How Viktor Orbán Challenges the EU’s Common Foreign and Security Policy

Since the start of the Hungarian Presidency of the Council of the European Union (EU), the Hungarian Prime Minister Viktor Orbán pursued an active foreign policy. He went to Kyiv for a meeting with Ukrainian President Volodymyr Zelenskyy, made a surprise visit to Russian President Vladimir Putin in Moscow, attended an informal summit of the Organisation of Turkic States hosted by Ilham Aliyev, President of Azerbaijan, and then flew to Beijing for a meeting with Chinese President Xi Jinping.

Orbán’s self-declared ‘peace diplomacy’ illustrates – once more – the challenges surrounding the EU’s external representation. He cannot and does not speak on behalf of the EU even though the use of the Hungarian Council Presidency logo may suggest otherwise. His visits are nothing else than an expression of Hungarian national foreign policy. Also in that capacity, however, his actions are problematic in view of Hungary’s obligations under the EU’s Common Foreign and Security Policy (CFSP).

No role for the Council Presidency

In a reaction to Orbán’s visits, both European Council President Charles Michel and High Representative Josep Borrell stressed that the rotating Council Presidency does not represent the European Union. They are right. Article 15, para. 6 TEU explicitly provides that the external representation of the CFSP is the responsibility of the President of the European Council at the Head of State or Government level and of the High Representative of the Union for Foreign Affairs and Security Policy at Ministerial level. Article 17, para. 1 TEU further clarifies that the European Commission represents the Union for all non-CFSP competences. The rotating Council Presidency only has an internal representative function, in the sense that it represents the Council in its relations with the other EU institutions, but it plays no formal role at the international stage.

This is an important change introduced with the Treaty of Lisbon. In pre-Lisbon times, the task of representing the Union in CFSP matters was explicitly granted to the Presidency. This was introduced in Article J. 5 of the Maastricht Treaty and later incorporated in ex Article 18 TEU. Accordingly, the EU representation at the highest political level was left to the Head or State of Government of the country holding the rotating presidency. This sometimes led to diplomatic controversies. The most notable example was the behaviour of Italian President Silvio Berlusconi after the November 2003 EU-Russia Summit held in Rome under the at that time Italian Presidency. At the post-summit press conference, Berlusconi defended Russia’s attacks on Chechnya and the imprisonment of Mikhail Khodorkovsky, obviously against the official position of the European Union. The institutional revisions introduced with the Treaty of Lisbon aimed to avoid such situations. In order to reinforce the coherence of the EU’s external action, the rotating Council Presidency no longer plays a formal role in the external representation of the Union. Hence, it is crystal clear that Viktor Orbán cannot legally represent the EU on the international stage. His visits to Ukraine, Russia, Azerbaijan and China must, therefore, be seen as expressions of Hungarian rather than EU foreign policy.

Foreign policy and the duty of loyalty

Member States are competent to pursue their own foreign policy. Declarations No. 13 and 14 to the Treaty on European Union explicitly provide that the CFSP provisions cannot affect the Member States’ powers in foreign affairs. However, this does not imply that the Member States have unlimited freedom to do whatever they want. It is standard case law of the Court of Justice that also in the exercise of their national competences, Member States are required to comply with their obligations deriving from EU law (see e.g. Case C-619/18, para. 52). This principle also applies with respect to the CFSP, which is an integral part of the EU legal order. Despite the special rules and procedures applicable in this field, several EU Treaty provisions restrain the Member States’ actions at the international level. Article 28 (2) TEU specifies that CFSP decisions “commit the Member States in the positions they adopt and in the conduct of their activity”. Article 29 TEU further provides that “Member States shall ensure that their national policies conform to the Union positions.” Article 24 (3) TEU further provides that the Member States are under an obligation to “support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.” A concrete expression of the loyalty obligation can be found in Article 32 TEU, which inter alia provides that “[b]efore undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council”.

The CFSP-specific loyalty provisions, which reflect the general duty of sincere cooperation included in Article 4 (3) TEU, reveal the problematic nature of Viktor Orbán’s initiatives. With his visit to Moscow, Orbán opposed the EU’s position on Russia’s war of aggression against Ukraine. This includes the suspension of the remaining political, cultural and scientific cooperation with the Russian authorities. Moreover, Russian President Putin, Foreign Minister Sergei Lavrov and many other Russian government officials are put on the EU’s sanctions list.  Orbán’s participation at the informal meeting of the Organisation of Turkic States was equally problematic. This meeting was also attended by the President of the self-declared ‘Turkish Republic of Northern Cyprus’ (TRNC), Ersin Tatar. The EU only recognises the Republic of Cyprus as a subject of international law and repeatedly expressed its concern about the decision of the Organisation of Turkic States to grant an observer status to the TRNC. According to the minutes of the informal meeting attended by Orbán, the Hungarian Prime Minister did not make any reservations regarding the participation of the TRNC. Finally, it appears that Hungary’s unilateral initiatives had not been announced or discussed within the European Council or the Council. Hence, it is obvious that the surprise visits of the Hungarian Prime Minister – which clearly affect the Union’s interests and common positions – violate both the wording and spirit of the EU’s Common Foreign and Security obligations.

Common Foreign and Security Policy as ‘lex imperfecta’

It is well established that Member States are bound to respect their EU law duty of sincere cooperation when acting on the international stage. A failure to respect this obligation may lead to infringement actions before the Court of Justice, with the cases of Commission vs. Greece and Commission vs. Sweden as textbook examples. The question, of course, is to what extent such actions can also be brought in relation to Member States’ violations of the EU’s Common Foreign and Security Policy. As provided under Article 24 (1) TEU, this policy is subject to ‘specific rules and procedures’ implying – amongst others – a limited jurisdiction for the Court of Justice of the EU. Despite the binding nature of the CFSP provisions, ensuring compliance with those rules is not a straightforward exercise. This is why Advocate General Wahl defined the CFSP as lex imperfecta, i.e. “a law that imposes a duty or prohibits a behaviour but does not provide for any penalty for its infringement”. For instance, infringement proceedings under Articles 258 to 260 TFEU seem to be excluded for simple breaches of CFSP rules. However, as argued by Christophe Hillion, a Member States’ systemic failure to comply with its CFSP obligations may well be regarded as a violation of the general principle of sincere cooperation, enshrined in Article 4 (3) TEU, in the sense that it undermines the attainment of the EU’s external action objectives as defined in Article 21 TEU.

Finally, under Article 24 (3) TEU, the Council and the High Representative are given the responsibility to ensure compliance with the principles of mutual political solidarity and loyalty in the EU’s external and security policy. Article 26 (2) TEU further defines that they “shall ensure the unity, consistency and effectiveness of action by the Union”. Apart from public statements that Viktor Orbán has no mandate to speak on behalf of the EU, a more proactive approach could have been envisaged. One of the key lessons of this episode is that trusting the Council Presidency to an EU country which is subject to the surveillance procedure of Article 7 (1) TEU was not a good idea.