Exclusion from the EU is Possible as a Last Resort

On 7 October 2021, the Polish Constitutional Tribunal issued a decision that can only be compared to setting off a bomb.¹⁾ The Tribunal declared that key provisions of EU primary law were incompatible with the requirements of Polish constitutional law if they were ascribed an interpretation that impaired Poland’s position as a sovereign state or its constitutional autonomy. The binding effect of EU primary law (signed by the Polish Republic) and its claim to primacy are thus called into question in a key area of European integration. At the same time, the Polish Constitutional Tribunal gave the EU institutions (including the ECJ) constitutionally prescribed pathway for development: Future integration that would leave this path would be deemed incompatible with the Polish constitution and thus non-binding for Poland. The standards developed by the Polish Constitutional Tribunal are highly indeterminate and thus leave the Polish government ample room for action and negotiation.

The decision of 7 October 2021 escalates a conflict that has been smouldering for some time. Its background is the liberal-democratic and rule-of-law regressions in Poland since the PIS government came to power in 2015. The EU institutions and the other EU member states must face the question of how to respond to a development which is no longer just about whether measures taken by EU institutions are in conformity with the treaty (“ultra vires” acts of EU institutions), but which questions of the binding effect of EU treaty law as such.

Two ideal types of reaction can be distinguished. EU federalists will look for ways and means to increase vertical pressure on the Polish governmental institutions in order to force them to return to the path envisaged by EU integration policy. From this point of view, it is about searching through the increasingly rich “toolbox” to see which instruments, alone or in combination, would exert the greatest possible pressure – up to and including the coercion by the ECJ in case of non-compliance with its decisions. From this point of view, it is a matter of disciplining an EU member state for its misguided development. This is based on an understanding of integration policy that no longer regards the EU as a mere agent of the member states as principals. According to this understanding, the EU has overcome its status as a special-purpose association and has become a political body that – in cooperation with the member states – is based on a liberal orientation, and, in light of this orientation, pursues a general political agenda oriented towards a common good. Crucially, EU federalists recognise a responsibility on the part of the EU to maintain a concurrent basic political orientation in the EU member states as well. The “principal-agent” relationship between member states and the EU is thus reversed: The EU institutions prescribe to the constitutional bodies of the member states what they have to do and what they have to refrain from doing.

According to the (conservative) counter-position, this federalist vision has not yet materialised in today’s EU, neither in terms of treaty law nor politically. Those who pursue it aim to over-constitutionalize the EU, which is neither supported by the political will of a political community of European citizens nor by sufficient structures of legitimacy. The counter-position considers that in the current state of integration development, it is consistent and appropriate to regard the regressions observed in Poland as a problem that affects the position of the states as members of a political club. If there are developments in a member state that are incompatible with the conditions of membership as described in Article 2 TEU, according to this view, the point is not to force a return to the desired behaviour, as defined by a liberal understanding of the aims and ends of integration policy, with more and more pressure. INor is it about searching for means to increase pressure on the member state to reverse its behaviour. Rather, it is a matter of demonstrating politically that the state’s behaviour is incompatible with its membership. From this point of view, it is obvious that the regressions described pose a challenge that must be addressed by the circle of “peers”, i.e. the other EU member states. Ultimately, continued misconduct means leaving the EU.

The underlying understanding is that the EU is not only based on supranational governance but that there are areas built on contractual structures. In those areas, decisions must be made via intergovernmental understanding among the club members²⁾. Both areas do overlap somewhat. In any case, it is clear that substantial regressive developments within member states that call into question treaty obligations as such require a response based on the contractual relation.

The EU Treaty does not conclusively regulate lasting and severe adverse developments (beyond the steps provided for in Art. 7 TEU). If the Art. 7 procedure does not lead to sanctions (or if the sanctions have no effect), the EU is not condemned to inaction. No community has to accept a member permanently and seriously turning away from its explicit or implicit commitments. In any social or legal community, there are mechanisms for exclusion or termination so that the community can protect itself from the damage an individual member can cause. Even if EU primary law does not provide for an explicit provision, EU member states have the competence under international law to terminate the treaty with the state in breach of the treaty (Art. 60 para. 2 lit. a) i) of the Vienna Convention on the Law of Treaties between States (VCLT) or corresponding customary international law). There are no reasons to assume that the founding states of an international organisation such as the EU would have waived this fundamental and elementary right, nor to assume that EU law in this respect is a closed regime that excludes recourse to rules of international law. EU law is merely requires that the procedure under Art. 7 TEU must be carried out first in order to get the defaulting member state to comply with the requirements of Article 2 TEU. However, the procedure does not exclude making use of the responses provided for in international law.

The other EU member states can only terminate the treaty if there has been a material breach (Art. 60 para. 3 VCLT), i.e. if the member state concerned violates a provision essential to the accomplishment of the object or purpose of the treaty (Art. 60 para. 3 lit. b) VCLT) . Whether this requirement is already met if a member state refuses to follow a judicial interpretation of EU primary law, which in turn is law-forming, seems doubtful. It is certain, however, that this requirement is met if a member state absolves itself of the obligation to observe treaty law (in a certain interpretation). In this case, the threshold of Art. 60 para. 3 lit. a) VCLT is regularly met: The Member State has then rejected the treaty.

The application of Art. 60 para. 2 lit. a) i) VCLT must comply with the principle of mutual loyalty and must respect the principle of good faith. It must be evident that taking action under Art. 7 has failed; the EU member state concerned must be given reasonable time to react. The political will of the other EU member states to make use of Art. 60 para. 2 lit. a) i) VCLT must be communicated clearly. It would have to be considered to give the population of the member state in question the possibility to vote out the government acting contrary to EU law. This would mean that a presidential or parliamentary elections should lie between the announcement of action under Article 60 (2) (a) (i) of the VCLT and its application.

The decision on the termination of membership according to Art. 60 para. 2 lit. a) i) VCLT should be taken in such a way that it is possible to negotiate a withdrawal agreement with the EU member state concerned. Should the member state refuse, there would be a hard exit – with all negative consequences for the EU and the (former) member state concerned. One will have to live with this in order to avoid further damage – as may also be the case in the absence of a withdrawal agreement under Art. 50 TEU (“hard exit”).

Conclusion: Only integrationist dream-walkers could take the position that there is no legal possibility to withdraw the status of EU membership from an EU member state that permanently disregards the conditions of membership. Of course, political wisdom recommends that this “nuclear option” only be used if there is no political development in sight that the member state in question will again be meeting the expectations associated with membership. The possibility of using this option must be communicated in such a way that the electorate in the member state is able to react within the framework of an election. If, in this situation, the population of the member state decides to confirm the government, then it is not unreasonable to take action accordingly.