Why Article 50 TEU is not the solution to the EU’s rule of law crisis
Given the seriousness of Hungary and Poland’s ongoing contravention of core EU values, the inadequacy thus far of the EU’s political institutions’ response, as well as apparent shortcomings in the EU rule-of-law toolkit, one might argue that bold and imaginative solutions are required. In this spirit, Hillion writing for Verfassungsblog has argued that Article 50 TEU could be utilised effectively to expel Hungary and Poland from the EU. Hillion argues that both States’ continued flouting of the EU’s core values could be regarded as a notification of an intention to withdraw within the meaning of Article 50. While I agree with the sentiment underpinning Hillion’s argument, I do not see his argument as sustainable doctrinally or as a desirable solution. Scholtes has already written an excellent response to Hillion for Verfassungsblog, in which he characterises Hillion’s views as ‘legal fetishism’. I agree with Scholtes’ views and will not to traverse them. I argue that (1) Hillion’s argument is misconceived doctrinally, (2) even if it were accepted as legally possible for Article 50 to be used as he suggests, its use would encounter significant pragmatic obstacles, and (3) such a use of Article 50 would be counterproductive.
The Doctrinal Argument
First, on a purely literal reading of Article 50(1) and (2) TEU, it appears that Prof. Hillion’s interpretation of the provision involves what Scholtes refers to as a ‘doctrinal contortion’. Article 50(1) provides that “[a]ny Member State may decide to withdraw in accordance with its own constitutional requirements.” In other words, the question of how a Member State decides to withdraw, and indeed the question of whether it has decided to withdraw, are questions of national constitutional law. Keeping this in mind, Article 50(2) provides that “[a] Member State which decides to withdraw shall notify the European Council of its intention.” (emphasis added) Though the form that the notification should take is not specified, the process as described involves two steps: (1) a decision to withdraw and (2) a notification of that decision. Since the second step cannot occur without the first, and the determination of whether the first step has occurred is a matter of national law, it is not open to the EU’s institutions to infer such a decision. Indeed, in Case C-621/18 Wightman [para. 50], the Court stated that “[t]he decision to withdraw is for that Member State alone to take, in accordance with its constitutional requirements, and therefore depends solely on its sovereign choice.” Furthermore, at para. 74, the Court continued that a revocation of a notification would need to be “submitted in writing to the European Council and… be unequivocal and unconditional”. It is difficult to see why the notification itself should be any different.
Of course, anyone familiar with the CJEU’s approach to legal interpretation, especially in what one might characterise as constitutional cases, will know that historically the Court has not been encumbered by a literalist approach. However, even if one applies the Court’s customary purposive reasoning to Article 50 TEU, Prof. Hillion’s argument still encounters problems. As the Court indicated in Wightman at para. 56, Article 50 TEU serves two objectives: (1) “enshrining the sovereign right of a Member State to withdraw from the European Union”, and, (2) “establishing a procedure to enable such a withdrawal to take place in an orderly fashion.” In my view, Prof. Hillion’s contentions appear to be at odds with both of these purposes. Firstly, inferring a decision to withdraw and not requiring an explicit expression of such a decision by the Member State seems inconsistent with the idea that withdrawal is a sovereign choice. Secondly, a rudimentary attempt to game the use of Article 50 in the manner suggested by Prof. Hillion reveals that its use would be anything but orderly, a point developed further below.
The Pragmatic Obstacles
Even if one accepts Prof. Hillion’s arguments, one immediately encounters the problem of how this inference of a decision to withdraw and notification of that intention could happen in reality. Given that it is the European Council that receives the notification and the default decision-making procedure for that institution is consensus (Article 15(4) TEU), it is very difficult to imagine how such consensus could be achieved. There is no reason to assume that Poland would not have a say vis-à-vis the question of whether Hungary had notified and vice versa. Other Member States, particularly small ones, would understandably be nervous about such a use of Article 50 in the future to expel them against their will, because it might be momentarily convenient to others. Indeed, such is the problem generally with short-termist doctrinal contortions that do not account for future usage of that same innovation. The alternative might be the engineering of an action before the CJEU, which could be called upon to deem Hungary or Poland to have made the notification, hardly a position in which any court would wish to find itself.
A Can of Worms
If one gets past the difficulties of envisaging how Article 50 might be engaged as a de facto expulsion mechanism, it seems evident to me that events it would unleash would be chaotic and, ultimately, counterproductive. Orban, in particular, has proven to be particularly adept at what one might describe as trolling EU institutions; Hungary adding its signature on the 2nd April 2020 to the initial thirteen Member States’ statement on the rule of law being a particularly memorable example. A determination by the European Council deeming Hungary or Poland to have triggered Article 50 could in fact play right into the hands of the governments of those States. Indeed, it would present them with a multiplicity of disruptive response options.
First, the Hungarian or Polish governments could simply refuse to accept the decision of the European Council, even if subsequently supported by a CJEU judgment. Hungarian or Polish ministers could continue to attempt to attend meetings. The optics of Hungarian or Polish officials being physically denied access to meetings or being ejected from them would be a public relations nightmare. Furthermore, in such a fraught atmosphere, where two alternate understandings of the legitimacy of the process existed, it is highly unlikely that meaningful negotiations aimed at securing a withdrawal agreement could be pursued, with all of the consequences that would entail for Hungarian or Polish citizens, as well as citizens of other Member States in Hungary or Poland. This does not chime well with repeated assertion by the CJEU that EU citizenship is “intended to be the fundamental status of nationals of the Member States” (para. 64 of Wightman). Indeed, EU citizens, of Hungary or Poland especially, would be the unwilling prisoners of this game.
Secondly, the Hungarian or Polish governments could utilise the judgment in Wightman and unilaterally revoke the ‘notification’; this could, of course, then result in the CJEU having to rule on the question of whether that revocation fulfilled the criteria for a revocation as set out in para. 74 of Wightman. Even if the Court ruled it were not a genuine revocation, the governments of Hungary or Poland could simply repeat the process again and again as a means to cause further chaos.
Thirdly, and for me this is a silver bullet argument, the governments of Hungary or Poland could simply respond by calling a national referendum on EU membership, campaign for remain, ensure that international observers confirm the fairness of the referendum, and use the result – which one would expect would support remaining in the EU – as a stick with which to beat the EU. Faced with the result of such a referendum, the EU would be confronted with a binary choice: (1) a humiliating climb down (without securing any desired internal reform within Hungary or Poland) or (2) continue with the process of forcing Hungary or Poland out of the EU against the express ‘will of the people’ (contrary also to para. 65 of Wightman). The perfect spin, in other words.
In summary, there are strong doctrinal arguments against the assertion that Article 50 can be utilised effectively to expel Poland and Hungary from the EU. Moreover, in practical terms, even if one were to accept the idea in theory, it is highly unlikely it would be engaged or achieve its aims. The EU’s political institutions will have to use ingenuity and resolve to confront the issue of Hungary and Poland’s infringements successfully; if they are unwilling or unable to do so, simple legal sleights-of-hand will not provide the answer. The CJEU can play a supporting role, but it cannot be the main actor.