Exposition
I originally intended to write this post on another topic related to the rule of law and its protection in the European Union. But then I was intrigued by an excellent news published in the daily press on February 1, 2024. The Member States of the European Union have agreed in the European Council to provide quite generous (but unfortunately probably not enough) aid to the war-torn Ukraine. This news follows on from previous articles that looked at the political negotiation process for the aid framework. It was these articles, their headlines, and their content, that prompted me to change the focus of this paper. The circumstances that preceded the successful agreement are indeed worrying - from a rule of law perspective. The central theme of my contribution therefore remains the rule of law and the idea that public administration should function “properly”. However, I will not describe the various mechanisms for enforcing it, which was my original intention, but will focus on this very specific current situation. It shows that the rule of law and the functioning of law in the EU are two different worlds. We are at the end of a drama of ancient proportions, hence the structure of this paper. A proper drama has five parts, and so will this article, literally.
Rising Action
The issue of EU aid to Ukraine has become perhaps surprisingly controversial because of Hungary's objections to the way in which this aid is to be provided. This country disagreed with the proposal of the majority of Member States and rejected the proposed aid. It is not for me to judge the reasons and motivations for I am a lawyer, not a politician or an economist. However, it does not seem surprising to me that a state that is one of the less wealthy in the EU (like the state I live in), with high inflation and economic problems (again, all of which are similar), with a large minority living abroad where the protection of members of this minority is often not sufficiently guaranteed, with a common border with a third state that is in the biggest European conflict since the end of the Second World War, has its priorities set differently than wealthy Member States that do not face crises and risks of this kind.
Hungary is one of several states in the current European Union that have a reputation for prioritizing their own goals and values over the interests of the whole. It is therefore likely that everything that concerns this state is perceived more sensitively and critically precisely because of its reputation as an EU’s “enfant terrible”. I will therefore try to break the hermeneutic cycle and bring some objectivity and neutrality to this paper by replacing the constant that is this particular Member State with a variable. The article will therefore not be about Hungary, but about a hypothetical state, let's call it Separatum. Separatum lies somewhere in Europe and it is a proud Member State of the EU. I hope that in this way I will be able to eliminate possible prejudices and preconceptions, both negative and positive, in the interest of objectivity. The key for me is to assess the whole situation from the perspective of law, not politics, economics, or even simple sympathy.
This article is based on the following dogma: rule of law protects several important values and principles, including, among others, constitutionality and legality, legal certainty, sovereignty of the people and legitimacy of state power and democracy of state institutions.
Climax
Many articles and political statements on the situation have been published in print and online. The number of various statements by top European politicians and officials has also been considerable. For the sake of simplicity, however, I will focus on this article published in the Financial Times entitled "Brussels threatens to hit [Separatum]'s economy if [its PM] vetoes Ukraine aid". Why so? Well, it contains all the essentials in concentrated form.
Let's summarize its content, it is important for the overall assessment of the situation. The article states:
"Brussels has outlined a strategy to explicitly target [Separatum]'s economic weaknesses, imperil its currency and drive a collapse in investor confidence in a bid to hurt "jobs and growth"
"...EU leaders should publicly vow to permanently shut off all EU funding to Separatum’s capital with the intention of spooking the markets, precipitating a run on the country's ... currency and a surge in the cost of its borrowing"
"in the case of no agreement in the February 1 [summit], other heads of state and government would publicly declare that in the light of the unconstructive behaviour of the [Separatum] PM ... they cannot imagine that" EU funds would be provided to [Separatum’s capital]."
"The stakes are high. It is blackmail."
"Several capitals have considered whether it is feasible to use Article 7 of the Treaty on the European Union, which would allow Brussels to strip [Separatum] of its voting rights or, one diplomat said, block disbursement of money."
The national news media in the Czech Republic also expressed similar sentiments. The overall message was that Separatum was rejecting a good cause by refusing to submit to the will of the majority. Separatum is therefore reprehensible and does not belong to the "family" of true European nations.
Indeed, today's European Union is based on the solidarity of the Member States and their willingness to work together on issues of common interest. This is expressed both in the TEU preamble and in the constitutions of the Member States. It is very well expressed in the French Constitution, which states 'The Republic shall participate in the European Union constituted by States which have freely chosen to exercise some of their powers in common by virtue of the Treaty on European Union and of the Treaty on the Functioning of the European Union...' The Constitution of the state of Separatum, incidentally, has a similar provision.
What does the provision mean? Issues of common interest should be addressed together. In principle, this is done in two ways. The exact terms are defined in the EU founding treaties. They imply that in most cases the Member States (thus including Separatum) are willing to decide by qualified majority. They therefore agree to subordinate their own interests to those of the majority. In a minority of cases, common issues are decided by unanimous vote. The majority therefore agrees to respect the opinion of the minority, even if it is a single small state, like Malta or Luxembourg. In this case, size really does not matter.
Over the year qualified majority voting has been strengthened and nowadays represents an ordinary method of decision making in Council. No wonder. As the membership base expanded, unanimity became impractical. Yet it remains today. Where? In areas that Member States consider particularly sensitive. After all, the preamble to the TEU clearly speaks of a common will to build ever closer union between the nations of Europe, not to replace them. This means a will to cooperate closely, but also to respect each other.
Cases of unanimity can be seen as a kind of "freedom" of the Member States to cooperate within the EU. Separatum made use of this freedom. And it had some subjectively perceived serious reasons to do so. It acted legally. Objective or subjective reasons – that doe does not matter. It is not an issue in case of unanimity voting.
It is worth noting that even in the case of qualified majority voting, mechanisms have been created within the EU (or rather the EEC) to ensure that even interests of a single state are considered by the majority. Thus, voting by Member States in the EU has never been black and white – unanimity or majority. Traditionally, the interests of European nations have been taken in the account in significant cases.
The best-known mechanism of this kind is undoubtedly the Luxembourg compromise. Although this is a political agreement from the mid-1960s that is perhaps legally obsolete, its political reverberations continue to this day. It is therefore possible to find opinions that it is still "valid" soft law.
Thus, for political reasons, the majority was willing to voluntarily respect the interests of the minority, even though it was not legally required to do so.
Pragmatically, the Luxembourg compromise was a brake on European integration. Politically, it was a wonderful expression of the fact that one's opinion counts in the EU. Indeed, a compromise (shared and accepted by all) is more than the blind and brute force of a majority.
Falling Action
However, aid to Ukraine should not have been voted on by qualified majority. A consensus was needed, including on the part of the Separatum. For a long time, this state did not want to give its consent. Fortunately, in the end the Separatum “understood what is good for the well-being of the whole EU”. It formally gave its consent. It did so after much pressure, as the article quoted above shows. I therefore ask, did Separatum also give this consent materially?
I don't want to be overly ironic, but it's really hard not to be. What happened with the Separatum shows that we have a new definition of unanimity in the EU. It now does operate in two ways. In ordinary matters it means the agreement of all Member States (with the possibility of abstention) which is how one would traditionally understand the unanimity. However, in exceptional matters, unanimity de facto means majority minus one.
This time it was Separatum. But what if the next time it is Germany or France? Would this “new” alternative unanimity rule also apply?
How ironic! Historically, even in the case of a qualified majority vote, we could consider the position of one, even if it was not legally necessary. Now, however, when we are obliged to do so, we refuse to consider other's point of view. What a progress in European integration!
Why then is the unanimity requirement in the founding treaties upheld when we deliberately refuse to respect it? One definition of Machiavellianism is that the virtuous (sic!) end justifies the means. Here we have deliberately sacrificed Separatum and its freedoms as well as its opinion. Indeed, providing aid to the invaded is undoubtedly virtuous, and the end was ultimately achieved. Does it really mean that Machiavellianism is becoming the new norm for the functioning of the EU? Is politics triumphing over law? Or is the law becoming plastic and we are only following what is right in terms of the greater good?
All this is happening in an area that is itself very problematic for a number of reasons. The EU has traditionally supported third countries through the Neighborhood and World programs. And rightly so. If the EU claims its religious and cultural roots in the TEU preamble, then selfless “Samaritan aid” to a neighbour in need is exactly what the EU should be doing. The EU may be nowadays reticent to demonstrate its Christian roots openly, they manifest themselves in its actions in the end.
However, foreign aid is only one of the chapters on which funds are to be spent, and by all parameters it is not the most important. The amount of money spent should be proportionate and within the limits of the EU's capacity. The main responsibility for helping those in need remains with the Member States. They can and should help as they have the necessary means.
The amount of aid to Ukraine exceeds the normal standard of the EU budget (although the country would need even more support) and therefore constitutes exceptional aid for which no necessary legal basis can be found in EU primary law. Large-scale military aid, which has also been called for by some voices, would be completely outside the scope of EU activities and competences. Let us not forget that the EU is still only an international organization. It is therefore very important to distinguish between what it should do because it is right to do so, and what it can do because its founding treaties allow it to do so.
The EU has its own budget and spending, but its own revenues are small. Ultimately, therefore, the real cost of EU aid is borne by the Member States. Is it not understandable that some of them, like Separatum, have reservations in times of serious economic difficulties? Nevertheless, these reservations do not prevent countries in a better situation from showing solidarity with those in need.
In this situation, the threats associated with the activation of Article 7 TEU are inappropriate. On the contrary, they go against the spirit of the founding treaties and their text. They are also contrary to the constitutions of some Member States. After all, the exercise of competences should be shared - where we have agreed that the minority will submit to the interests of the whole. In other cases, the whole will consider the views of one, even if it has a completely different view. This is how the founding treaties were written. The aim was to establish a cooperation based on mutual trust and understanding.
But how can we trust each other when the rules are bent, and threats are made that have no basis in written law?
Where in the founding treaties does it say that the allocation of funds under the various chapters of the EU budget is conditional on majority agreement on other unrelated policies?
And what exactly in primary law implies that EU funds should be conditional on respect for the common values expressed in Article 2 TEU?
I fully understand the rationale and practicality of such a solution. Nevertheless, the accounting rules in Article 322 TFEU can hardly be translated into an instrument that allows unanimity to be overridden for reasons of the greater good.
Perhaps I'm limited by being a lawyer. Perhaps the fact that I specialize in methods of interpreting the law, which necessarily follows from its text, limits my imagination. I, therefore, envy EU politicians for not seeing these limits and doing what is really needed for I have restrains. But in the long run, is it just and right for the EU to pragmatically ignore the text of the founding treaties, even if it is done in the name of the greater good? And is this consistent with the rule of law? How exactly do the accounting rules relate specifically to the enforcement of EU law? On the contrary, is it not consistent with the principle of legal certainty if the interpretation of the law is consistent with its text?
The sad thing about the whole situation is that the Plan B, the alternative solution, existed from the beginning. Member States willing to help could have provided the necessary assistance to Ukraine on their own, either bilaterally or multilaterally. There are functional examples from the past. For example, at the time of the economic and financial crisis in 2008, the Czech Republic pledged to lend to Latvia bilaterally, and later the euro area countries created the European Financial Stability Facility to meet their needs. A similar approach could have been taken towards Ukraine. The goal would have been achieved.
The article quoted above suggests some of the reasons why this solution was rejected. I will quote again: "It would require ratification by national parliaments, which would cause delays and uncertainty.” How sad, simple convenience outweighed the law, albeit for a greater good!
So far, I have approached the whole issue dispassionately and without any emotion. As a lawyer. However, the reasoning in the previous paragraph frightens me and I strongly disagree with it. If I was exaggerating about Machiavellianism above, there is no exaggeration here.
The EU is repeatedly accused of having a democratic deficit in its functioning. I always tell my students that this is unfair. In short, the EU as an international organization cannot function as a state, and this necessarily has consequences in EU decision-making. In addition to the will of the people, political factors must be considered, and these are expressed by the Member States in the Council and the European Council. The EU, on the other hand, does its utmost to be close to the citizen, to the individual, within the limits of its possibilities, and spends considerable energy and financial resources on this. Thus, any critique really is not fair.
But in this case of Separatum, the EU is fully contributing to the democratic deficit. It is doing so on its own, by choice, consciously and deliberately.
So, what does this mean in the end? Decisions on the key issues of budget and external relations are made within the institutions by a small group of directly unelected officials. I apology for the irony, again, but apparently only our prime ministers may know better than the average citizen (or a member of parliament) what is good for us. The fact, that they lack the mandate of a direct representative of the people apparently does not matter.
Nevertheless, the rule of law is based on democracy, on the sovereignty of the people, not on the rule of a small group of officials. Paradoxically, therefore, Plan B would be a better solution from the point of view of the rule of law and democracy!
Indeed, the discussion of this solution in national parliaments would be democratic. It would allow everything to be carefully discussed and decided in the interests of the people, while they will is widely taken into account.
But it seems that the European elites are afraid of the people and their opinions. In fact, the opinion of the people is only useful if it agrees with the opinion of the elites. If it does not, it is often labeled populist. Apparently, the very best thing is not to ask the people at all. But where is the boundary between democracy and populism? And who determines what is normal democracy and what is already populism? I feel blessed, as a lawyer, I do not have to deal with these questions. But they do worry me.
Resolution
The EU unanimously agreed to help Ukraine. Separatum voluntarily joined the rest, allowing for a pragmatic, expedient and effective solution. This solution is long-term and provides Ukraine with the necessary security and planning. What a great ending of a drama!
However, the stench is likely to remain on both sides.
And what if it had been another Member State, such as Germany or France, instead of Separatum? Would the end of the story be the same? I sincerely hope so. Unfortunately, I'm not sure about that.
If the EU allows such kind of behavior towards even if only one of its Member States, is it still a rule of law?
Let us uphold the law, even if it is not practical or convenient. Let us trust the parliaments. The EU's and the national ones. Only that is the true rule of law.
Postrscript
1: I am aware of the importance of help from the state and the European Union. However, I think that personal help is just as important. Each of us can contribute to the Red Cross, Catholic Charity and other organizations that provide direct help to people in need. I believe it is the right thing to do. I find it more fulfilling than distant and mediated government or EU aid, which may be relativized by the number of structures, officials and related costs involved.
2: I am aware of the problematic nature of this article. It's easier to write glowing articles that don't break out of the mainstream. I like the European Union, share its core values and although I come from a traditionally Eurosceptic country, I consider myself privileged to be a member of this international organization. However, I do not want to wear rose-tinted glasses. I believe that part of a healthy relationship is naming the mistakes and working together to correct them. The criticism in this article is not meant to be destructive, but constructive. A wise man listens, even to the last and least, and does not act from a position of strength. It is my wish that the EU will be wise.
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