Poland and Hungary are withdrawing from the EU
Over the past years, the governments of Hungary and Poland have repeatedly defied various EU rules, including the core principles of membership they had subscribed to when acceding to the Union. Assaults on the independence of their judiciary, capture of the media and onslaughts on civil society, have thus led to judicial proceedings before the European Court of Justice (e.g. here, here, here, here and here), the unprecedented activation of the procedure of Article 7 TEU (see here, here, and here), as well as the withholding of some foreign assistance and cooperation programmes (see here, here, here). Recent emergency measures taken in the midst of the COVID 19 crisis have added to this remarkable track-record, attracting further criticism (see in particular here, here, here, here, here, here and here) and exposing more conspicuously those governments’ pursuance of a political and constitutional agenda that is increasingly at odds with the principles underpinning the EU legal order (here, here, here, and here). These developments beg the question of what the EU may, or indeed shall do when a Member State no longer fulfils the prerequisites of membership. Can the Union force that state to meet its duties against its will? Or should it ultimately acknowledge that state’s choice, and proceed with its orderly retreat from the EU legal order?
The right to withdraw
The EU has a mandate and tools to guarantee Member States’ compliance with EU rules, the most established of which is the infringement procedure (Articles 258-260 TFEU). Those tools have been critical to secure the functioning and thus to preserve the integrity of the Union’s legal order. Yet, the EU enforcement toolkit is not fitted to address all types of Member States’ defiance. Practically and legally, the Union cannot coerce a Member State to observe EU law, and particularly the principles of membership, against its will. What it can do however, and indeed must is to acknowledge the intention of a state no longer to apply the EU Treaties, before the legal order they establish is itself damaged.
This is the principle which Article 50 TEU, aka the “EU exit clause”, encapsulates. As confirmed by the European Court of Justice in its seminal Wightman ruling, the provision “enshrin[es] the sovereign right of a Member State to withdraw from the European Union” (Wightman, para 56), which means the liberty no longer to be bound by EU Treaties (Article 50(3) TEU). It is an expression of the fact that “[t]he European Union is composed of States which have freely and voluntarily committed themselves to [the] values [of Article 2 TEU]” which “form part of the very foundations of the [EU] legal order” (Wightman, paras 62-63, emphasis added, see also Commission v Poland (independence of Supreme Court), para 42). As membership is voluntary, a state cannot be forced to accede to the EU against its will, neither can it be forced to withdraw from the EU despite its wish to remain (Wightman, para 65). In the same vein, a Member State should not be forced to apply EU Treaties against its will either.
Notification can take different forms
Instead, a state that does no longer (wish to) apply the EU Treaties, and particularly the core requirements of membership, in law and in fact withdraws from the Union. Not only because other Member States will lose trust in that state, thereby diminishing its ability to operate as a Member State, but also because its continuous defiance towards membership obligations would ultimately amount to an activation of the withdrawal process as envisaged in Article 50 TEU.
Article 50(2) TEU stipulates that the withdrawal process is triggered when the state in question “notif[ies] the European Council of its intention”. The provision does not mention any particulars as regards the terms, form or timing of the Member State’s notification. This contrasts with, for instance, the withdrawal procedure included in the Agreement on the European Economic Area whose Article 128 EEA foresees that the state willing to withdraw from the EEA “gives at least twelve months‘ notice in writing to the other contracting parties”. In Wightman (para 74), the Court of Justice only specified that the revocation of a notification must be submitted in writing to the European Council whilst saying nothing to that effect concerning the notification itself. Rather (and as argued here), the notification of the intention for the purpose of Article 50 TEU can take different forms.
Arguably, the key element leading to the activation of the withdrawal process is that the Member State in question has made a sovereign and explicit choice no longer to be bound by EU Treaties. Article 50 TEU only requires that the state’s notification of its intention proceeds from a “decision” taken in accordance with that its own constitutional requirements, following a democratic process (Wightman, para 67).
In view of the principle and open texture of Article 50 TEU, and leaving aside the question of whether their conduct is constitutional and democratic, it is arguable that the Polish and Hungarian governments’ continued and deliberate defiance of the core principles of membership is expressing their respective intention no longer to apply EU Treaties. These conducts could thus qualify as notification for the purpose of Article 50(2) TEU. Should those states fail to change their stance, the Union ought then to respect their sovereign will, and (re)act accordingly.
The European Council should then be seized of the matter with a view to activating the procedure formally to terminate the application of the Treaties to these states. It should issue guidelines for the purpose of opening negotiations to fix the necessary arrangements, as stipulated in Article 50(2) TEU.
Given that this provision does not foresee any specific voting requirement for issuing such guidelines, the European Council acts by consensus. Abstention by members of the European Council would not prevent the activation of the process. Indeed, as stipulated by Article 50(4) TEU, representatives of the state concerned would not “participate in the discussions of the European Council or Council or in decisions concerning it”.
Since an intention is “by nature neither definitive nor irrevocable” (Wightman, para 49), the Polish and Hungarian governments could still change track during the two-year period foreseen in Article 50(3) TEU and decide to revoke their notification, following the requirements which the European Court of Justice spelled out in Wightman. It should be submitted in writing to the European Council, be unequivocal and unconditional, and follow a democratic process.
Such a revocation would confirm the EU membership of Poland and Hungary under the terms that are unchanged as regards their status as a Member State. It would bring the withdrawal procedure to an end (Wightman, para 74), thereby confirming their sovereign choice to keep the status of Member State. This choice would entail their commitment to the values that “form part of the very foundations of the EU legal order”, and to comply with the Treaties including and obligations deriving therefrom, including the principle of sincere cooperation under Article 4(3) TEU. Conversely, the EU Treaties would cease to apply to Poland and Hungary at the end of a two-year period, or upon the entry into force of a potential withdrawal agreement, in accordance with those states’ sovereign will.
I could not agree more Christophe. The only remaining question is: when did the two-year period start?
Easy. That depends on which statements from Poland and Hungary, addressed to the Council, are deemed to constitute „notification“…
(I assume we can all agree that something that is neither a statement nor addressed to the Council cannot possibly constitute notification in the sense of art. 50(2).)
Perhaps, before the EU Member States employ this extravagant idea… (probably, they won’t), they could simply take seriously the law that we actually have, i.e. Article 7 TEU procedure (probably, they won’t)…
Interesting exercise, very provocative…but I’d say this is legal sci-fi
Yes… it is interesting how one can tackle this subject without even mentioning Article 7 TUE. Not a very scientific approach, I dare say.
But Art. 50(1) TEU says: ‚Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.‘
When violation of their own constitutional orders is an issue in Hungary and Poland, it cannot be presumed to be a notification of the withdrawal’s intention.
I know it might seem a bit meticulous reading of the Art 50, but certainly not less legitimate than the Author’s one.
I am not sure what’s the purpose of such deliberations. To scare the Polish and Hungarian governments or perhaps to make EU experts and politicians to feel better after they failed to act. Orban has assumed dictatorial powers whereas Kaczynski and his gang violated the Polish constitution and are cooking the“Corona elections“ which will ensure the re-election of a puppet president. The significant part of society will boycott the vote, but Duda can be elected with as little as 29 percent of voters submitting their ballots. This figure refers to recent public polls, not to any constitutional provisions. The European Commission vows not to influence national elections in member states, but it should reconsider its stance while facing this farce. The majority of Poles and Hungarians want to stay in the EU and they should not be penalised for the actions of their autocratic rulers. They need strong support and protection from the EU institutions, not schadenfreude. I’m a Pole residing in the UK and have already lived in the shadow of Brexit. Entertaining the idea of Polexit infuriates me and I find such intellectual exercises regrettable if not irresponsible.
An interesting and provocative piece, which leaves the political dimension of the question completely unconsidered.
What if the Polish or Hungarian government contradicts and communicates its solid intention to remain member of the European Union?
That’s the point when the whole legal presumption collapses.
At the end of the day, this is no more than wishful thinking on the authors part. Laws merely regulate, they can be bent to serve the underlying agenda. The EU has geopolitical interest that would only be weakened by loss of terirotial influence. Even IF the clause could be interpreted this way, and that’s a big if, given how 50(1) TEU specifically refers to a decision being made, the EU is unlikely to acknowledge this because of the aforementioned reasons. The issues related to Poland and Hungary are not of legal, but of geopolitical nature.
Governments come and go, in Plan and Hungary also.
The EU is a centennial Project and needs to be pursued patiently and with a Passion for the universal rule of law with Europe as its champion. Convincingly defending human dignity the EU will win the hearts and minds of the Polish and Hungarian peoples obliging their governments to respect the EU – Institutions.
Poland, Hungary, and unconstitutional ‚exitspulsion‘
Though I recognize the merits of a more robust political approach to that crisis, I am disconcerted by the interpretation that Professor Hillion proposes, both of Article 50 TEU, and of the behaviour of the Polish and Hungarian governments.
Not without some irony, I am disconcerted because I fear that the proposal violates key Article 2 TEU values, such as the democratic principle and of the rule of law, which are the ultimate constitutional reason why it is suggested that Hungary and Poland have implicitly notified their intention to withdraw. More specifically, the author’s proposal in my view would violate three EU constitutional demands: the rule of law at the level of the Member States; the democratic principle at the level of the Member States; and the rule of law at the level of the EU institutions.
The Article 50 TEU procedure, by the Court’s – and by Professor Hillion’s – own admission is based on a Member State’s decision to withdraw, which “is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice“. The Court is quite specific when it further says in Wightman that no Member State can „be forced to withdraw from the European Union against its will“ (para 65).
Whether the original blogpost accidentally suggests the involuntary expulsion of Hungary and Poland, for which there is no procedure in EU law, or that we respect their sovereign will to withdraw under an existing procedure, depends on whether we can establish that such a will was made implicit by way of a conclusive behaviour that expresses a legally relevant intention.
Since neither Poland nor Hungary have submitted an explicit notification to withdraw, one would only be able to detect such a notification implicitly. In the latter case, a will to exit the European Union would need to be intelligible, and deducible from the specific factual and political context. The argument is that the political context of the Polish and Hungarian governments’ behaviour in respect of Article 2 TEU values gives that behaviour a particular meaning, namely that that behaviour can be interpreted as a rejection of the Treaties manifesting an implicit manifestation of a will to withdraw.
But if we want to be serious about the context, then we need to account for the fact that neither Polish nor Hungarian constitutional law contain a „constitutional requirement“ in the sense of Article 50(1) TEU, whereby a „systemic and persistent violation of EU or international law“ – rather than, say, a deliberate democratic choice – is attributed equivalent legal effects to a decision to withdraw from a treaty. If we want to be serious about the context, we must acknowledge that neither the Polish nor the Hungarian governments have adopted any behaviour which, according to their respective constitutional requirements, can be qualified as forming or expressing a will to withdraw. For the EU to pretend that they have, would be blatant disrespect for whatever value Poland’s and Hungary’s constitutional requirements have left, indeed as if the two countries no longer had constitutional requirements worth observing. The EU would be undermining Poland’s and Hungary’s rule of law.
The main claim of the original blogpost begs the question: what would be an appropriate test to establish whether a Member State’s violations of EU law are so egregious that they would constitute an implicit notification to withdraw? When precisely does a shocking violation of EU law become more than just a shocking violation of EU law, and begins qualifying as a statement with legal effects that will radically transform the political fate and economic wellbeing of 50 million people? Given the stakes, we need a plausible, unambiguous criterion to be sure of what we would be doing to them. Especially given that, as recently as 2019, only 5% of Poles and 7% of Hungarians expressed the view that their countries’ membership of the EU was a bad thing. Yet no such criterion is offered (perhaps because it would be impossible to formulate).
Ironically, the original blogpost seems to suggest that the Treaties could ever lawfully condone (i.e., attribute legal effects to) a Member State’s will to exit the EU that does not express the democratic will of its people. What self-respecting polity that commits to the democratic principle would give identical legal effects to grotesque violations of its core constitutional principles and a conscious, sovereign decision made within a national democratic process?
It is worth remembering that the peoples of Hungary and Poland, like many Eastern and Southern European peoples, historically chose to enter into the EU because they saw in it a guarantee of the democratic institutions they built after the transition. One cannot seriously claim that, within those institutions, there has been any tangible democratic debate about a prospective withdrawal in the same way as in the United Kingdom. The European Union would in my view be undermining Hungarian and Polish liberal democracy further – to the point of violating the democratic principle – if it acted as if the democratic will of the Poles and Hungarians to leave the EU could simply be presumed, without Polish and Hungarian citizens or their representatives having been specifically asked, and most likely against their will. So, in addition to undermining Poland’s and Hungary’s constitutional requirements – and therefore the rule of law in those countries – the EU would be diminishing the importance of Hungarian and Polish democratic process in such a fundamental decision.
In short, under Article 50(1) TEU and in light of the democratic principle under Articles 2 and 10(1) TEU, the European Council cannot consider itself to have been notified of any Member State’s intention to leave the EU simply by virtue of its government’s appalling violations of EU law, as such would mean indifference to whether or not it makes such a decision democratically, and in accordance to the applicable constitutional requirements.
The thesis of the original blogpost results in taking the Article 50 TEU procedure, which is emphatically about respecting a Member State’s own sovereign decision to leave the EU, and interpreting into it a procedure for a completely different purpose – of expelling a Member State against its sovereign will. That it could be “arguable” that Poland and Hungary intend to leave cannot be enough. Without there being a firm and unequivocal expression of the actual will of a Member State to leave, the EU would be distorting the constitutional purpose of Article 50 TEU. If a practice of sustained and serious violation of EU Treaties can be presumed to constitute an implicit notification of withdrawal regardless of whether or not a Member State has made a deliberate choice to leave, then that presumption must be unrebuttable. Indeed, if a presumed notification suffices, it would be for the European Council to decide whether to presume to have received it, whether the Member State likes it or not. The EU would be subverting the Article 50 TEU procedure into a sort of ambivalent ‘exitspulsion’ procedure where the European Council has final authority over a Member State, and sanctions that Member State by expelling it from the Union over manifest violation of the values enshrined in its Treaties.
We may be persuaded to believe that a similar procedure should exist in the EU (I do, for that matter). But it does not. And we cannot read one into Article 50 TEU. Conceptually, such would in fact not be completely dissimilar to the Polish government’s refusal to proceed to the otherwise normal, technical and bureaucratic task of publishing its Constitutional Tribunal’s judgments in the official journal, in order to effectively veto those judgments. Or to the Polish President’s refusal to swear in that Tribunal’s judges – which should be merely the refusal of a formal ceremony – being misused as a veto over the appointment of judges themselves. Or to legislating on the age of retirement of judges – which is a parliamentary prerogative with nothing wrong in itself – with the obvious objective of removing judges from office and threatening their independence. Indeed, the hallmark of both the Polish and Hungarian processes of democratic backsliding and of corrosion of the rule of law is that they have not consisted in “big-bang” moments like military coups, but rather in gradual, successive acts of insidious manipulation of existing laws and procedures for unrelated political aims, conducted under a veil of plausible deniability.
The EU should not make the same mistake. The EU’s existing constitutional procedures to address rule of law violations – like Article 7 TEU – may have been failing; but the EU should not repurpose exit procedures into expulsion procedures. The EU should not subvert its own constitutional order for political ends that it fails to achieve otherwise, however noble those ends may be (i.e., protecting democracy and the rule of law in its Member States). The EU should not act as if it has received a notification of the will to exit if it can only, at best, make an ‘arguable’ case that it has received an implicit notification. The EU should not act as if grave violations of the rule of law may have the same constitutional value as a democratically formed political will to exit; or indeed act as if the existing Polish and Hungarian constitutional provisions governing democratic will formation were already dead and as meaningless as some of those countries’ officials would wish. The response to the persistent violation of the rule of law by the Member States cannot be the desertion of the rule of law by the EU itself.
The best thing about this post is the comment (or, rather, a post!) by Filipe Brito Bastos! Right to the point!
This is by far the worst article published in Verfassungsblog this year. It suffers from basic flaws such as:
1. The cases of Hungary and Poland are so different, that putting them in the same sack is difficult to grasp. By using this approach, the author only shows that he does not understand current developments (and comparative politics).
2. Not talking about Art. 7, but trying to change Art.50 into something like an expulsion article is ridiculous. Many of the infringement procedures against both governments were successful. The author does not mention it.
3. The wish to expulse two EU Member States with populations which embrace the EU project is difficult to understand.
I understand that some liberal Western law scholars are scared due to the bot attacks from both countries on social media, but a little more of “Fingerspitzengefuehl” would be helpful.
I agree with the comments stating this is a far more complex question, I can’t see it happening and I am not in favour of any reasoning ending up with Huxit.
However,strictly on theoretical terms and considering what we teach about the law of int’l organizations and the teleological interpretation in general, the article poses a reasonable question. If the actions of the state is not in conformity with the aims and the spirit of a treaty/organization… then the question arises. If I read the article from this perspective, even if I am a Hungarian, this makes sense to me.
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Article 7 cannot be used either for exclusion.
One way to exclude other members is for the other members to leave the EU and start a new one.