Undermining the European Union: Constitutional Betrayal from Within

The rule of law is not a decorative flourish in the European Union’s constitutional order; it is its foundation. Enshrined in Article 2 TEU, it underpins legal supremacy, judicial independence, and mutual trust between national courts. Yet in Hungary, this foundation has been deliberately hollowed out under the guise of legality. What we face is not mere democratic ‘backsliding’ but a sustained campaign of legalised authoritarianism.  The EU, built for integration not resistance, is proving structurally incapable of defending its legal identity.

What has unfolded in Hungary is not routine non-compliance with EU obligations. It is a systemic and deliberate dismantling of judicial safeguards and democratic structures. Prime Minister Viktor Orbán’s project to build an “illiberal democracy” has produced just that: through forced judicial retirements, court-packing, and loyalist appointments to the Constitutional Court, the independence of the judiciary has collapsed. Civil society and academic freedom have been targeted; most notably through the 2017 Higher Education Act, which forced the Central European University out of Budapest. These changes were not imposed through force, but enacted by law—legality as a weapon against legality. This is what scholars term “authoritarian legalism.”

Nor is this pathology confined to Hungary. Poland under the Law and Justice Party (PiS) mirrored the same constitutional sabotage: purging judges, politicising appointments, and openly rejecting the authority of the Court of Justice of the European Union. In 2021, Poland’s Constitutional Tribunal declared parts of the EU Treaties unconstitutional, a direct affront to the principle of EU legal supremacy. But Hungary has gone further. It no longer merely violates the rules; it rewrites them while claiming fidelity to them. It deploys the language of democracy and sovereignty not as a shield, but as a weapon.

This constitutional erosion has taken on tangible form. In March 2025, Hungary banned public Pride events, citing “public morality.” The law permits surveillance, fines, and restrictions on LGBTQ+ expression. In most Member States, such a measure would face judicial review. But in Hungary, the judiciary has been captured; there is no meaningful avenue for constitutional challenge. Worse, under Article 51 of the EU Charter, the Charter applies only when Member States implement EU law—leaving the Pride ban formally beyond EU jurisdiction. The result is a legal black hole: an EU Member State suppressing fundamental rights with impunity.

The Commission remained largely passive. It issued no infringement action, citing a lack of legal competence. But if this is correct, the Union must confront a deeper truth: that its fundamental values are unenforceable in the face of national defiance. The Pride ban drew no institutional condemnation. Instead, it provoked mass protest: over 200,000 marched in Budapest, the largest anti-government demonstration in years. Where EU law failed, civil society stepped in.

This is the reality of the so-called “rule of law crisis”: values that exist on paper, but vanish in practice. Mechanisms that look powerful in treaties but prove inert in deployment. A Member State that has ceased to share the Union’s constitutional DNA, yet retains full rights within its institutions. Hungary is not breaking the rules—it is rewriting them while the referee looks away.

The EU’s enforcement arsenal has proven dangerously insufficient in its every facet. Article 2 TEU, which enshrines the rule of law, democracy, and human rights, is not justiciable. It declares principles; it does not empower actors. Article 7 TEU, the so-called “nuclear option”, allows suspension of a Member State’s rights in cases of systemic breaches. Yet the unanimity requirement has rendered it paralysed. Proceedings against both Poland and Hungary have stalled. Article 7 has become less a sanction than a signal: a sign of the EU’s institutional helplessness.

Infringement proceedings under Articles 258–260 TFEU have yielded victories in court, including in Commission v Poland (C-791/19), where the CJEU found Poland’s Disciplinary Chamber violated judicial independence. But the effects have been modest. Daily fines were imposed, yet reforms were superficial and compliance partial. Worse, infringement procedures target discrete violations—not systemic patterns. The forest is burning while the EU litigates individual trees.

The most celebrated innovation, the Conditionality Regulation (2020/2092), links EU funding to rule of law compliance, but only where violations risk the financial interests of the Union. It does not apply to democratic decay as such. Its use has been timid. In 2022, the Commission proposed suspending €7.5 billion in cohesion funds to Hungary. Following weak reforms and political deals, the suspension was partially lifted. Poland, facing similar violations, has never been targeted. The tool exists, but is applied inconsistently and often in bad faith. Political expediency continues to trump constitutional urgency.

Soft instruments have fared no better. The Rule of Law Framework, the Annual Rule of Law Reports, and structured dialogue were intended to raise awareness and promote reform through elevated transparency and reputational pressure. But Hungary’s government does not seek approval within liberal-democratic frameworks: it seeks to undermine them. Reports are dismissed, warnings weaponised, dialogue used as delay. These tools, admirable in theory, fail where their subjects are not merely failing, but rejecting, the EU’s normative core.

Hungary’s authoritarian evolution is not confined to the EU. In 2025, it withdrew from the International Criminal Court, marking its exit from yet another supranational accountability structure. The pattern is unmistakable: Hungary stays in international frameworks only when it can avoid their constraints. The message is clear—sovereignty without supervision.

The EU’s response, by contrast, has been fragmented and largely symbolic. Tools are introduced, but rarely wielded. Values are defended rhetorically, but not structurally. The legal order remains fixated on consensus, reluctant to confront disloyal actors, and incapable of self-preservation. Even reform proposals—treaty changes to eliminate unanimity, expanding the Charter’s scope, and granting direct effect to Article 2—are dead on arrival, as they require the consent of the very governments undermining the rule of law.

This is not merely a crisis. Crises imply rupture. This is something deeper: the normalisation of authoritarianism within a legal system designed for mutual trust and voluntary compliance. Hungary has revealed the EU’s greatest vulnerability: that enforcement of its values depends on the goodwill of those most likely to violate them.

To continue calling this a “rule of law crisis” is misleading. The term suggests a deviation, a correctable disruption. We are witnessing institutionalised defiance, procedurally immune and politically tolerated. The EU still functions; budget votes are passed, courts deliver rulings, summits are held. But the core idea of a shared constitutional identity is rotting from within.

Unless the Union confronts this degeneration with clarity and courage, it will lose more than credibility. It will lose coherence. The EU cannot remain a community of law if it cannot tell when law has collapsed. Hungary is not the exception. It is a warning. And if the system remains unchanged, that warning will become a model.

Illustration by Will Allen/Europinion