Is Poland on its Way to Being Expelled From the EU?

Poland has been thumbing its nose at key European Union norms for some time now (refusal to comply with environmental commitments, unwillingness to take refugees, and so on). The most recent and egregious norm violation being the reforms of the judiciary being pushed by the current right-wing ruling party that will (in the view of critics) enable it to stack the judiciary with judges favoring it. These were signed into law by President Duda roughly ten days ago.

The European Commission, the EU’s principal administrative body, viewing these latest actions as inconsistent with basic democratic commitments of all EU nations to rule of law principles (independence of the judiciary and so on), has recommended that Article 7 proceedings be initiated. That could end up stripping Poland of its voting rights in EU matters; something that would be unprecedented in EU history. As a practical matter this is not likely to happen, because the removal of voting rights requires a unanimous vote of the remaining 27 members of the EU, and Hungary (with a government of similar inclinations to the Polish one) is one the members. But in a community that values collegiality and cooperation to a very high degree, this is a big deal (at least to this outsider).

There is a broader question here, that some in the press are already asking, which is whether, at some point soon, Poland’s (and perhaps Hungary’s) refusals to act consistently with EU values can constitute enough of a justification for the rest of the EU to expel them? As I explain below, an argument can be made that no member of the EU can ever be expelled, given that there is no explicit process contemplated in any of the EU treaties for expulsion. But can that really be the case?

This question of expulsion from the EU has come up before; specifically, with respect to Greece in 2011-2014 when Greece was viewed by many of its fellow Euro area members as having dragged the entire Euro area into a deep crisis thanks to a combination of fiscal mismanagement and unwillingness to embrace the necessary austerity measures. During the crisis, because of the widespread resentment in some corners of the Euro area to providing financial assistance to Greece, there were numerous calls for Greece to be given the boot (more polite versions of the argument suggested that Greece take a temporary “vacation” from its membership of the union). So, the question was posed: Can fiscal irresponsibility and an unsustainable debt stock (okay, plus a little fudging of the accounting numbers) can justify expulsion?

Some took the strong view that expulsion from the EU was simply not allowed (see here, here and here). Once one was in, exit could only occur voluntarily; Brexit, being a case of voluntary exit. The legal rationale being that the treaty does not describe a procedure for expulsion, and that must therefore mean that expulsion is off the table. To me, that’s a teensy bit too formalist for my liking. There are often good reasons to avoid putting in clauses about expulsion or ejection in a contract, even if everyone involves knows that it might need to occur. Some things are just too hard to talk about – especially during euphoric times when all the parties involved are trying to show each other how much they trust and love one another. The question surely is: What are the implied terms?

Jens Damann has a super piece on this, and disagrees with the formalist view articulated above. Joseph Blocher, Larry Helfer and I come to roughly the same conclusion as Jens, albeit via a somewhat different route. None of us thought, at the time, that Greece’s debt crisis justified expulsion. But the questions raised by the Greek situation got us arguing hypotheticals (the most fun of these were over bourbon at the Washington Duke). And the question we inevitably ended up with was: Surely, at some point, a country could behave in a manner so very inconsistent with the basic commitments of the union that expulsion could be said to be justified by the implicit terms of the joint enterprise? Poland looks to be testing those boundaries - For example, let us say some hypothetical EU country decides that it wants to summarily curtail the rights of all non-white citizens in obvious violation of the basic human rights commitments of all EU members. Could the rest of the EU not decide that this action was a bridge too far, and decide to vote to expel this country?