Orbán vs Brussels: the battle heats up

Hungarian Prime Minister Viktor Orbán is waging a longstanding battle with the EU. Jaap Hoeksma argues that this clash reflects a fundamental division over the EU's very identity – and Hungary’s forthcoming Presidency of the EU Council, from July–December 2024, will throw this into sharp focus

Opposing visions of the EU

The outcome of the ongoing battle between Orbán and Brussels will be decisive in discovering what the EU truly is. Is it an ordinary association of states? Or is it a democratic polity driven by the desire to create ever closer union between the peoples of Europe?

There is a traditional answer to this question, which the ​​Hungarian PM firmly advocates. This holds that a higher authority cannot force sovereign states to accept their decisions. For example, the ​UN Security Council does not have power to prescribe to its member states how to act. In the same way, the European Council cannot impose its will on the member states of the Union. Each member retains the right of veto, and Brussels may not meddle in the internal affairs of sovereign member states.

The democrats take an opposing view. Unlike the sovereignists, ​​they argue the EU is an organisation of democratic states, which should also function as its own democracy. When two or more democratic states agree to share the exercise of sovereignty in ever wider fields with a view to attain common goals, their organisation should respect the rule of law and democracy as member states. The democrats underline that the values of the EU are enshrined in Article 2 of the Treaty on European Union. They argue that the EU is entitled, if not obliged, to defend and protect these values on its citizens' behalf.

Escalation

Today, these theoretical questions have acquired acute political momentum. Orbán is introducing a ​​Protection of Sovereignty Act to defend his country against foreign (read EU) interference. Meanwhile, the institutions of the Union are stepping up their efforts to oblige Hungary to respect the European rule of law through the sanctions of ​​TEU Article 7.

Orbán is introducing a ​Protection of Sovereignty Act to defend his country against foreign (read EU) interference

Hungary opposes European aid to Ukraine, and this aggravates the dilemma. Indeed, by using its veto, it has ​​threatened to block financial support to the beleaguered country. The situation complicated further by the fact that Hungary is due to take over a six-month presidency of the Council of the EU, on 1 July 2024.

Overcoming the dilemma

To address this dilemma, politicians should look less at abstract ideas like the vocation of a continent or the sacred integrity of a nation and more to the text of the treaties. Since the start of the European integration process, the emerging polity has been based on treaties, not ideologies. The EU has not imitated the USA by becoming a federal state of Europe. Instead, the EU embodies the most significant innovation of the modern state system: it applies the constitutional principles of democracy and the rule of law to an international organisation.

So, the EU has not, as Altiero Spinelli imagined, established itself overnight as the new Europe. Instead, it has evolved gradually from an association of states aimed at preventing another outbreak of war (via an internal economic market) to a democratic Union of democratic States. This evolutionary process suggests that the EU has retained some characteristics of a traditional association of states. Yet by virtue of the 2007 ​​Lisbon Treaty, it has also been constructed as a European democracy.

The EU has evolved gradually from an association of states aimed at preventing another outbreak of war (via an internal economic market) to a democratic Union of democratic States

The most notable relic of the EU’s previous form as an association of states consists of ​​the right of veto. Member states still enjoy this in a number of fields. Evidently, from a conceptual perspective, transnational democracy and national vetoes are irreconcilable. This observation, however, does not change the text of the Treaties. So, is the EU destined to remain an ordinary association of states forever, or can it become an authentic democratic entity?

Such a conclusion would defy the internal logic of current EU treaties. The EU Court of Justice emphasises that Article 2 embodies the Union's values, and that it must interpret subsequent articles in light of these constitutional principles. The fundamental question is whether the EU can be democratic if its member states are not.

Constitutional battle

The present set-up contains all the required elements for an epic constitutional battle over the EU’s very nature. Brussels does have one advantage over the Hungarian PM. The EU Court of Justice has already dismissed Orbán's claim of unwarranted interference in the internal affairs of a sovereign state. In its ​Conditionality Verdicts of 16 February 2022, the Court placed beyond doubt the idea that traditional international law is no longer applicable to the EU.

The EU Court of Justice has already dismissed Orbán's claim of unwarranted interference in the internal affairs of a sovereign state

In technical terms, the EU has established its own European model of Transnational Governance. Member States have agreed to this model voluntarily. While they are free to withdraw from the Union in accordance with ​TEU Article 50, States must respect the rules of the Union as long as they remain Members.

The response needed

Against this background, EU institutions and Member States would do well to try and prevent Orbán from harming the Union. In the run-up to the June elections, the European Parliament should take an unequivocal lead.

Can a democratic Union of democratic States entrust its leadership to an illiberal autocrat? Naturally, Parliament will have to play the game cleverly. In the end, however, it may be grateful to the Hungarian autocrat for this unique chance to confirm the constitutional identity of the EU as a democratic international organisation. In fact, he offers them the battle cry: NO to autocrats; YES to democracy!

This article presents the views of the author(s) and not necessarily those of the ECPR or the Editors of The Loop.

Author

photograph of Jaap Hoeksma
Jaap Hoeksma
Independent Philosopher of Law

Jaap started his career in human rights with UNHCR, and published about refugee law.

He is based in Amsterdam.

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Eurocracy Board Game

At the time of the Maastricht Treaty, he published the board game Eurocracy with a view to demonstrating that the Westphalian system is not ‘the eternal foundation of international relations’.

democratisation of the european union jaap hoeksma

Jaap's book The Democratisation of the European Union (eleven, 2023) reveals that the EU has indeed replaced the Westphalian system with the European model of transnational governance.

He tweets @EUSpokesman 

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