A Rejoinder to Dawson and van den Brink
This June, we proposed methods to beat a Hungarian veto on EU sanctions towards Russia. Our proposal prompted Mark Dawson and Martijn van den Brink to jot down a pointy response, arguing that we had ventured past the confines of great authorized scholarship into the realm of the fantastical. To recall, our proposal addressed a veto that threatens existential pursuits of the Union and breaches the solidarity enshrined in Article 2 TEU. On this foundation, we superior two unbiased paths to beat Hungary’s obstruction.
First, Hungary’s breach of Article 2 TEU is of such severity that it impacts the veto’s very existence. In consequence, Hungary’s vote has by no means been validly solid, so a Council resolution may be adopted with out Hungary. Second, the CFSP’s unanimity rule in Article 31(1) TEU may be interpreted in mild of Article 2 TEU as not overlaying distinctive conditions that threaten the Union’s peace, its values, and the well-being of its peoples, in order that certified majority applies.
A “Methodenstreit” of our time
The disagreement between Dawson, van den Brink, and us displays a deeper controversy over the function of students in society, typically framed as a “controversy over technique”. Such controversies are sometimes triggered by crises. One instance is the Weimar “Methodenstreit”, fought amongst constitutional students within the first German republic. The same “controversy over strategies” happens in in the present day’s EU authorized scholarship. One fault line issues the acceptability of “artistic scholarship” and “authorized engineering” to deal with the Union’s challenges.
A sceptical group stresses the bounds of EU regulation and EU authorized scholarship. A few of them – principally from a state-centred perspective – deal with competences. They have a tendency to understand authorized innovation as an influence seize to the detriment of the Member States’ autonomy. Others – typically with a extra European perspective similar to Dawson and van den Brink – deal with consistency or constitutional constraints similar to elementary rights, the rule of regulation, and democracy. All are likely to criticise their opponents as politically pushed activists failing their scholarly mandate.
The alternative group is forward-looking, creating EU regulation to unlock its prospects. As a part of this group, we depart from three premises: First, the present Treaty framework is right here to remain. In a Union of 27 numerous Member States, it appears tough to think about Treaty change that overcomes present challenges. Second, many voters count on the Union to deal with these challenges and don’t settle for any excuse. They see inaction as a failure of the Union that erodes their belief. Third, we perceive constitutional regulation as a “residing instrument” that evolves over time in sync with society.
In opposition to this backdrop, we’ll have interaction with Dawson’s and van den Brink’s critique, make clear our place, appropriate misrepresentations, and handle their issues. First, we recall the context of our proposal, a context that our critics largely ignore. Second, we reaffirm our proposal’s distinctive nature and slender scope. Third, we rebut the declare that it compromises procedural integrity, shattering belief amongst Member States and disregarding authorized strategies. Fourth, we present that Dawson’s and van den Brink’s various just isn’t viable. And eventually, we reply to the allegation of inconsistency.
There’s a conflict, proper?
Our critics and we appear to dwell in numerous realities. When studying Dawson’s and van den Brink’s piece, it feels just like the Russian conflict of aggression towards Ukraine doesn’t exist. But, there lies an uncomfortable fact on the coronary heart of our proposal, one which our critics fail to acknowledge: the Russian conflict would possibly develop into an existential menace to the European Union.
Russia’s justification of its conflict can simply be transferred to varied Japanese Member States. Russia is already participating in hybrid warfare towards the European Union and portrays it as an aggressive energy. In that context, the Union should embrace a brand new function. Most Member States and many voters count on it to change into a real geopolitical actor that safeguards peace, its values, and the well-being of its peoples, as promised by Article 3(1) TEU. We see it as a activity of scholarship to assist the Union in assembly this expectation.
Our critics’ notion of actuality additionally differs with regard to the Hungarian obstruction. Dawson and van den Brink doubt whether or not it constitutes a breach of solidarity. Nonetheless, it’s well-established that Hungary’s obstruction within the CFSP – culminating in its menace to veto the sanctions’ renewal – displays a systemic sample, threatening the EU’s geopolitical company in a way that advantages the authoritarian aggressor. We’ll come again so far.
Tailor-made responses to distinctive conditions
Dawson and van den Brink argue that our proposal may simply be expanded past Hungary to many conditions, resulting in unintended penalties. Nonetheless, each paths of our proposal are slender and context-specific. One limits the authorized irrelevance of Hungary’s veto to a particular vote on a particular concern in case of a very severe breach of European solidarity. The second path opts for an interpretation of the unanimity requirement as not making use of to a particular vote in a particular state of affairs: adopting choices that counter existential threats to the Union’s peace, its values, and the well-being of its peoples.
The slender scope of our proposal turns into obvious when contemplating the instance by which Dawson and van den Brink attempt to debunk it. They counsel that our reasoning would apply to Germany as properly if it had been to veto sanctions towards Israel for its conduct in Gaza. Nonetheless, our proposal requires a systemic sample of obstruction that threatens peace, values, and well-being throughout the Union.
Disregarding procedural regulation?
Dawson and van den Brink argue that our proposal disregards procedures foreseen within the Treaties. Once more, this critique misses our level. To recall the procedural aspect of our proposal: Underneath our first various, the Council Presidency requires a vote on the renewal of the sanctions towards Russia. If Hungary raises its veto in the course of the vote depend, the Presidency verifies whether or not there’s consensus amongst all different Member States that Hungary’s veto breaches Article 2 TEU. If that’s the case, it registers that the Hungarian vote has not been validly solid and notes an abstention within the sense of Article 238(4) TFEU. Underneath the opposite various, the Presidency summons the Council that determines, first, whether or not there’s an existential menace, and second, that this example just isn’t coated by Article 31(1) TEU. This willpower is not any formal resolution however a preparatory step. As soon as the inapplicability of Article 31(1) TEU to the respective resolution is established, the sanctions may be adopted by certified majority voting underneath Article 16(3) TEU as properly.
In response to Dawson and van den Brink, each paths illegally bypass the process foreseen in Article 7 TEU. But, we merely observe the Courtroom’s reasoning on the legality of the conditionality regulation (Hungary v Parliament and Council, para 159), which allows various responses to violations of Article 2 TEU so long as they don’t collide with Article 7 TEU. Whereas Article 7 TEU permits the suspension of a Member State’s voting rights on the whole, excluding Hungary from all voting, we recommend the authorized irrelevance of a single vote solid in a single particular case.
Our critics declare that our proposal renders voting within the Council meaningless, as it could disqualify any Member State’s objection to disregarding Hungary’s veto. Such objections would equally breach Article 2 TEU, thus resulting in their disregard. In such a situation, the act of voting would certainly change into meaningless. Nonetheless, it takes way over such an objection to breach Article 2 TEU. The Hungarian veto expresses a systemic sample of obstruction. Under this threshold, any Member State can block the Presidency’s plan of action.
To be clear on this level: such an objection by any Member State can be legit. We purpose to point out a authorized risk, not a normative necessity. There could also be many good causes to not embark on the street we suggest, however illegality just isn’t one in every of them. We refer the difficulty to the realm of European politics and solely shut the door to a straightforward excuse for political inaction.
Shattering belief?
Dawson and van den Brink reject our proposal as a slippery slope in direction of an intolerant “tyranny of the bulk” and current us as demolishers of the belief amongst Member States, the belief on which the Union relies. To start with, this can be a shocking studying of certified majority voting underneath Article 16(3) TEU. In any occasion, we aren’t proposing a basic transfer to majority voting, however overcoming the unanimity requirement in distinctive instances. This neither reduces the necessity to negotiate nor harms the consensual nature of European politics. As our proposal removes the opportunity of extorting different Member States in conditions of excessive mutual vulnerability, it moderately opens area for true negotiation.
We agree that procedural guidelines are important to sustaining belief amongst Member States. However belief amongst Member States just isn’t unconditional. It is dependent upon a shared dedication to the values of the Union. When a Member State exploits unanimity to sabotage the Union’s response to aggression – whereas benefiting from the Union’s authorized and financial order – constitutional regulation ought to present a treatment. Constitutional interpretation ought to keep away from abuses of procedural guidelines as a defend for unhealthy religion and technique of extortion.
In fact, our proposal includes a delicate transfer, but one which the Council is properly positioned to undertake. It’s an establishment with democratic legitimacy (Article 10(2) TEU) and a part of the Union’s legislature (Article 16(1) TEU). Furthermore, Hungary’s (and different Member States’) legit pursuits will not be on the whims of the bulk. Any of the proposed Council choices can be topic to full judicial evaluate by the Courtroom of Justice – not like choices adopted underneath Article 7 TEU. We assume that our critics share our confidence within the independence and impartiality of the judges in Luxembourg.
Disregarding authorized strategies?
For Dawson and van den Brink, our proposal blurs the excellence between substantive norms (like solidarity in Article 2 TEU) and procedural guidelines (like unanimity in Article 31(1) TEU) in an unacceptable method. They purport that procedural provisions can’t be interpreted in mild of the constitutional rules in Article 2 TEU.
But this can be a frequent and accepted apply. Contemplate how the Courtroom has expanded its jurisdiction within the CFSP. It interpreted the constraints in Article 40 TEU and 275 TFEU – each procedural provisions – narrowly in order to cowl solely political choices (see KS & KD v Council, paras 68, 119). It justified this by counting on Article 2 TEU. The precept of the rule of regulation prohibits “the modification of the Treaties by the courts” however “obliges them to interpret major regulation in mild of Article 2 TEU” (see the Opinion by Advocate Normal Tamara Ćapeta in paras 99-100). One other instance is the controversy on the suitable authorized foundation for the SAFE proposal. The Fee primarily based it on Article 122 TFEU, thus excluding parliamentary involvement. The EP rejected this as unduly limiting democratic participation (see right here, right here, and right here). This means an interpretation of authorized bases in mild of the democratic precept contained in Article 2 TEU.
Dawson and van den Brink painting such an interpretation as contra legem. But it surely doesn’t flip Article 2 TEU right into a trump that overrides procedural guidelines. Within the first various, a procedural act (right here: a vote towards sanctions) is legally irrelevant resulting from its manifest violation of a constitutional precept. Within the second, Article 31(1) TEU is interpreted in mild of Article 2 and three(1) TEU as not overlaying choices that counter distinctive threats. To this finish, one can interpret “choices underneath this Chapter” by using the strategy of “teleological discount”, a instrument embraced by Advocate Generals Michal Bobek (Entoma, para 60), Laila Medina (Lineas, para 72), and Juliane Kokott (CFE, para 83). Likewise, one may interpret the phrase “besides the place this Chapter supplies in any other case” as together with Article 2 and three(1) TEU. On this spirit, Article 23 TEU – a provision of “this Chapter” – refers to Article 21(2) TEU, which in flip refers back to the values in Article 2 TEU.
Ignoring options?
Dawson and van den Brink declare that our proposal is pointless as a result of there’s a higher various. They level to enhanced cooperation and cite Article 20 TEU. Alas, they fail to contemplate Article 329 TFEU, which topics enhanced cooperation within the CFSP to a unanimous resolution within the Council. Why, we ask, ought to Hungary consent to this?
Extra elaborate options reveal weaknesses, too. Sébastien Platon and others have urged that Member States, moderately than the Union, may impose the sanctions. Even when that is appropriate, it doesn’t assist to strengthen the Union’s company, the very query of our day. Furthermore, it could expose the performing Member State to extreme geopolitical strain. Shielding towards such pressures is a central perform of the Union. Russian central financial institution belongings of 200 billion EUR are at the moment frozen on Belgian clearing amenities. It will fall on Belgium alone to maintain these belongings frozen, which might encounter issues underneath Belgian regulation as properly. Letting a single Member State do the “soiled work” hardly complies with the Member States’ dedication to solidarity within the face of frequent threats.
One can contemplate various European authorized bases. The Fee has proposed a shift of authorized foundation from the CFSP to the frequent industrial coverage for sanctions on the Russian vitality sector. Pursuant to Article 207(2) TFEU, “commerce measures” may be adopted underneath the atypical legislative process. Nonetheless, even when one had been to just accept that the centre of gravity lies in commerce and never within the CFSP, this proposal doesn’t cowl essentially the most important a part of the sanctions: freezing the Russian central financial institution belongings. Some Fee officers assume that so-called “capital controls” may forestall money from flowing to Russia. Leaving apart whether or not the free motion of capital applies to central financial institution belongings, these measures would both be taken once more by single Member States, whose actions can be justified underneath Article 65(1)(b) TFEU, or by the Union on shaky authorized bases, similar to Article 64(2) or 66 TFEU. Article 66 TFEU, as an example, permits for so-called “safeguarding measures” solely in case of “severe difficulties for the operation of financial and financial union”. This appears a viable various to our proposal, however no much less of a stretch.
Betraying our scholarship on Article 2 TEU?
Dawson and van den Brink reproach us for being inconsistent over time. Typically, like constitutional regulation itself, constitutional scholarship can and will evolve. The Courtroom’s personal understanding of Article 2 TEU has developed over the previous decade, and so has the political context: Russia’s full-scale conflict, the democratic erosion inside Hungary, and the rising geopolitics of European defence demand new responses. Nonetheless, the inconsistencies they allege don’t exist.
We agree with Dawson and van den Brink that Article 2 TEU mustn’t flip right into a Pandora’s field, overriding the numerous compromises that underpin European constitutional regulation. Nor ought to it homogenise the Member States’ constitutional regulation. To this finish, we’ve got developed a complete vary of safeguards. Our proposal respects all of them.
As to Article 2 TEU’s applicability, we’ve got at all times cautioned towards its freestanding use. Already in 2012, we urged mobilising Article 2 TEU towards Hungarian assaults on free media, at the moment mediated by Article 20 TFEU. That appeared fantastical to many till the Courtroom utilized an identical logic utilizing Article 19(1)(2) TEU. Our proposal continues to operationalise Article 2 TEU by extra particular Treaty provisions. A easy Ctrl-F search within the TEU reveals that solidarity is given expression in a complete vary of CFSP provisions. On this sense, our proposal refers to Articles 21(1), 24(2) and (3), 31 and 32 TEU, all of that are expressions of the solidarity in Article 2 TEU.
As to Article 2 TEU’s threshold, we’ve got at all times argued that it should be excessive. For that motive, we developed the concept breaching Article 2 TEU requires a systemic deficiency. Dawson and van den Brink fear that we’ve got given up on this restraint, however that’s not the case. Underneath the primary various of our proposal, Hungary’s veto qualifies as irrelevant as a result of it emerges from a context of constant – one could say: systemic – obstruction undermining the Union’s response towards the Russian conflict of aggression. Equally, the second various bites solely in case of existential threats. What is that this if not a systemic menace? Furthermore, we’ve got developed the criterion of systemic deficiencies as solely one in every of a number of approaches to restrict the impression of Article 2 TEU. It will be implausible to have one single criterion that matches all instances. Nonetheless, such – fantastical – ‘silver bullets’ don’t exist in complicated constitutional realities.
As to Article 2 TEU’s content material, we’ve got at all times burdened that its requirements should stay skinny. To guard the Member States’ autonomy, the EU establishments ought to chorus from offering thick definitions and moderately deal with whether or not a pink line is crossed in a particular case. With regard to solidarity, the Courtroom has said {that a} Member State should chorus from “unilaterally upsetting the stability between the benefits and obligations arising from its membership of the European Union” (see Fee v Hungary, para 117). This supplies steerage: Hungary’s persistent obstruction within the CFSP displays a systemic sample of obstruction, undermines EU motion in a way that advantages the authoritarian aggressor and places peace within the Union and the safety of all Member States at severe danger – all whereas persevering with to benefit from the full benefits of membership. With all respect to Dawson and van den Brink, we regard this as an evident, certainly self-evident, breach of solidarity.
The difficulty is now not as pressing as after we first superior our proposal. On 30 June 2025, the Council renewed the sanctions towards Russia, together with the freezing of €200 billion in Russian central financial institution belongings. Nonetheless, as the subsequent renewal approaches in early 2026, the prospect of a Hungarian veto could as soon as once more loom massive.
