Membership of the EU in an era of geopolitical disorder

1. Introduction

This article explores what it means to be a Member State of the EU during a period of increasing geopolitical disorder, fomented by ‘great power’ unilateralism as practised by the likes of Putin and Trump. Section 2 recalls that, although the EU must adapt to a host of new strategic challenges, it is obliged to do so within the peculiar framework established by its own constitutional system. In that regard, the EU suffers from particular vulnerabilities created by certain types of Member State conduct. To help analyse those vulnerabilities in more detail, Section 3 recalls the fundamental principles underpinning the legal framework of membership obligations – especially what it will refer to as structural or relational principles generated from the EU’s common values, as well as the concepts of sincere cooperation, mutual trust and solidarity. Against that background, Sections 4 and 5 examine two core problems: first, unilateral national action that, though prima facie lawful under the treaties, nevertheless disrupts and fragments efforts to secure more collective interests and responses; and secondly, deliberate attempts by the self-proclaimed leaders of so-called ‘illiberal democracy’ to undermine, from within, the EU’s own values, interests, unity and effectiveness. Section 6 considers how far EU membership obligations could further evolve, so as to limit the constitutional space in which it is still regarded as acceptable for the Member States to exercise an unabashed or indeed brute form of national sovereignty – focusing for that purpose on the sensitive question of using EU law to interrogate national voting choices within the Council. Section 7 summarises the conclusions: even in the absence of formal Treaty reform, there is scope for redefining membership expectations in response to more challenging geopolitical conditions; but we should be wary of seeking legal solutions to what are essentially political problems, particularly in ways that might risk upsetting the delicate constitutional balance created by the treaties.

2. Reconciling the ‘Geopolitical Union’ with the ‘Constitutional Union’

For nearly two decades, the EU has experienced what is generally regarded as an especially difficult period of multiple (parallel and successive) crises – indeed, nothing less than a ‘cluster crisis’.^[1] In each case, the EU responded with a variety of initiatives designed to address the relevant challenges or at least mitigate their most serious effects.^[2] But alongside those essentially reactive, ad hoc attempts to find immediate, workable solutions to urgent, disparate problems, the cluster crisis has also stimulated calls for a deeper reflection upon and reimagining of the EU’s fundamental nature and essential vocation. After years of appearing like the passive, hapless victim of difficult circumstances largely beyond its own making or control, there is a strong sense that the EU should assert itself more proactively and affirmatively within and over its political, economic and social environment.^[3]

A. Geopolitical concerns in EU law and EU legal studies

That task has been given added impetus by Trump’s re-election as President of the USA – with his regime swiftly joining the wider assault fronted by Russia against the postwar international system, not least by deliberately undermining the critical pillar provided by the transatlantic relationship with Europe. The new world disorder of Putin and Trump revels in the emasculation of multilateral institutions, the assertion of great power unilateralism, and the normalisation of transactionalism, bullying and (as the continued suffering of Ukraine amply demonstrates) even outright military aggression. But in addition, the EU – with its liberal social market democracy, and still enough will and weight to defend it – has emerged as the prime ideological enemy of the global authoritarian right.^[4] In terms entirely reminiscent of the UK’s own Brexit-era populist discourse, but now to be regarded with far greater gravity and menace, the EU is an organisation that should be marginalised and humiliated, weakened and destabilised, if not altogether undermined and dismantled.^[5]

In the face of such hostility, the fear is that Europe will cease to be master of its own destiny. The urgent need is that the EU acquires the capacity to defend itself – literally as well as politically, economically, socially and culturally. All of which naturally explains the current preoccupation – among both Union policymakers and EU scholars – with geopolitics.^[6] Indeed, the nature and scale of the threat posed by the likes of Putin and Trump, and of the concomitant challenges facing the EU, has perhaps generated a sense that we are experiencing an epochal change in both the context and the dynamic of European integration, with potentially transformative effects across virtually every major facet of EU activity.^[7] Like many of my colleagues, I am striving to understand and define the major changes now taking place in Europe and to develop an appropriate framework for their effective legal analysis and critique.

One such framework could be provided by the term ‘Geopolitical Union’. That phrase was first introduced into the EU’s mainstream political discourse during the 2019–2024 tenure of the von der Leyen Commission, and has since become both popularised and generalised, even if its precise meaning and implications are usually less articulated and explored.^[8] After all, the EU has always been considered a major geopolitical actor; its policies and activities have always been shaped by strategic concerns and ambitions. So what is it that makes the new ‘Geopolitical Union’ so different from past practice and experience?

At one level, the phrase ‘Geopolitical Union’ provides a politically convenient umbrella term that links together a series of major and identifiable EU policy initiatives, developed specifically in response to the new era of global instability. One thinks here of ‘open strategic autonomy’, particularly as practised in the field of EU external relations;^[9] of ‘resilience’, especially in the rapid evolution of internal market law and policy;^[10] of the ‘Security Union’, with a particular emphasis on issues such as terrorism and organised crime;^[11] and of the ‘Defence Union’, which obviously concerns the urgent augmentation of Europe’s military and defence capabilities.^[12]

But at another level, it is possible to identify certain common themes and practices, emerging across those major policy initiatives, though also in other fields of EU activity, that could help better to define the nature and thrust of the ‘Geopolitical Union’. To begin with, the primary motivation of the Geopolitical Union is to respond to an increasingly unstable, even antagonistic or hostile, global environment; its main objective is to better equip the EU to defend its values and promote its interests within that changed geopolitical context. In order to do so, the EU must identify and address certain key vulnerabilities: for example, reducing undue exposure to external dependencies (whether as regards strategically important materials and assets, or as regards fundamental public functions such as defence and security) by building more autonomous European capabilities as well as diversifying sources of supply and arenas of cooperation with (likeminded or at least more reliable) third countries. On the external plane, there is a clear emphasis on the importance and indeed legitimacy of recourse to unilateral EU action, together with a more strategic approach to multilateral engagement with third countries and partners. On the internal plane, there is an equally marked focus on developing a more integrated and strategically informed approach to EU policymaking – creating and exploiting the necessary links between and across otherwise disparate activity fields and legal competences. Just as importantly, there is a strong accent on building closer dialogue and alignment between external and internal EU policymaking – something to which the Lisbon Treaty reforms openly aspired but which it had not yet managed to deliver.^[13] Across the Geopolitical Union, there is a discernible trend towards governance techniques that emphasise the importance of improved intelligence gathering, the need for greater preparation against future challenges, and the goal of enhanced coordination across key Union and Member State stakeholders; together with a fuller and more flexible understanding of the EU’s toolbox of legal instruments, stretching far beyond traditional forms of harmonisation or regulation, to encompass also (for example) the creation of new EU budgetary resources or the shepherded mobilisation of public and private investment.^[14]

Pitched at such a high level of abstraction, that might sound like a convincing blueprint for success. But it should come as no great surprise that the reality of EU action sometimes falls (well) short of such lofty aspirations. Consider, for example: the alleged gap between ambition and delivery when it comes to the EU’s plans for securing greater autonomy in the supply of economically and strategically crucial raw and / or manufactured materials;^[15] criticism that the EU’s response to Trump’s blundering and chaotic but still aggressive and disruptive approach to international trade relations was insufficiently self-confident and robust;^[16] or alarm that the EU might be willing to dilute its own commitment to high standards of digital regulation or environmental action in the face of demands or pressure from the US regime and its corporate backers.^[17] Yet for all its challenges and shortcomings, the very idea and vision of a more Geopolitical Union has nevertheless stimulated forces and processes whose logic and demands have potentially far-reaching implications for the EU legal system (as well as for the EU’s partners and interlocutors across the globe).^[18]

B. A host of new questions – including for EU membership

When it comes to interrogating those implications, the natural point of departure for legal scholars lies in the fundamental characteristics of the Union’s peculiar constitutional system: this is not a state or federation but an organisation endowed with a unique institutional framework, a particular system of attributed competences, and a complex network of legal relations, all underpinned by a body of shared core values – including democracy, the rule of law, and fundamental rights.^[19] So while the EU must serve the interests of the Member States and its citizens by responding to the new world disorder,^[20] (on the one hand) it cannot do so by sinking into the mindset and practices of yet another ruthless and cynical geopolitical actor in its own right, and (on the other hand) nor can it rely on the full array of state powers, tools and resources available to its principal antagonists and avowed enemies. Instead, the EU’s mandate is to face up to the rise of global authoritarianism by reaffirming and reinforcing its own fundamental identity and values as a bastion of liberal democracy, using those competences and instruments that have actually been placed within its hands through the treaties. But while a values-inspired and rules-based legal system should impose certain limits upon the EU’s own geopolitical freedom of action, it can legitimately act also as a driver and enabler of change – prompting us to revisit and reimagine certain assumptions or approaches that tangibly inhibit the EU’s capacity to respond effectively to the new world disorder.

In other words: the Geopolitical Union must be reconciled with the Constitutional Union; that means reflecting upon how better to equip the EU with a palette of effective legal assets inspired by, fully consonant with, and in the service of its core values. Over the past few years, those are precisely the broad issues I have been exploring in more focused contexts through my own work: for example, critically reflecting upon how far our traditional approach to the system of attributed competences enables the EU to address increasingly complex and urgent challenges through the adoption of multifaceted policy packages;^[21] or investigating the deeper constitutional underpinnings and potential legal implications of the EU’s ‘resilience agenda’ designed to better equip the internal market to withstand future crises and weather geopolitical instability.^[22] In this article, I hope to continue pursuing the same overall inquiry but in a different arena: what does it mean to be a Member State of the EU in an era of geopolitical instability, when it comes to the legal framework of membership obligations created by and under the treaties? In that context, we will focus on two major problems confronting the Constitutional Union.

First, there is the problem of unilateralism by and fragmentation between the Member States. Time and again over the past two decades, the EU has had to face a simple reality: when crisis strikes, the instinctive reaction of certain Member States can be to act alone and in pursuit of their own national interests. Sometimes such unilateral action runs directly contrary to binding substantive provisions of Union law: for example, where a Member State responds to a health emergency by imposing unjustified protectionist restrictions on the free movement of goods, those restrictions can be treated as incompatible with Articles 34 and 36 of the Treaty on the Functioning of the European Union (TFEU). But in many other situations, there is no such evident incompatibility between the Member State’s unilateral action and its binding substantive Treaty obligations. For example, the relevant conduct might fall outside the scope of Union law stricto sensu; or it might be objectively justified through a derogation provided for under primary or secondary EU law. But even if not unlawful as such, unilateral Member State action can still have considerable adverse implications for the Geopolitical Union’s capacity to defend its values and promote its interests: it can complicate the forging of a common voice that would project greater clarity and influence, while positively dissipating the power reserves that should otherwise be generated through collective action.

Secondly, there is the problem of increasingly confident and popular political movements across Europe that no longer subscribe to the Union’s own fundamental values, may even position themselves as the EU’s own internal ideological enemies, and indeed effectively promote the interests and political vision of their allies or sponsors among the global authoritarian right (hence the derogatory but hardly unfair epithet ‘Trojan Horse’).^[23] Where such political movements succeed in assuming power at the level of Member State governments, their potential to wreak havoc also within the institutional framework of the EU itself is exemplified by the behaviour of the Orbán regime in Hungary. The latter’s self-proclaimed leadership of the campaign to save Europe from the cosmopolitan and decadent EU, in favour of a fiercely nationalist and illiberal alternative, has led to a well-documented pattern of behaviours: from the practice of vetocracy within the European Council and the Council, either for the sake of some ideological principle or as a shamelessly self-serving tool of political blackmail; through the charade of lawfare before and against the Court of Justice of the European Union (CJEU), accompanied by the often conscious and flagrant defiance of binding substantive EU legal obligations; to the overt rejection of fundamental membership obligations, including the deliberate denial and negation of basic Union values under Article 2 of the Treaty on European Union (TEU) – to say nothing of the allegations published in October 2025, that Hungary has even directly engaged in espionage against the EU institutions.^[24] To be clear: the problem here is not with championing an alternative emphasis, direction or model for European cooperation within the broad spectrum of liberal social market democracy; this is about actively seeking the demise of the European Union as such, through the overt rejection of the latter’s fundamental constitutional identity and core operational principles,^[25] and its replacement with something that (whatever its advocates might then like to call it) would be different in nature and not merely in kind.^[26] Yet arguably almost as damaging as the behaviour of Orbán’s Hungary itself is the apparent failure of the EU as yet to provide any truly effective response: such a situation risks tarnishing the EU’s very constitutional identity as a rules-based legal order and undermining confidence in its willingness and ability to defend its own fundamental values.^[27]

The question is: what could and should be the role of EU law in responding to those twin problems? For those purposes, we will not engage in fantasy projects about primary Treaty reform that are frankly unlikely to see the light of day but instead work with the principles and tools available under the current constitutional framework. On that basis: how far should we treat those membership problems as essentially political challenges that require essentially political solutions, if indeed they are amenable to solutions at all? Or does our desire to marry the Geopolitical Union with the Constitutional Union suggest certain untapped legal possibilities that would enable more effective action in defence of the Union’s values?

3. The fundamental framework of membership obligations

To explore those questions, it is useful to begin by recalling the fundamental framework of membership obligations created by and under the treaties.

Accession to and withdrawal from the EU act as the sovereign bookends of membership. As the CJEU observed in Wightman, Article 49 TEU and Article 50 TEU are counterpart provisions: just as accession represents a free and voluntary decision by a sovereign state to join the EU, so withdrawal constitutes another free and voluntary decision to leave.^[28] But in between those sovereign bookends, membership has its own highly distinctive legal status and content as defined by Union law itself. There are various ways in which one might categorise the more detailed terms of membership: institutional versus substantive provisions; primary law versus secondary law sources; first order obligations (such as the directly effective free movement and non-discrimination rules) versus second order duties (triggered by acting within the scope of Union law, and consisting primarily of the general principles of Union law together with the Charter of Fundamental Rights) etc. For present purposes, however, the most important category of membership obligations are those often referred to as structural or relational principles,^[29] ie that define, in general or horizontal terms, the standards of conduct required or expected of Member States, in order to guarantee the essential operation or promote the smooth functioning of the EU legal system as such.^[30] And from among those structural or relational principles, when it comes to the challenges facing the Geopolitical Union, four concepts appear especially relevant for the legal guidelines and constraints that might operate upon Member State choices and behaviours.

In the first place, there is the longstanding duty of sincere cooperation now laid down in Article 4(3) TEU: ‘The Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.’ In particular, the Member States ‘shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union’ and ‘shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives’.^[31]

In many cases, sincere cooperation can effectively be equated with a duty upon the Member State to ensure substantive compliance with EU law within its territory: both in a negative sense, by refraining from unilateral measures directly incompatible with the treaties; and in a more positive sense, by adopting the measures necessary to fulfil the Member State’s EU law obligations.^[32] But Article 4(3) TEU is also capable of generating more far-reaching obligations of its own, over and above those created elsewhere under the treaties. For example, the duty of sincere cooperation furnishes an important part of the legal basis upon which the CJEU has constructed the entire system of decentralised enforcement of EU law before the national courts (including consistent interpretation, direct effect, primacy, and effective judicial protection).^[33] Yet the contribution of Article 4(3) TEU to the development of the EU legal system extends further still, encompassing an extensive caselaw exploring how far and in what ways the duty of sincere cooperation might influence individual Member State behaviours, simply because the latter are capable of impacting adversely upon the wider European interest. In most situations, that influence is primarily procedural: for example, in the field of EU external relations, the Court has sought to promote better coordination in the (often intermingled or indeed tangled) exercise of Union and Member State competences through the imposition of various duties of notification, consultation and coordination.^[34] But in some situations, sincere cooperation can also generate more substantive obligations: for example, obliging Member States to take appropriate action in respect of private conduct that disrupts the free movement of goods, even though such private measures cannot be attributed to the state and would not in themselves fall within the scope of Article 34 TFEU.^[35]

In the second place, there is a more recent body of caselaw exploring the legal relevance for the Member States of the common values laid down for the Union as a whole in Article 2 TEU. According to the CJEU, accession is not merely a free and voluntary sovereign choice to join the EU, but also a free and voluntary sovereign commitment to respect and uphold the common values laid down in Article 2 TEU. Indeed, the EU legal system is ‘based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that those Member States share with it, those same values’.^[36] Each Member State’s respect for the common values in Article 2 TEU is to be considered a continuing commitment and expectation of their own EU membership;^[37] moreover, compliance with such a fundamental membership obligation simply cannot be treated as contrary to the principle of respect for national identity under Article 4(2) TEU.^[38] For its part, the Union must be able to uphold and defend those same values, within the framework of the powers conferred upon it by the treaties.^[39]

However, compared to the venerable tradition of hard legal duties developed pursuant to Article 4(3) TEU, the appropriate legal implications to be drawn from the shared commitment to common values under Article 2 TEU are currently a matter of considerable judicial and scholarly debate.^[40] The CJEU has made clear that Article 2 TEU ‘is not merely a statement of policy guidelines or intentions, but contains values which … are an integral part of the very identity of the European Union as a common legal order’.^[41] In some situations, the potential legal force of Article 2 TEU is channelled through other more specific provisions of the treaties that give concrete expression to one of its common values: for example, in rulings such as Portuguese Judges or Commission v Poland, judicial independence is treated as a fundamental element of the rule of law, one of the common values referred to in Article 2 TEU, but fully justiciable and legally binding through the medium of Article 19 TEU.^[42] In other situations, Article 2 TEU feeds into the exercise of a Union competence to adopt secondary acts, thereby influencing the content of measures adopted under a valid legal basis provided elsewhere in the treaties: for example, legislation such as the European Media Freedom Act was adopted under Article 114 TFEU as an internal market measure, though its provisions are clearly informed by the Union’s core democratic values as set out in Article 2 TEU.^[43] Beyond that, it is clear that Article 2 TEU is not capable of acting, in and of itself, as a valid legal basis for the adoption of Union secondary action.^[44] However, it remains to be settled – starting, one assumes, with the pending dispute in Commission v Hungary – whether and how far the Court might accept that Article 2 TEU is capable of creating certain autonomous obligations for the Member States to respect the Union’s core values, in addition to or even independent from any more specific legal obligations imposed by or under the treaties.^[45]

The CJEU has elaborated other horizontal ideas or fundamental principles that seek to frame and inform the standards of comportment expected of Member States in their relations both with the Union institutions and inter se – but in contrast to the duty of sincere cooperation (and possibly also Article 2 TEU), those ideas / principles need actively to be operationalised through dedicated action provided for elsewhere under the treaties.

Thus, and in the third place, consider the concept of mutual trust – which the Court regards as a defining characteristic of EU membership,^[46] and treats as central to the creation and functioning of the ‘area without internal frontiers’, not least since the latter is constructed in large part from the mechanism of mutual recognition.^[47] For a considerable time, it has been recognised that mutual recognition (whether under the primary free movement rules since Cassis de Dijon,^[48] or through the adoption of secondary measures within the context of both the single market and the Area of Freedom, Security and Justice) presupposes mutual trust between the Member States.^[49] In some situations, the Union institutions recognise that the latter must be painstakingly built and maintained through a sophisticated legal framework of regulatory harmonisation, market management and extensive guarantees of compliance or enforcement.^[50] In other situations, Union law insists that mutual trust must effectively be assumed to exist, and therefore mutual recognition should be automatically respected, subject only to certain duly justified exceptions (whether explicitly laid out in the relevant Union legislation, or accepted and implied through the caselaw of the CJEU).^[51] But in all cases, mutual trust is treated as a concept that explains and underpins more concrete legal mechanisms, whether created under specific Treaty provisions or enacted through specific legislative regimes, rather than constituting a freestanding, fully fledged, legally enforceable principle in its own right.^[52]

Similarly, and in the fourth place, consider the concept of solidarity. Again, the vocabulary of solidarity has been around for a long time – whether in a more general policy sense, to describe the sort of mutual support that underpins various Union programmes ranging from agricultural aid to regional funds;^[53] or in a more specific legal sense (say) in cases such as Commission v UK (1979), where unilateral non-compliance with binding Union legislation is not merely treated as an infringement of the Member State’s Treaty obligations but also explicitly described as a failure of solidarity.^[54] However, the constitutional profile of solidarity was raised considerably by the CJEU in its OPAL judgment: solidarity is to be regarded as a fundamental principle of EU law, referred to and reflected in various more-detailed provisions of both the TEU and the TFEU but in fact underpinning the entire Union legal system.^[55] Nevertheless, in OPAL itself, the Court still focused on the specific manifestation and expression of solidarity to be found in Article 194 TFEU, ie solidarity as a common basis for the various objectives underpinning EU energy policy. Insofar as solidarity could be treated as a legally concrete, binding and enforceable principle, capable of providing the basis for judicial review of disputed Union measures, that happened here only through the vehicle of Article 194 TFEU. The latter allowed solidarity to act like the general principles of EU law – the latter being second order obligations of primary law status – but without being categorised or treated as a general principle of EU law in its own right.^[56] In other words, solidarity (as with mutual trust) is a fundamental principle that expresses its concrete legal effects though other more specific provisions of Union law.^[57]

All that said, legal interest in this particular collection of structural or relational principles – sincere cooperation, common values, mutual trust and solidarity – is not limited to the development of each concept taken individually. It extends also to the expectations or duties that might emerge from their combined interactions. In many cases, such interactions are expressed by the Court in a relatively linear manner, aimed essentially at reinforcing the standard expectation of compliance with one’s prevailing Treaty obligations: for example, the common values in Article 2 TEU justify and imply the premiss of mutual trust between the Member States as regards compliance with EU law;^[58] that premiss of mutual trust in turn justifies and implies the duty of each Member State to ensure adherence to the relevant Union rules in accordance with Article 4(3) TEU.^[59] But in some cases, the relationship between cooperation, values, trust and solidarity appears to assume a more cumulative and indeed generative form – thereby giving rise to novel legal consequences that are distinct from and additional to the expectations that would otherwise exist as such under Union law. For example, the Court in its OPAL judgment stressed the close relationship that exists between the principles of solidarity and sincere cooperation – and illustrated how the latter could be used to concretise and operationalise the former, through the identification of various specific duties upon the Union institutions (for example) to proactively identify, consider and balance the competing interests at stake in energy security decisions.^[60]

Obviously, it is that generative relationship – hinging especially upon the capacity of Article 4(3) TEU to furnish a direct legal basis for the creation of binding (procedural or substantive) duties upon the Member States, aimed at operationalising fundamental concepts such as values, trust and solidarity that would otherwise be treated (wholly or largely) as legally contingent – which is of special interest to us. How far might the ongoing descent into global disorder prompt the EU in general, and the Court in particular, to cultivate those structural or relational principles more intensively than before, so as to help address the twin membership challenges currently facing the Geopolitical Union?

4. As regards fragmentation through lawful yet disruptive behaviour

When it comes to managing the phenomenon of lawful yet disruptive Member State conduct, there is a strong argument in principle, backed up by considerable evidence from practice, that the EU’s emphasis should lie on using structural / relational principles such as cooperation, trust and solidarity as a carrot rather than as a stick, ie as a tool of socialisation rather than vilification. In particular, effectively tackling unilateralism and fragmentation both requires and justifies a reinforced palette of membership obligations – conceived not as heavy external constraints imposed upon national freedom of action but as a dynamic governance technique designed to channel Member State behaviours and reshape domestic mindsets, so that they tend naturally to align better with the Union’s collective interests when faced with heightened geopolitical pressures.

After all, there are obvious and sound constitutional limits to how far general EU law principles of a structural / relational nature can or should be invoked as a legal basis for converting perfectly lawful albeit disruptive national conduct, undertaken in the prima facie legitimate exercise of Member State competence, into behaviours that are to be considered incompatible with the treaties simply because they are inconvenient or unhelpful. Instead, the immediate goal should be to reduce the risks of unilateralism and fragmentation, by dissuading the Member States from acting effectively as policy isolationists – reminding them that their actions also impact upon their closest partners, and those impacts should also (quite rightly, and as a matter of routine) be factored into the national decision-making equation. In the longer term, the hope is that such routines will gradually be assimilated into the mindsets of each Member State’s competent policy actors and the ordinary unfolding of their established decision-making processes: apparently unilateral action should, of its own accord, incorporate sensitivity towards the collective interest and indeed awareness of the potential benefits of greater Union-level coordination.

Of course, the idea of structural / relational membership obligations acting as a dynamic, process-based tool for steering Member State behaviours along a more communautaire pathway is far from new: Union law has already been doing just that, modestly yet tangibly, for several decades and across multiple fields, often through procedural duties of notification, consultation and coordination founded upon or inspired by the principle of sincere cooperation under Article 4(3) TEU.^[61] But it is arguable that the unrelenting challenges posed by the cluster crisis and Putin–Trump’s new world disorder have stimulated a more conscious and systematic approach to the management of unilateralism and fragmentation – in which (politically) the capacity of a more united Union to defend its common values and promote its shared interests is directly contrasted with the risk that an uncoordinated and divided Europe is weaker and more vulnerable; and (legally) the principle of sincere cooperation is explicitly associated with the concepts of mutual trust and solidarity, under conditions of geopolitical pressure, so as to legitimise, broaden and deepen expectations as regards both action and restraint by the Member States.

A. Political and legislative responses

The most high profile examples of this development have occurred at the political level, especially through the European Council. Take Brexit by way of illustration. In theory, the imperative of reaching an agreement with the UK so as to avoid a disorderly and damaging departure had to be balanced against the considerable risk that no such deal would be reached at the EU level, in turn creating a strong incentive for individual Member States to seek to protect their particular interests (if necessary) through purely bilateral deals with the UK. In practice, and acting with a speed and resolve many commentators found surprising, the European Council declared:

The Union will approach the negotiations with unified positions, and will engage with the United Kingdom exclusively through the channels set out in [its April 2017 Brexit] guidelines … So as not to undercut the position of the Union, there will be no separate negotiations between individual Member States and the United Kingdom on matters pertaining to the withdrawal of the United Kingdom from the Union.^[62]

That position was maintained throughout the entire Article 50 TEU process. But more than that: even particularly fraught issues ostensibly affecting only a single Member State – primarily in relation to Ireland when it came to protecting the Good Friday Agreement, but also Spain as regards the status of Gibraltar, each with the potential to derail the entire negotiations and risk a ‘no deal Brexit’ – made no appreciable dent in the EU’s firmly collective approach to the UK. If anything, protecting Ireland’s fundamental interests emerged as a totemic ‘all for one and one for all’ symbol of European solidarity in the midst of a major geopolitical challenge: with the EU behind it, Ireland’s negotiating position was amplified beyond anything it could have dreamt of acting alone; for the Union’s part, fulfilling the essentially political commitment to maintain a unified front allowed it to dominate the Article 50 TEU negotiations from start to finish.^[63]

The broad lessons of Brexit have since become a familiar part of the EU’s political vocabulary: faced with a crisis, unity of purpose among the Member States is undoubtedly a geopolitical strength; that entails restraint in adopting purely unilateral responses (even if they might be faster and more targeted) in favour of pursuing more collective action (including both its economies and its magnifications of scale). Of course, political vocabulary does not always or fully capture empirical reality. The initial phases of the Covid-19 pandemic witnessed their fair share of Member State unilateralism and fragmentation.^[64] More recently, when it comes to negotiations over sanctions against Russia, or about how best to respond to Putin’s regular security incursions, commentators have expressed their frustration at the apparent determination of certain Member States to prioritise the pursuit of parochialist interests or to indulge in diplomatic horse-trading.^[65] But even in those moments of regression, we can perhaps now discern an important difference: such individualistic national conduct is no longer regarded as a natural if regrettable state of affairs legitimised by the sacrosanct concept of state sovereignty, but is increasingly regarded as a concrete failure of cooperation between members of a Union built upon mutual trust and solidarity. Our political vocabulary cannot control the facts, but it can certainly shape how we interpret and evaluate them.

And from there, also how we respond to them. The European Council’s success at reframing tensions between the compelling political benefits of European unity (on the one hand) and a persistent empirical experience of unilateralism / fragmentation (on the other hand) has helped pave the way for various more concrete legal interventions by the Union legislature aimed precisely at tackling the issue of lawful yet disruptive national conduct. In particular, the Union legislature has adopted a series of measures containing more detailed, legally binding obligations that give concrete expression to the principle of sincere cooperation, reinforced and enriched by the concepts of mutual trust and solidarity.^[66] Consider, for example, major instruments adopted under the resilience programme aimed at bolstering the internal market’s capacity to respond to future crises in fields such as critical entities, critical minerals and semiconductors.^[67] Several common themes emerge from such legislation: for example, a strong emphasis on establishing bodies and instigating procedures designed to ensure that the Union institutions and the Member States collectively engage in regular information sharing, dialogue and coordination, alongside mechanisms to intensify such contacts and engagement in the event of imminent or actual crisis conditions, to the extent that one might even query what room remains for truly ‘unilateral’ national measures at all.^[68] The flagship ‘Internal Market Emergency and Resilience Act’ Regulation 2024/2747 goes even further, by including an obligation to abstain from adopting certain domestic measures that are to be considered especially disruptive to the smooth functioning of the internal market, even though such measures might otherwise have been perfectly lawful under the treaties and adopted with all due notification and consultation.^[69]

B. The potential judicial contribution

In important respects, both the contemporary political vocabulary around and the ongoing legislative concretisation of sincere cooperation owes a considerable debt to the CJEU’s historical caselaw under Article 4(3) TEU.^[70] For its part, the Court has so far said little explicit about the specific challenge posed by lawful yet disruptive Member State behaviour, viewed through the particular lens of the current adverse geopolitical context facing the Union. How might that judicial contribution change?

The most obvious path for the Court to take would be to treat the essentially sectoral interventions of the Union legislature as the source of inspiration for more far-reaching judicial initiatives. In particular, there is nothing to stop the Court reading Article 4(3) TEU – especially in combination with the concepts of mutual trust and solidarity – as the legal basis for more generalised procedural duties of restraint, notification and consultation, ie as regards the exercise of national competence even in fields not already subject to specific Union regulation. Such a development could significantly help in reducing the disruptive forces of unilateralism and fragmentation – but it would also and quite naturally raise some important questions about its scope and strength. For example, should enhanced duties of sincere cooperation be imposed only in particular circumstances: say, under objective conditions of imminent or actual crisis, and / or as regards matters to be considered of significant geopolitical concern, and / or where the matter is already the subject of ongoing discussion within the European Council?^[71] Or again, what would enhanced duties of sincere cooperation look like, when it comes to the conduct expected of Member States? They might be essentially passive obligations, to respond only to explicit objections or concerns; or include certain more proactive duties, to consider the interests of or impacts upon one’s partners; or maybe even more far-reaching requirements, to balance those objections / concerns / interests / impacts against purely domestic calculations; perhaps going so far as to rule out certain courses of action that would otherwise be considered lawful – thereby expanding upon the important precedent already set by the Internal Market Emergency and Resilience Act. The latter option would obviously mark a crossing from purely procedural to more substantive restrictions on national competence – a question to which we will return in the next section.

In any event, there is a good case for arguing – given the emphasis on socialisation through carrots rather than vilification through sticks – that the Court’s most valuable potential contribution here could lie simply in providing a firmer constitutional foundation and more persuasive vocabulary for the political rhetoric and legislative framing already being developed by the other Union institutions. In that regard, one might usefully think back to the Court’s formative caselaw concerning the scope for autonomous national action in fields governed by exclusive Union competence.^[72] As established in Commission v UK (preservation of marine biological resources): where there is an urgent threat to the public interest, but the Union institutions have neither adopted the necessary measures to address it nor explicitly authorised the Member States to do so, it is possible to invoke the legal fiction of an implicit Union licence for the adoption of appropriate domestic measures. However, a Member State is not free to act as it pleases and, rather as a ‘trustee of the common interest’, is bound by obligations of sincere cooperation towards the Union institutions and the other Member States.^[73] Setting aside the technical particularities of that jurisprudence, not least its confinement to fields of exclusive Union competence, the broader language and image of the Member States as ‘trustees of the common interest’ is a potentially powerful one – summing up our changing conceptions and expectations of membership of the Constitutional Union faced with geopolitical disorder.

5. As regards Member States that reject core Union values

Let us move away from lawful yet disruptive behaviours that arise primarily from an insufficient degree of socialisation, and think now about those Member State governments that both deliberately reject EU values and consciously attempt to wreak havoc with its constitutional system. As I noted before, that shift of focus is one not merely of extent but of nature. And at least when it comes to the question of values, the outlines of the debate are already very well established and thoroughly explored in the academic literature.^[74] For better or worse, there is no direct power to expel any Member State from the Union.^[75] There is the possibility under Article 7 TEU of suspending certain membership rights (such as Council voting powers) on grounds of a serious and persistent breach of Article 2 TEU values, but the requirement of unanimity among the remaining Member States, perhaps expressing a misplaced assumption that there would only ever be ‘one delinquent at a time’,^[76] has rendered Article 7 TEU virtually redundant in practice. Soft law methods (such as the Commission’s regular rule-of-law reports, intended to act as a form of peer or public ‘naming and shaming’) appear to be of limited efficacy; if anything, such criticism from the ‘decadent metropolitan Brussels elite’ can be worn by populist leaders as a badge of pride and to bolster the victimhood narrative so central to their political messaging.^[77] The introduction of ‘rule of law conditionality’ in access to EU funding (for example, under the massive NextGenerationEU post-Covid recovery programme) might hurt more than harsh words – but experience has proven that even such financial pressure remains insufficient to either deter authoritarianism or repair liberal democracy.^[78] If the instruments available to deal with the rejection of core values are of limited efficacy, they are still more evolved than those that respond to deliberate wrecking tactics – where the main tools at the disposal of the Union institutions and other Member States often appear limited to appeasing political blackmail or finding suboptimal workarounds.^[79]

Against that familiar background, we will now ask how far the EU’s powers of response might be enhanced through a reimagining of the membership obligations inherent in the Geopolitical-Constitutional Union: starting in this section with some basic expectations around values and trust; then moving on in the next section to think more specifically about how to address institutional wrecking tactics. This time, the emphasis is very firmly on sticks, not carrots: how far might the behaviour of a Trojan Horse be converted directly into unlawful conduct, condemned as legally (not merely politically) incompatible with the status of being a Member State? And not just through procedural duties aimed at promoting greater socialisation, but through substantive obligations that interrogate the relevant conduct on its (de)merits?

A. Enhancing the legal effects of Article 2 TEU

In answering those questions, attention naturally focuses on Article 2 TEU: in an era of rising authoritarianism and geopolitical disorder, if the EU wants to defend its identity and interests as a values-driven and rules-based constitutional order, it needs to become (and also be seen to be) more effective at holding its own delinquent Member States to account. As discussed above, the values in Article 2 TEU are not merely aspirational, though they are not (yet) to be treated as fully autonomous, so that Article 2 TEU is usually operationalised by proxy. But there is absolutely no reason in principle why the Union’s core values as laid down in Article 2 TEU should not also be treated as binding per se – subject to two conditions. First, and in order to respect the fundamental principle of attribution,^[80] there needs to be a tangible connection between the disputed conduct (on the one hand) and the Union legal system (on the other hand). That requirement could be fulfilled by insisting that the relevant situation falls within the scope of the treaties by virtue of being triggered by the first order application and operation of other EU law provisions: the Member State is either implementing Union law, or derogating from its Treaty obligations, or otherwise acting within a framework created by EU law itself.^[81] In effect, Article 2 TEU could thus be treated as a body of second order obligations akin to and in the same well-established manner as the general principles of Union law and the Charter of Fundamental Rights.^[82] Secondly, and in order to respect the basic constitutional requirements of justiciability and legal certainty, the material content of the relevant values contained in Article 2 TEU needs to be capable of a sufficiently clear and precise degree of definition, reached through standard tools and methods of judicial interpretation, appropriate to the nature and extent of the legal effects envisaged by the relevant procedure. As the Court has demonstrated through its caselaw concerning Article 19 TEU, even apparently abstract and contestable concepts such as the ‘rule of law’ can still be concretised into baseline standards addressing specific expectations such as the independence and impartiality of the judiciary.^[83]

It is precisely along those lines that Advocate General Ćapeta in Commission v Hungary has proposed that, in the context of infringement proceedings under Article 258 TFEU, Article 2 TEU should indeed be capable of providing an autonomous basis for finding that a Member State has failed to fulfil its membership obligations: first, assuming that the situation falls within the scope of Union law; and secondly, provided the infringement crosses a threshold of sufficient seriousness by effectively ‘negating’ one of the core values contained in Article 2 TEU.^[84] That proposal is novel, but not radical: it is firmly grounded in the constitutional basics of the EU legal system.

Of course, Commission v Hungary still raises other interesting questions. To begin with, the Advocate General explicitly left open the question of whether Article 2 TEU might create binding obligations even as regards matters falling outside the scope of the treaties. If we understand the latter concept in its traditional, technical and relatively specific sense (essentially: implementing or derogating), then there is indeed room to look for a different and potentially broader type of trigger linking the Member State’s conduct to the Union legal order: for example, along the lines of the ‘fields covered by Union law’ as used in Article 19 TEU.^[85] But insofar as the Advocate General was alluding to the possibility of Article 2 TEU applying to situations that have no activating link whatsoever to the EU legal system, surely that possibility would indeed fall foul of our normal constitutional expectations founded upon the system of attributed competences. In the next place, one might seek explicitly to confirm that the relevant activating link (whether within the scope of the treaties, or within the fields covered by Union law, or according to some other as-yet-to-be-determined formulation) is sufficient in itself to trigger the application of Article 2 TEU, without also presupposing or requiring that the Member State’s conduct is incompatible with the relevant first order triggering provision. Otherwise, the Article 2 TEU values and / or a doctrine such as negation would effectively be reduced to a form of ‘aggravated breach’ rather than a truly autonomous means of enhancing membership obligations. Finally, the Advocate General also consciously limited her analysis to the justiciability of Article 2 TEU for the purpose of Commission infringement proceedings, without expressing any view on whether or not Union values and / or the doctrine of negation should also be capable of producing legal effects within the national legal systems. The CJEU is no stranger to drawing such distinctions, between the extent of the obligations incumbent upon the Member States within the context of centralised enforcement versus the degree to which those same obligations might produce independent legal effects also before the domestic courts.^[86] But assuming that a given value, or at least one of its identifiable components, is capable of meeting the standard justiciability threshold of clarity and precision, there should be no obstacle to that provision also having direct effect and thence enjoying primacy also within the Member State legal systems. To conclude otherwise would ultimately be a decision motivated by judicial policy rather than founded upon legal logic.

B. A more robust approach to cooperation, trust and solidarity

In any case, we know that Article 2 TEU is not the only element within the wider body of structural or relational principles capable of generating more sophisticated membership obligations. As before, the duty of sincere cooperation provides an important vehicle through which EU values – not just Article 2 TEU but also concepts such as mutual trust and solidarity – can be given concrete, binding legal expression, including through substantive as well as merely procedural duties. And it is at this point in the analysis that one should highlight the major ruling in Commission v Malta (Golden Passports) – in which the CJEU found that, by operating a scheme for commercialised access to national and therefore EU citizenship, Malta had infringed its Treaty obligations.^[87] In particular, although the Member States have primary competence over the conditions for conferring nationality, that power is not unlimited. In complex reasoning that variously drew upon the duty of sincere cooperation, core Union values under Article 2 TEU, the principle of mutual trust, and multiple manifestations of solidarity, the Court found that an essentially transactional process for acquiring state nationality amounts to a breach of Article 4(3) TEU read together with the foundational provisions on Union citizenship contained in Article 20 TFEU.

The ruling in Commission v Malta has attracted considerable academic controversy.^[88] But the importance of the judgment is not limited to the specifics of Malta’s golden passports, or even to the prospects for scrutinising other Member State schemes for granting nationality. Indeed, perhaps the most interesting implications to be drawn from the ruling do not concern Union citizenship at all. The real significance of Commission v Malta lies rather in the Court’s condemnation of a Member State’s unilateral attempt to reduce its Union membership to a merely transactional relationship, divorced from any deeper sense of common values or any wider commitment to shared interests.^[89] Such criticisms had previously been levelled against Malta by various Union institutions and other Member States, but through the medium of the Court, those essentially political concerns were transformed into concrete legal objections based upon binding primary law obligations – founded upon the duty of sincere cooperation under Article 4(3) TEU, though drawing upon a wider armoury of structural / relational principles. What is more, scrutiny of the Member State’s conduct as a matter of Union law was not limited to procedural questions such as prior notification or adequate consultation; the Court’s attention was focused squarely on whether Malta’s substantive policy choices and actions were compatible with its basic membership obligations.

For those reasons, Commission v Malta is a judgment with a powerful message, full of future potential: being a Member State of the European Union means something more than respecting a corpus of black letter obligations (let alone picking and choosing which duties to uphold, neglect or ignore); it also entails the commitment to protect and advance certain collective values and interests, including basic precepts of trust and solidarity with one’s partners; and to do so not just through the work of the common institutions, but equally in the formulation and execution of one’s own national policies and practices.^[90] If you cross that line – however nebulous it might for now appear, given that the caselaw remains in its infancy – your conduct will be treated as incompatible with the obligations of Union membership.

However, it would be naïve to think that a more creative and expansive approach to certain structural / relational principles of Union constitutional law might provide an effective solution, where so many other legal and political initiatives have tried and failed, to the problems posed by Trojan Horses, ie might actually succeed in changing their behaviours, let alone their attitudes and outlook. After all, one of the historical as well as contemporary lessons arguably hardest learnt in the struggles between liberal democracy and authoritarian extremism is that it is difficult to win against an opponent who not only refuses to play by your rules but is actively seeking to destroy them. Rather, my argument is that there is real value in expanding and strengthening the means by which the Union institutions (and the other Member States) can express, not merely in political but also in hard constitutional terms, just how outrageous and unacceptable certain behaviours really are. To reject the core tenets of liberal democracy as expressed in Article 2 TEU or to actively undermine basic precepts of cooperation, trust and solidarity upon which the entire system depends – those are explicitly and bluntly and legally incompatible with membership of the European Union.

Real value, in what manner, and to what end? In bolstering the integrity and confidence of liberal democracy to defend its own interests on its own terms. Perhaps by following the ‘de facto expulsion’ strategy proposed elsewhere by Christophe Hillion and myself: publicly announce that, by pursuing a pattern of behaviour fundamentally incompatible with continued membership, the relevant state has effectively indicated its desire to leave the European Union;^[91] its disappointed but determined partners now await formal notification of that intention to withdraw in accordance with the procedure set out in Article 50 TEU; in the meantime, the Union institutions and the other Member States are entitled already to begin making the necessary logistical and administrative preparations.^[92] After all, that is effectively what happened in the case of the UK, in the period between the (purely consultative) referendum in June 2016 and formal notification to the European Council in March 2017 – the actual decision to withdraw having been taken only in the meantime, in accordance with the UK’s proper constitutional requirements as clarified by the Supreme Court in the Miller judgment.^[93] By such means, the Union can help clarify to the relevant population that ‘membership on our own terms’ is in fact a false promise. To be a Member State means something more than taking certain benefits and ignoring other obligations. It entails behaviours and relationships built upon respect and solidarity, not on transactionalism or conflict; grounded in shared fundamental values that can be contested and defined but not simply rejected or negated. If the population is not willing to accept that, the relevant state must leave – and the remaining Union actors should actively facilitate that departure.

6. The limits of structural / relational principles: Questions of institutional participation

The final question is: how far might this process go, of deepening the definition of membership? This article has argued for the evolution of stronger procedural and substantive obligations upon the Member States, designed to address tangible weaknesses in the Constitutional Union’s capacity to respond effectively to geopolitical disorder. But we still need to respect the legitimate space for political discretion, contestation and decision within a system built upon representative democracy and a multi-level division of responsibilities – designed to accommodate and stimulate a particularly rich and multifaceted form of political pluralism, in which the individual Member States occupy a central and indeed indispensable position.^[94] And that implies certain limits to how far creative legal reasoning alone can provide viable solutions to the needs of the Geopolitical Union.

A good testing ground for those tensions concerns the issue of Member State institutional participation. Of course, the Union’s overall institutional framework is densely scaffolded by duties of sincere cooperation.^[95] However, individual Member State behaviour within the institutional framework is another question altogether. On the one hand, this is a realm where the Member States are not acting entirely unilaterally; in fact, nothing could be more ‘within the scope of the Treaties’. On the other hand, the Member States are nevertheless assumed to be acting as sovereign powers, entitled to formulate and defend their national interests as they see fit. And yet such action can have a direct and significant impact upon the wider Union’s ability to formulate and pursue effective responses to geopolitical threats. In extreme cases, where a given Member State uses its institutional prerogatives to frustrate, disrupt or undermine collective Union action, such an exercise of sovereignty could even be regarded as a form of deliberate sabotage. It is therefore natural to wonder: what might be the scope for challenging such behaviours, legally rather than politically, precisely by invoking the duty of sincere cooperation, together with the concepts of mutual trust and solidarity?

A. Introducing a procedural duty to explain the national veto in Council?

To explore those issues further, let us focus on the subject of Member State voting within the Council. As we know, the general rule under the treaties is that the Council acts by qualified majority vote (QMV).^[96] However, under those legal bases that retain a formal requirement of unanimity, there is no doubt that exercise of the national veto can lead to effective paralysis in Union legislation as well as for important fields of executive decision-making. What some see as an important safeguard for national sovereignty, others regard as an inherent institutional design flaw. Either way, each Member State’s voting choices in Council are generally regarded as a quintessentially political issue that falls outside the scope of judicial scrutiny or control through the CJEU,^[97] and for which they are answerable only to their national parliaments or electorates.^[98] It is true that the Court has found a limited scope for application of the duty of sincere cooperation to Member State conduct within the internal functioning of the Council: for example, through an obligation of mutual assistance when it comes to the exchange of relevant information between the Union institutions and the Member States during the legislative process.^[99] But the prerogative of casting the national vote has thus far remained untouched.^[100]

Do the challenges facing the Geopolitical Union mean that it is now time for the Constitutional Union to rethink its approach here, using the structural / relational principles of Union law to reshape the expectations of membership? Let’s set aside (though without belittling) important distinctions (say) between the Council’s legislative and non-legislative powers.^[101] Instead, it is useful to frame the issue of national vetoes from a series of different perspectives: as a systemic design feature; as an ad hoc obstacle to a given action; and as a deliberate wrecking strategy by a Trojan Horse.

The case for subjecting the Member State’s veto to scrutiny under the structural / relational principles of Union law feels weakest if we approach the Council’s voting rules as a systemic design choice – however flawed or inconvenient that choice might sometimes or even increasingly prove to be. After all, the Constitutional Union already has a series of explicit solutions or at least formal workarounds to that choice: most obviously, the possibility of Treaty reform through the ordinary revision procedure under Article 48 TEU; but also the simplified revision procedure under Article 48 TEU as regards legal bases still governed by unanimity in Council, as well as several so-called ‘passerelle’ facilities for converting specific Treaty provisions to the use of QMV;^[102] the possibility of Member State constructive abstention under particular legal bases otherwise governed by unanimity;^[103] and ultimately, the potential of enhanced cooperation to allow for selective Member State participation in certain Union initiatives.^[104] It is true that none of those solutions or workarounds are much used – but they do exist and offer systemic answers to a systemic challenge.

If we approach the national veto in Council not as a design feature (or flaw) but instead as an ad hoc problem that arises from time to time, with particular consequences in situations of geopolitical urgency or pressure, the case for a change in approach through enhanced membership expectations might feel somewhat stronger. After all, Treaty change (whether ordinary, simplified or passerelle) is not at all a credible response. Only constructive abstention and enhanced cooperation remain as potential but still rather limited answers. Admittedly, political practice has highlighted the possibility of another potential workaround: recourse to non-EU agreements among ‘willing participants’. That is an ad hoc solution to an ad hoc problem whose popularity has waxed and waned since the 2008 global financial crash and consequent Eurozone stability crisis.^[105] But in any case, it is generally regarded as suboptimal, given that such extra-Union action often raises troubling questions about transparency and accountability, in themselves hardly consonant with basic tenets of the Constitutional Union.^[106]

Viewed from that perspective, could the Constitutional Union call upon the structural / relational principles of EU law to find a more effective solution to the capacity problems facing the Geopolitical Union as posed by the ad hoc exercise of national vetoes within Council? The latter is under a legal duty to provide reasons for its (collective) decisions.^[107] But perhaps we should extrapolate from the principle of sincere cooperation (reinforced by concepts of mutual trust and solidarity) also an individual duty upon each Member State to explain its voting choices. Without in any way purporting to suppress or bypass the Member State’s power to veto collective decisions, or even to impose any legally binding requirements concerning the nature, quality or integrity of its voting motivations, the very fact of making the latter a matter of public record could still provide a valuable tool for enhancing the exposure of national choices to greater political scrutiny, challenge and accountability, both at the domestic level and among their Union peers and partners. You can still act to the detriment of the collective European interest, but at least demonstrate that you are willing to take public responsibility for the consequences of your choices – a prospect that might well make Member States more hesitant about exercising their veto without a compelling political counter-narrative. At a deeper level, such a duty to give reasons might also reinforce the Union’s commitment – implicit in the liberal democratic values enshrined in Article 2 TEU – to governance and decision-making based on rational evidence and open debate, in contrast to the sort of declamation and disinformation more characteristic of populist authoritarianism.

B. Beyond procedural duties towards more substantive scrutiny?

On its face, a purely procedural duty for each Member State to give reasons when voting in Council might feel like a relatively modest proposal. But for some, it would undoubtedly and already be regarded as a radical step towards a different constitutional understanding of membership: the individual Member State’s presence in Council, in the sense of its discretion over how and why to cast its own vote, would be no longer be treated as an act of national sovereignty effectively immune from scrutiny under Union law, but instead reimagined as an expression of participation in the EU institutional framework and as such a legitimate object for legal interrogation.

In any case, there seems scant possibility of pushing the argument further, by arguing for some degree of judicial scrutiny over the substantive grounds upon which a Member State casts its vote in Council. Admittedly, Commission v Malta demonstrates that the Member State’s choices about how to exercise its own competences and prerogatives can indeed be amenable to certain substantive constraints, calling precisely for a balance of interests beyond the purely national, justified by the duty of sincere cooperation read together with the principles of mutual trust and solidarity.^[108] But as a matter of precedent, extending such reasoning into the realm of internal Council voting would be avant garde to say the least. True, in certain situations, the Court is mandated to scrutinise aspects of the substantive voting choices made by the Council acting collectively: for example, the Council’s political judgement about whether the objective conditions for initiating an enhanced cooperation have been satisfied.^[109] And true, in certain situations, it is possible that the Court would also have jurisdiction to scrutinise aspects of the substantive voting choices made by an individual Member State within the Council: for example, a Member State’s unilateral claim that the objective conditions for pulling one of the ‘emergency brakes’ on the ordinary conduct of the Union legislative process has been fulfilled.^[110] But the latter concern legal bases already governed by QMV, and where the possibility of a de facto Member State veto over conclusion of the legislative process is both exceptional in nature and explicitly regulated by the treaties themselves. It is hardly plausible to extrapolate from such limited precedents a more general principle or practice that paves the way for judicial scrutiny of the national veto under any legal basis still governed by simple unanimity. Moreover, as a matter of principle, such a step would appear equally revolutionary. To argue that EU constitutional law should provide a forum for interrogating the relevance or sufficiency of the Member State’s reasons for exercising their Treaty-mandated veto powers within the Council would drag the Court into complex political choices as regards which legal reasoning provides inadequate tools for objective analysis. More importantly, such a prospect would directly impinge upon the legitimate room for political contestation, negotiation and evaluation that rightly defines the fundamental institutional character and prerogatives of the Council as an institutional actor within the Union ecosystem.^[111]

Does our reticence about the potential for legal scrutiny of the Member State’s (substantive) voting choices hold true even for more extreme situations, ie if we approach the Council veto not as a systemic design feature, or even as an ad hoc obstacle to more effective crisis response, but instead as a deliberate tool of obstruction or sabotage employed systematically by a Trojan Horse? Here, one acknowledges that the Union has already found various means to limit or overcome Hungary’s determined efforts at complicating or scuppering strategically vital decisions, particularly concerning support for beleaguered Ukraine: for example, by using the ‘emergency powers’ provision of Article 122(1) TFEU as the legal basis (and therefore QMV as the applicable voting rule) to immobilise Russian assets on a more sustained basis;^[112] by agreeing to provide substantial financial support to Ukraine for the period 2026–27, using enhanced cooperation to avoid any potential financial consequences for Hungary (as well as Slovakia and Czechia);^[113] and even by suggesting that Orbán take a ‘coffee break’ while the rest of the European Council proceeded with the decision to open accession negotiations with Ukraine.^[114] But given the nature of the problem, and the constraints of the system, such ad hoc solutions are evidently and inevitably of limited scope and overall efficacy. No doubt some Union actors would prefer to sideline Orbán by other means – by suspending Hungary’s voting rights altogether pursuant to Article 7 TEU – but as we know, that option is unlikely to materialise in practice.^[115] Against that background, might we be persuaded to rely on Article 4(3) TEU and the principles of mutual trust / solidarity, as the legal basis for an obligation at least to vote in good faith – capable of being invoked, for example, where a Member State is making systematic use of its veto powers, including in situations of particular gravity and / or urgency, in a manner that frustrates a compelling course of action consonant with the Union’s common values?

Evidently, legal intervention even in such an extreme scenario would still be highly sensitive, and pose real challenges of definition and delimitation. What many commentators regard as Hungarian obstructionism on hostile ideological grounds, or mere blackmail in the selfish pursuit of unjustified advantage, the Hungarian government would no doubt defend as the legitimate expression and defence of valid national interests, on a rolling case-by-case basis, of the kind that falls within the natural and rightful prerogatives of the Member States in Council. Moreover, legal scrutiny of the bona fides underpinning exercise of the national veto would also raise difficult questions about the consequences of acting in breach of Article 4(3) TEU. For example: should violation be limited to a declaratory judicial condemnation in the context of subsequent infringement proceedings brought either by the Commission or by another Member State; or might it have more substantive implications (say) by requiring reengagement within the Council but henceforth acting with demonstrable good faith; or should it have the effect (perhaps even immediate, not just retroactively) of nullifying a purported veto and thereby entitling the other Member States to proceed, even in the absence of unanimity as formally required by the treaties?^[116]

In short: extending legal scrutiny under the structural / relational principles of Union law to an institutional question such as internal Council voting, however crucial that might be to the interests and concerns of the Geopolitical Union, poses a series of daunting challenges for the Constitutional Union. And internal Council voting is just one among many such institutional questions: for example, whether the same approach should apply also to the European Council, and whether there should be any distinction between the latter’s quasi-constitutional decision-making powers under the treaties versus its general political responsibility to define the Union’s overall strategic direction;^[117] or how far the duty of sincere cooperation might influence or constrain the requirement of domestic ratification for important policy initiatives governed by one of the treaties’ ‘organic law procedures’.^[118] Each such issue is characterised by its own distinctive context and considerations, but each ultimately poses a similar challenge: how far is it realistic, through the force of legal reasoning alone, to deconstruct the constitutional shield of national sovereignty and political deference that has hitherto surrounded Member State participation in the Union’s institutional framework?

7. Conclusions

Meta-narratives about the fundamental impulses driving European integration have evolved across different defining eras: for example, the desire for postwar peace and reconciliation, the quest for economic growth and shared prosperity, the choice of enlargement and continental stability, the challenges of crisis management and resilience. For many commentators, there is a definite sense that we have recently entered a new and deeply troubling epoch: that of defending the very existence of liberal democracy and rules-based international relations.

In that context, the EU should have the confidence to confront Putinism and Trumpism on its own terms. The challenge and the prize is to bind the Union and its Member States together in defence of Europe’s shared values as expressed in its particular political, economic, social and cultural system. That means a Constitutional Union equipped to respond effectively to the new world disorder – offering values-driven and rules-based solutions to geopolitical threats. Which in turn means reimagining and revisiting certain existing assumptions and practices – something that can be done even within the current framework of primary law, without daydreaming about major Treaty reform that is unlikely to happen within the foreseeable future.

Such reimagining extends to the question of what it means to be a Member State of the EU. In reconciling the needs of the Geopolitical Union with the structures of the Constitutional Union, we have argued that there is scope to reshape the structural or relational obligations of membership so as to discourage certain damaging behaviours and encourage more collaborative conduct. The combined principles of sincere cooperation, mutual trust and solidarity can help provide a framework to deal more effectively with ‘lawful yet disruptive’ national action: particularly but not exclusively during the early stages of an emergent crisis, when the temptations of unilateralist policymaking are at their strongest; working primarily with good faith procedural duties of notification, abstention, dialogue and coordination; and not just on an ad hoc or sectoral basis, but preferably on a deeper cultural level and right across the entire Union system.

It is true that those structural / relational principles cannot in themselves offer a viable solution to the very different threats posed by Member States that openly reject core Union values, deliberately shirk their legal obligations, and actively undermine the system’s capacity to act. Nevertheless, there is still an important role for EU law to play here, when it comes to clarifying and reinforcing the nature and limits of membership, and not just in procedural terms but also (as demonstrated by rulings such as Commission v Malta; in due course perhaps also Commission v Hungary) in a more substantive sense. The legal system needs to be seen to defend its own fundamental characteristics – and thereby give stronger constitutional backing for wider institutional efforts to condemn and contain the relevant national actors.

Taken together, the Union’s varied responses to the current geopolitical disorder – both actual and potential; and not only judicial but also legislative and indeed political – suggest that the constitutional dial may well be moving in an important direction: away from a conception of membership based on the expression and exercise of national sovereignty, albeit subject to certain specified constraints and obligations; and more towards a model of membership premised on the choice and consequences of national participation, including the voluntary acceptance of wide-ranging responsibilities also towards one’s closest partners. The question is: just how far might the dial shift? Pushed to its logical conclusion, the current trajectory might imply a European legal space in which the free and unabashed exercise of national sovereignty is reserved only for certain major constitutional moments: accession and withdrawal certainly; perhaps also Treaty reform through the ordinary revision procedure. Otherwise, being a Member State means far more than just observing a thick legal rulebook: it entails upholding certain basic values; respecting various duties of cooperation, trust and solidarity; even reshaping behaviours in fields (such as institutional participation) that were previously shielded from more probing legal scrutiny only because, during previous eras and under older meta-narratives, they too were once regarded as pertaining to the realm of free and unabashed sovereignty. Without making a judgement about the desirability of such a destination, this discussion has at least counselled caution in its realisation: such a far-reaching conclusion is one for which legal tools and reasoning alone might prove incapable of providing a sufficiently compelling justification; just how far the constitutional dial on sovereignty should move is a choice that rests with the Member States themselves.

1. * Professor of European Law, University of Liverpool (email: m.dougan@liverpool.ac.uk). I am very grateful to participants at the CLP lecture at UCL on 23 October 2025, and to the anonymous reviewers, for their insightful questions and helpful comments. This text is based on developments up to November 2025, though it was possible to incorporate reference to some subsequent major developments that occurred during December 2025.

   Or ‘polycrisis’, to use the language of Commission President Juncker already adopted in 2016, eg Commission, ‘Speech by President Jean-Claude Juncker at the Annual General Meeting of the Hellenic Federation of Enterprises’ (21 June 2016) <https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_16_2293> accessed December 2025. ↑

2. Together with certain more horizontal crisis-management measures, eg Council Decision 2018/1993 on the EU Integrated Political Crisis Response Arrangements [2018] OJ L320/28. ↑

3. See, eg, Commission, Strategic Foresight Report: Charting the Course Towards a More Resilient Europe (9 September 2020); Council, ‘Outcome of Proceedings: Conclusions on Enhancing Preparedness, Response Capability and Resilience to Future Crises’ 14276/21 (23 November 2021); European Council, ‘European Council Meeting (16 December 2021): Conclusions’ EUCO 22/21 (16 December 2021); Informal Meeting of the Heads of State or Government, ‘Versailles Declaration of 10 and 11 March 2022’; European Council, ‘Granada Declaration of 6 October 2023’. ↑

4. Consider, eg, National Security Strategy of the United States of America (November 2025). ↑

5. One thinks here, eg, of the recurrent US attempts to sideline both Ukraine and the EU in the pursuit of peace terms more favourable to Russia. ↑

6. Evident in fields ranging from the common commercial policy (eg Regulation 2019/452 establishing a framework for the screening of foreign direct investments into the Union [2019] OJ LI79/1; Regulation 2023/2675 on the protection of the Union and its Member States from economic coercion by third countries [2023] OJ L2023/2675) to EU enlargement (eg ‘Granada Declaration’ (n 3); Commission, ‘Communication on pre-enlargement reforms and policy reviews’ COM (2024) 146 Final). ↑

7. See, eg, the collection of papers contained in (2026) 63(1) Common Market Law Review. ↑

8. See, eg, Commission, ‘2023 State of the Union Address by President von der Leyen’ (13 September 2023) <https://enlargement.ec.europa.eu/news/2023-state-union-address-president-von-der-leyen-2023-09-13_en> accessed December 2025. ↑

9. See further, eg, F Hoffmeister, ‘Strategic Autonomy in the European Union’s External Relations Law’ (2023) 60 Common Market Law Review 667; C Beaucillon, ‘Strategic Autonomy: A New Identity for the EU as a Global Actor?’ (2023) 8 European Papers 417. ↑

10. eg Commission, ‘The Single Market: Our European Home Market in an Uncertain World: A Strategy for Making the Single Market Simple, Seamless and Strong’ COM (2025) 500 Final. ↑

11. eg Commission, ‘Communication on the EU Security Union Strategy’ COM (2020) 605 Final. ↑

12. eg Commission, ‘White Paper for European Defence: Readiness 2030’ (March 2025). ↑

13. In particular: Arts 13(1) and 21(3) TEU; and, eg, through the creation of the ‘double-hatted’ position of High Representative of the Union for Foreign Affairs and Security Policy under Art 18 TEU. ↑

14. In which regard, the precedent set by NextGenerationEU is obviously of particular importance – now reflected in discussions about European defence funding (eg Regulation 2025/1106 establishing the Security Action for Europe (SAFE) through the Reinforcement of the European Defence Industry Instrument, OJ L2025/1106) and providing financial support for Ukraine (eg European Council, ‘European Council Meeting (18 December 2025): Conclusions’ EUCO 24/25 (18 December 2025)). ↑

15. See, eg, Court of Auditors, The EU’s Strategy for Microchips (Special Report 12/25) <https://www.eca.europa.eu/ECAPublications/SR-2025-12/SR-2025-12_EN.pdf> accessed December 2025. ↑

16. See, eg, EUObserver, ‘Von der Leyen Defends EU-US Trade Deal after Draghi Attack’ (25 August 2025) <https://euobserver.com/*/ar7d1f27eb> accessed December 2025. ↑

17. Consider, in particular, the Commission’s programme of ‘omnibus proposals’, including those on ‘Sustainability’ (Omnibus I proposed on 26 February 2025), ‘Digital’ (Omnibus VII proposed on 19 November 2025) and ‘Environmental Legislation’ (Omnibus VIII proposed on 10 December 2025). ↑

18. Consider, eg, the implications of a more geopolitical understanding of and approach to the single market for the latter’s non-EU participants under the EEA Agreement; or indeed for third counties (such as the UK) that might aspire to closer trade relations with the EU in the future. ↑

19. See, eg, Opinion 2/13, Accession to the ECHR II, ECLI:EU:C:2014:2454. ↑

20. As mandated by Art 13(1) TEU. ↑

21. M Dougan, ‘EU Competences in an Age of Complexity and Crisis: Tensions and Challenges in the System of Attributed Powers’ (2024) 61 Common Market Law Review 93. ↑

22. M Dougan, ‘From Crisis to Resilience in EU Internal Market Law: Foundations, Techniques and Challenges’ (2024) 51 Legal Issues of Economic Integration 317. ↑

23. See, eg, M Orenstein and D Kelemen, ‘Trojan Horses in EU Foreign Policy’ (2017) 55 Journal of Common Market Studies 87. ↑

24. See S Panyi, ‘Inside the Fall of Viktor Orbán’s Secret Brussels Spy Network’ (Direket36, 9 October 2025) <https://www.direkt36.hu/en/sulyos-ugy-volt-igy-bukott-le-orbanek-titkos-kemhalozata-brusszelben/> accessed December 2025. ↑

25. See, most recently, Case C-448/23 Commission v Poland (Contrôle ultra vires de la jurisprudence de la Cour de justice par une cour constitutionnelle) [2025] ECLI:EU:C:2025:975. ↑

26. Consider, eg, S Panyi, ‘Renaming the EU, Dismantling the Commission: Polish, Hungarian Illiberals Seek U.S. Backing’ (VSquare, 10 March 2025) <https://vsquare.org/heritage-foundation-mcc-ordo-iuris-russia-european-union-european-court-of-justice/> accessed December 2025. ↑

27. See further, eg, M Dougan and C Hillion, ‘Adapt or Perish: Reviving the EU’s raison d’être’ (2026) 63 Common Market Law Review (forthcoming). ↑

28. Case C-621/18 Wightman [2018] ECLI:EU:C:2018:999. ↑

29. See, eg, M Cremona, Structural Principles in EU External Relations Law (Hart 2020). ↑

30. Note that these structural / relational principles are not solely about Member State conduct, but also concern the general / horizontal functioning of the EU legal system in a broader sense: consider the CJEU’s caselaw on the ‘autonomy of Union law’, eg Opinion 1/91 EEA Agreement [1991] ECLI:EU:C:1991:490; Opinion 1/00 European Common Aviation Area [2002] ECLI:EU:C:2002:231; Cases C-402/05 & C-415/05 Kadi [2008] ECLI:EU:C:2008:461; Opinion 1/17 CETA Agreement [2019] ECLI:EU:C:2019:341. ↑

31. From many studies, consider, eg, M Klamert, The Principle of Loyalty in EU Law (OUP 2014). ↑

32. eg Case C-129/96 Inter-Environnement Wallonie [1997] ECLI:EU:C:1997:628; Commission v Poland [2025] (n 25). ↑

33. Suffice to recall classic rulings such as Case 14/83 von Colson [1984] ECLI:EU:C:1984:153 and Joined Cases C-6 & C-9/90 Francovich [1991] ECLI:EU:C:1991:428. ↑

34. See further, eg, C Hillion, ‘Mixity and Coherence in EU External Relations: The Significance of the “Duty Of Cooperation”’ in C Hillion and P Koutrakos (eds), Mixed Agreements Revisited: The European Union and its Member States in the World (Hart 2010). ↑

35. eg Case C-265/95 Commission v France [1997] ECLI:EU:C:1997:595. ↑

36. eg Wightman (n 28) para 63. ↑

37. eg Case C-896/19 Repubblika [2021] ECLI:EU:C:2021:311. ↑

38. eg Commission v Poland [2025] (n 25). ↑

39. eg Case C-156/21 Hungary v Parliament and Council [2022] ECLI:EU:C:2022:97; Case C-157/21 Poland v Parliament and Council [2022] ECLI:EU:C:2022:98. ↑

40. See further, eg, LD Spieker, EU Values Before the Court of Justice: Foundations, Potential, Risks (OUP 2023). ↑

41. Hungary (n 39) para 232. More recently, eg, Commission v Poland [2025] (n 25) para 177. ↑

42. Case C-64/16 Associação Sindical dos Juízes Portugueses [2018] ECLI:EU:C:2018:117; Case C-619/18 Commission v Poland [2019] ECLI:EU:C:2019:531. ↑

43. Regulation 2024/1083 of 11 April 2024 establishing a common framework for media services in the internal market [2024] OJ L2024/1083 (currently being challenged before the CJEU by Hungary: see Case C-486/24 Hungary v Parliament and Council (pending)). Similarly: Regulation 2024/900 of 13 March 2024 on the transparency and targeting of political advertising, OJ L2024/900 (based on Arts 16 and 114 TFEU). Note also Commission, ‘Proposal for a Directive establishing harmonised requirements in the internal market on transparency of interest representation carried out on behalf of third countries’ COM (2023) 637 Final (based on Art 114 TFEU). ↑

44. Consider, by analogy, eg Case C-181/06 Deutsche Lufthansa [2007] ECLI:EU:C:2007:412. ↑

45. Case C-769/22 Commission v Hungary (pending). See further the discussion in Section 5.A below. ↑

46. Albeit capable of extending to certain close partners, eg Case C-897/19 PPU I.N. [2020] ECLI:EU:C:2020:262; though not to other third countries, eg Case C-202/24 Alchaster I [2024] ECLI:EU:C:2024:649. ↑

47. eg Opinion 2/13 Accession to the ECHR II [2014] ECLI:EU:C:2014:2454; Case C‑216/18 Minister for Justice and Equality (Deficiencies in the system of justice) [2018] ECLI:EU:C:2018:586. ↑

48. Case 12/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein [1979] ECLI:EU:C:1979:42. ↑

49. See further, eg, K Armstrong, ‘Mutual Recognition’ in C Barnard and J Scott (eds), The Law of the Single European Market: Unpacking the Premises (Hart 2002); V Mitsilegas, ‘The Constitutional Implications of Mutual Recognition in Criminal Matters in the EU’ (2006) 43 Common Market Law Review 1277. ↑

50. And even then, some commentators are sceptical about how far it works in practice: see, eg, S Weatherill, ‘The Principle of Mutual Recognition: It Doesn’t Work, Because It Doesn’t Exist’ (2018) 43 European Law Review 224. ↑

51. Consider, eg, Joined Cases C‑404/15 & C‑659/15 PPU Aranyosi and Căldăraru [2016] ECLI:EU:C:2016:198; Case C-220/18 PPU ML [2018] ECLI:EU:C:2018:589; Case C-327/18 RO [2018] ECLI:EU:C:2018:733. ↑

52. See further, eg, M Möstl, ‘Preconditions and Limits of Mutual Recognition’ (2010) 47 Common Market Law Review 405; F Maiani and S Migliorini, ‘One Principle to Rule Them All? Anatomy of Mutual Trust in the Law of the Area of Freedom, Security and Justice’ (2020) 57 Common Market Law Review 7. ↑

53. See further, eg, A Biondi, E Dagilytė and E Küçük (eds), Solidarity in EU Law: Legal Principle in the Making (Edward Elgar 2018). ↑

54. Case C-128/78 Commission v UK [1979] ECLI:EU:C:1979:32. And indeed, as a failure of mutual trust, eg Cases 90 and 91/63 Commission v Luxembourg and Belgium [1964] ECLI:EU:C:1964:80. ↑

55. Case C-848/19 Germany v Commission [2021] ECLI:EU:C:2021:598. See also, eg, Hungary (n 39) esp para 129. ↑

56. Germany (n 55) para 45. ↑

57. Consider, eg, the role of solidarity in the common asylum policy, as acknowledged by the CJEU in cases like Joined Cases C-715, 718 & 719/17 Commission v Poland, Hungary and Czech Republic [2020] ECLI:EU:C:2020:257 and Case C-123/22 Commission v Hungary [2024] ECLI:EU:C:2024:493. See further, eg, the collection of papers contained in (2023) 6(2) Nordic Journal of European Law: Special Issue. ↑

58. eg Opinion 2/13 Accession to the ECHR II [2014] ECLI:EU:C:2014:2454; Aranyosi and Căldăraru (n 51). ↑

59. eg Associação Sindical dos Juízes Portugueses (n 42); Commission v Poland [2019] (n 42). ↑

60. Germany (n 55). ↑

61. One of the most famous examples being Directive 2015/1535 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services [2015] OJ L241/1. ↑

62. European Council (Article 50), Guidelines of 29 April 2017, para 2. ↑

63. See further, eg, M Dougan, ‘So Long, Farewell, Auf Wiedersehen, Goodbye: The UK’s Withdrawal Package’ (2020) 57 Common Market Law Review 631; S Peers, ‘The End – or a New Beginning? The EU/UK Withdrawal Agreement’ (2020) 39 Yearbook of European Law 122. ↑

64. See further, eg, Commission, Economic Crisis in Europe: Causes, Consequences and Responses (2009); Commission, ‘The Single Market at 30’ COM (2023) 162 Final. ↑

65. Consider, eg, criticism of recurrent horse-trading over the adoption of sanctions packages (K Verhelst and others, ‘Germany Blocks First-Ever Sanctions on Russian Gas’ (Politico, 14 June 2024) <https://www.politico.eu/article/germany-blocks-first-ever-sanctions-russian-gas/> accessed December 2025; I Balachuck and T Vysotska, ‘Slovakia and Malta currently blocking 18th sanctions package against Russia’ (Ukrainska Pravda, 14 July 2025) <https://www.pravda.com.ua/eng/news/2025/07/14/7521660/> accessed December 2025; S Afonina, ‘The EU Has Once Again Failed to Adopt the 19th Package of Sanctions Against Russia. Slovakia and Austria Blocked’ (Liga.net, 9 October 2025) <https://biz.liga.net/en/all/all/novosti/euobserver-eu-fails-again-to-adopt-19th-package-of-sanctions-blocked-by-slovakia-and-austria> accessed December 2025); and eg condemnation of Member State parochialism at the informal European Council meeting in Copenhagen on 1 October 2025 (P Taylor, ‘Unity is Desperately Needed, but the EU Prefers Turf Wars to Facing Down Russia’ The Guardian (8 October 2025) <https://www.theguardian.com/commentisfree/2025/oct/08/eu-copenhagen-summit-defence-policy-ukraine-russia> accessed December 2025). ↑

66. Note also the expansion of internal market policy to include measures designed to safeguard Art 2 TEU core values, eg Regulation 2024/1083 of 11 April 2024 establishing a common framework for media services in the internal market (European Media Freedom Act) [2024] OJ L2024/1083. ↑

67. See, eg, Directive 2022/2557 on the Resilience of Critical Entities [2022] OJ L333/164; the Regulation 2024/1252 of 11 April 2024 establishing a framework for ensuring a secure and sustainable supply of critical raw materials [2024] OJ L2024/125 (Critical Raw Materials Act); or Regulation 2023/1781 of 13 September 2023 establishing a framework of measures for strengthening Europe’s semiconductor ecosystem (Chips Act) [2023] OJ L229/1. ↑

68. See further, eg, Commission, Strategic Foresight Report (n 3). ↑

69. Regulation 2024/2747 of 9 October 2024 establishing a framework of measures related to an internal market emergency and to the resilience of the internal market (Internal Market Emergency and Resilience Act) [2024] OJ L2024/27474. See further, eg, R Somssich, ‘How Resilient will the Internal Market Emergency and Resilience Act Be?’ (2025) 62 Common Market Law Review 797. ↑

70. Consider major rulings such as Case C-459/03 Commission v Ireland [2006] ECLI:EU:C:2006:345. ↑

71. Consider, by analogy, eg Case C-266/03 Commission v Luxembourg [2005] ECLI:EU:C:2005:341; Case C-433/03 Commission v Germany [2005] ECLI:EU:C:2005:462. ↑

72. That is, in the specific sense of Arts 2(1) and 3 TFEU. ↑

73. Case 804/79 Commission v UK [1981] ECLI:EU:C:1981:93. ↑

74. See recently, from among an enormous body of published work, eg A Rosas, J Raitio and P Pohjankoski (eds), The Rule of Law’s Anatomy in the EU: Foundations and Protections (Hart 2023); R Böttner and H-J Blanke (eds), The Rule of Law Under Threat: Eroding Institutions and European Remedies (Edward Elgar 2024); L Pantaleo and M Siddi (eds), The Rule of Law Crisis and Democratic Backsliding in the EU: Open Questions and Outstanding Challenges (Giappichelli 2025). ↑

75. eg Wightman (n 28). ↑

76. Slovakia having replaced Poland as Hungary’s main shield against membership sanctions under Article 7 TEU. ↑

77. Most recently: Commission, ‘2025 Rule of Law Report: The Rule of Law Situation in the European Union’ COM (2025) 900 Final. ↑

78. eg Regulation 2020/2092 on a general regime of conditionality for the protection of the Union budget [2020] OJ L433I/1. ↑

79. See further the discussion in Section 6 below. ↑

80. In particular: Arts 4(1) and 5(2) TEU. ↑

81. eg Case C-617/10 Fransson [2013] ECLI:EU:C:2013:105. ↑

82. See further, eg, M Dougan, ‘Judicial Review of Member State Action Under the General Principles and the Charter: Defining the “Scope of Union Law”’ (2015) 52 Common Market Law Review 1201. ↑

83. See, eg, Case C-824/18 A.B. [2021] ECLI:EU:C:2021:153; Commission v Poland [2025] (n 25). ↑

84. Case C-769/22 Commission v Hungary [2025] ECLI:EU:C:2025:408, Opinion of AG Ćapeta. ↑

85. See, eg, Associação Sindical dos Juízes Portugueses (n 42); Commission v Poland [2019] (n 42). ↑

86. eg even a Member State’s successful defence of force majeure in enforcement proceedings brought by the Commission does not release the national courts from their obligation to give full effect to directly effective Union provisions within the domestic legal system: contrast Case C-540/21 Commission v Slovakia [2021] ECLI:EU:C:2023:450 with Case C-407/21 UFC – Que choisir [2023] ECLI:EU:C:2023:449. ↑

87. Case C-181/23 Commission v Malta [2025] ECLI:EU:C:2025:283. ↑

88. See, eg, <https://globalcit.eu/why-bother-with-legal-reasoning-the-cjeu-judgment-in-commission-v-malta-citizenship-by-investment/> accessed December 2025. ↑

89. See further, eg, E Spaventa, ‘A Very Valuable Citizenship? European Values and Citizenship after Commission v Malta’ (2025) 62 Common Market Law Review (forthcoming). ↑

90. A message, of course, not entirely without precedent: consider, eg, Germany (n 55) esp paras 49 and 73. ↑

91. Something that need not require the active support of every other Member State; it would be sufficient for a vanguard of Member States to advocate or champion this position. ↑

92. See M Dougan and C Hillion, ‘The EU’s Duty to Respect Hungarian Sovereignty: An Action Plan’ (2022) 59 Common Market Law Review: Special Issue 181. ↑

93. R (on the application of Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5. ↑

94. Note, in particular, Arts 4(2) and 10 TEU. ↑

95. Under not only Art 4(3) TEU but also Art 13(2) TEU. In which regard, recall major rulings such as Case C-409/13 Council v Commission [2015] ECLI:EU:C:2015:217. ↑

96. Art 16(3) TEU – even if political science research tells us that, despite or perhaps even because of QMV, the Council still prefers a culture of consensus whenever possible: see, eg, F Hayes-Renshaw, W van Aken, and H Wallace, ‘When and Why the EU Council of Ministers Votes Explicitly’ (2006) 44 Journal of Common Market Studies 161; P van Gruisen and C Crombez, ‘National parliamentary Control and Voting in the Council of the European Union’ (2019) 58 European Journal of Political Research 981. ↑

97. Consider, in particular, Joined Cases C-63/90 & 67/90 Portugal and Spain v Council [1992] ECLI:EU:C:1992:381, where the CJEU held that ‘the defence by each Member State of its interests within the Council’ manifestly falls outside the scope of the duty of sincere cooperation (paras 52–53). ↑

98. As explicitly acknowledged by Art 10(2) TEU. ↑

99. See, eg, Case C-128/17 Poland v Parliament and Council [2019] ECLI:EU:C:2019:194. ↑

100. See further, eg, M Klamert, The Principle of Loyalty in EU Law (OUP 2014); A Woodhouse, ‘With Great Power, Comes No Responsibility? The ‘Political Exception’ to Duties of Sincere Cooperation for National Parliaments’ (2017) 54 Common Market Law Review 443.

     As explicitly acknowledged by Art 10(2) TEU. ↑

101. A distinction with an explicit constitutional basis: see, eg, Art 16(8) TEU. ↑

102. eg Art 81(3) TFEU. ↑

103. In particular, under Art 31 TEU. ↑

104. Under Art 20 TEU and Arts 326–34 TFEU. ↑

105. Prominent examples being the Treaty establishing the European Stability Mechanism (2012) and the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (2012). ↑

106. Especially when extra-EU action is preferred (say) to the route of enhanced cooperation within the EU legal order; rather than justified, eg, by reservations about the very existence of a Union competence to act. See further, eg, E Spaventa, ‘Constitutional Creativity or Constitutional Deception? Acts of the Member States Acting Collectively and Jurisdiction of the Court of Justice’ (2021) 58 Common Market Law Review 1697. ↑

107. See Art 296 TFEU. ↑

108. See the discussion in Section 5.B above. ↑

109. See, eg, Joined Cases C‑274/11 and C‑295/11 Spain and Italy v Council [2013] ECLI:EU:C:2013:240. Contrast with the CJEU’s limited jurisdiction in respect of Art 7 TEU: see Art 269 TFEU. ↑

110. Consider, eg, Art 48 TFEU or Arts 82–83 TFEU. Note that, under the old ‘Luxembourg Compromise’, Member States might have peer reviewed the purported exercise of a national veto against certain mutually predetermined criteria – but that concerned situations already governed by QMV and where the purported veto might be permitted on a grace-and-favour basis (and even then, on a largely political basis rather than with any persuasive legal backing). ↑

111. A character long acknowledged by the CJEU (say) in its extensive caselaw on the limited nature of judicial review against Council decisions pertaining to the exercise of the latter’s legislative and discretionary powers, eg Case C-331/88 ex parte Fedesa [1990] ECLI:EU:1990:391; Case C-84/94 United Kingdom v Council [1996] ECLI:EU:C:1996:431; Case C-210/03 Swedish Match [2004] ECLI:EU:C:2004:802. ↑

112. That is, by relying instead upon Art 122(1) TFEU: see Regulation 2025/2600 of 12 December on emergency measures addressing the serious economic difficulties caused by Russia’s actions in the context of the war of aggression against Ukraine [2025] OJ L2025/2600. ↑

113. See Council, ‘Conclusions’ (18 December 2025) (n 14). ↑

114. See Council, ‘European Council Meeting (14 and 15 December 2023): Conclusions’ EUCO 20/23 (14–15 December 2023) and, eg, H von der Burchard, ‘Scholz Gets Orbán out the Room to Open Ukraine’s Membership Talks’ (Politico, 15 December 2023) <https://www.politico.eu/article/olaf-scholz-gets-viktor-orban-out-the-room-to-approve-ukraine-accession-talks/> accessed December 2025. ↑

115. See the discussion in Section 5 above. It is true that Art 7 TEU is intended to respond to a clear and persistent breach of core Union values, not to offer a direct solution to the distinct problem of institutional vetocracy, but at least in the case of Orbán’s Hungary, the two challenges are (simply as a matter of fact) closely interlinked. ↑

116. Consider, by way of analogy, eg Case C-65/93 Parliament v Council [1995] ECLI:EU:C:1995:91. ↑

117. The former as provided for under the treaties eg in Art 14(2) TEU or Art 86(4) TFEU; the latter in accordance with Art 15(1) TEU as well as under Art 22(1) TEU (as regards CFSP) and Art 68 TFEU (as regards AFSJ). ↑

118. Such as Art 223(1) TFEU or Art 311 TFEU. As regards which, it is useful to recall debate about the compatibility with Union law of the sweeping referendum requirements imposed unilaterally by the UK through the latter’s European Union Act 2011 – an attempt to inhibit or even simply block not only any attempt at EU primary law reform but also a wide range of other more quotidian Council decisions. See further, eg, P Craig, ‘The European Union Act 2011: Locks, Limits and Legality’ (2011) 48 Common Market Law Review 1915. ↑