national governments (Article 10 TEU). If MEPs are not elected freely and fairly in all Member States, or are removed from office unduly, the EU might face a legitimacy problem, even if parties can replace the removed MEP with another candidate from their party lists. This might sound remote, but imagine that a dozen MEPs are affected by unfair laws in one Member State. They might be either elected to or removed from the EP undemocratically. This does not seem significant compared to the total number of 720 MEPs, but still, all votes passed by a margin lower than a dozen votes can be questioned. Therefore, all MEPs’ mandates should be a concern to the EU as a whole in order to keep up with the democratic promise of Article 2 TEU.
The CJEU has already ruled that it has the competence to issue guidance on MEPs’ mandates. These cases concerned politicians who claimed to be elected to the EP but were denied certification by the national authorities. In Donnici and Puigdemont, the CJEU has ruled that the EP has no competence to review the legality of the election of its members. As it was pronounced very recently in Puigdemont: “In the complete system of legal remedies established by EU law, a review [of the national electoral procedure’s conformity with EU law] is a matter for the national courts alone, where appropriate after making a reference to the Court of Justice for a preliminary ruling on the basis of Article 267 TFEU, or it is for the Court of Justice when hearing an action for failure to fulfil obligations on the basis of Article 258 TFEU”. In Junqueras, the Court heard such a preliminary reference and reviewed the compatibility of national EP election law with EU law.
Captured Hungarian institutions will decide on MEPs mandate
Since 2023, MEPs have been obliged to provide an asset declaration at the beginning and end of their mandate due to the Qatargate scandal. Member States (MSs) may establish further requirements for asset declarations, and more than one-third of MSs do so. Hungarian MEPs will have to provide information about their property, savings, stocks, investments, and liabilities. Other incomes and economic interests must also be reported in the declarations, published online yearly. The Hungarian procedure, however, is flawed because it leaves the decision on an extreme penalty—the termination of the mandate—in the hands of captured institutions: the NEC and increasingly the Supreme Court.
The National Electoral Commission (NEC) will review asset declarations in the first instance, which can be appealed to the Supreme Court. The Organization for Security and Co-operation in Europe’s (OSCE) monitoring reports heavily criticised these bodies’ performance during elections, concluding in 2022 that “overall, the handling of most cases by the adjudicating bodies fell short of providing effective legal remedy.”
Seven NEC members are elected by Parliament and are supposed to be independent. However, because they are nominated and elected by the government majority, they tend to side with the government. All parliamentary groups are allowed to nominate one member, which results in a practical 9-to-6 majority for the governing parties. As one of us observed based on his experience as an NEC member in 2018, the body’s sessions are often pointless.
The NEC’s decision can be challenged before Hungary’s Supreme Court, which will decide within 30 days. Concerns about the Supreme Court’s independence have been raised especially since its new president, András Varga Zs was appointed in 2020. Parliament was able to appoint him only with tailored law-making. According an analysis based on interviews with judges, he took cases from judges if they were not willing to write the desired reasoning, and pressured judges to sign decisions by withholding promotions. Moreover, he has recently lost a lawsuit for demoting a judge who criticised case allocation at the Supreme Court, and he was repeatedly criticised at a protest organised by judges in February in defence of judicial independence. In light of severe challenges, high court independence has fallen from 3,13 in 2009 to 0,89 in 2024 on a scale of 0-4 in V-Dem’s assessment.
In contrast to MEPs, Hungarian MPs might only be removed by a vote in Parliament. Different methods are used in Europe and the world, depending on whether they emphasize popular sovereignty and a parliamentary vote, or the judicial model. An interesting compromise is to be found in Austria, where a majority of Austrian MEPs can initiate a procedure before the Constitutional Court to withdraw an MEP’s mandate.
In sum, even if the procedure for MEPs’ removal was designed to resemble a non-political, administrative decision, an unbiased and fair process cannot be expected. Removing elected MEPs on the grounds of an administrative procedure is inconsistent with Fidesz’s own rhetoric about popular sovereignty and democratic legitimacy as well. Namely, Fidesz regularly contrasts its own democratic legitimacy with the democratic deficit of the EU and blames the institutions of the latter (especially the CJEU) for unduly intervening in the Hungarian people’s democratic will. But now, arguably, the government might undermine the legitimacy of the only directly elected EU body and neglect the Hungarian people’s democratic will through a non-democratic ‘administrative’ decision.
Grounds for review: Proportionality and due process
In Delvigne, the Court ruled that Member States implement EU law when organising EP elections, and in Junqueras and Puigdemont, it explicitly referred to the Charter of Fundamental Rights. Against this background, we see three possible grounds where EU law applies in withdrawing an MEP’s mandate: proportionality; equality and non-discrimination; and fair trial.
Proportionality is a general principle of EU law. Removing a directly elected officeholder is no easy task for any judge, and such a decision should be reserved only as a last resort for the gravest law violations. Therefore, no MEP should be removed for minor omissions from an asset declaration.
Equality and non-discrimination are also Charter rights and general principles of EU law that are indispensable for democracy within the meaning of Articles 2 and 10 TEU. The laws on withdrawal should be applied against all MEPs with the same rigour. There are worrying signs in this regard. Opposition leader Péter Magyar leads the polls against Prime Minister Viktor Orbán one year before the 2026 general elections. Previously, Hungarian authorities had asked the EP to waive his immunity, but it is unlikely, given the minor nature of the crime. Withdrawing a member’s mandate might be a new attempt at the same goal: discrediting the opposition. Going full Erdogan-style is also not inconceivable. The withdrawal of Magyar’s mandate could open the road for a criminal procedure, in which a court could ban him from running in next year’s election. As a telling sign, one of the bill’s authors claimed publicly that the new law is aimed at Magyar, who responded by dismissing personalised lawmaking.
Fair trial rights should also be respected when an MEP’s mandate is withdrawn. OSCE election monitoring reports repeatedly criticised Hungary for not respecting such rights in its election procedure law, which also applies to EP elections. The fact that the procedure will belong to the competence of the politically influenced NEC and Supreme Court raises further concerns regarding fair trial rights.
Procedure
There are at least four procedural ways EU law can be used to protect democracy at the EP: through a preliminary ruling; in an infringement procedure launched by the Commission; in an action brought by another Member State; and seeking compensation for violating EU law under state liability.
The Hungarian Supreme Court falls under the obligation to submit a preliminary question when ruling on removing a mandate. The apex courts can only escape their obligation under Article 267 TFEU to submit a preliminary reference if the question is obvious or already decided. Depending on the details of the case, it might be well argued that the removal of an MEP raises serious and yet undecided questions regarding democracy, direct representation of citizens (Articles 2, 10, 14 TEU), and the right to stand as a candidate (Article 20 TFEU).
Hungarian judges are actively dissuaded from filing preliminary references in high-profile cases. In line with this practice, the Hungarian Supreme Court’s panel, involving the pro-government President of the court Varga Zs, ruled in 2024 that there is absolutely no room for preliminary questions in the election procedure. The court argued that this is so because of the short deadlines in the election procedure which would not hold in a removal procedure. While an election complaint should be quickly decided, removing an MEP faces no such pressing requirement, therefore, the 30-day deadline for the Curia to review the decision of the NEC is hard to justify. Quickness must yield before thoroughness. Failing to request a preliminary ruling when it was necessary is a violation of fair trial rights in the practice of the European Court of Human Rights
Should an MEP be removed unduly, the Commission should launch an infringement procedure to defend the EU’s democratic legitimacy. We have argued before that removing an MEP has a direct and imminent effect on the democratic life of not only the Member State but the entire EU. Similarly, other Member States can also sue under Article 258 TFEU, a provision directly referenced by the Court in Puigdemont, as cited above.
A state liability case might also be an option, although it is the least powerful of the options analysed here. The problem is that despite the clear CJEU case law on the topic, Hungarian courts are reluctant to apply the doctrine.
From protecting the rule of law to protecting democracy
The CJEU’s involvement in protecting Article 2 TEU values is not new. So far, judicial independence and the right to a fair trial have been the key elements through which the CJEU has protected the rule of law in the member states. The question is how fast another Article 2 TEU value, democracy, will gain more importance in the Court’s case law. A judgment from November 2024 signals that such a shift is possible: referring to Article 10 TEU, the Court found Czechiaand Poland violating EU law for excluding mobile EU-citizens from membership in a political party. It remains to be seen if the principle of representative democracy will motivate the Court to follow a restrictive interpretation of the very general authorisation for Member States to withdraw a mandate of an MEP in the Electoral Act. Should the new Hungarian bill be adopted and used, it will offer a new possibility to strengthen CJEU criteria on EU-level democracy. But first, the case should land before the CJEU, either after a preliminary reference by a Hungarian judge or after an infringement procedure initiated by the Commission.
Dániel G. Szabó is a Research Officer at Democracy Reporting International. He is a former member of the Hungarian National Election Commission and holds an LLM in Comparative Constitutional Law from the Central European University.
Beáta Bakó is a postdoc researcher at the Law Faculty of Charles University, Prague. She earned her Ph.D. in law at the University of Münster in 2020. Her first book, Challenges to EU Values in Hungary. How the European Union Misunderstood the Government of Viktor Orbán was published by Routledge in 2023.