Chronicle of a Foretold Diplomatic Incident (the Orban visit to Putin)

by Virgilio Dastoli and Emilio De Capitani

President Orban’s initiative to meet with President PUTIN by presenting himself in his capacity as the President of the Council of the European Union is objectionable at least under two perspectives.

The first perspective deals with the fact that according to the Treaty and Article 20 of the Council’s Rules of Procedure, the task of the President of the Council is primarily to organize and supervise “the proper conduct of the debates” as well as to “respect and to enforce the provisions of Annex V concerning the Council’s working methods.” It is thus an internal role within that institution to which is added the duty of dialoguing with the other EU co-legislator the European Parliament.

As such, the President of the Council does not therefore have a role of external representation of the Union, which is instead entrusted to the European Council for aspects of foreign and defense policy (Art. 15 TEU) and to the Commission for other Union policies. According to the Treaty “…The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.”

These tasks of external representation are provided for in the treaty and reflect the institutional balance that cannot be altered by the institutions themselves. In this respect, European Council President Michel’s statement that Orban violated European law because he acted in the absence of a mandate is, in turn, objectionable, because even in the presence of a mandate the President of the Council is not legitimized by the Treaty itself to play an external political role much less in such a sensitive area as the War in Ukraine where the relevant institutions have already taken the initiatives they deemed appropriate.

By taking such an initiative, President Orban has thus also failed to comply with the principle of loyal cooperation between institutions (Article 13 TEU) and has demonstrated that he is unable to fulfill his neutral role as President of the Council.

It is now up to the other member states and, in particular, to the European Council to which the Treaty has entrusted the task of defining the internal organization of the Council and its Presidencies (Art.236 TFEU) whether to keep him in this function and review, the, at least inappropriate, choice of entrusting the Council Presidency to a Member State under surveillance procedure under Art.7.1 TEU as of 2018.