Is the Hungarian Block Really a Legal Issue?

This post engages with the exchange between Spieker and von Bogdandy (their original post here and their latest here) and Dawson and van den Brink over the Hungarian block in the European Council (EUCO) and Council on CFSP issues, and the usefulness (or not) of using Article 2 TEU to read exceptions into the unanimity requirement contained in Article 31(1) TEU. Spieker et al suggested that the voting rights of Member States in the EUCO ought to be deemed contingent on the fulfillment of Art. 2 solidarity obligations, which Hungary is failing to meet. Dawson et al countered that such an interpretation of Art. 2 is dangerous in its fantasticalness; a clear breach of Art. 31(1) that would open a pandoras box of constitutional trouble and should therefore be avoided.

I’m not here to defend either side. Instead, I am here to suggest that there has been a misdiagnosis of the issue, which has unnecessarily restricted the options we are offering the EUCO to deal with the Hungarian block. Indeed, the issue at the heart of this debate is not one of fantasticalness but of orthodoxy – formal legal orthodoxy. The Hungarian block is not a legal constitutional issue but a political one; one that has been reinforced by the 30 June 2025 Council decision to extend the sanctions. It is not the unanimity requirement per se, but Hungary’s misuse of it. Accordingly, any suggested response ought to be political rather than legal. A political constitutional response is one that recognises that the constitution is made up of a range of formal and informal norms (conventions, customs and practices as well as formal law) that influence the way in which the Treaties are performed by political actors. Rather than altering the Treaties to deal with Hungary, we ought to be altering Hungary’s political position whilst concurrently protecting the legitimacy of the Treaties and the legal order they establish. Of particular focus in this piece will be the rules of procedure of the EUCO (RoP) and the conventions that surround them. I argue there are ways to amend the RoP to provide the non-recalcitrant members of the EUCO with the political room needed to deal with Hungary without running into the challenges (both normative and doctrinal) identified by Dawson et al.

Premises and critique

My political diagnosis is based on a premise often lost in the EU constitutional discourse: the EU constitutional order is composed of more than just law, and therefore not all constitutional issues are legal. While there have been many important contributions on the existence and role of political norms in the formation, evolution and day-to-day running of the EU constitutional order, such discussions have tended to take place at the fringes of EU constitutional scholarship. This can be explained normatively as a reflection of the doctrinal turn in continental constitutional scholarship that has come to dominate the academy on the Continent, particularly post the failure of the Weimar Republic. It can also be explained empirically, with the Court of Justice shaping the boundaries and content of EU constitutional law in its own legal image. Combined, these serve as the basis for what I refer to as EU constitutional orthodoxy. The problem with such orthodoxy is that its normative and empirical bases no longer hold, meaning that its employment can lead to the misdiagnosis of issues and the misidentification of the most effective antidotes and their risks. This is because the EU constitutional order is political and legal in nature. The political component has grown ever-more important as it has become almost impossible to formally change the Treaties. Whereas in the past the CJEU could rely upon Member States to undertake formal constitutional change to give democratic backing to its bold interpretive choices (its fundamental rights jurisprudence being codified in the Charter, for instance), this has not been the case since the failure of Maastricht and the entry into force of the Treaty of Lisbon. Now, any re-interpretation of the Treaties by the Court is a quasi-permanent amendment by judicial fiat. This, in turn, strains the necessary link between the EU constitution and its constituents. Accordingly, the political constitution has a greater role to play, as the norms it creates to meet the challenges of the day derive from the political process that involves the Member States.

Which brings me back to Spieker et al’s approach. Their solution to the Hungarian block – that rights granted to Member States ought to be made contingent on fulfilling certain obligations – is based on an orthodox diagnosis. By diagnosing the Hungarian block to be a legal constitutional problem, Spieker et al have offered the EUCO the only solution said diagnosis could deliver: a legal one, relying upon a re-interpretation of the Treaties. They state that their proposed re-interpretation of the dynamic between treaty-based rights and obligations can be established as an exceptional rule. As such, it would only apply to the most egregious breaches of Art 2 TEU. Their approach overlooks three things with the potential to undermine the legitimacy of the Treaties and the legal order they create, while at the same time failing to guarantee the political outcome desired: 1) there are political responses available that wouldn’t necessarily require constitutional re-interpretation and its associated above mentioned constitutive problems; 2) the point, echoing Dawson et al, that making the proposed new rule an exception to what we generally deem to be constitutional is little more than an acknowledgement of the general unconstitutionality of what has been proposed; and, 3) the associated point that said re-interpretation ultimately calls upon the Court to unnecessarily place its legitimacy on the line, by pushing it to potentially rule that its teleological reductionist methodology (aka policy-based reasoning wrapped in legal jargon) ought to trump a plain reading of Art. 31(1).

The political approach

If we approach the Hungarian block as a political issue rather than one rooted in the unanimity requirement, the normative basis for any response shifts. A political response requires us to pay attention to how the Treaties are actually practiced. Despite the Treaties requiring unanimity, the EUCO actually decides CFSP issues by consensus (Article 6(1) of the RoP). Consensus isn’t defined in the Treaties, it hasn’t been defined by the Court, and the RoP do not define it either. According to practice, consensus is not unanimity. It is not determined by a vote. Instead, Members decide amongst themselves who determines when a consensus has been reached, and the basis upon which such a determination is made. As consensus is the actual rule for CFSP decision-making, and as this rule deviates from the text of the Treaties for the principled purpose of achieving solidarity in foreign policy decisions, it has arguably become a convention. Conventions are non-legal rules possessing binding force, stemming from a mix of practice and principle (for more on conventions in the EU, see here and here). Another convention not found in the EUCO’s RoP is that it is for the President of the EUCO to determine what to do in the event of an absent Member State (Article 238 TFEU presumes this would never happen, meaning a convention had to fill the gap).

The content of conventions are politically determined. Constitutional principles such as those in Art. 2 TEU merely act as the yardstick for assessing the distinction between a change in convention and a breach of convention. The consequences for breaching a convention are generally politically determined, although a court may be asked to resolve a dispute over an alleged breach.

Flowing from the above, I suggest a number of amendments to the RoP and associated conventions (the RoP can be amended by a simple majority, see Art. 6(5)) that could provide Member States with the room to engage in the kind of creative politics needed to push Hungary to re-engage, abstain, or be sidelined on Russian-related CFSP matters:

• Define consensus in a way that enables Member States to place greater pressure on Hungary. Three potential alterations could be: 1) procedural: establish a hurdle by which an individual hold-out (consensus – 1) be required to provide a written, detailed and public explanation as to their objections to a proposed decision for said objection to be deemed effective (not currently required under Art. 31 TEU); 2) positional: give the President of the EUCO the power to determine when a consensus has been reached and the content of said consensus; 3) definitional: provide greater room for staged agreement by referring to ‘general’, ‘interim’ and ‘specific’ consensus.
• Do away with the consensus requirement and fall-back on the literal wording of the TEU, meaning that all CFSP issues would go to a vote. This could be coupled with an amendment to the RoP to further specify what is meant by ‘abstention’ in Art. 235(1) TFEU. For instance, by distinguishing between ‘active’ and ‘passive’ abstention.
• Alter the rules relating to agenda setting and preparation for EUCO meetings. Specifically, remove the notice requirement and configuration restrictions that protect against surprise agenda items or last-minute meetings being convened.

These changes would not in and of themselves immediately resolve the Hungarian block. They would, however, provide Member States with additional ways to more effectively engage in hard politics by providing additional nodes for the application of pressure through procedural hurdles and transparency requirements; shifting power away from the Member States to the EUCO by clarifying the powers of the President; and re-structuring the decision-making process to lessen the potential for blocking behaviour. The second and third amendments suggested could be utilised by the President and non-vetoing Members to play politics through inventive venue choice, timing, and mischievous agenda setting. Indeed, the abstention alteration would merely formalise what already occurred back in 2023 when former Chancellor Scholz convinced President Orban to stay out of the room as the EUCO dealt with the question of Ukraine’s accession to the EU.

Benefits of the political approach

Although these changes may lead to even more games being played with the RoP, this may be a good thing. It brings to the fore that the EU is an autonomous political as well as a legal order. It also draws attention to the importance of non-legal norms to the functioning of said order. As constitutional scholars we tend to ignore these. Unlike treaty interpretation, such measures are also easily reversable and  avoid playing into Orban’s long-prosecuted argument that the Treaties are not worth the paper they are written on, and that their diminished worth is the result of the interpretive work of the Court of Justice.

An additional benefit of the political approach relates to any potential role the Court of Justice might play. Were Hungary to challenge the proposed procedural amendments (if the block cannot be resolved in the political domain), it is unclear how the Court would respond. However, by utilising a political strategy based on amendments to procedure and convention, both the EUCO arguing a hypothetical case and the Court may be able to avoid engaging in treaty interpretation. The Court might find issue with the gap between the explicit wording of the unanimity requirement in the Treaty and the re-definition of consensus, or with the lack of procedural fairness afforded to Hungary in the event of a surprise meeting being sprung. However, by placing politics rather than the relationship between Art. 2 and Art. 31(1) at the centre of the dispute, the Court would be gifted the option of not needing to get into the weeds of constitutional interpretation. It could defer to the procedural rule making powers of the EC (Article 235(3) TFEU) and note its past jurisprudence on the discretion given to the institutions of the Union to determine said rules (see: Luxembourg v Parliament and Rivière and Others v Parliament). Indeed, it could use this opportunity to more forcefully weave the narrative of an EU constitutional order possessing both an autonomous legal order, and an ever more autonomous political one (hinted at in its democracy jurisprudence). The values of Art. 2 would be given effect to, but quietly and deftly, bound up implicitly in the justification given by the EUCO for why the RoP needed to be altered, rather than in the text of a judgment declaring Article 31(1) TEU to be temporarily inapplicable according to its teleological approach to reasoning.

Conclusion

Perhaps fantasy is not the issue; perhaps orthodoxy is. To resolve the Hungarian and future blocks in the EUCO and Council at the lowest constitutional cost, we should more comprehensively explore the political options available. The rules of procedure are but one avenue, let’s help the EUCO find others.