EU Sanctions and the Mirage of Unanimity

The EU’s sanctions framework is meant to work in two steps: unanimity for decisions defining the Union’s approach to “a particular matter of a geographical or thematic nature” under Article 29 TEU, and qualified majority voting for the necessary measures implementing these decisions under Article 215 TFEU. In reality, the two steps are collapsed into one, which magnifies the leverage of a single veto. Hungary’s repeated use of that leverage has become emblematic of a seemingly dysfunctional EU Common Foreign and Security Policy (CFSP). Yet the debate has fixated too much on ultima ratio solutions and inventive detours rather than on what the letter of Treaty law already permits.

This post makes the case for restoring a thin Article 29 decision, confined to the essentials of the intended approach, and leaving considerable details of implementation to the Article 215 regulation. Resequencing practice in this way would, in my view, realign decision-making with the Treaties’ design, reduce the risk of impasse, and improve speed and flexibility. More than ever, the political conditions to attempt this shift appear to be in place.

Hungary, time and again

The infamous Hungarian – or “Orbánesque” – variant of illiberal democracy, based on autocratic legalism (or rather, illegallism), and its detrimental impact on EU values, has taken centre stage repeatedly in recent years. In particular, the battle over the rule of law in Hungary and the blocking of EU funds – an idea expressed as early as 2013 – drew to a close in 2022 (here), and the Commission and Council eventually acted to freeze such funds (here). After unblocking approximately EUR 10 billion, roughly EUR 20 billion remain blocked, while EUR 1 billion is permanently forfeited (here). In this context, much attention was given to Articles 2, 10, and 19 TEU (here, here, here and here).

Concerns only grew. Starting in 2023, the upcoming Hungarian Council Presidency in the second half of 2024 triggered an intense debate about whether Hungary could legally be blocked from taking over (here, here, here, here and here). A potential suspension of Hungary’s Schengen membership was also on the table (here).

The debate evolved further, with calls to strengthen the three existing financial conditionality regimes and to revive Article 7 TEU (here). Others diagnose Article 7 TEU as a failure and urge an expulsion mechanism (here), or focus on expulsion as a last resort under public international law – mainly Article 60 of the Vienna Convention on the Law of Treaties between States (here, then discussed with regard to Poland).

Hungary v CFSP

Specifically for the CFSP, a Member State’s leverage stems from the fact that Council decisions (Article 29 TEU) – a prerequisite for sanctions regulations (Article 215 TFEU) – in principle require unanimity (Article 31(1) TEU). The CFSP is an intergovernmental framework, not a supranational legal order. In addition to CFSP coordination, the Union must, in practice, manage 27 national foreign policies, and the line between legitimate national interests and the Union positions can be thin. Take the initial struggle over a partial oil embargo against Russia – with divergent national priorities on supply, security, and dependency – as an example. Germany and Hungary resisted an immediate entry into force; Slovakia and the Czech Republic demanded longer transition periods; Bulgaria sought exemptions; and Greece, Malta as well as Cyprus raised concerns about the impact on their shipping industries (here).

However, Orbán’s “peace mission” visit to Moscow in July 2024 was way out of line. Arguably, it constitutes a manifest breach of the loyalty obligations deriving from Article 29 TEU (2^nd senctence), Article 24(3) TEU, and, more broadly, Article 4(3) TEU (here), should this amount to a systemic failure. Cum grano salis, the same applies to his “veto play”, when unanimity under Article 31(1) TEU and the Hungarian Council vote are used for political blackmail. I.e., when new or to be renewed sanctions hinge on benefits in completely unrelated matters such as the unblocking of frozen funds (see, e.g., here and here). Sure, Hungary is not the only veto player at the table. Cyprus, for instance, blocked Belarus-related sanctions in 2020, trying to coerce the Union into adopting severe measures against Turkey. But Hungary’s continuous violation of EU values and systematic obstructionism stand out, and sanctions against Russia are where the divergence comes to a head.

Meanwhile, the unanimity requirement in Article 31(1) TEU has stood firm. Neither the Passerelle clause in Article 31(3) TEU (as lex specialis to Article 48(7) TEU) nor any of the scenarios set out in Article 31(2) subpara. 1 TEU offers a sustainable way out. Each Member State may invoke “vital and stated reasons of national policy” to block a shift away from unanimity – effectively reinstating the veto (Article 31(2) subpara. 2 TEU). Abstentions are permitted under the Council’s Rules of Procedure and Article 238(4) TFEU. Moreover, Article 31(1) subpara. 2 TEU even provides for “constructive” abstention. These tools may offer some flexibility in acute situations, but none has meaningfully opened the door to majority voting. Finally, enhanced cooperation in CFSP matters among willing Member States appears futile given that, again, it requires unanimity (Article 329(2) TFEU).

The recent unanimity debate on Verfassungsblog

In light of the above, it seems apt to conclude that the EU has an “Orbán problem”. That diagnosis has been valid for many years and lies at the core of political and legal thinking on unanimity, namely, how to get around it. In this vein, a rather heated debate unfolded on Verfassungsblog in 2025.

Rossi argued that Article 7 TEU – sometimes dubbed “nuclear option“ – can be used in a targeted manner, singularly suspending a Member State’s vote, especially since para. 3 refers to the suspension of “certain” rights, thus turning the provision into “a scalpel instead of an axe” (here). Yet, the political implications are far-reaching, and Article 7 remains an ultima ratio answer. Wyatt even discussed a walk-out: 26 Member States withdrawing under Article 50 TEU to build a “new and modified EU” without Hungary (here).

The debate intensified when von Bogdandy and Spieker contended that (i) a Hungarian vote obstructing Russia-related sanctions would be void due to the gravity of the breach of Article 2 TEU, and that (ii) Article 2 TEU may function as an unwritten Passerelle clause – i.e., Article 31(1) TEU would not apply – via teleological reduction given the allegedly unforeseen circumstances we now face (here). En passant, Rossi considered that to be “an idea that appears more as a provocation intended to awaken the European institutions […] than as a viable legal solution” (here), while van den Brink and Dawson offered a fierce and extensive critique (here). In short, they interpret von Bogdandy’s and Spieker’s approaches as a circumvention – applying vague criteria contrary to specific provisions and thereby watering down existing decision-making rules in an inappropriate, illegal, even illiberal and merely “fantastical” fashion. It took von Bogdandy and Spieker not long to retort (here).

Responding to all four, without taking sides, Gardiner focused on rules of procedure and emphasized that, in his view, the “Hungarian block is not a legal constitutional issue but a political one” (here). I tend to agree – and, in my view, the legal basis for a political turnaround is already in place. Such a shift would, in fact, move us closer to the letter of the Treaties.

Leaner Council decisions – and more flexibility for qualified majorities

On paper, EU sanctions follow a two-step-process, as mentioned above. In reality, however, Council decisions under Article 29 TEU are already highly detailed. Council regulations under Article 215 TFEU largely copy them, and both instruments are adopted in the same session. In Rosneft, the ECJ held that “the fact that a decision […] describes in detail the persons and entities that are to be subject to the restrictive measures cannot, as a general rule, be regarded as encroaching on the procedure, laid down in Article 215 TFEU, for the implementation of that decision” (para. 90). Legality aside, that practice is striking: what is the point of a two-step procedure if both steps are effectively taken at once and the second offers no genuine discretion?

The legal architecture suggests – contrary to current practice – that Council decisions under Article 29 TEU should be leaner. One can easily imagine decisions limited to essentials: overall objectives, listing criteria for financial sanctions, targeted areas for trade-related sanctions, and so on. Substantial implementation would then be left to the Article 215 TFEU regulation, which is passed by qualified majority. This would also fit the texts better: the decision “shall define the approach of the Union to a particular matter of a geographical or thematic nature” (Article 29 TEU) and provide “for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries” (as Article 215 TFEU describes it) – while the regulation then “shall adopt the necessary measures” (Article 215 TFEU). Arguably, it would also better fit with the ECJ’s reading of Article 275 TFEU (here, para. 105 et seq.). Put differently, Article 29 TEU should be treated as a mandate, not a mini-regulation.

Looking back to the 1990s, shortly after Maastricht established the CFSP, EC sanctions against the Federal Republic of Yugoslavia (Serbia and Montenegro) during the early Kosovo crisis in 1998 provide examples of a taciturn first step followed by a more detailed regulation: see Common Position 98/326/CFSP with Council Regulation (EC) No 1295/98, or Common Position 98/426/CFSP with Council Regulation (EC) No 1901/98.

Limiting Council decisions to essentials should also mean saying farewell to blank sunset clauses. Concrete removal or review conditions (objective delisting criteria, compliance benchmarks, evidence-based reviews) can enhance effectiveness, mere expiration dates do not – they simply ensure veto continuity. Exceptions exist (e.g., certain Iran sanctions), but the use of blank sunset clauses has spread dangerously, even though the Council’s Sanctions Guidelines do not prescribe expiration as standard (para. 34).

The shift toward leaner decisions need not be overnight, and the choice is not binary. In her role under Articles 18(2), 22(2) and 27(1) TEU, the HR/VP can set the agenda through proposals, closely aligned with the Commission. It comes in handy that in recent sanctions practice, the Commission has taken a predominant role in the overall drafting procedure. In particular, since the first three sanctions packages in early 2022, proposals have been presented directly to COREPER II, bypassing RELEX, and the Commission introduced “confessionals”, meeting Member States’ ambassadors one-on-one or in small groups to map red lines before circulating full drafts. The Commission has, in effect, become the primary architect of sanctions (here). Together, the HR/VP and the Commission are therefore well placed to induce gradual political change – and, in doing so, restore the Treaties’ intended two-step approach. A lean design reduces incentives to weaponize unanimity while preserving Member State input on fundamentals. Budapest would suddenly face an uphill battle.

Conclusion

Sanctions regimes of the 1980s – still operating under European Political Cooperation and Article 113 EEC Treaty – and those following Maastricht’s creation of the CFSP, had only limited economic impact (exceptions such as the Federal Republic of Yugoslavia and certain Myanmar episodes confirm the rule, see here). The second major surge in sanctions during the 2000s was driven largely by counter-terrorism, but the EU’s Iran sanctions from 2010 onward – followed by measures on Libya, Syria, and Russia (2014) – already marked a turning point (here). By now, we operate in a very different era.

In addition to Hungary’s long-standing obstructionism, the issue of unanimity appears all the more pressing in light of Fico’s CFSP-scepticism and recent developments in the Czech Republic, and increasingly impedes efficiency and actorness (although I strongly disagree with harsh, undifferentiated critiques on the CFSP: we should not forget that sanctions against Russia, despite unanimity and sunset clauses, have persisted for over a decade).

How to overcome or change unanimity is not a new debate. The Juncker Commission sought progress in 2018 (here), as did the Conference on the Future of Europe in May 2022 (here). The Commission has repeatedly shown a preference for non-unanimity bases where possible. Its proposal to phase out Russian gas, for instance, relies on Article 207(2) TFEU (commercial policy) alongside Article 194(2) TFEU (energy policy), using the ordinary legislative procedure under Article 294 TFEU. Moreover, a pending case concerning the European Peace Facility (see here and here) and the scope of Article 31(1) TEU underscores the Union’s willingness to act and test the boundaries of CFSP constraints, with another case in the pipeline.

If the political will is indeed strong enough, why not keep things legally simple – propose less to gain more – by reducing the Council decision to the necessary minimum and deciding sanctions details by qualified majority? One step after another, as the Treaties intend.