The EU needs fixing, no magic wands
Last week the Council decided to freeze the Russian assets held in Europe indefinitely. Thus far the freeze had to be reconfirmed every six months with a unanimous vote of the twenty-seven member states. The two pro-Russian governments in Hungary and Slovakia would obstruct such decisions each time. So the Commission found a trick: activating Article 122 of the Treaty on the Functioning of the Union. This article, meant for economic emergency situations, requires only a qualified majority.
The decision was met with much jubilation around Europe, as a sign that the European Union is alive and kicking, and willing to act with determination when necessary. But the use of Article 122 may be opening a can of worms that will be hard to close.
Don’t get me wrong, I too am happy with the decision. Europe has to do whatever it takes to assist Ukraine, and so far it has not done nearly enough. The dithering and dallying since February 2022 has been an absolute disgrace, so this step is a welcome political signal. Moreover, as Trump had in mind to grab part of them as part of his “peace deal” for Ukraine, it was necessary to keep it out of reach of his greedy little hands. So all in all there were very good reasons to decide to secure the long-term freezing of the Russian assets.
But we should be careful what we wish for, frivolous use of Article 122 comes at a price. When the clock strikes midnight, Cinderella’s carriage will turn into a pumpkin again.
Article 122 is meant for exceptional circumstances. However, in recent years it has been used a number of times, with a view to speedy decision making. It escapes democratic scrutiny by the European Parliament as well as national parliaments. Judicial scrutiny is hardly effective, as court cases may drag out for many years. Article 122 gives more power to national governments, while reducing checks and balances. It is the EU equivalent of governing by decree. Europe is on a slippery slope, quietly but steadily departing from regular democratic and transparent decision making procedures. Excessive and improper use of Article 122, fast-tracking legislation via Omnibus packages, ignoring ECJ and ECHR rulings, and gutting the transparency rules is rapidly eroding democracy.
Article 122 is not a general emergency clause, a multi-purpose tool to be randomly applied in difficult situations. Europe’s invocation of the article is very similar to Trump’s invocation of the US International Emergency Economic Powers Act (IEEPA) for his trade tariffs, which is widely considered unconstitutional and facing several legal challenges. There is a considerable risk last week’s decision will be struck down by the European Court of Justice. True, that may take a number of years, just the time needed to help Ukraine survive. But it is not a lasting solution.
The real problem is structural: intergovernmental Europe, ruled increasingly by an unaccountable European Council, bogged down by unanimity. Everyone likes to blame Viktor Orbàn for obstructing, but he is merely the canary in the coal mine. The system built on unanimity is the real problem. Article 122 is no magic wand to bypass that obstacle. But while Commission and national governments feverishly seek ad hoc solutions, they are ominously silent about the need for structural change. So we keep trying to fix a broken leg by sticking bandages on it. The EU has become ungovernable and it will get worse with EU enlargement. (to be clear: no, the solution does not lie in endlessly delaying enlargement, but in - finally - fixing EU governance). Article 122 cannot become an escape clause, the new normal in EU decision making.
The first step must be to abolish all vetoes. If government leaders are serious about their commitment to Europe, this is their chance to prove it. If Orbàn and Fico are really the only problem, there is nothing preventing the other twenty-five to jointly declare they will work to abolish all vetoes as soon as Orbàn and Fico have been voted out of office. As the next step they can start preparing Treaty change as well, for a full democratisation of the European Union. Initiating the process would be a sign that they want a functional and democratic Union. Time for our political leaders to show their colours.
Superb analysis of the Article 122 paradox. The bandage-on-a-broken-leg analogy is spot on because it captures how temporary fixes create precedent creep that eventually becomes the new normal. I actually watched a similar dynamic play out in my own country's legislative process where emergency powers kept extending until nobody rememberd what non-emergency looked like anymore. The real test is whether the 25 governments actually follow through on the veto abolition pledge, or if its just another aspirational statement. Until member states pay a tangible cost for obstruction, why would behavior change?
With a manifesto the President of the Commission should be directly elected by European citizens, giving this position the liberty to form a team of its choice and size and thus having a mandate to speak to the world without hiccups.
Adapting to the European reality, the EU needs to mimic the American political architecture, we are building up our military strength with hurdles on the way, to act as one we need unity of command, be it military be it in foreign policy.
The journey towards a federal status must be abbreviated, take the quasi out of the quasi-federal union we are at this moment.