Overcoming the Hungarian Veto

The European Treaties establish the Union as an international actor whose aim is to ensure that Europeans live in peace (see Article 3(1) TEU). In the current times of geopolitical confrontation, the Union’s role in addressing these challenges enjoys much public support. A majority of Europeans agree that Russia’s invasion of Ukraine is a “war on our values” and that a Russian victory would make a military confrontation with Europe more likely. To respond to the citizens’ expectations, to prevent a Russian victory, and to fulfil the promise of peace in Europe under Article 3(1) TEU, the Union must prolong the Russian sanctions, which risk expiring on 31 July 2025. This includes the freezing of 200 billion EUR in central bank assets at Belgian clearing facilities. The prolongation of these sanctions requires a unanimous decision pursuant to Article 31(1) TEU. Hungary threatens to obstruct this decision.

In light of this threat, there are Member States that want to pull the trigger on Article 7(2) TEU and suspend Hungary’s voting rights in the Council. So far, however, they do not have enough support. To manoeuvre around this impasse, some scholars have suggested using Article 10(2) TEU, which requires Member State governments represented in the Council to be “democratically accountable”. Hungary might fall short of this requirement and be excluded from this institution. Others are proposing to expel Hungary, either by recourse to public international law or by creating an EU expulsion mechanism. Some even suggest a collective exit of all Member States by repurposing the exit clause in Article 50 TEU and replacing the existing Union with a new one – without Hungary.

Our proposal is much swifter and far less dramatic: it only neutralises Hungary’s obstruction in the Council when the prolongation of measures countering the Russian threat is up for a vote. It requires no grand actions, but only a few interpretative steps and a narrow political consensus.

New Threats, Innovative Lawyering

To clear the ground for such innovative lawyering, we depart from the premise that the current geopolitical threats were not foreseen by the authors of the Treaties. When deciding upon the current framework, they assumed protection under the American shield as a given. Accordingly, EU constitutional law finds itself in a new situation to which it must respond with interpretations that are responsive to the challenges. Constitutional law is a living instrument. The role of constitutional law is to frame the political process, but not to ossify it in a way that fails its citizens in threatening situations. Constitutional law has to protect fundamental compromises that made it possible in the first place, but it also has to provide for agency, within the limits of legal hermeneutics.

Our argument unfolds in two steps. First, we demonstrate that Hungary, when obstructing the necessary Council decision on the Russian sanctions, violates the duty of solidarity in Article 2 TEU. Second, we show that due to this breach, the Hungarian veto does not count, with the result that the decision can be adopted pursuant to Article 238(4) TFEU.

Hungary’s Obstruction Breaches the Duty of Solidarity

Responding to grave crises, EU institutions and Member States have activated the constitutional potential of the Lisbon Treaty. Over the past decade, they have developed a new, principled constitutionalism centred on the Union’s constitutional core. As the Court has stated, Article 2 TEU now enshrines the identity of the European legal order. Part of that is solidarity, which forms the “very basis of the process of integration” (Commission v Malta, para. 93) and which “is one of the fundamental principles of EU law and…one of the values common to the Member States” (Commission v Hungary, para. 116).

This is no empty promise. The Court refers to a “duty of solidarity” (see already Commission v Italy (Premiums for slaughtering cows), para. 24). Solidarity is not of an “abstract nature”, but a judiciable standard, especially when concretized by other Treaty provisions (Germany v Poland, paras. 38, 42-44). The CFSP is imbued with duties of “mutual solidarity” among the Member States. Solidarity underpins the principle of sincere cooperation in Article 4(3) TEU, as well as the duties in Articles 21(1), 24(1) and (3), 31 and 32 TEU. Mutual solidarity is thus a legal constraint on national politics.

When exercising their foreign policy prerogatives, the Member States must have due regard to the obligations flowing from EU law (Articles 21(1) and 23 TEU). This includes the principles of Article 2 TEU, such as solidarity, as well as common objectives, such as “safeguard[ing] [the EU’s] values, fundamental interests, security” (Article 21(2)(a) TEU). This is particularly true for foreign policy in an “extraordinary context of extreme urgency” (RT France v Council, para 86).

At the same time, any interpretation needs to reflect the fact that the Treaties have set up the CFSP as a specific, politically sensitive policy field. This explains the unanimity requirement for many decisions. Voting against the adoption of a CFSP decision is a possibility foreseen by the Treaties and cannot per se breach the duty of solidarity. This is why obstructing a decision can breach solidarity only in the most exceptional cases.

The Russian war of aggression is such an exceptional case. Russia’s full-scale invasion of Ukraine constitutes a war on the Union’s values and might result in military confrontation. In the face of such exceptional threats, the requirement for mutual solidarity narrows the Member States’ margin to define their foreign policy, particularly in case of concerted action at the EU level. Hungary is obstructing the sanctions against Russia without a plausible reason. Moreover, its obstruction reveals a systematic pattern. The Hungarian government has been consistently undermining the EU’s support for the Ukrainian war effort and has repeatedly threatened to block sanctions against Russia. In other words, it has taken the CFSP hostage. Moreover, it has undermined the Union’s common positions, specifically by paying a visit to Moscow when holding the Council presidency in July 2024 to hold “peace talks”, by voting against the resolution condemning Russia’s invasion of Ukraine (the only EU Member State to do so) at the UN General Assembly, and by refusing to sign the Council’s conclusion (again the only EU Member State to do so) on the continuous support for Ukraine in March 2025.

Neutralising Hungary’s Obstruction

Hungary’s obstruction of the necessary Council decision regarding the Russian sanctions would breach the solidarity requirement in Article 2 TEU. It would thus be illegal. However, to let the Council decision pass despite the Hungarian vote, the latter must not only be illegal, but irrelevant. How can Hungary’s obstruction be considered legally irrelevant?

To start with, we rely on the premise that the Hungarian representative in the Council is an integral part of an EU institution – the Council. Through Article 10(2) TEU, Member State governments are integrated into it. Thus, any vote cast by the Hungarian representative in the Council is an act of a part of an EU institution. We argue that a vote obstructing the Russian sanctions would not only be illegal, but also irrelevant due to the gravity of the breach. Hungary would not cast a valid vote.

The distinction between mere illegality and irrelevance (or non-existence, nullity, invalidity, or voidness) is a general feature of legal orders. Students learn from their first years in law school that declarations of will can be legally irrelevant, while acts of public authorities can be null and void due to instances of grave illegality. It is well-established jurisprudence that a “particularly serious and manifest defect” affects the very existence of an act (see Commission v Italy, paras. 33 f.). Since the 1950s, the Court has distinguished between mere illegality, which leaves the validity of a Community act intact until it is invalidated by the Court, and a “complete nullity” (Algera). Of course, such a finding “must be reserved for altogether extreme situations” (Commission v Czech Republic, para. 49). In cases of grave and obvious illegality, however, an act has no legal effect – it is legally “non-existent” (Commission v Greece, para. 19). The Hungarian breach of solidarity, which poses an existential threat to peace and security in Europe, falls into this category.

If one should consider the Hungarian act of voting as that of a national institution, as the organ of a Member State, the result is the same. That act of voting can be disregarded because EU law enjoys primacy. Primacy requires all Member State authorities to give full effect to EU rules (see e.g. Garda Síochána). This applies – a fortiori – to EU institutions, such as the Council, when assessing Member State acts within EU institutions. In Rimšēvičs, the Court even declared a national decision (removing a national central bank governor, and thus a part of the ECSB) to be null and void. A maiore ad minus, an EU institution must be able to disregard Member State illegalities within its procedures.

Neutralising the Hungarian obstruction can happen fast, once there is political agreement among Member States. The implementation is simple: the presidency of the Council puts the decision to prolong the sanctions against Russia to a vote. If Hungary votes against it, the Council presidency notes (when registering the votes under Article 11 of the Council’s Rules of Procedure) that its vote is irrelevant due to a grave infringement of European solidarity. Accordingly, the decision would then be adopted according to Article 238(4) TFEU.

Moving to Qualified Majority, Countering Existential Threats

One can consider an even more daring step, which consists of a “teleological reduction” of the unanimity requirement in the CFSP. Procedural provisions must not be interpreted in a way that holds back the Union’s agency in the face of existential threats. The Union’s raison d’être in Article 3(1) TEU is to promote peace, its values under Article 2 TEU and the well-being of its peoples. Any procedural provision must be interpreted in conformity with the Union’s constitutional core in Article 2 TEU (for a general argument to this effect, see in detail here and here). Such interpretation may – in highly exceptional circumstances – justify a departure from the unanimity requirement and a move to qualified majority voting. Article 2 TEU may thus operate as an unwritten passerelle clause.

The Treaties contain explicit passerelle clauses, which allow a shift from unanimity to qualified majority in the Council without Treaty change (see generally Article 48(7) TEU). Such a passerelle clause can be found in Article 31(3) TEU, according to which the European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in the CFSP. The Commission had already suggested activating this provision in order to make qualified majority voting applicable, especially for restrictive measures, i.e. sanctions. That suggestion, however, has not gained much traction so far.

If Hungary obstructs the Russian sanctions, the relevant provisions could be interpreted in light of Article 2 TEU, thereby allowing the Council to adopt single CFSP decisions safeguarding the Union’s values, peace, and security by qualified majority. This can be achieved in two ways through a “teleological reduction”, a widely accepted method of interpretation in European constitutional courts. In this spirit, Article 31(1) TEU can be interpreted restrictively as not applying to situations in which the Union’s values or the Union’s peace and very existence are at stake. In consequence, the default rule in Article 16(3) TEU would kick in.

Tailored Responses

These two proposals, which are independent of each other, are legally far-reaching and politically sensitive. At the same time, they are narrow both in scope and conditions. First, they only concern a specific decision and do not strip Hungary of its voting rights altogether. Moreover, they do not affect the unanimity requirement in the CFSP as the general rule. Second, they apply only under extreme and exceptional conditions, namely when the Union’s values and peace are at stake. It is key to keep these proposals narrow to respect legal hermeneutics, to find support with Member States, and to convince the Court of Justice that this is not a circumvention of Article 7 TEU. The point must be communicated to European society at large: neutralising the Hungarian obstruction is an extraordinary response to an extraordinary situation, namely Hungary’s support for the Russian aggression.

With this interpretation, the Union can do what many European citizens expect from it against the Russian aggression. They would not understand the unfreezing of the Russian assets. The EU is perhaps more criticised for what it does not do than for what it does. European democracy requires EU agency. Particularly in existential situations, the Union is expected to defend, “within its mandate”, the European society with “whatever it takes”.