Why and How the Hungarian Presidency Must Be Stopped

It took less than a week for Viktor Orbán to make the worst predictions about the Hungarian Presidency of the Council become true. Yet with a twist.

If many had warned about the danger that such a Presidency would have paralysed the internal operation of the EU, nobody expected this could also cause confusion and damage to the Union’s foreign policy. Ultimately, this is an area in which the holder of the rotating Presidency of the Council has no authority whatsoever, as recently explained here. This is the first time that the Hungarian government challenges not only the EU institutions but the Member States, by claiming to represent them on the international stage.

The self-proclaimed ‘peace mission’, which has brought the Hungarian Prime Minister to visit Kyiv (Ukraine), Moscow (Russia), Shusha (Azerbaijan), Beijing (China), and Washington, DC (USA), has therefore revamped a public debate over the fitness of the Hungarian government to hold the Presidency, and how to stop it.

If some options had been clearly envisaged at the time, including the possibility of having the Hungarian Presidency suspended, postponed or at least constrained – as called for by the previous European Parliament–, the question has now arisen about whether it would still be possible to do so having the Presidency already kicked in.

As it will be argued, this is not only legally possible but also politically required for the EU to renew its underlying commitment to the rule of law and, thus, eventually preserve itself.

Orbán’s foreign trips in breach of EU law

Following PM Orbán’s peripatetic ‘peace mission’, several EU leaders – including the outgoing President of the EU Council and the High Representative – quickly blasted these visits for lacking authorisation and stressed that Orbán was not acting on behalf of the EU but solely in his capacity as prime minister.

The question was then raised and fiercely debated within the Council (COREPER II) on July 10, 2024. Poland, supported by 16 Member States, asked the Hungarian government to explain its conduct before all EU ambassadors. The Hungarian Minister for European Affairs, János Bóka, gave his assurance that the actions of his country’s Prime Minister, Viktor Orbán, did not contravene any EU rules or principles.

The Hungarian representative argued that the visits were of a bilateral nature, an argument which did not convince the vast majority of Member States (all but Slovakia). By then, it had become public knowledge that the Hungarian government had not only organised these visits in secret – as publicly acknowledged by Viktor Orbán in an interview with Die Weltwoche –, but also presented them as part of its Presidency, as epitomised by the systematic use of the Hungarian Presidency’s logo. No surprise that during their press conference in Moscow, Vladimir Putin said that he believed Orbán was there representing the EU presidency, a claim the Hungarian prime minister did not refute on the spot. The Chinese media also bought into and followed this script.

In these circumstances, upon the express request of Poland, the Council’s legal service – generally quite protective of Member States’ sovereignty – concluded that Orbán’s actions have been violating the Treaties, as reported by the Financial Times.

While this legal opinion was not publicized, one may easily secondguess the breaches the Presidency could have found. Those were also indicated in a complaint I have contributed to lodge on the eve of the Coreper II meeting alleging the following violations.

First, the Hungarian Presidency may have acted beyond the competences conferred to it, as those do not entail any external representation of the Union, which is the responsibility of the President of the European Council (at the head of state or government level Union (Art. 15(6) TEU); and of the EU Commission, notably, the High Representative of the Union for Foreign Affairs and Security Policy (at Ministerial level) under (Art. 27(2) TEU).  Second, the Hungarian Presidency may have also departed from the principle of mutual political solidarity among Member States and the spirit of loyalty, as required by Art 24(3) TEU (“The Member States shall 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…, work together to enhance and develop their mutual political solidarity…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”), and more broadly, the principle of sincere cooperation, as enshrined in Article  4(3) TEU (“the Union and the Member States shall, in full respect, assist each other in carrying out tasks that flow from the Treaties” and “The Member States shall…refrain from any measure which could jeopardise the attainment of the Union’s objective”).

Can an ongoing Presidency of the Council be stopped?

Now that a formal breach has been found by the Council (Legal Service) – and while waiting for a formal response to the complaint  – the question remains whether and how the Hungarian Presidency may or should be sanctioned for past breaches and, more critically,  legally stopped or at least curtailed.

Under Art. 24(3) TEU, it belongs to the Council and the High Representative to ensure compliance with the principle of mutual political solidarity and the spirit of loyalty in the EU’s external and security policy. Yet, under Article 24 (1) TEU, this policy is subject to ‘specific rules and procedures’, which entail inter alia a limited jurisdiction for the Court of Justice of the EU. This bars the Commission from bringing an infringement procedure against Hungary, an option whose dissuasive effects would presumably be modest during a six-month Presidency set to unfold from now until December 31.

This leaves the Council, that is the EU 26, and the High Representative with  the sole responsibility to act – as required by Article 26(3) TEU – in order to contain the most immediate negative consequences stemming from the ongoing Hungarian Presidency on the Union.

While the Council can’t bring Hungary before the Court of Justice for an alleged violation of the spirit of loyalty and mutual solidarity, it could do so – as should the Commission – in relation to the broader principle of sincere cooperation foreseen in Article  4(3) TEU. Should these institutions fail to do so, they may risk being found by the very same Court of Justice in breach of their respective obligations. An action for failure to act could be brought against them by inter alia any Member State, the European Parliament, and any other institutions of the Union.

This suggests that both the Council and the Commission could and should do more than simply expressing a warning, as they did at the Coreper II level, or boycotting some of the Presidency’s meetings, as currently being reported, to avoid further breaches of EU law by the ongoing Presidency of the Council.

Several options can be contemplated.

First, the Council could conclude the first stage of the Article 7 procedure – following Parliament’s activation of the mechanism in 2018 – against Hungary (none of the twelve Presidencies of the Council that followed put the vote on the agenda). The Council would need to act by a majority of four-fifths of its members, after obtaining the consent of the European Parliament. This would determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 2 TEU. As such, this conclusion would enable the Council to depart from the treaty-based principle of “equal rotation” of the Presidency, under which Article 16(9) TEU gives each member state a right to preside over the Council for a period of 6-month, thus enabling the Council to constrain the exercise and duration of the Hungarian Presidency. Having said that, if an ex ante suspension of the Presidency might constitute a per se violation of the principle of equal rotation by depriving Hungary from such an entitlement, its early termination would merely compress it, and do so based on a set of clearly defined justifications.

Second, as originally highlighted by the Meijers Committee and requested by the European Movement, a suspension of the Presidency may also be envisaged. The best placed to take action against the Hungarian Presidency would be the Spanish and Belgian governments, as they share – together with Hungary – the responsibility and organisation of the Presidency Trio, as foreseen by the Council Decision on the exercise of the Presidency of the Council (2009/881/EU).  Under its Article 1, “the Presidency of the Council…shall be held by pre-established groups of three Member States for a period of 18 months” with “Each member of the group…in turn chair for a six-month period all configurations of the Council…..” and “Members of the team may decide alternative arrangements among themselves”. This would save the possibility for Spain and Belgium to step in, and alter the internal organisation of the Presidency.  In support of this change, they could also argue that Hungary departed from “the 18-month programme of the Council”,  previously prepared by the Presidency Trio and the High Representative, as required by Article 1(2) of the Council Decision 2009/881 and Article 2(6) of the Council Rules of Procedure.

Third, and alternatively, the European Council could, under Article 263(2), amend its decision “on the Presidency of Council configurations, other than that of of Foreign Affairs, in accordance with Article 16(9) of the Treaty on European Union”. As proposed here, they could re-write the roadmap of the rotating presidencies. This would allow them to re-adjust the starting date of the Polish presidency to September (or August) 1, with a simple qualified majority voting (QMV). This would amount to depriving the Hungarian government from being able to continue its Council presidency beyond that date.

Fourth and last, the Council may pursue Article 7 TEU to determine whether Hungary has committed a “serious and persistent breach…of EU values” under the more direct procedure of Article 7(2) TEU.  To reach such a result, however, under this procedure would require the consent of the European Parliament, a hearing of the Hungarian government, a unanimous decision of the European Council (but Hungary), and a decision of the Council itself.  The latter would also need to take account of the consequences of the suspension on the rights of individuals and businesses.

While measuring the legal feasibility of the abovementioned options is imperative and a praiseworthy endeavour, an equally important yet neglected one entails unleashing our imagination to identify additional courses of action capable of upholding EU law in the near term.

Conclusions

The ongoing Hungarian Presidency is set to bolster a long overdue political and legal debate over whether, and for how long, the EU can tolerate governments that incessantly challenge the bloc’s authority while continuing to benefit from its status and funding.

Regardless of whether the self-described ‘peace mission’ can be seen as just the latest attempt by Orbán to antagonise the EU, or as a premeditated effort at doing to the EU what he successfully did to Hungary when dismantling basic rules of law of principles, it marks yet another red line being crossed.

How the EU Member States will react to it may define the overall credibility of the Union on the international stage, particularly at a time when it increasingly faces significant challenges both from within and the outside. Failing to do so will not only discredit the Union, both internally and externally, but also further damage the Union’s legal architecture and its underlying commitment to the rule of law.