Andrius Kubilius. How to stop Orban’s veto rampage and the “Orbanisation” of the EU?

Viktor Orban
Viktor Orban AFP / Scanpix

Despite the fact that he has gradually abandoned his tactic of vetoing all EU decisions related to Ukraine during the last couple of EU Council meetings, Orban has constantly threatened to “orbanise” the European Union over the last few years. The ‘orbanisation’ of the EU is the degradation of the EU’s decision-making capacity, whereby an EU Member State seeks to blackmail the EU as a whole by abusing its veto power to prevent important decisions from being taken.

The EU is looking for the best way to stop the spread of this new “blackmail culture”, but still does not have a systematic approach to this challenge.

It must be said that it really is time for the European Union to find a suitable response to the challenge of ‘orbanisation‘ before it becomes a death sentence for the European Union itself.

In order to find ways of stopping the development of a culture of blackmail, we must first of all look to the past to understand how and when the phenomenon of ‘orbanisation’ began to manifest itself.

It must be remembered that the European Union was first forced to look for new ways of stopping the actions of Mr Orban and Hungary, which violate the basic values of the EU rule of law, as laid down in the EU Treaties, because such actions by Hungary risk disrupting the functioning of the EU’s essential mechanisms, including the EU’s Single Market, since these EU mechanisms operate based on the uniform application of the rule of law throughout the EU.

In order to force Hungary to return to the unconditional application of the rule of law in Hungary itself, the EU legally suspended (froze) the disbursement of the EU’s pandemic Recovery Fund (around €30 billion) belonging to Hungary several years ago. In December last year, when Hungary was forced to correct some of its rule of law mistakes, the EU Commission decided to unfreeze €10 billion in payments to Hungary.

However, Orban, who had already been financially “punished” by the EU Commission several years ago, decided that he would not first fix Hungarian law, but would resort to veto blackmail against the EU as a whole (and thus beat the EU’s unfreezing of the funds), because the EU Treaty stipulates that the EU’s Council (which Orban attends) has to take most decisions unanimously.

Under the definition of unanimity, Hungary has a formal veto right to block important EU decisions. The practice in the EU to date has been that there is absolutely no need for an EU Member State to justify with any serious arguments why it has decided to use its veto to stop a joint EU decision. Therefore, thanks to Orban’s constant and regular efforts, the Treaty veto has become simply an important instrument of the new blackmail culture. And this culture of blackmail is spreading rapidly throughout the EU, especially in the ‘new Europe’. This makes the EU dangerously ineffective, especially since Mr Orban’s veto has been specifically directed against the EU’s efforts to support Ukraine for the last two years, since the beginning of the war against Ukraine.

It is therefore worth devoting much more attention to finding effective EU legal instruments for how Mr Orban’s blackmailing rampage can finally be stopped.

At the outset, it must be made clear that Mr Orban’s actions violate two different areas of EU activity: firstly, they violate the principles enshrined in the EU Treaty for the ‘internal’ activities of the EU countries within their own countries; secondly, Mr Orban’s actions also violate the principles enshrined in the EU for the ‘external’ activities of the EU countries in their dealings with the other countries of the EU, and with the EU community as a whole.

It is clear that Mr Orban and his government are taking decisions which, in Hungary itself, ‘at home’, violate the European values of democracy, the rule of law and human rights, which are defined in Article 2 of the EU Treaty.

However, Orban’s actions are also inappropriate outside Hungary, in the EU’s international sphere, blackmailing the entire EU with the method that he has discovered of abusing the veto power provided for in the EU Treaties.

In order to stop Mr Orban’s actions in breach of the EU Treaties, both inside and outside the country, we need to use specific, specific and different EU legal instruments to defend the provisions of the EU Treaties in different areas.

We can have a long debate about what Orban is doing wrong at home in Hungary and how he should be made to return to the values defined in Article 2 of the Treaty. However, at the moment, we in the European Union are most concerned about Orban’s use of veto blackmail, which is Hungary’s ‘external’ activity. However, we continue to try to defend ourselves and the EU against such ‘external’ blackmail, relying solely on Article 7 of the EU Treaty, which protects EU values against the misbehaviour of the national governments of EU countries ‘at home’, when the values of democracy, human rights and the rule of law, as defined in Article 2 of the EU Treaty, are violated.

Our attempts to show that veto blackmail (applied outside the country) also violates the values of Article 2 of the Treaty (which are domestic) are not very effective in law and are likely to be challenging to stop veto blackmail.

It is therefore worth looking at other ways of legally stopping the spread of this culture of veto blackmail in the EU.

In looking for ways in which the EU can effectively stop Orban’s veto blackmail, it is also worth remembering Article 4(3) of the EU Treaty: “The Member States shall assist the Union in the performance of its tasks and shall refrain from any measure which may undermine the attainment of the objectives of the Union.”

As the commentary to the Treaty on European Union on this Article of the Treaty states: “The principle of sincere cooperation is another important concept of Union law. <…> This principle can be regarded as the cornerstone of the Union’s legal order. <…> The principle of sincere cooperation requires both cooperation and respect. <…> The CJEU (Court of Justice of the EU) has derived the principle of good faith as a general obligation for the parties, deriving from the principle of loyalty, which prohibits a Member State from abusing its rights under the Treaty.”

Mathias Herdegen, analysing Article 4(3) of the EU Treaty, explains: “From the Union’s point of view, compliance with the Treaty obliges Member States to fulfil their contractual obligations in good faith. <…> In any case, it is clear that the violation of the principle of ‘loyalty to the Union’ can be seen in the ’empty chair policy’ or in the refusal to participate in the Council of the European Union, when this is in pursuit of the objectives of one country.” even though Mr Herdegen does not comment on the abuse of the veto, the “empty chair policy” had the same objective as today’s policy of abuse of the veto: it was and is used “to pursue certain single-issue objectives in violation of the principle of ‘loyalty to the European Union'”.

The wording of this article implies that the right of veto of the EU Member States, as enshrined in the EU Treaty, is not absolute, since the use of the veto in such a way as to hinder the achievement of the Union’s objectives is a clear breach of the Treaty. This means that an EU country can only exercise the veto in exceptional cases where the country’s overriding national interest is at stake. For such cases, an objective mechanism should also be established to assess the validity of the veto argument.

Today, it is absolutely clear that Mr Orban’s actions, through the blackmail of the veto, are ‘hindering the objectives of the Union’ in supporting Ukraine for the whole of the European Union. This objective of supporting Ukraine is something that the European Union has confirmed at the highest level and has declared on more than one occasion since the beginning of the war. However, Mr Orban continues to consistently pursue his blackmail tactics, constantly seeking, without any serious arguments, to torpedo the EU’s attempts to fulfil the EU’s own aim and task of supporting Ukraine. This is a clear violation of the Treaty, which poses a serious threat not only to Ukraine, but also to the European Union as a whole.

The European Parliament, in its resolution of 18 January 2024 on “The situation in Hungary and the freezing of EU funds”, made it clear that, at the EU Council meeting in December 2023, Hungary had acted “in total disregard of and in violation of the EU’s strategic interests” by vetoing the decision on the fundamental review of the MFF, including the aid package to Ukraine. Moreover, the European Parliament made it clear that Hungary was in breach of its obligations under the EU Treaty: “[The European Parliament] considers that such action [by Hungary] is in breach of the principle of loyal cooperation as enshrined in the Treaties”.

Thus, it can be stated unequivocally: the ‘orbanisation’ of the Union clearly violates the fundamental principles of loyal cooperation and loyalty to the Union, which are the ‘cornerstone of the Union’s legal order’.

At this point, it is also worth recalling Article 17 of the EU Treaty, according to which the Commission “shall ensure that the Treaties <…> are applied. It shall monitor the application of European Union law”.

The European Commission must therefore take action to defend and protect the implementation of Article 4(3) of the Treaty on European Union from Mr Orban’s blatant abuse of the veto. The Treaty stipulates that the Commission, as the guardian of the EU Treaties and EU law, has to exercise its duty to protect on the basis of the decisions of the European Court of Justice. It is high time for the Commission to take the initiative and do its duty.

Article 258 of the Treaty on the Functioning of the European Union (TFEU) is very clear:

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

If the Member State concerned fails to comply with that opinion within the time limit set by the Commission, the Commission may refer the matter to the Court of Justice of the European Union.”

If the Commission delays action for any reason, it should be remembered that Article 259 TFEU provides:

“A Member State which considers that another Member State has failed to fulfil an obligation under the Treaties may refer the matter to the Court of Justice of the European Union.”

Therefore, a State, such as Lithuania, can approach the Court of Justice on the blackmail of the Hungarian veto and the enforcement of Article 4(3) of the Treaty on the European Union.

V. Orban’s blackmail must be stopped. And this can be done. We can do it ourselves. It is not enough just to complain about how bad and weak the European Union is. We are the European Union! Let us help ourselves.

The best way to get rid of the ‘veto blackmail culture’ is, of course, to do away with the veto in decision-making altogether and to move towards the principle of a qualified majority. This is what EU citizens demanded in the outcome of the conference on the future of the EU. However, until this is achieved, we must prove that the EU can defend itself against any blackmail. Violation of the EU’s fundamental principles – loyal cooperation and loyalty to the Union – should be punished as severely as the Union Member States for violating the EU’s core values – democracy, human rights and the rule of law.

EPP Lithuanian office
EPP Lithuanian Office
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