Any federal system of government must function fundamentally as a unit even though the states are semi-sovereign, as is the federal level. The Nullification Crisis in the U.S. during the nineteenth century highlighted the plight a federal union would face were state governments able to ignore federal law unilaterally. Fortunately, President Jackson was able to get South Carolina to stand down on this point. In 2024, the E.U.'s federal officials were having trouble getting the state of Hungary not only to apply a federal directive within the state, but also to stop contradicting the E.U.'s foreign policy against Putin's Russia in Ukraine by engaging in diplomatic trips of appeasement. A federal system that lacks the means procedurally or substantively to protect federal prerogatives against the contradictory actions of wayward states is not viable in the long term.
Every E.U. state government is
bound by Article 24.3 of the E.U.’s basic law, which mandates that those
governments must support the union’s foreign policy “actively and unreservedly
in a spirit of loyalty and mutual solidarity.”[1]
It is not often that a E.U. official mentions the obligation of loyalty in
reference to the states toward the union, but the normative glue should not be
ignored or even trivialized, especially given the preponderance of residual
sovereignty that the state governments enjoy in the E.U.’s federal system.
Josep Borell, the E.U.’s foreign minister, was referring to Viktor Orbán of the
state of Hungary, whose “peace mission” to Moscow and Beijing coincided with
the state of Hungary’s six-month presidency of the Council of the E.U. in early
July, 2024. “Any so-called ‘peace mission’ that ignores” that Russia is the
aggressor in Ukraine “is, at the end of the day, only benefitting Putin and
will not bring peace.”[2]
Borell was referring back to Orbán’s previous characterization of the union’s
supplies of weapons and ammunition to Ukraine as a “pro-war policy.”[3]
“The only one who’s pro-war is Putin,” Borell stated.[4]
Referring to Orbán’s statement as belonging “to the realm of a lack of loyal
cooperation,” Borell said, “We have to send a signal, even if it’s a symbolic signal,
that being against the foreign policy of the European Union and disqualifying
the policy of the European Union as the ‘party of war’ has to have
consequences.”[5]
The informal meeting of the foreign ministers of the states, known as Gymnich,
would take place in Brussels rather than in Hungary’s state capital, Budapest.
This move is indeed symbolic, for the official meetings are not subject to the
6-month rotating presidencies of the states.
The question is thus whether Borell’s
use of the symbolic was sufficient to enforce Article 24.3 on the loyalty that the
state governments owe to the union with respect to its foreign policy. I submit
that a symbolic gesture, at best a “slap on the wrist,” is not sufficient to
forestall undercutting moves by the governors of the state governments, for the
political interests of the latter may differ from that of the union as a whole,
and symbol is no match for real politic.
As Borell himself admitted, Orbán’s
continued veto of military assistance for Ukraine was ongoing, and it was
totally legal under E.U. basic law. Moving an informal meeting to Brussels
would not change Orbán’s use of his state’s veto in the European Council. Nor would
the states sending lower-level civil servants to an informal meeting of state
interior/justice officials in Budapest. Arnoldas Abramavicius, Lithuania’s Deputy
Minister of the Interior, refused to call sending lower level politicians a
boycott; he would not even state that Orbán’s diplomatic trips to Moscow and
Beijing violate the E.U. foreign policy against Russia. “I think this is a reaction
towards Hungary’s external activity maybe sometimes not adjusted to the European
framework,” he said at the meeting.[6]
The diplomatic trips designed to negotiate with an aggressor with whom the E.U.
would not negotiate is worse than merely not being coordinated or adjusted with
the federal policy, which, by the way, is not a framework.
In fact, Borell undercut his argument
and the E.U. itself by how he put the matter of the states’ foreign policy
power. “Each member state is sovereign on its foreign policy—true. But as far
as they’re members of this club, they have to obey the treaties.”[7]
Given Article 24.3, however, each state’s foreign policy was not sovereign, for
it could not contradict the union’s foreign policy. Moreover, the E.U. itself was
not a club even as of 2024. The European Court of Justice had repeatedly ruled
that federal laws, regulations, and directives are binding on the states, and
the ECJ’s decisions are binding on the state courts as well as the state
governments. Furthermore, clubs do not have a directly elected legislature such
as the European Parliament, and, moreover, all three branches of government.
Given the preponderance of governmental sovereignty residing with the states in
2024, the E.U. could ill afford being rhetorically diminished by one of its own
officials, especially in the midst of a struggle between the union and a
sitting governor.
A letter signed by over 63 state
lawmakers addressed to the top three E.U. officials insists that Hungary’s
Orbán had “caused significant damage” by his two diplomatic trips, so it was
not merely a matter of not being adjusted to the E.U.’s foreign policy in which
Putin is squarely the aggressor in the war.[8]
Appropriately, the state officials called on the union “to suspend Hungary’s
voting rights in the European Council” because “mere verbal condemnation” of
the wayward state government has “no effect.”[9]
Nor does merely moving the location of an informal meeting and sending
lower-level officials.
That the European Council had not
already suspended Hungary’s voting rights not only due to Orbán’s efforts to
appease (Von der Leyen’s word) Putin but also the European Court of Justice’s
ruling that Hungary had refused to implement a federal directive suggests that the
union is vulnerable to defections by state governments with all but symbolic
impunity. To apply anything close to unanimity for the voting rights of a state
in the European Council to be stripped is itself not only foolhardy, but undercutting
as well. An amendment applying qualified majority voting to sanctioning a
violating state in the European Council would improve the coherence and
functioning of the union at the federal level in line with the rule of law,
while a state government deprived of its voting rights could still appeal to
the European Court of Justice concerning the fairness of the mechanism and how
it is being applied.
It bears noting that the Titanic could not avoid the iceberg in part because the ship’s rudder was too small, given the size of the ship. Or, if an analogy of several ships is preferred, a line spoken by a European in the film, The Godfather, Part III, applies: “Our ships must all sail in the same direction.” For one ship to sail not only apart from the others, but then into them must surely not be permitted. Appeasing or even just negotiating separately with Putin while referring to the E.U. foreign policy as pro-war even while vetoing military assistance to Ukraine should have been met with more than a symbolic response by E.U. federal officials, and the fact that it was not is an indication that the federal system contains a significant vulnerability, or weakness, that should be redressed especially before additional states are permitted to join the union.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Caitlin Danaher, “E.U. Moves High-Level Meetings Out of Budapest to Protest Orbán’s Ukraine War Stance,” CNN, July 22, 2024.
7. Jorge Liboreiro, “Borrell Accuses Orbán of Disloyalty and Joins Boycott Against Hungary’s E.U. Presidency,” Euronews, July 22, 2024.
8. Caitlin Danaher, “E.U. Moves High-Level Meetings Out of Budapest to Protest Orbán’s Ukraine War Stance,” CNN, July 22, 2024.
9. Ibid.
