Do political ends justify illegal means? That is the fashionable question in Brussels, and for several years now the European Union’s answer has been clear and unequivocal: “Yes, and so what?” By adopting a regulation to permanently freeze Russian assets, the Union has not only committed an act with incalculable geopolitical consequences; it has, above all, crossed into illegality by brazenly manipulating a provision of the Treaties in order to circumvent the rules of the game, in this case, unanimity.
To achieve its objective, the Commission based its proposal on Article 122(1) of the TFEU, an emergency clause contained in the chapter on economic and monetary policy. And what does it actually say? Judge for yourselves: “[…] 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.” Very well, but what does this have to do with the permanent freezing of Russian assets? Nothing whatsoever. There is no logical or legal link between this legal basis and the situation it is supposed to govern, even if the Commission performs a grotesque contortion by stating in its proposal that it is necessary to “ensure the stability of the EU economy, which has been affected by the Russian invasion of Ukraine”.
The generic and imprecise wording of this Treaty article is in itself a legal anomaly, and its past use has been controversial; but to go so far as to use it to freeze Russian assets required a gigantic dose of bad faith and “legal creativity”, which the Union has provided with gusto. And why? For the openly acknowledged purpose of circumventing the unanimity rule laid down in the Treaties, a rule that has nonetheless made it possible to adopt 19 sanctions packages against Russia, but which is considered cumbersome by a majority of Member States who conveniently forget that consensus is an integral part of their decision-making process. So, they decided to bulldoze their way through, to free themselves from the rules in order to adopt a measure that is explosive, whose effects are incalculable, and which will damage the Union’s financial credibility. Nothing less. Except that, for an organisation that prides itself on being the gold standard of the rule of law, this is frankly embarrassing.
Or perhaps not? At least not for the EU. The diversion of legal bases, legal power plays, and the impulsive tendency to exploit crises in order to amass more power have become commonplace in Brussels. The EU wants to equip itself with a media freedom law without having the mandate to do so? All it needs to do is declare the issue necessary for the proper functioning of the internal market and invoke Article 114 TFEU on the approximation of laws — an interpretation so fanciful that one could run the entire Union on a single article, but never mind. The Commission wants to halt all imports of Russian energy without taking that decision unanimously? No problem: By a feat of bureaucratic sleight of hand, simply turn a sanction into a trade policy measure, and the job is done.
Magnificent. One can no longer accuse the eurocrats of lacking creativity. Except that bending the Treaties at will according to circumstances and political interests is the very definition of arbitrariness, and trampling on the rules is a denial of democracy and the rule of law. This is a headlong rush, an autocratic impulse that does not bode well and justifies the growing fears and anger directed at this opaque, hypocritical, and messianic EU, which makes its “values” and ambitions prevail above all else. Let us hope that at the next European Council, Europe itself will not become the victim of the geopolitical hubris that has seized a disoriented EU, eager to exist on the international chessboard at any price. Whatever it takes.
European Union: it has become illegal to fight illegal immigration