17 December 2023

The EU’s Faustian Bargain

The EU Betrays Ukraine and the Rule of Law – and We Will Live to Regret It

When future histories of the European Union (EU) are written, how will they remember the momentous week of December 11, 2023?

Will history books recount it kindly as a triumph for the EU? European Council (EUCO) President Charles Michel and European Commission President Ursula von der Leyen certainly think so, framing the week as “a historic moment” and “a landmark in our common history.” After all, EUCO had just thrown journalists and Europhiles a bone. Forget the gloomy talk of blackmail and extortion triggered by the Commission’s choice to disburse €10bn of EU cohesion funds to Hungarian Prime Minister Viktor Orbán’s kleptocracy. Instead, hear, hear! Through the masterful intergovernmental arm-twisting characteristic of the most exciting EUCO summits, the EU26 were able to open accession negotiations with Ukraine and Moldova by overcoming Orbán’s veto. Was it German Chancellor Olaf Scholtz who masterminded that Orbán leave the room at just the right moment to abstain from the vote, or was the ingenious move proposed by Orbán himself? How did the EU “bust the Orbán myth” of a strategic mastermind and get him to fold without conceding much of anything in return?

To be sure, Orbán did his best to puncture the sails of jubilation. His political director immediately reminded the press that Hungary opposes Ukraine’s accession and that Orbán will have plenty of opportunities to veto the dozens of unanimous votes that EUCO will have to take to advance the process, spurring Belgian Prime Minister Alexander De Croo to blurt that Orbán should “keep [his] mouth shut.” Undeterred, a few hours later Orbán vetoed EUCO’s efforts to revise the Multiannual Financial Framework (MFF) to supply Ukraine with €50bn of direly-needed aid. Apparently deflated, EU leaders ended the summit and went home early. Yet the veneer of victory seemed to hold firm with many policymakers and commentators: Orbán could be circumvented when it comes to aid, but not when it comes to opening accession talks. The EU’s enfant terrible won the battle but lost the war.

The foregoing narrative might help spread our Christmas cheer, but it is a deep misreading of what transpired. The EU struck a faustian bargain this week, and selling one’s soul is seldom a choice that gets better with age.

Two North Stars, One Faustian Bargain

To cut through the fog of what rapidly unfolded and assess its implications, we should keep two “north stars” squarely in mind. First, accession talks are meaningless if Ukraine does not win the war and survive as a sovereign state. Second, accession talks are worthless if EU leaders abandon their commitment to defending a “community based on the rule of law.” This week’s events cast dark clouds that blocked the light of both north stars.

First, on aid to Ukraine and hollow promises. In October, Russian President Vladimir Putin ominously quipped that Ukraine would be unable to defend itself without western aid: “Just imagine the aid stops tomorrow. It will live for only a week when they run out of ammo.” We should not take Putin’s prognostications (or should we say ‘directions’ to Orbán, Putin’s trojan horse in the EU?) at face value. Yet even Ukraine President Volodymyr Zelenskyy has warned that Ukraine desperately needs military weapons and economic support to hold the line against Russia’s illegal war of aggression. With Republicans in the US Congress derailing US President Joe Biden’s efforts to supply Ukraine with a $60 billion aid package, this was the moment for EU leaders to step up. For months EU leaders refined the details of a €50bn aid package. For months they assured the press that they would get it done. For months they promised they had a “plan B” to circumvent Orbán should he prove intransigent. Even Orbán hinted that if the EU handed over a big pile of taxpayer money to keep his kleptocratic regime satiated, he might take certain liberties with Putin’s directions and support the aid. Both sets of promises proved farcical. The day before the summit, the Commission handed over €10bn to Orbán, yet Orbán vetoed the Ukraine aid package anyway. Then instead of circumventing Orbán to provide material support to Ukraine, EU leaders threw in the towel and promised to do better next time. On the front lines of the war in Ukraine, promises of “next times” are liable to ring hollow sooner rather than later. And for good reason: unless EU leaders get their act together, there may not be a Ukraine to accede to the EU in the future.

Second, on the latest EU betrayal of the rule of law. This week, the von der Leyen Commission tarnished its credibility as “guardian of the Treaties” and undermined the most powerful leverage it has over aspiring autocrats: financial conditionality. Conveniently – but, the Commission assures us, completely unrelatedly! – the day before the EUCO summit the Commission suddenly declared that Hungary now has independent courts and honors its commitments under the EU’s Charter of Fundamental Rights, so Orbán could be rewarded with €10bn in cohesion funds. Never mind that Orbán had been openly blackmailing the Commission, promising to derail the EUCO summit unless the funds were disbursed. Never mind that lawyers at the Hungarian Helsinki Committee and legal scholars had been warning the Commission that Orbán’s latest “judicial reforms” make the situation worse. Never mind that Orbán had just unveiled antisemitic billboards throughout the country vilifying von der Leyen personally. Never mind that the heads of all four major party groups in the European Parliament penned a letter to the Commission imploring it not to give in to Orbán’s extortion. Forget all that: on the very same day that the Commission disbursed the funds, the Hungarian Parliament mimicked Russia’s foreign agents law by passing a chilling “Sovereignty Protection Act” empowering the government to investigate and jail anyone accused of being a “foreign agent” while eschewing judicial review. On the very same day that the Commission congratulated itself for helping restore judicial independence and fundamental rights in Hungary, Orbán made it clear that the emperor has no clothes.

This is not the first time that the Council and Commission have thrown the rule of law under the bus, but it is by far the most egregious betrayal yet. Some EU leaders and commentators are now openly putting a price on the rule of law and lauding that the EU got off cheap. Forget that giving into extortion only empowers the extorter. Forget that Orbán grew up in the EU and has been forged by the EU, which has been deplorably willing to subsidize and legitimate his autocratic machinations. Forget that Orbán is cultivating a growing cohort of allies in EU circles and remains useful to some EU leaders, who hide behind the enfant terrible to mask their private opposition to EU policies – including Ukraine’s aspirations of EU membership. If this week is to be remembered as a triumph, there is a lot of forgetting to be had.

A Price Worth Paying?

The truth is that EU leaders find themselves in a bind of their own creation, but they are hardly powerless to overcome the faustian bargain they’ve just struck. The tools are there. EUCO could neutralize Orbán’s veto and provide aid to Ukraine via coordinated bilateral agreements and the enhanced cooperation procedure under Article 20 TEU. Better yet, the EU26 could vote to remove Orbán’s voting rights via the Article 7 TEU procedure and – snap! – no more blackmail. The Commission could heed the European Parliament for once and immediately reassess the state of judicial independence and fundamental rights in Hungary to then claw back the €10bn that Orbán extorted. In this game of chicken, EU leaders hold all the cards – if they choose to play them.

Alas, twelve years into the EU’s rule of law crisis, this week has demonstrated that EU leaders are still unwilling to confront their own complicity in Orbán’s rise and to do something about it. Is this sad spectacle a price worth paying in exchange for a symbolic gesture of goodwill to Ukraine? That is the wrong question to ask. The right question to ask is this: if the EU continues to treat the rule of law as a bargaining chip and to make promises it won’t keep, for how much longer will our Union remain a club worth joining?

SUGGESTED CITATION  Pavone, Tommaso: The EU’s Faustian Bargain: The EU Betrays Ukraine and the Rule of Law – and We Will Live to Regret It, VerfBlog, 2023/12/17, https://verfassungsblog.de/the-eus-faustian-bargain/, DOI: 10.59704/acbf0cb95d482c4f.

One Comment

  1. Paul Stenquist Sun 17 Dec 2023 at 16:09 - Reply

    Well said! A concise and convincing essay.

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