The European Court of Justice
(ECJ), the E.U.’s supreme court, which like the U.S. counterpart can overrule
state courts, ordered the E.U. state of Hungary to pay a lump sum of €200
million and €1 million per day of delay from June 12, 2024 because the state
government had disregarded “the principle of sincere cooperation” between
states in taking in their fair share of foreign asylum-seekers and “deliberately”
evaded implementing the federal law that directs the states how to treat those
people who enter the E.U. through the state seeking political asylum.[1]
The state government had made it “virtually impossible” for asylum seekers to
file applications.[2]
Similar to the Nullification Acts passed by the state government of South
Carolina in the U.S. when that union was between 30 and 40 years old, the decision
of Hungary to ignore the ECJ’s ruling on the matter in 2020 could not be
tolerated by federal authorities, for a federal system of dual sovereignty (i.e.,
some held at the federal level and the rest at the state level) cannot survive
if state governments can unilaterally decide to nullify, or ignore federal law.
That federal directives in the E.U. reply on implementation into law at the
state level just makes the E.U. more vulnerable should a state government so easily
dismiss federal law. Why even be in a union if its law is deemed not worthy of
respect?
In their written opinion, the
justices of the ECJ clearly understood that the problem of Hungary’s
dismissiveness of the legitimacy of federal law within the state struck at the
foundation of the union. “That conduct constitutes a serious threat to the
unity of E.U. law, which has an extraordinarily serious impact both on
private interests, particularly the interests of asylum seekers, and on the
public interest,” the high court declared.[3]
The problem being extraordinary for the E.U. as a federal system of public
governance, the public interest being impacted certainly includes that of the
union itself. It is necessary therefore to separate out the particular issue, that
of political asylum and even immigration, and focus on the viability of the
E.U. itself.
Any federal system will not long
endure if state governments attempt to throw off problems onto other states. In
fact, given the cultural heterogeneity that naturally exists in an empire-scale
federation such as the E.U. and U.S., cooperation between the states directly
as well as through federal institutions of government plays a vital role.
Tensions that might tear such gigantic unions apart need to be offset by
cooperation; the last thing such a union needs is political infighting between
the states and even just one state that presumes not to be subject to federal
law. For such a union to lack enforcement power even in regard to its own
competencies (E.U.), or enumerated powers (U.S.) is a sure recipe for collapse
and the epitome, moreover, of weakness. So, the ECJ justices acted wisely in automatically
taking Hungary’s fine out of its share of largess from the E.U. budget.
For its part, the state government
of Hungary could have taken the opportunity to definitely decide whether to
accept the validity of E.U. law as applicable even for the state governments, or
secede from the union as the British did after they finally came to a decision
rejecting the dual-sovereignty, which distinguishes (early) modern federalism
from what is now called confederalism. A common expression in English comes to
mind: that of, “shit or get off the pot.” Translated, this means, “use the
toilette or get up, rather than procrastinate on it all day.” Muddling the
difference by staying in the Union and yet mislabeling it as a “bloc” or a “network”
rather than a federal system of government, and the European Parliament’s political
parties (even the EPP!) as mere “groupings,” as if that legislative body
were not a real legislature and political parties could only exist at the state
level, only puts the E.U.’s self-understanding at odds with what the Union
actually is, and such a lack of self-understanding can never be good for anything
(or anyone).[4] A
fish would not long live if it comes to believe that it is a frog. A house
divided is bad enough; a house that comes to be viewed as a mere tool shed is in
even worse shape.
Even though some healthy degree of anti-federalism is a good means of forestalling (i.e., by acting as a check politically and even in the basic or constitutional law itself) the kind of federal consolidation that has occurred in the U.S. since 1865 (i.e., the anti-federalists had been right), knowingly pretending with ill-suited words that a federal union of states is something else altogether whose nature, superimposed, weakens the union by denying what it is empirically is needlessly destructive and utterly dishonest intellectually. Engaging in word-games to obfuscate the public’s understanding of the very nature of the E.U. really only demonstrates the cognitively distortive propensity of ideology (i.e., its susceptibility to delusion from pride and resentment). Journalists and their editors generally have been easy, unthinking tools in that political game of perpetuating an illusion as if it were empirically extant and a fact of reason. What then of the perpetual peace, which old Kant saw as only possible rather than probable if there were a world federation, if a federal system just in Europe cannot even be consistently recognized as federal government rather than as something else entirely that is weaker in providing for public governance?
1. Jorge Liboreiro, “ECJ Finds Hungary with €200 Million over ‘Extremely Serious’ Breach of E.U. Asylum Law,” Euronews.com, June 12, 2024 (accessed June 13, 2024).
2. Ibid.
3. Ibid, italics added for emphasis.
4. I am in the midst of translating a 17th century text from French, and I think the tiresomely long sentences are rubbing off on me. At least I’m not compounding the problem by inserting colons and semicolons throughout such a train of thought. Regarding the EPP, the European People’s Party, which is a political party in the European Parliament, a journalist at the time even parroted (not quoting) a Euroskeptic by dutifully writing, “the European People’s Party group” in an article published online by Euronews. Stating the obvious, I feel the instinctual need nonetheless to point out that “party” is in the very name of the party and thus it is, and understands itself as, a political party. Perhaps “group” should be used to designate the smaller parties at the state level, as more than one of such groups can feed into one of the larger federal parties by means of the elected representatives in the federal parliament—such groups themselves not being recognized there. Such a reversal would doubtless not be tolerated for long! Even so, by engaging in such a reversal, the hypocrisy of the status quo may be better known.
