The War in Ukraine and Its Influence on the Council’s Decision-Making in the Context of the Common Foreign and Security Policy

This chapter examines the impact of the war in Ukraine on decisionmaking within the EU’s Common Foreign and Security Policy (CFSP), with particular focus on the adoption of restrictive measures against Russia and key developments in the Common Security and Defence Policy. The current practice in the field of sanctions reveals that Member States avoid invoking the constructive abstention mechanism under Article 31 TEU, in order to safeguard the unity and effectiveness of the EU’s sanctions regime. Dissenting positions within the Council were expressed through ‘simple abstention’ pursuant to Article 238(4) TFEU or through the inclusion of ad hoc derogations in sector-related restrictive measures. Next, the chapter examines arguments that may lead the EU Court of Justice to uphold the annulment action brought by the European Parliament against the Council challenging the use of unanimity in the adoption of implementing measures in the context of EU restrictive measures. Turning to the Common Security and Defence Policy the chapter explores the use of constructive abstention in connection with the launch of the EUMAM Ukraine mission and the operational deployment of the European Peace Facility (EPF), particularly in relation to the provision of lethal military equipment. These instances highlight the different positions of certain Member States vis-à-vis EU initiatives in support of Kiev. The second case that is examined in this chapter concerns a pending action brought by Hungary to seek the annulment of its exclusion from EPF-related decision-making. The future ruling will clarify whether a country relying on constructive abstention has still the possibility to participate in the adoption of subsequent implementing decisions. The chapter concludes with reflections on the broader implications of the war in Ukraine for the CFSP decision-making process.