Andrius Kubilius. How To Stop The Veto Rampage And “Orbanization” Of The European Union?

2024-02-06 | European Union

Over the last few years, Viktor Orban has made Hungary the biggest headache for the entire European Union.  Despite the fact that during the recent EU Council meetings he gradually retracted from his tactics to veto all the EU decisions related with Ukraine, during recent years V.Orban nevertheless created the permanent threat to the European Union of being “orbanized”. “Orbanization” of the EU means weakening of the EU decision making capacity with the abuse of veto power by a Member State, which attempts to blackmail all the EU.

The European Union is struggling to find the best way to stop the spread of such a new “culture of blackmail”, but still does not have a systemic approach to such a challenge.

It is time for the EU to look for a proper answer to the challenge of “Orbanization”.

In order to move forward, first of all we need to look into the past, in order to understand how and when the phenomenon of “Orbanization” started to appear.

In the begining, the European Union was forced to find new ways to stop Orban’s legislative activities back home, in Hungary, that violate basic values, especially the rule of law, as enshrined in the EU Treaties, and violation of which risks disrupting the functioning of essential EU mechanisms, including the EU Single Market, which operates on the basis of the uniform application of the rule of law throughout the EU.

To force Hungary to return to the rule of law, the EU had previously legally withheld (“frozen”) the disbursement of the EU  Recovery Fund (around EUR30 billion) to Hungary. In December last year, when Hungary was forced to correct some of its rule of law violations, the EU Commission made the decision to ‘unfreeze’ EUR10 billion in payments to Hungary.

But during last years Orban, who had already been “financially” punished by the EU Commission several years ago, decided that his first priority was not so much to fix Hungarian law as to resort to “veto blackmail” against the EU as a whole (and thus to force the EU to go for  the “unfreezing” of EU funds), since the Treaty on European Union stipulates that most decisions in the EU Council must be taken unanimously.

Under the Treaty definition of unanimity as decision making procedure in the European Council, Hungary appears to have a formal veto over important EU decisions. The established practice within the EU so far has been that an exercise of the veto right does not need to be based on any serious arguments by an individual country. Thanks to mainly Orban’s efforts, the veto right entrenched in the Treaty has become an important instrument of the new “blackmail culture”. This “blackmail culture” is spreading rapidly throughout the EU, especially in “new Europe”. This makes the EU dangerously ineffective, especially since Orban’s “veto” has been specifically aimed at undermining the EU’s efforts to support Ukraine over the last two years, after the onset of the war.

Therefore, it warrants significantly more attention to identify effective EU legal mechanisms to put an end to Orban’s blackmailing “rampage”.

Firstly, it must be clarified that Orban’s infractions pertain to two distinct aspects of EU operations: he infringes upon the principles established in the Treaty on European Union regarding the “internal” activities within EU Member States, as well as the principles for “external” actions of EU countries in their interactions with other Member States and with the EU Community at large.

It is evident that Viktor Orban and his administration are making “domestic” decisions which infringe upon European values of democracy, the rule of law, and human rights within Hungary, as stipulated in Article 2 of the Treaty on European Union (TEU). However, Mr. Orban is also engaging in “external” misconduct beyond Hungary’s borders in Hungary’s interactions with other Member States and with the EU Community at large, as well as within the EU’s international domain, by exploiting the “veto” power granted by the EU Treaties in order to blackmail the entire EU.

To counteract Orban’s treaty-breaching conduct (both “internally” and “externally”), we must utilize targeted and distinct EU legal instruments to safeguard the EU Treaties in those respectively different spheres of “internal” and “external” activities of Member States.

While there is much to be said about Orban’s domestic actions in Hungary and the necessity for him to adhere to the values outlined in Article 2 of the Treaty, it is clear that what currently preoccupies the European Union is his employment of “veto blackmail” as an “external” maneuver. Nevertheless, in our defense against this “external” blackmail, we continue to discuss and develop arguments, based solely on Article 7 of the Treaty on European Union. This article is designed to uphold EU values against the improper domestic conduct of national governments within the EU, specifically when there is a breach of democracy, human rights, and the rule of law as defined in Article 2 of the Treaty on European Union.

Our efforts to demonstrate that the “veto blackmail” (applied “externally”) also contravenes the values of Article 2 of the Treaty (which are originating “internally”) have not been legally effective and will likely face significant challenges in curtailing “veto blackmail”. Thus, it becomes important to explore alternative legal avenues to halt the proliferation of this “veto blackmail culture” within the EU.

In the quest to effectively halt Orban’s “veto blackmail”, we should also consider Article 4(3) of the Treaty on European Union, which defines the EU’s basic principles of sincere cooperation and loyalty. The Article 4 (3) states, “The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.”

As it is stated in the commentary to the Treaty on European Union, “The principle of sincere cooperation is another key concept of Union law. /…/ The principle can be regarded as foundation stone of the Union’s legal order. /…/ The principle of sincere cooperation requires both cooperation and respect. /…/ As a general obligation flowing from the loyalty principle the CJEU inferred the principle of good faith, which prohibits the MS from any abuse of rights”.[1]

Mathias Herdegen, while analyzing Article 4(3) of the TEU, explains: “From the Union’s point of view, compliance with the Treaty obliges the Member States to loyally fulfill their contractual obligations. /…/ In any case, it is obvious to see a violation of the principle of “loyalty to the Union” in an “empty chair policy” or a refusal to participate in the Council of European Union in order to achieve certain objectives”.[2] Despite the fact, that  M.Herdegen does not comment anything on the “abuse of veto power”, but “empty chair policy” had the same goal as policy of “abuse of veto” of today: it was and is used “to achieve certain objectives in violation of “loyalty to the Union” principle.

The language of the Article 4(3) suggests that the EU Member States’ veto right, as established in the Treaty on European Union, is not absolute. Abusing the veto power in a manner that jeopardizes the Union’s objectives is a manifest violation of the Treaty. This means that the right to veto should be reserved for exceptional instances where a Member State’s paramount national interest is at risk. For such instances, an objective mechanism to evaluate the legitimacy of the veto justification should be established.

It is now abundantly clear that Orban’s use of “veto blackmail” instrument is obstructing and jeopardizing achievement of the Union’s objectives, particularly regarding the EU’s support for Ukraine—an EU stance that has been repeatedly affirmed at the highest levels of EU institutions since the onset of the conflict. Yet, Mr. Orban continues to employ his blackmail tactics, relentlessly aiming to undermine the EU’s efforts to support Ukraine without any substantive arguments. This behavior constitutes a stark breach of the Treaty, threatening not just Ukraine, but the integrity of the EU itself.

European Parliament in its January 18, 2024 Resolution “On the situation in Hungary and frozen EU funds” made a clear statement, that in December, 2023 EU Council meeting, when Hungary vetoed the decision on the essential MFF revision, including the Ukraine aid package, it demonstrated “full disrespect and violation of the EU’s strategic interests”. And even more – European Parliament clearly declared that in such a way Hungary violated its Treaty obligations “/European Parliament/ believes that such actions /of Hungary/ are in violation of the principle of sincere cooperation, as enshrined in the Treaties.”

So, it can be stated in a unambiguous way: “orbanization” of the Union is a clear violation of the basic principles of “sincere cooperation” and “loyalty to the Union”, which are “the foundation stone of the Union’s legal order.”

One should also remember that the Union is based on the principle of rule of law, and violation of the principles of the Union and of the Treaty, is violation of the basic law of the Union. Article 17 of the Treaty on European Union, mandates that the Commission “shall ensure the application of the Treaties […] and it shall oversee the application of Union law”.

Consequently, the European Commission must act to uphold Article 4(3) of the Treaty on European Union and shield it from Mr. Orban’s egregious misuse of the veto. According to the Treaty, the Commission, as the custodian of the EU Treaties and laws, must perform its protective duties in accordance with the rulings of the European Court of Justice. It is time for the Commission to take the lead and fulfill its responsibilities. Article 258 of the TFEU states very clearly,

“If the Commission considers that a Member State has failed to fulfill an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.

If the concerned State does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union”.

Should the Commission hesitate to act for any reason, it is pertinent to remember that Article 259  of the TFEU states:

“A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may bring the matter before the Court of Justice”

Therefore, the Court of Justice can be addressed by a state , for example by Lithuania, concerning Hungary’s “veto blackmail” and the enforcement of Article 4(3) of the Treaty on European Union.

It is imperative to put a halt to the “culture of veto  blackmail” which is created by Viktor Orban and which has a danger to spread to other EU Member States. It is within our power to do so, using the obligations and the powers of the Treaties. We must not merely lament the perceived frailties of the European Union; we are the European Union. Let us be proactive in aiding ourselves.

The best way to get rid of the “culture of veto blackmail”, of course, is to abandon veto right in decision making totally and to move to QMV. That is what citizens of EU demanded in the outcomes of the Conference on the Future of the EU. But until this is achieved, we need to demonstrate that the EU is able to defend itself against any blackmail. Violation of the basic EU principles of sincere cooperation and loyalty to the Union should be punished with the same vigor as Union is punishing for the violation of basic EU values of democracy, human rights and rule of law.

[1] The Treaty on European Union (TEU), H.-J.Blanke and St. Mangiameli (Ed’s.),  Springer-Verlag, Berlin, 2013,, p.232-234.

[2] Mathias Herdegen, “Europarecht” (Beck C.H., 2019)