Dr. Niels Kirst, Assistant Professor of European Law at DCU

Hungary’s rule of law decline recently made international headlines by Viktor Orban’s intention to withdraw from the International Criminal Court (ICC). The ICC is based on the Rome Statute which has been ratified by over 100 states, including all 27 EU Member States, and entered into force in 2002. There have been no official withdrawals from the ICC by any EU Member State. Recent news, however, indicates the intention of Hungary’s Victor Orban to withdraw from the Rome Statute. This is an unsettling development from the perspective of both the international rule of law (which has been in swift decline since the inauguration of the Trump II Administration) and the European rule of law. 

The questions that this blog seeks to answer is whether the European Commission (Commission) can do anything about Hungary’s further backsliding on the rule of law and undermining of the EU’s foreign policy position. From the outset, Orban’s intention is legal under EU law, as the Rome Statute is not formally implemented into EU law. Hungary may invoke Article 127 of the Rome Statute, which permits withdrawal with one year’s notice. However, this international law provision does not override EU law within the Union’s legal order. 

Having said that, I argue that a unilateral withdrawal from the ICC is against EU law. All 27 Member States are also state parties to the Rome Statute of the ICC. Each Member State has individually ratified or acceded to the statute. While the EU itself is not party to the Rome Statue, there are two relevant documents relating to it. First, Council Decision (2011/168/CFSP) states the EU's and Member States’ support of the ICC’s effective functioning. This political commitment encourages Member States to cooperate with the ICC and promote its universality, but does not legally implement the Statute into EU law. Second, the EU-ICC Cooperation Agreement (2006) facilitates practical cooperation between the EU and the ICC, such as sharing information and supporting investigations, but does not transpose the Statute’s substantive provisions into EU law. 

However, Article 29 TEU, on which the Council Decision (2011/168/CFSP) is based, states that "The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions." Hungary is clearly undermining the latter. Furthermore, Article 4(3) TEU imposes the duty of sincere cooperation, requiring Member States to “facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardize the attainment of the Union’s objectives.” The EU has explicitly committed to supporting the ICC, as evidenced by the Council Decision and the EU-ICC Cooperation Agreement. These instruments, while not transposing the Rome Statute into EU law, establish a Union policy of support for the ICC’s mission. By withdrawing from the ICC, Hungary is actively undermining this union policy and infringing Article 29 and Article 4(3) TEU. 

Finally, Hungary’s intention to withdrawal also clearly undermines the EU values enshrined in Article 2 TEU. The EU is founded on the values of respect for human dignity, the rule of law, and human rights, as articulated in Article 2 TEU. As the European Court of Justice has held, these values are not abstract (see here and here); they are operationalized in the field of foreign policy through Article 21(1) TEU, which mandates the Union to promote democracy, the rule of law, and human rights in its external action. The Rome Statute, establishing the ICC to prosecute genocide, war crimes, crimes against humanity, and the crime of aggression, is a cornerstone of this global legal order. The European Court of Justice has consistently held that Member States’ actions must recognise and respect the Union’s foundational values (see here and here). A unilateral withdrawal from the Rome Statute would signal a retreat from these values, weakening the EU’s moral and legal authority on the global stage. Withdrawal from the ICC is not a neutral act; it is a rejection of a global justice framework the EU champions, rendering it incompatible with EU membership obligations.

In conclusion, I argue that a Member State’s unilateral withdrawal from the Rome Statute is unlawful under EU law. It contravenes the Union’s foundational values, breaches the duty of sincere cooperation, and exceeds the permissible scope of national competence considering EU objectives. Therefore, the Commission should initiate infringement proceedings under Article 258 TFEU against Hungary to declare such an act incompatible with the Treaties and, if necessary, to request the European Court of Justice to issue an injunction preventing the Member State from proceeding with withdrawal pending compliance with EU obligations. The integrity of the Union’s legal order and the EU’s integrity on the international stage demands nothing less.

In a broader perspective, for the EU it is now clearly time to wake up and do something about the ongoing rule of law backsliding in Hungary, which is not decelerating but instead accelerating. Given the recent policies and actions of the Trump II Administration, undermining the existing global order whether it be in trade or in geopolitics, it is a make-or-break moment for the EU to act boldly and united on the global stage, countering the risk to becoming a plaything in of other powers. If the EU wants to make sure to act as a united entity during these challenging geopolitical times, it had better move quickly against a hybrid regime which uses any opportunity to undermine the EU’s foreign policy positions and the rule of law.