By invoking Article 122 of the
E.U.’s basic law, a clause that had been used most significantly during the Coronavirus
pandemic and in the 2022 energy crisis, the E.U. in December, 2025 finally
circumvented the twice-threatened veto by the state of Hungary and indefinitely
froze €210 billion of assets of the Russian Central Bank that had been within
the E.U.’s territory since Russia began its unprovoked invasion of Ukraine
nearly four years earlier. I contend that the European Court of Justice, the E.U.’s
supreme court, could apply a rational basis in a judicial review of the triggering
of the emergency-conditioned article, especially because the Commission
invoked the article in order to obviate Hungary’s threatened veto. Because every
E.U. state except for Belgium and Hungary were for freezing the assets until Russia
such time as Russia ends its militaristic aggression and compensates Ukraine
financially for damages the Belgian and Hungarian state governments were
violating the informal norm of consensus in the European Council and the
Council of Ministers. Like the U.S. Senate, the European Council, which also
represents the states, is like a club of sorts. The problem facing the
Commission is that violating a norm is not a legal basis for obviating a
threatened state-veto by invoking an emergency clause of the E.U.’s basic law, especially
if no emergency actually exists after nearly four years of the invasion. Even
though I am personally in favor of the E.U. obviating Hungary’s serial obstructionism
that may be, at least in part, retaliation against President Von der Leyen’s
Commission for having penalized the Hungarian government financially for having
violated E.U. law, legal reasoning should not succumb to the gravity of the “black
hole” of personal opinion. There may be nothing
so much like a god as a general on a battlefield, with power over life and
death, but neither the European Commission nor myself is a general. In short,
the Commission’s legal justification in invoking Article 122 is tenuous at
best, even though countering Hungary’s Viktor Orbán’s abuse of his state’s veto-power
in the European Council and the Council of Ministers was needed for the E.U. to
be able to function within its enumerated competencies (i.e., powers).
The full essay is at "Immobilizing E.U. Holdings of Russian Assets."
