Walking Out on Hungary

As the EU steps up its efforts to fund the defence of Europe, Hungary sticks to its policy of undermining those efforts whenever it can. Hungary’s leader Viktor Orbán says he condemns the invasion of Ukraine but stays close to Putin all the same. Given that a Member State cannot be expelled from the EU, the Member States should simultaneously withdraw from the EU Treaties under Article 50 TEU and concurrently sign up to new EU Treaties without Hungary. Only in this way could the EU effectively stand up to Russia, introduce important Treaty changes, and finally overcome tolerating Putin’s allies within the EU. Who knows, perhaps the Hungarian people would eventually join the new EU Treaties as well and leave Orban’s legacy behind.

Hungary’s pro-Kremlin stance undermines EU policies on Ukraine and Russia

When Hungary took over the rotating Presidency last July, Orbán outraged EU leaders by visiting Russia, the US, and China on a “peace mission” to settle the Ukraine war. He was rebuked for presenting his visits as official exercises in EU diplomacy, rather than the personal propaganda exercises they actually were.

Hungary’s serial abuses of human rights and the rule of law puts it at risk of losing its rights as a Member State including its voting rights in the Council. While it is not stated in black and white that a Member State could lose its voting rights for vetoing aid for Ukraine or sanctions against Russia, but Estonia’s Foreign Minister called for precisely that as a response to Hungary’s recent insistence that three Russian oligarchs be removed from the EU’s sanction list.

Suspension of voting rights requires all other Member States to agree

The practical problem is that suspension of voting rights would need a unanimous vote of the rest of the EU, and Hungary has always been able to count on at least one like-minded regime to have its back. At one time this was the populist government of Poland, and now it is that of Robert Fico of Slovakia, whose pro-Kremlin policies recently provoked thousands to take to the streets in nation-wide protests.

There is no expulsion clause in the EU Treaties

The EU has no mechanism to expel a Member State that has gone rogue. The EU Treaties could be amended to include an expulsion clause but that would require unanimity, and Hungary would veto the change.

I argued in the past that even if a mechanism existed to expel Hungary, the EU probably wouldn’t use it. National governments and national sentiments change. Not all Member States would in practice be vulnerable to expulsion – the EU could hardly expel France if it elected a populist to the Presidency. The EU just has to work around disruptive governments and take a long-term view. Suspending voting rights should be enough, if the politics can orchestrate to bring that about.

That is all well and good, but in the meantime, free countries may fall to aggression and tolerating an ally of Putin at the EU’s top table may prove insufferable.

The EU has an exit clause in Article 50 TEU

While the EU does not have a procedure for expelling subversive Member States, it does have a procedure for Member States to leave the Union of their own free will. This procedure is laid down in Article 50 of the Treaty on European Union. The chances of Hungary going quietly are slim – 70% or more of Hungarians support EU membership.

Repurposing the exit clause

That said, Article 50 could still be the key to dealing with Hungary. It could be used to close down the EU as presently constituted – as suggested by Chamon and Theuns in this blog – and replace it with a new and modified EU, from which Hungary was excluded from the outset.

All the EU countries wanting to see the back of Hungary could give notice under Article 50 that they intended to leave. The result would be that two years later – or a shorter period if each Member State giving notice made a withdrawal agreement to that effect with the Council – the EU Treaties would no longer apply to them, and the EU would be effectively defunct.

A new deal for the EU would be agreed in advance

That would cause neither alarm nor crisis if the countries intending to quit the EU had signed up to replace EU Treaties, which would take effect when the present Union ceased to function. Drafting the new deal and arranging national constitutional consents could be completed in advance of the collective notice to quit.

The new EU, comprised of all Member States which had signed up to the new arrangements, would step into the shoes of the old EU, and assume all its rights and obligations. Hungary would be excluded, as would any other country which had opted not to back the new treaties.

If an excluded state used the euro, there would be provisions in the new treaties to permit it to continue doing so, at least for the time being. There would also be safeguards for citizens of excluded states living in EU countries, perhaps on the Brexit model.

The new EU Treaties would differ in technical respects from the Treaties they replaced, e.g., where mention of excluded States had been removed from legal texts, and any consequential adjustments had been made.

Real reforms could be included

There could also be some real innovations for the new EU, but not so many as to torpedo the new deal, politically or legally. If innovations were too radical, the mass-walkout strategy would never get off the ground.

Critics might anyway say that the exercise was unlawful because its purpose was to side-step Hungary’s veto, along with other procedural requirements for changing the EU Treaties. The normal procedures would include representatives of the Commission and Parliament participating in the deliberations of the Convention, though these institutions would have the opportunity to express their views in any event. The European Parliament might even back a reforming initiative of this sort – at its inaugural session in July last year the new Parliament condemned Viktor Orbán by a huge majority for his visit to Moscow and described it as “a blatant violation of the EU Treaties and common foreign policy”.

The Court of Justice would have to be on board

No doubt the CJEU would be called upon to give its verdict on the question whether Article 50 could be used for the purposes under discussion. The Court might be offered an opportunity to do so as a result of a reference from a national court. In the course of Brexit the CJEU gave a ruling on the question whether Article 50 could be revoked, in response to a reference from a Scottish Court.

Using the Article 50 procedure to collectively and simultaneously withdraw from the EU Treaties, thus effectively expelling Hungary and making treaty changes, would be something of a legal revolution. However, if the changes to EU procedures were limited to what seemed essential to defend Europe from Putin and his allies within the EU, the politically aware Court would think twice before blocking the process.

Removal of national vetoes for suspending rights and imposing sanctions

At the top of the innovations list might be changing the rules for suspending the voting and other rights of a Member State. It could be spelled out expressly that grounds for suspension included supporting a country waging aggressive war in Europe or occupying the territory of a European country contrary to international law.

Decisions on suspension of voting rights could be by a special majority with a high threshold, designed to stop a few Member States blocking action by the many, while ensuring that such decisions could not be taken lightly.

The new voting rules could also apply to elements of the Common Foreign and Security Policy and Common Security and Defence Policy, which currently require unanimity, so that, e.g., never again could a tiny minority block sanctions against an aggressor.

Funding military operations from the general budget

Another innovation would be to allow the EU to use its general budget to support the military operations of its Member States and their allies – something currently ruled out by the EU Treaties. This would not automatically unlock huge new resources, but it would increase the EU’s funding options.

There would have to be safeguards. No EU country should be required to engage in military action, though all should accept that their financial contributions to the EU might be used for such action and other military purposes.

Moves to expel Hungary might make expulsion unnecessary

If Hungary was faced with isolation, it would be likely to join a reformed EU if it was allowed to do so. Hungarian voters would not take kindly to Hungary leaving the EU. The same would probably go for fellow travellers. Slovakia has a pro-Kremlin leader in Robert Fico, but most Slovakians support EU membership.

It would be ironic but entirely satisfactory if a constitutional revolution launched to expel Hungary from the EU led to all Member States signing up to a new deal for Europe, which enabled it to contain any rogue states on the inside, and stand up to an aggressive Russia on the outside.