In an opinion submitted to the
European Court of Justice, which tends to follow the legal opinions the 11
Advocates General, Tamara Capeta recommended in February, 2026 to the Court
that it “should annul the European Commission’s 2023 decision to disburse €10.2
billion” to the E.U. state of Hungary.[1]
Capeta found that the state government had not sufficiently addressed “concerns
over systemic corruption and rule of law violations” to qualify for the payment.[2]
That the Commission released the payment nonetheless points to corruption at
the federal level—in its executive branch in particular—and this charge against
the Von der Leyen administration renders the charge against the Hungarian
government rather ironic. Rule of law should apply (and be respected!) at both
the federal and state levels for the E.U. to continue to be viable. This
applies especially to the Commission, as it is tasked with enforcing E.U. laws,
directives, and regulations as well as treaty obligations that the EU,
including its state governments, have to other countries, whether they are
federal unions (e.g., the U.S.) or independent states.
The Commission’s decision to
reverse itself on the payment “came just days before a crucial December 2023 EU
summit, where Hungarian Prime Minister Viktor Orbán threatened to veto a €50
billion aid package for Ukraine and block the start of EU accession with Kyiv.”[3]
At the European Council’s meeting, “Orbán left the room for a coffee break,
allowing the other 26 E.U. [states] to approve the accession talks.”[4]
At “an extraordinary” Council session in February 2024, “Hungary lifted its
veto on the €50 billion Ukraine support package.”[5]
Some representatives in the E.U.’s parliament “suspected the E.U. [had] struck
a deal with Hungary, trading unfrozen funds for Orbán’s withdrawal of his veto”
even though the Commission “denied any such agreement was made.”[6]
Given Orbán’s twice reversal after his state government had just received the suddenly
unfrozen funds from the Commission, its denial strains credulity at best, and
more realistically actually confirms the charge of sordid dealings in the
Commission at the expense of E.U. law.
It is harmful enough to the
federal union when a state government violates E.U. law, especially with
impunity; for a federal-level governmental institution to shirk federal law says
in effect that the E.U. does not respect its own law (so why then should state
officials respect it?). Presumably either the Commission and/or one or more of
the states could have made a deal with Orbán that did not involve violating
E.U. rule-of-law.
Moreover, occasioning the
unlawful deal is the staying power of the principle of unanimity in the
European Council and the Council of the EU. A minimum of nine states was at the
time sufficient for the federal program of “enhanced cooperation” to be invoked,
in which case blocs of states could move forward in being subject to a federal
law or regulation even though one or more state would still be in opposition but
not to be subject to the law. Of course, this program could not apply to votes
on whether to annex another state to the Union, and to decisions on whether to
spend E.U. funds on other countries, including Ukraine because on such matters,
the E.U. itself must either act as one or not act. So a so-called “multiple-speed”
E.U. is not a complete answer to the basic problem of applying the principle of
unanimity to 27 (and potentially more!) states.
Rather than relying primarily
on its state governments for defense and even foreign policy, the E.U. could
look to the U.S., which has both a federal military and state armies (called
militias). That the federal president can temporarily call upon such armies
even if their respective state presidents refuse does not mean that those
armies are federal. Such an arrangement, which the E.U. did not have at least
as of 2026, is consistent with the underlying dual-sovereignty of both the
federal and state governments (or, for the ideologically squeamish, governmental
institutions). The augmented federal powers would need to be decided by
qualified-majority voting in the Councils that represent the state governments
at the federal level; otherwise, no such partial transfer of governmental
sovereignty could take place. Being politically unwilling to “step up to the
(baseball) plate and bat,” federal and state officials should not collude in
deal-making in ways that violate federal laws, lest the Union itself head down
a slope wherein federal law has no force. This is especially of value in a
world in which military aggressors such as Russia and Israel were wantonly
violating international law with impunity; E.U. and U.S. jurisprudence, which
is not international, and the corresponding duties at both federal and state
levels of government, is not as self-evidently strong as Europeans and
Americans may have been assuming in as invasions and genocides elsewhere were
going on with impunity internationally.
On a visit to Florida at the time, I was shocked at the extent of brazen refusals by police employees of at least two cities to enforce criminal law—some employees even denying the existence of whole statutes, and the subordinates’ respective managers refused to hold those employees accountable. I was so stunned by the sheer brazenness of the lies that I decided not to move to that U.S. state. The rule of law cannot be assumed as though it castigates sordid personal discretion automatically; rather, law depends on humans to enforce it with integrity. This is why the international “laws” that Putin and Netanyahu were able to violate with such violence for years may not even count as law, for the enforcement-mechanism was entirely lacking de jure et de facto. “Law” without this cannot be counted as law.
The obligation of government officials to recognize and enforce rather than deny the very existence statutory law should be a given. It follows that federal officials in the Commission should not have been permitted to ignore the relevant federal law when it became an obstacle to making political deals with Hungarian state officials. If getting those state officials on board with a political priority of the Commission was so important, then the Commission could alternatively have pressured the states to reduce or end outright the application of the principle of unanimity in the two federal councils that represent state officials directly at the federal level, at least with respect to foreign policy and defense and even on the matter of “enlargement” (i.e., annexing future states). If qualified-majority is too low, then perhaps 75% of the states could be used as a benchmark for such very important policy decisions. The QMV-unanimity distinction is a false dichotomy, given the daylight available between the two voting methods. If one state can hold an entire Union back, then something is wrong with that federal system, and violating federal law to get around that problem is at best a short-sighted, expedient solution. In other words, the E.U.’s federal system has been suffering, at least as of 2026, from a much more serious problem than (collusive) corruption in the Commission and the Hungarian government.
2. Ibid.
3. Ibid.
4. Ibid.
5. Ibid.
6. Ibid.
