Constitutional Reconstruction and Removal of Veto Players
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Tímea Drinóczi
Tímea Drinóczi is Professor of Law at Mykolas Romeris University.
This piece builds on the emerging literature on constitutional repair and democratic frontsliding following democratic backsliding. Recent scholarship has explored how constitutional democracies may legitimately restore democratic institutions, including through measures that may depart from orthodox understandings of legality and institutional continuity. This piece focuses specifically on the constitutional justification for removing institutional actors with entrenched powers capable of obstructing constitutional reconstruction, particularly constitutional courts and heads of state. Addressing these institutional “veto players” may become unavoidable, particularly where there is sufficient democratic authorization for far-reaching constitutional reforms.
Since the parliamentary election of 12 April 2026, Hungary appears to combine this condition with a political commitment to restoring the rule of law, democracy, and fundamental rights. Unlike in Poland, where entrenched veto players have constrained reconstruction, the Hungarian government holds a constitutional majority capable of pursuing extensive reforms. This makes the constitutional justification for removing veto players particularly salient and directs attention to EU jurisprudence and the Venice Commission’s (VC) rule-of-law standards.
This piece argues that recent EU jurisprudence, in interaction with the VC’s rule-of-law standards, has become a resource for constitutionally legitimate reconstruction. Emerging standards on constitutional identity, context, and Article 2 TEU, combined with reconstruction strategies articulated in the Updated Rule of Law Checklist (Checklist), provide a framework for justifying measures that may otherwise appear constitutionally suspect. While the question of how the EU and the VC would assess such measures remains important, this piece focuses on how this framework may support intrusive interventions: the removal of heads of state and members of constitutional courts.
Veto Players and Justification Framework
Prime Minister Péter Magyar has repeatedly invited the heads of major constitutional offices to resign by the end of May 2026. After a lost election, veto players may remain aligned with the previous regime and obstruct constitutional rebuilding. This dynamic has been visible in Poland and may also emerge in Hungary, where most Constitutional Court (CC) members remained silent after one judge called on the CC’s President to resign. Once “activated,” such actors can become significant obstacles to reconstruction. An example of “activation” is the then-still Prime Minister Viktor Orbán’s letter to the President of the Republic, regarding the non-implementation of the judgment in Commission v Hungary (C-769/22; 21 April 2026). He framed the judgment as a violation of Hungarian sovereignty and constitutional identity, invoking CC decisions, which can be seen as an indirect signal to this body about the interpretative direction it is expected to follow.
The risks these veto players pose are real: they may refuse to leave office and actively obstruct reconstruction. Their removal, therefore, requires constitutional justification. Recent EU jurisprudence and Advocate General opinions suggest three relevant standards:
Domestic constitutional identity has substantive limits. It cannot be invoked in ways that conflict with the EU’s constitutional identity.
Context matters. As Advocate General Ćapeta emphasized in Case C-225/24, reforms cannot be evaluated in isolation from the broader context of democratic backsliding and institutional capture.
Article 2 TEU. In Commission v Hungary (C-769/22), the Court confirmed that Article 2 TEU is legally enforceable, forms part of the EU’s constitutional identity and imposes obligations on Member States.
The VC’s Checklist also emphasizes context and further requires attention to international legal guidance and to whether departures from legal certainty or the principle of judicial irremovability remain necessary and proportionate. The following sections apply this framework to different categories of veto players.
Test 1: Heads of State
The case for removing the Hungarian President of the Republic, Tamás Sulyok, who entered office in 2024, is politically understandable but legally difficult to justify. The President’s powers within the Hungarian constitutional system are relatively limited: many presidential decisions are countersigned, the office does not typically drive legislative initiatives, he may delay legislation and refer laws to the CC, but cannot ultimately block legislation or constitutional amendments. Although critics point to his passivity during major public scandals, his limited use of veto power, and his absence of representation of the nation’s unity, these concerns are primarily moral, political, and symbolic. Nevertheless, the majority of Hungarians would support his resignation.
As a result, the three reconstruction standards discussed above provide only limited support for removal. Constitutional identity does not provide a relevant basis given that the President had no role in shaping the concept; contextual arguments remain limited due to the lack of his active and formative role in the backsliding; and Article 2 TEU cannot easily be invoked in the absence of a manifest and particularly serious breach attributable to the President himself. Since impeachment already exists for unconstitutional conduct, removal outside existing constitutional mechanisms would raise serious rule-of-law concerns and would be difficult to justify as necessary and proportional.
The analysis may differ in systems where heads of state hold stronger positions, possess stronger veto powers, and parliamentary override thresholds are higher than the actual parliamentary majority, as in Poland. Here, the constitutional justification for removal may become more compelling. Proportionality would then depend on the president’s contribution to democratic deterioration in light of their powers and their use.
Test 2: The Constitutional Court as a Decisive Veto Player
Constitutional courts can be a decisive veto player: they can annul legislation and, potentially, constitutional amendments. In Hungary, this could obstruct key new political commitments, such as dismantling the Sovereignty Protection Office, which the Venice Commission criticized and the CC found constitutional, establishing mechanisms to recover misappropriated public money, and adopting the legislation necessary to unlock EU funding.
The three standards emerging from recent EU jurisprudence – values, context, and constitutional identity – support the removal of CC members during reconstruction. The CC has adopted decisions in areas such as electoral law that have been widely criticized for contributing to the autocratization process. These decisions have undermined the values of Article 2 TEU. The context is well documented through infringement proceedings, CJEU and ECtHR case law, NGO reporting, and academic scholarship over the past sixteen years. The CC’s jurisprudence has developed the concept of constitutional identity into an abusive doctrinal tool that is not only contrary to the EU’s constitutional identity but may also be further mobilized to resist reconstruction measures.
Applying the Checklist, which has already been used in the 2026 Urgent Opinion on the Polish case concerning the reform of the status of judges appointed or promoted between 2018 and 2025, to constitutional court judges requires certain adaptations. This is because the CC justices are not ordinary judges; the CC was not formally declared non-independent; and the VC has expressed concerns about the one-channel appointment model of the justices in a parliament where the government had a stable two-thirds majority. However, the combination of context, identity, and Article 2 TEU may provide sufficient support in international law for exceptional reconstruction measures. Necessity would depend on the CC’s capacity to obstruct reconstruction, while proportionality should rest on individualized assessments of judges based on their jurisprudence, selection, and reasoning in key cases, including rapporteur work, concurring opinions, and dissents.
The removal of the CC justices may therefore be easier to justify than the removal of the Hungarian President. Nevertheless, any related constitutional amendment should proceed through transparent and deliberative procedures with clear public justification. An example of the latter could be the explanatory memorandum attached to the mentioned Polish law.
Concluding Remarks
The interaction between the standards and the VC’s Updated Checklist suggests the emergence of a European framework for reconstruction after backsliding. The test cases demonstrate that the strength of the constitutional justification varies according to both the veto player’s capacity to block reconstruction and the extent of their contribution to the illiberal entrenchment.
Tímea Drinóczi is Professor of Law at Mykolas Romeris University.
Suggested citation: Tímea Drinóczi, ‘Constitutional Reconstruction and Removal of Veto Powers’ IACL-AIDC Blog (Day Month 2026) Constitutional Reconstruction and Removal of Veto Players — IACL-IADC Blog
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