Poland, Hungary, and unconstitutional ‘exitspulsion.’ A response to Professor Christophe Hillion

Professor Christophe Hillion has published a stimulating and provocative blogpost suggesting that the Polish and Hungarian governments’ persistent refusal to observe the European Union’s (EU) key constitutional values can ‘arguably’ be interpreted as expressing their will to no longer apply the EU Treaties, and therefore as a notification of an intention to withdraw from the EU under Article 50(2) TEU.

I understand that the motive behind this thesis is to pressure Hungary and Poland to return to the path of constitutional fidelity, liberal democracy and the rule of law. To that extent, I appreciate and very much share Professor Christophe Hillion’s concern, which is a concern that any serious European democrat must have as well. The role of legal scholars such as Professor Hillion in developing the EU’s tools to preserve the rule of law is vital. However, and 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.

Filipe Brito Bastos