“A country that no longer wishes to apply the European Union’s treaties and the core provisions of membership is actually legally withdrawing from the Union.” In a provocative piece on Verfassungsblog, French professor of European law Christophe Hillion argued last year that Poland and Hungary could be expelled from the EU if they flout the rules of the European legal order.
After the refusal, Wednesday, by the Polish Constitutional Court to implement the ruling of the European Court of Justice – that the disciplinary chamber of the Polish Supreme Court is politicized and therefore not independent – this piece is topical again. All sorts of people are calling for Poland to be expelled from the EU. If you’re a member of a club that has agreed that European Court rulings take precedence over national courts, and you don’t respect that rule, what are you looking for in that club?
Still, a Polish exit is unlikely. It is much more likely that the European Commission will clash with member states in an attempt to enforce EU law. This puts Europe in a political knot that is getting thicker and thicker.
The European treaty is clear: you cannot expel a country against its will. There is only one reason for an exit: if a country explicitly asks for it – like the UK after the Brexit referendum. Poland does not ask for an exit. The population is very pro-European. Poles love to travel and the single market. If the government wants to commit political suicide, it must above all promote an exit: citizens will take to the streets en masse.
According to Hillion, you can interpret the refusal to respect European law as an implicit exit request. EU government leaders only need to ratify that, he writes. But the EU would be doing the same legal acrobatics it accuses Poland of. Few government leaders will want to go along with this.
In short, the problem must be solved within the EU. This can be done with the knot – periodic penalty payments, financial sanctions – or cautiously, with the EU stretching time until a new Polish government stops the collision course against Brussels. But in both cases, the European Commission is in the eye of the storm: the more often it has to go out as ‘guardian’ of the treaty to ensure that countries respect the rules, the more it encounters political resistance or sabotage.
Poland starts a political guerrilla against the European legal order
Because Poland is not alone. Others also want to stay in the EU with its generous subsidies, and break some ground rules. Hungarian Prime Minister Viktor Orbán has just created a European political party of 16 far-right parties, including Poland’s PiS, to give Member States in Europe more power and European institutions such as parliament less. In 2020, the German Constitutional Court in Karlsruhe opposed a European verdict. Something similar is happening at the French Conseil d’État. Not because the European Court is becoming more political – it simply deals with cases it receives – but because matters themselves are becoming more and more politically sensitive in some countries: judicial reform, ECB bond purchases, same-sex marriage. Over the years, the Court has passed thousands of difficult judgments, such as against Italy. They were performed quietly, or half done, and after a while everyone had forgotten about them. Poland, which says Luxembourg has nothing to do with appointing loyal PiS judges, is doing the opposite: starting a political guerrilla war against the European legal order.
The Commission must act: if everyone voluntarily ignores verdicts, the EU will implode. But with every step she chases Poland and co in the curtain and risks political blockades. As usual in Europe, it’s going to be gauntlet running. In the meantime, it would not be a bad idea if legal scholars would consider the question that Christophe Hillion ultimately raised: shouldn’t there be a provision in the treaty stating exactly under what circumstances you can expel a country from the EU?
Also read: President Koen Lenaerts: ‘European Court will have more center stage’
A version of this article also appeared in NRC Handelsblad on 17 July 2021
A version of this article also appeared in NRC in the morning of July 17, 2021