“Stuck in the middle with you”, the case for keeping illiberal Hungary and Poland within the EU (for now)

Kees Cath

Poland and Hungary’s threatening to block the EU budget because of the link between the Multi-Annual Financial Framework (MFF) and the rule of law, in combination with their continued undermining of the rule of law domestically has led to a debate on whether these countries should remain in the EU. In this post PhD student Kees Cath argues that working towards expulsion would not be appropriate at this point.

The opinions expressed in this article are the author’s own point of view.

Introduction

Last summer saw heated debate within the European Union on the Multi-Annual Financial Framework (MFF) 2021-2027. One of the main points of contention was the conditionality link between the MFF and the rule of law. With Poland and Hungary threatening to block the budget there was considerable irritation towards these countries, with some even considering a Union without Poland and Hungary. Yet after lengthy discussions, the German presidency managed to hash out a compromise. Ultimately, it appeared as if the threat of a recovery fund without the Hungarians and Poles on board seems to have pushed them to accept the German presidency’s proposal. The German compromise itself was also extensively criticized: some called it a compromise on a compromise, with others stating that the EU favors autocrats over values.

List of concerns – ‘clowns to the left of me, jokers to the right here I am!’

This latest Polish/Hungarian attempt to undermine the rule of law at the European Council level does not come as an isolated incident. Regrettably, the political forces in power in both Hungary and Poland have set their countries on a steady, deliberate and continued path of decline on the rule of law. The article 7 procedures instituted against Poland by the Commission and Hungary by the Parliament are indicative of this decline. Yet concerns over the rule of law in these two countries have also been voiced by the Venice Commission of the Council of Europe, for example with regard to judicial independence in Poland as well as NGO’s and civil society organizations both in Hungary and Poland. The list is becoming increasingly long. There is little doubt that the rule of law crisis is, as recently argued by Luuk van Middelaar, an existential crisis to the European Union. The foundational values of Article 2 TEU seem to ring increasingly hollow in Hungary and Poland. As I argued in April of last year, Hungary has even used the Coronacrisis to further undermine democracy and the rule of law at home.

Time to start saying goodbye, Pożegnanie or Búcsú?

The situation has deteriorated to such an extent that there appears to be an increasing body of literature, articles and opinions on the question whether or not Poland and Hungary should be expelled from the European Union all together, with some even arguing that as bad as losing Britain is for Europe, keeping Hungary and Poland could be worse. Yet I would argue that pushing these countries out of the Union at this point is not only legally unsound, but also politically unwise. Nor does it serve to ensure the protection of the rule of law.

Kicking a country out; what does the Treaty say? ‘Trying to make some sense of it all’

An expulsion moves the Union into uncharted legal territory. The Treaty framework does not provide a solid ground for the possibility of expelling a Member State. Article 50 TEU, which addresses withdrawal from the Union, clearly states that “any Member State may decide to withdraw in accordance with its own constitutional requirements.” It does not provide for a mechanism to ‘remove’ a Member State from the Union altogether. Nor should the sanction of Article 7(3) TEU following the determination of “the existence of a serious and persistent breach by a Member State” of Article 7(2) TEU be construed in such a way as to permit the expulsion of a Member State. The provision clearly states that the Council may decide to “suspend certain of the rights deriving from the application of the Treaty.” Ending a Member State’s membership would go beyond such a suspension.

Even less likely legal options – ‘But I see it makes no sense at all.’

The only ways of ‘forcing’ Hungary and Poland out, would be to make leaving the Union a more attractive alternative for the governments of these countries than staying within the Union, or to ‘restart’ the Union without both Member States. Both are interesting academic ideas, yet at the same time, they are highly unrealistic. The former because bearing in mind the considerable economic benefits both countries reap from the very budget they threatened to block, departure would not be in their benefit. The latter because considering the difficulty encountered during the ratification of the Lisbon Treaty – and bear in mind this all happened before the ‘populist revolts’ following the economic crisis of 2008 – any Treaty revision or negotiating a new treaty would face considerable headwinds from national parliaments.

Another more theoretical option argued by some is to consider the Union to either have implied powersto expel a Member State (from certain parts of the EU Treaty Framework) as was debated in the context of Euro crisis, or to call upon the provisions of international law, in particular the Vienna Convention on the Law of Treaties, to argue that the membership can be suspended. Again however, both are highly debatable options. It is likely that legally the Union is more or less ‘stuck in the middle’ with Poland and Hungary. Yet the continued backsliding of both Hungary and Poland does increasingly raise the question: “what are the minimum requirements to the rule of law, within the European Union and how can these be effectively enforced?”

Politically unwise to expel Poland and Hungary ‘And I’m wondering what it is I should do.’

Arguably even more important than the legal arguments are the political arguments against expulsion of Poland and Hungary. First and foremost, there is no need for expulsion; the Union has ample tools at its disposal to tackle the rule of law crisis. To name a few; the Commission should make more aggressive use of the legal tools it has at its disposal as guardian of the treaties, in particular infringement procedures. This should include, as has been argued by amongst others Prof. John Morijn, interim measures (Article 279 TFEU) to prevent Member States from creating fait accompli, due to the fact that by the time the Court comes to a decision the factual situation in the respective Member State has become irreversible. This means that the Commission requests the Court to take interim measures rather than wait for the Court to finish its proceedings which may take months if not years. Member States should pursue the Article 7 procedures in the Council more actively and should be willing to invest the political capital required to make these procedures come to fruition. In other words, the institutions and like-minded Member States need an aggressive and coherent strategy to use the tools at their disposal.

Secondly, although the Polish/Hungarian threat to block the MFF and Covid-19 recovery fund was a reason for concern, ultimately, as is usually the case with the European Council, the Member States managed to hammer out a compromise. Put differently: the decision-making processes of the European Council functioned as they should (and often do). There is a pattern to these discussions: 1) Member States threaten to block a decision, which affects a fundamental national interest, 2) a compromise is proposed after lengthy discussions, 3) this compromise is then presented at home as ‘snatching victory from the jaws of defeat’. Even though the rule of law is of fundamental importance to the Union, having the threat of the use of a veto on any matter as a reason for expulsion could fundamentally undermine trust in the decision-making processes at European Council level. When it comes to the Union budget for example, it would be difficult to envisage a system in which the ‘frugals’ would accept not having a veto. Naturally, this does not mean that diplomatic pressure is in itself without effect. The threat of excluding Hungary and Poland from the benefits of the recovery fund was an effective and thinly veiled diplomatic threat, and Member States should not hesitate to use such diplomatic language in future disputes on the rule of law against Hungary and Poland. Violating the rule of law should come at a price. Yet such threats should be aimed at demonstrating the benefits of certain aspects of Membership against Hungary and Poland, rather than only showing the disadvantages of non-membership.

Third, regarding the rule of law, it is important to bear in mind what the possible effect of an expulsion of Hungary and Poland means from a geo-political point of view. A European Union without Poland and Hungary would weaken the European Union economically and politically. What would other Eastern European Member States do in such a situation? The geo-political strength of the Union lies in the fact that on issues within its competence is, it is an Union capable of reaching a common point of view (most of the time). The departure of Poland and Hungary could furthermore possibly open Pandora’s box for those forces that have a vested interest in a weakened or smaller European Union. In addition, with Brexit a reality another country has recently been added to this list. By proposing free trade, free of rule of law alternatives to the internal market, anti-European Union political forces within Member States can also argue there is a less strenuous multilateral alternative to European cooperation. Best keep Pandora’s box closed.

Fourth, tomorrow’s Hungary and Poland might not be the same as today’s. As difficult as it was to predict the advent of authoritarian populism in these two countries before their accession to the EU, it is equally difficult to make credible predictions about the future of these two countries. Of course it cannot be underestimated how entrenched Fidesz, and in an increasingly visible manner, PiS have become in the courts, media and electoral systems of their respective countries. Yet at the same time, this might all change in the medium or long term.

Last but certainly not least, expulsion would most likely lead to a further deterioration of the rule of law in Poland and Hungary. How would kicking them out contribute to realizing the values of Article 2 TEU? How would their removal from the Union benefit people like Wojd Sadurski (prosecuted for criticizing the Polish government) or judges such as Igor Tuleya (disciplined nationally for the simple fact of applying EU law)? Freed from the constraints of the EU legal system it is highly likely that the Hungarian and Polish authorities will ‘double down’ on opposition, further accelerating the speed with which these countries move away from the principles upon which the Union is founded. It would also mean taking away the rights given to these citizens under Article 20 TFEU. These brave judges, journalists, academics and activists deserve all the support they can get. Punishing them for the choices of their governments would not be helpful to their cause.

Conclusion: ‘Yes I’m stuck in the middle with you . . .’

The rule of law within the Union is facing an existential crisis. Yet, arguing that Poland and Hungary should be pushed out of the Union should not be the Union’s approach at this point. Rather, more action is needed within the Treaty framework. This includes far more aggressive use of the infringement procedures by the Commission, including direct injunctions. It also requires that (more) Member States should show willingness to invest political capital to address increasing authoritarian tendencies within the Union. Democracy is not a given, nor is it the ending to a historical ‘evolutionary’ process as some have argued. Historically democracy is an exception. An exception we should cherish. Difficult as it may be, for the time being we are “stuck in the middle” with an increasingly illiberal and authoritarian Poland and Hungary. Only when the EU institutions have exhausted all available political and legal means and its Member States used all political remedies at hand should pushing Poland and Hungary out of the Union be seriously considered.