Tag: ukraine

Hungarians have chosen Europe: time has come also for Europe to choose its citizens? 

by Emilio De Capitani and Virgilio Dastoli

(*) Original Italian soon to be published on “Libertà e Giustizia” Blog

 Viktor Orbán’s defeat was far more than a mere change of government: it was clear evidence of democratic resilience in the face of a populist policy that, for more than fifteen years, had seemed to have taken root in that country. A self-proclaimed example of ‘illiberal democracy’, this policy was founded on anti-elite, anti-migrant and anti-EU, rhetoric and was promoted daily by regime-controlled media, relying on both explicit and covert support from the MAGA majority in the United States and the Russian autocracy.

Needless to say, many of us were wondering whether European citizens – and not just Hungarians – were still capable of resisting the pressure of simplistic rhetoric, demagogic election promises and of misleading campaigns relayed by ‘social media’ platforms (more or less manipulated).

The Hungarian vote and, with due proportion, the recent vote in the Italian referendum on the justice reform, have instead confirmed that the manoeuvres and lies of populists can be defeated, that European values of solidarity still mobilise citizens despite the misrepresentations of their  governments. Thus, an alliance with authoritarian leaders may also become an electoral liability, and even European sanctions can be effective without penalising citizens (since the latter should not be punished for the faults of their rulers…).

Ultimately, the Hungarian citizens’ vote was not only a clear condemnation of Orbán’s corrupted administration but also a clear civic endorsement of those values of transparency and democracy that the new government too will have to promote (and not merely, as a means to an end, to recover European funds frozen due to the violation of European rule-of-law principles).

From this perspective, the Hungarian vote was also a strong call from European citizens who expect the European institutions to be consistent with the values and missions set out in the Treaties and the Charter.

Hungarian citizens have chosen Europe; it is now time for Europe to choose its own citizens by reorienting its policies and, above all, by overcoming the numerous ambiguities that still characterise its governance and its internal and external policies.

From this point of view, beyond rhetorical statements, unfortunately, much remains to be done because most of these ambiguities stem from the fact that at European Union level, despite the Treaty of Lisbon, citizens are not yet at the heart of the Union’s construction. Moreover, the EU still lacks the system of checks and balances which, in the Member States, aims to prevent possible abuses by this or that institution. Thus, despite the provision stating that ‘the functioning of the Union shall be based on representative democracy’ (Article 10(1) TEU), the Union continues to operate according to intergovernmental logic, prioritising the needs of administrations over those of its citizens.

It should therefore come as no surprise that national logic and priorities push supranational interests into the background, even when the Treaty itself with art. 7 TEU confers to European Council and to the Council  the responsibility of safeguarding  the proper functioning of the Union. The case of the surveillance procedure against Hungary under Article 7(1) of the Treaty is the clearest evidence of this failure.. It is, in fact, worth recalling that the monitoring procedure of Hungary was formally initiated by the European Parliament as early as 2018. Since then, however, despite dozens of formal meetings at Council level (with Parliament unduly kept out of the loop) over eight years, the governments of the Member States have not even been able to formulate ‘recommendations’ to urge Hungary to respect the values it had committed to upon accession. Worse still, in the second half of 2024, those same governments had no qualms about handing the helm of the ship – that is, the EU Presidency – to a Country still under a formal monitoring procedure for attempted violation of the values of the European Union, and this despite the European Parliament’s repeated and well-founded complaints!

Admittedly, measures had been taken to freeze funds for Hungary, but this was not the outcome of the intergovernmental procedure under Article 7, but rather of the Commission’s successful cases against Hungary before the Court of Justice and of the (troubled) implementation of a European Union regulation that makes the use of European funds conditional upon respect for fundamental rights (which have clearly been violated by that country on several occasions).

Point is that still today the Article 7.1 monitoring procedure against Hungary due to the risk of violation of the Union’s founding values is still pending and is due to be discussed next may at a meeting that the Cypriot Presidency had scheduled before the Hungarian elections.

We may be mistaken, but it is more than likely that, on that occasion  the procedure will be closed given the fact that, in the meantime,  the new Hungarian Prime Minister has already announced that He will bring the country back into line with European norms.

The precedent of Poland when the same Article 7 procedure was hastily closed for the same reasons will be cited and the “incident” will be closed. In the name of the so called ‘paix des ménages’, the European Parliament’s repeated complaints will thus be shelved, but, above all, a frank clarification will be avoided with those governments which still support the ‘Orbán’ line (such as the Czech Republic, Slovakia or Italy itself).

Last but not least, this opportunity will be missed to overhaul an intergovernmental monitoring procedure which, over the years, has proved not only useless and inconclusive as regards the proper functioning of the Union, but also as regards the protection of the rights of Hungarian citizens as EU citizens.

This would confirm that, unfortunately, the European Union, despite having transformed itself into a political entity under the Treaty of Lisbon, continues to underestimate the rights of its own citizens, even though the Court had already, as far back as 1963, considered them as formal  ‘subjects’ of the European legal order at the same level of the Member States themselves (see the Van Gend en Loos judgment, C-26/62).

Inevitably, by retaining its original intergovernmental inspiration and by failing to establish adequate checks and balances, the Union continues, in effect, to encourage the emergence and proliferation of ‘troublemakers’ within its own ranks.

It is perfectly understandable that governments may pursue their own national priorities even when operating within a supranational framework, but in doing so they, de facto, prevent the emergence of a genuine supranational ‘governance’ of EU policies. Furthermore they threaten  the implementation of the principle of solidarity when designing and implementing “common” policies such as migration or energy, for which, as the Court of Justice itself has recognised, solidarity is not a rethorical word but a binding legal principle.

Unfortunately, as things still stand, the overwhelming power of intergovernmental pressures finds no democratic counterweight in the European Parliament, since even there political forces with a genuinely supranational vision struggle to take shape. Here too, MEPs elected on the basis of electoral lists drawn up by hundreds of national parties and small parties are often more responsive to the demands of individual constituencies than to the needs of European citizens as a whole.

The reorganisation and rebalancing of powers at Union level is still in a transitional phase, and it should therefore come as no surprise that, given the persistent weakness of the system of checks and balances at Union level, the current deviations may arise.

In this context, the notion of sincere cooperation between Member States and institutions (Article 4 TEU) and between institutions (Article 13 TEU) becomes a fundamental issue.

Just a few days ago, CONTEXTE published an interview with European Council President Antonio Costa, in which he accused Orban of having broken his word and brazenly violated the obligation of ‘loyal cooperation’ with the other members of the European Council; yet Costa himself admitted that he did not know how to react and had sought clarification from the Council’s legal service.

The fact is that even the Treaty of Lisbon continues to be based on the principle of mutual trust and on an ‘angelic’ vision whereby it is assumed that Member States are ‘todos caballeros’. At most, it was thought, that the so-called “mutual scrutiny” (the so-called “peer evaluation”) would suffice, both at the level of governments (see Article 7 of the Treaty) and of administrations (see the case of agency management bodies or the procedures for defining and scrutinising delegated acts and implementing measures).

Nothing could be more naive: mutual monitoring does not prevent abuses; on the contrary, it encourages the code of silence whereby “I won’t denounce you if you don’t denounces me”. Thus, even the Member States’ power to bring another country before the Court in the event of a breach of Union law (Article 259 TFEU) has remained virtually a dead letter.

Orban, Kaczynski, Jansa, Babis (though one could add other heads of government who are simply more adept at concealing their Euroscepticism…) have amply demonstrated that Member States are by no means ‘todos caballeros’ and that it is all too easy for some to throw a spanner in the works and block the progress of European integration (perhaps even thanks to strong pressure from Washington, Moscow or Beijing…) .

The Hungarian and Italian citizens who voted in the recent referendum have sounded the alarm for European leaders and the MEPs in Strasbourg themselves.

We must repair the leaks in the European ship as soon as possible and steer it clear of the shoals of its ambiguities – and this, if possible, before the next elections in 2029.

Of course, it is unthinkable to achieve this in the next three years through a radical Treaties’s  Reform, but one could attempt to correct the most glaring inconsistencies through ‘adjustments’ to the functioning of the Union within the framework of the forthcoming accession treaties, which are planned to be concluded before the end of this parliamentary term. It is no coincidence that these negotiations will take place by taking in account measures which shall prevent the risk of ‘Hungarian-style’ deviations by candidate countries.

The Commission itself has already floated the questionable idea of a ‘gradual’ accession for candidate countries, thereby paving the way for some member states to be treated as more ‘equal’ than others. The issue is, however, now on the table, and Ursula von der Leyen will once again have to propose to the European Council, as soon as possible, possible corrective measures for the functioning of an EU with 30 or more members.

The scope of Treaties’ adjustments is open to debate, but Article 49 of the EU Treaty concerning accession treaties could allow for ‘adjustments’ that go beyond simply lengthening the table and adding a few chairs.

Pending more ambitious reforms, these “adjustments” could facilitate at least an “evolutionary” application of the existing Treaties and the Charter.

By way of example, these “adjustments” may concern:

– a more stringent formulation of the principles of loyal cooperation and solidarity between Member States and between institutions. These principles are already enshrined in Articles 4, 13 and 42 of the TEU and Article 80 of the TFEU, and the Court has ruled that Institutional balance shall be respected and that when the Treaty refers to ‘principles’ and not merely to ‘values’, the former must take on legally binding forms and not be limited to vague declarations. From this perspective, notably the role of the European Parliament, the only institution directly elected by the EU Citizens shall be strengthened. It is disheartening, to say the least, to see that the European Parliament has recently had to turn to the Court of Justice to defend its role following the Council’s adoption of ‘SAFE’ funding for European defence industrial policy (Case C-560/25) or against the Commission, which undermined its role as co-legislator by withdrawing, without justification, legislative proposals it was negotiating with the Council (Case C-727/25);

– the strengthening of the protection of fundamental rights, which is currently pursued in a fragmented and haphazard manner by the European institutions. Thus a possible step forward may be transforming the Vienna Agency into a genuine European Authority based on the Treaty. The European Authority, on a par with national authorities and in a manner more independent of the Commission, shall assists those invoking the protection of a fundamental right recognised by the European Charter. In the same vein, a form of European ‘EURO-Amparo’ should be promoted by amending Article 267 of the TFEU, revising the so-called ‘Plaumann’ case law and allowing, if not individuals, then at least civil society organisations to bring cases directly before the Court of Justice. This should be done not only in the interest of the EU Citizens but also for the credibility of the implementation of the rule of law in the EU (art.19 TEU and art.47 of the Charter). As a matter of fact the Plauman doctrine does not adequately adress the problem of national courts which overlook the protection of fundamental rights by lack of will, means or independence (think to the situation of certain Hungarian or Polish judges…) nor it make easier for the EU Citizens to challenge EU Union institutions, agencies and bodies violations of the Traties and of the Charter (think of how many years it took before Frontex’s shared responsibility in the Union’s pushback policies was recognised);

– the strengthening of the main institution of democratic systems, namely the ..electorate (c. Valerio Onida). It is simply inexplicable to European citizens that, for fifty years, since the 1976 agreement, ahead of the first direct elections to the European Parliament, a genuine European electoral law has still not been adopted, and this is due to the disagreement between the Council and the Parliament. How can we hope for a supranational political vision to take shape when over 200 national political parties have contributed to the drawing up of electoral lists for 2024, whilst European parties and foundations (Article 21 TEU) are still little more than amoebas? How can we call for dialogue with civil society (Article 11 TEU) when the very same governments that promote the so-called 28th supranational regime for commercial companies oppose the creation of a similar supranational regime for civil society organisations seeking to contribute to European integration?

– the imposition of effective legislative transparency, particularly during the decisive phase of negotiations between institutions (so-called ‘trilogues’), which the Parliament and the Council persist in keeping confidential despite the provisions of Article 15(2) of the Treaty. Administrative transparency must also be imposed not only at the level of the Union’s institutions, agencies and bodies, but also on the Member States themselves in all policies where they operate within the framework of an integrated administration (composite administration). Thinking about the Hungarian vote against a corrupted Government, it would be sensible to address similar risks at EU level. Again Member States have until now prevented the European Parliament from exercising an effective right of enquiry, have imposed a powerless Statute for the European Ombudsman and limited to simple not binding recommendation the powers of the Court of Auditors. Hungarian citizens have fought for this at national level, and it is frustrating, to say the least, to find that the European Union is not addressing this at EU level as it ought to and could, in accordance with Article 41 of the Charter and Article 298 of the TFEU.

– overcoming the now artificial distinctions in certain policies, such as that between internal and external security policies, and transforming the Union into a true  area of freedom, security and justice as provided for in Article 3 of the Treaty. In this context, it is necessary, in particular, to revitalise policies promoting mobility, dignity and ‘human’ security, which have been effectively entrusted solely to the ministers of the interior. From this perspective, the Union’s approach to migration policies has been one of the EU’s most rightly criticised policies. Whilst, on the one hand, the EU has been able to ‘manage’ the movement of over four million Ukrainians across EU territory for several years in a dignified, coordinated manner (and without major security issues), on the other hand, with the infamous ‘Migration and Asylum Pact’ the EU has established, for one and a half million of so-called ‘irregular’ migrants, a system amounting to a veritable ‘outsourcing’ of the right to asylum, if not outright forms of expulsion (disguised as ‘returns’), in violation of Article 19 of the Charter. Now, the very existence of two different regimes regarding the same mobility needs of third-country nationals shows that the EU is blatantly violating the principle of equal treatment and lacking a coherent and humane governance of the mobility of persons at EU level, and this is in breach of the provisions of the Charter and of Title V of the TFEU;

– Promoting economic development and creating a genuine borderless market, whilst fostering synergies between complementary policies such as energy and the environment (though here it would suffice to take account of Draghi and Letta’s ‘white papers’);

– Last but not least, claiming to implement interventionist policies without adequate financial backing is a pure deception of citizens. From this perspective, the first step should be to recognise the European Parliament’s role as a budgetary authority, including when defining the multiannual financial framework, and aligning it (with the necessary adjustments) with the duration of parliamentary terms. Suffice it to say that the current procedure will cover the entire next parliamentary term (2029–2034), thereby excluding the European Parliament that will emerge from the 2029 elections (a further institutional ‘snatch’ by EU governments at the expense of the EP).

These are just a few points for reflection, and many others could be developed, taking into account the recent report adopted by the European Parliament regarding adjustments to the Treaties in view of enlargement (the Gozi report).

In the author’s view, even these simple ‘adjustments’ to the founding Treaties would make it possible to overcome certain inconsistencies and make European integration more credible by bringing it closer to European citizens, and not just those in Budapest.

The results of the Italian referendum on justice and these Hungarian elections confirm citizens’ attachment to the European project and perhaps show that the tide of populism is turning, but let us not harbour too many illusions. Next year there will be elections in France, Spain and Italy, where anti-European forces still seem to be on the rise (and the same can be said of Germany itself, where Chancellor Merz does not know how to stem the rise of the AfD…).

In short, let us enjoy this Hungarian vote, but let us not forget that we are still in rough waters, that the European ship is in urgent need of repairs, and that we must… get to work.

“Re-arming” Europe without real democratic control?

by Emilio DE CAPITANI

The European Council Conclusions of March 6th extraordinary meeting mark an unexpected change of course towards an European Union defence policy. If confirmed at the next meeting on March 20th/21st, this would see the European ship leave a safe port – even if essentially intergovernmental – to set sail for a destination that, at least from these first steps, seems to be clearly drifting away from the main course that the Union’s institutions have always followed until now. The course is one that, over the last 70 years, has allowed an entire Continent to live in peace, without any need for rearmament, through the use of the “community method” and economic and civil integration. A continent that had previously been the scene of two world wars, both triggered by imperialistic ambitions and, in the second, also by the ethical baseness of a violence never before reached in the history of human civilization.

Returning to the theme of the drift of the Conclusions of March 6, it is worth saying that what caused the shift was not so much Putin’s aggression against Ukraine (already underway since 2014 following the invasion of Crimea) but rather US President Trump’s position making clear to the other NATO allies that, in the event of military aggression of a member state, the protection of the American umbrella will be no longer automatic nor the financial contribution to this North Atlantic defense pact by the United States. Following these messages  Ursula Von Der Leyen (VDL), President of the Commission, after, most probably having received the green light from the chancelleries of most EU member states, presented on March 5th a first plan, inappropriately called the “Re-arm Europe”, and whose objectives, as expected, have been, at least for the time being, unanimously approved by all the members of the European Council.

European public opinion has thus, suddenly, realized, that within the European Council, the highest political body of the European Union bringing together the Heads of State and Government, there is a great desire to take up arms, without any of them having consulted, beforehand, not even their parliaments in public session or, at least, the European Parliament. It looks that, once again, these leaders consider that it’s better to give this news to their citizens only after the fact, even though the same citizens, in the case of “rearmament” will not only put in their money but also the people necessary to ensure the increased defense measures. Moreover it will be easy, for these Heads of State and Government returning home from Brussels, to explain to the their national press that all the other colleagues pushed for it and “Brussel” has decided it. All for one (the Member States), and one for all (the Union), as usual….

Why is it “improperly” called a “Rearm Plan”?  First of all, because the word “rearmament” has been banned from the European political lexicon since the Schuman Declaration of 1950. Secondly, because the term “rearmament” – that is, a return to the use of weapons – does not evoke a defensive intention, and even less of peace, as it could be, for example: “the new EU Military Defense Plan”. If until now the Union, in order to achieve peace, has welcomed millions of displaced Ukrainians, deployed money and adopted restrictive measures against Russia, the time has come, after President Trump’s announcements, of launching an European Union diplomatic initiative,  according to the most authentic ” community method” and re-launch the role of the United Nations, rediscover the spirit of the Helsinki Accords that in 1975 contributed to overcoming the East-West divide on the European continent and try to bring the countries directly and indirectly involved around a table.

In any case, the plan proposed by President VDL, consisting of two distinct financial packages, raises serious reservations, not only political, but also parliamentary and legal.

The first package is the loosening of budgetary constraints up to 1.5% for defense spending by member states. Overall, this initiative should free up to 650 billion euros of national resources, to be spent not so much on the development of the defense industries already present in some Member States, but following a new European defense strategy. And this should happen through a mechanism of indebtedness that had not even been granted to the Member States for the achievement of fundamental objectives such as social protection or the fight against pollution….  From a European perspective, the choice may be questionable also due to the fact that, in March 2024, the Commission itself has already submitted to the European legislator an “EDIP” draft regulation (1) see below).

From a national perspective, however, it will be up to the parliaments of the Member States to decide whether or not to support the choices of their governments

Well, it’s clear that since this is a financial plan combined with the second basket of the VDL proposal engaging 150 billion euro on the EU Budget, all the national and European parliaments will wait until the next European Council on March 21st to find out if the Council, on the proposal of the Commission, will indeed adopt a new financial instrument in favor of Member States on art. 122 TFEU (2) as announced by the Commission President Von Der Leyen’s proposal to establish “a new EU instrument under Article 122 TFEU to provide Member States with loans backed by the EU budget.” According to the letter “ With up to EUR 150 billion, this instrument would strongly support EU efforts to achieve a rapid and significant increase in investments in Europe’s defence capabilities – now and over this decade. Such funding could be used for priority capabilities domains for which action is necessary at European level, in alignment with NATO:

  • air and missile defence;
  • artillery systems;
  • missiles and ammunition;
  • drones and anti-drone systems;
  • strategic enablers and critical infrastructure protection, including in relation to space;
  • military mobility;
  • cyber, artificial intelligence and electronic warfare.

Further increasing the impact of this new instrument would be achieved by buying together, which would ensure interoperability and predictability, reduce costs, and create the scale needed to strengthen our European defence industrial base.” (emphasis added)

The “new instrument” proposed by the President of the Commission is therefore much more ambitious than the initiatives undertaken until now by the EU in this field. Moreover, it presupposes the definition, at a European level, of “priority capability areas where action is needed at the European level, in line with NATO”. Therefore prior consultation with NATO (where the US ambassador sits) is foreseen, while the European Parliament itself is not involved, even if not only European taxpayer/citizen money is at stake, but also the content of policies that affect its rights and vital interests.

But, with the current Treaty, who is authorized to make this kind of decision?

The answer is not simple because the Treaties, even after Lisbon, have provided a framework that is ambiguous to say the least, if not incomplete and contradictory. This is because, at least until recently, the majority of Member States relied on the NATO Treaty for the defense of the Union’s territory, in a sort of division of labor with the EU Treaties (see art. 42 TEU). However,following the recent positions taken on the other side of the Atlantic, this division of labor is now being questioned and various solutions are being studied, first and foremost that of the construction of a “European pillar” within NATO. However, the impression is that this too is a temporary solution and that, sooner or later, the European Union must finally assume responsibility for its own defense.
If this is the medium to long term perspective, it should be self evident that the European Union, even before a future formal amendment of the Treaties, must apply to this “European” rearmament plan the same fundamental democratic principles, as it does to the rest of European policies. It would indeed be paradoxical that in fields that are sensitive and essential for the security of citizens in the face of increasing external threats the EU will not abide to the principles  according to which “the functioning of the Union is founded on representative democracy” (art.10.1 TEU) or that according to which “Every citizen shall have the right to participate in the democratic life of the Union. Decisions are taken as openly as possible and as closely as possible to the citizen. (art.10.3 TEU).

In such constitutional context, the Commission’s proposal to base the financing of 150 billion on the basis of art.122 TFEU, without the direct involvement of the European Parliament, is highly questionable, not to say contrary to Union law. It is worth noting that Article 122, has been already used in the past to try to stem the Greek Euro crisis, the COVID crisis and the energy crisis following the Russian invasion of Ukraine, but it is a legal basis suitable only for emergency measures in the economic domain, and therefore unusable in situations dealing with defence and that can last for years. Suffice it to remember that during the Euro crisis art.122 TFEU was abandoned by the same Member States who proposed it because they recognized that it was necessary, for a medium long perspective, to adopt a real Treaty, even though “complementing” the TEU (the European Stability Mechanism – ESM).

So a first reason why art.122 TFEU, should be excluded as a legal basis justifying a Council measure aimed at defending the citizens of the Union, in the years to come is that it is a temporary measure, even though is intended, as President VDL herself admits in her letter, to be valid for at least the next decade. But, most importantly, art. 122 does not foresee the involvement of the European Parliament which, as it happened for the European Council conclusion on the Rearm Europe project, will be “informed” only after the fact. Democratic control, which in military matters and the recruitment of people to be entrusted with the use of arms, are the basis of the Constitution of every democratic state, must also be respected within the EU by involving the EP in these extremely important political decisions, and this through the identification of an appropriate legal basis that involves it. In this perspective President VDL proposal is in itself not only clearly anti-parliamentary, anti-democratic but it contradicts the assessment according to which we are facing historic times. So, why not take this occasion to set the basis for a true EU defence policy in the Treaty instead of prolonging the current anti-democratic regime set fifteen years ago for the EU Defense policy?

Let’s hope that the European Parliament will take this occasion to re-establish the EU institutional balance also in this domain and will formally reserve the right, starting with its next resolutions on defense, to challenge before the Court of Justice any type of measure or act taken without its prior and effective involvement. Moreover, since this matter also directly involves the national parliaments, the European Parliament should also call them together in the spirit and letter of Article 12 TEU, according to which they contribute to the European construction (thereby also strenghtening parliamentary democracy within the EU).

As for the merits, it is only necessary to remember that, according to articles 3 to 6 TFEU, the Union has no direct powers regarding rearmament, and it may be  questionable whether it has any regarding support for member states [i];

In this context and, as the Treaty currently stands, the only possible legal basis for such involvement of the Union and the association of the EP in the construction of a defense policy is that of art. 352.1 TFEU according to which ” If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures. (emphasis added) It is worth recalling that previous amendments of the Treaties were anticipated by legislative measures adopted with this “implicit” powers legal basis.

That having been said it is quite likely that for different political and institutional reasons the EU will not be ready to use art.352 TFEU ( notably because it requires unanimity in the Council and we all know how slippery the situation is in the Council when Unanimity is at stake…) However, another alternative, even if less clean and straight, is to integrate the VDL Objectives and the 150 billion financing in the draft “EDIP” Regulation(3) currently under discussion at the EP and the Council which already foresee the adoption of an EU Defense Strategy.  It is worth mentioning that, despite all the limitations of this proposal already denounced by the European Court of Auditors , EDIP would follow an ordinary legislative procedure, thus guaranteeing the full co-responsibility of the European Parliament without requiring unanimity in the Council as provided for in Article 352 TFEU. Negotiations are proceeding swiftly in both the Council and the European Parliament and this should allow the inter-institutional negotiations (trilogue) to start as soon as possible.

As explained above there are therefore serious alternatives to recourse to Article 122 that the European Parliament may raise to protect its constitutional prerogatives in the face of an initiative by which the European Council, the Council and the Commission exclude it from the decision-making process. By appealing to the Court, against the choice of that legal basis (NDR : moreover emergency measures in the defence sector require art.222 TFUE and not 122 TFUE) the Parliament would not only defend its constitutional prerogatives, but also the fundamental need of respect democratic principles, the Rule of Law and, above all, the rights of the citizens who elected it, even in matters of defense. Then, who knows, the Council and the Commission could accept the fall back position of dealing with these matters in codecision with the EP through the EDIP legislative proposal…

NOTES
1  REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL establishing the European Defence Industrial Program and a framework for measures to ensure the timely availability and supply of defence products (“EDIP”) (2024/0061(COD) Link https://eur-lex.europa. eu/legal-content/IT/TXT/HTML/?uri=CELEX:52024PC0150

2 Article 122 (ex Article 100 of the TEC) 1.Without prejudice to any other procedures provided for in the Treaties, the Council, on a proposal from the Commission, may decide, in a spirit of solidarity between Member States, upon the measures appropriate to the economic situation, in particular if severe difficulties arise in the supply of certain products, notably in the area of energy. 2.   Where a Member State is in difficulties or is seriously threatened with severe difficulties caused by natural disasters or exceptional occurrences beyond its control, the Council, on a proposal from the Commission, may grant, under certain conditions, Union financial assistance to the Member State concerned. The President of the Council shall inform the European Parliament of the decision taken.

(3) The legal bases for the draft EDIP Regulation aimed at ensuring the timely availability and supply of defense products are (1) Article 173 TFEU in relation to the competitiveness of the EDTIB; (2) Article 114 TFEU in relation to the European Defense Equipment Market (EDEM); (3) Article 212 TFEU in relation to strengthening Ukraine’s DTIB and (4) Article 322 TFEU in relation to financial provisions.