In recent years, several of the larger European Union (EU) Member States have launched proceedings against countries for breaching one of the values of the EU enshrined in Article 2 Treaty of the European Union (TEU) - the rule of law. Despite several warnings, states such as Poland and Hungary continue to disregard pleas from the Union and other Member States to respect EU laws. The EU in itself has the power to suspend certain membership rights of its Member States, according to the procedure listed in Article 7 TEU, if a serious and persistent breach by a Member State of the values enshrined in Article 2 TEU has been determined. In this time period, the breaching Member State must nevertheless continue to maintain its obligations under the Treaties.

Suspending Member States

Despite this measure in place, the EU cannot remove a Member State from the Union, as the possibility of this necessity emerging was never planned. As mentioned by Prof. Adam Lazowski, “Legally speaking, we don't have the apparatus to expel a Member State – unlike the Council of Europe, for instance, from which Russia was expelled”. In order to continue the upward trajectory of the EU, continuing its benefits, should it look to cut out what is holding it back via a new mechanism, one which allows the EU to remove its own Member States when they are breaching the fundamental principles upon which the EU was built? Article 7 TEU already sets that “on the proposal of one third of EU Member States, or of the European Parliament or of the European Commission, the Council, acting by a majority of four fifths of its members, having obtained the Parliament’s consent, may determine that there is a clear risk of a serious breach of these fundamental principles by a Member State, and address appropriate recommendations to it”. Could this same structure be utilised to determine the extent to which a country has breached, and can it be used to expel them once the requirements are fulfilled?

Rule of Law Violations in the EU

Fidesz in Hungary and the Law and Justice (PiS) party in Poland are clear examples of major political parties which have been accused of not respecting the Rule of Law, and have been taken to the European Court of Justice. Following this, MEPs began Article 7 TEU proceedings against Poland in 2017 and later against Hungary in 2018, a procedure that could lead to several punishments to the involved Member States, but has since been discontinued due to disagreement in the Council and the fear that the proceedings will fail in the European Council, where several steps are required, amongst which a unanimous decision is necessary in order to determine a breach of the values. with leaders such as Hungary`s Viktor Orban mentioning how “[they] will not allow each other to be excluded from European decision-making”. Scholars also mention how Eurosceptic countries such as Hungary are unlikely to leave the EU for financial reasons, and therefore it may have to come to the point whereby the EU will have no other option but to expel such countries, especially if they continue to test the extent of the principles upon which the EU was built.

Comparative Analysis with Other International Bodies

While the EU so far does not have an expulsion mechanism, other international bodies provide examples of such actions. As previously mentioned, the Council of Europe in an extraordinary meeting of the Committee of Ministers expelled Russia in response to its invasion of Ukraine in ordinance with the procedure listed under Article 8 of the Statute of the Council of Europe after 26 years of membership, examplifying how supranational organisations can remove members when fundamental principles are violated. The United Nations also has mechanisms for expelling members, though the only close example to date would be the removal of the Republic of China with the UN officially recognising the People's Republic of China is the only legitimate government of China. Article 6 of the United Nations Charter provides that “A Member of the United Nations which has persistently violated the Principles contained in the present Charter may be expelled from the Organisation by the [GA] upon the recommendation of the [SC]”, with the United Nations Securing Council possessing de facto and de jure discretional power. UN members rate universal membership very highly leading to a great reluctance to condemn or expel members, yet these examples raise the question of whether the EU should develop similar tools.

Legal and Political Feasibility of Expulsion

Creating such an expulsion clause within the EU would require extensive treaty change. As it stands, Article 50 TEU allows a Member State to leave voluntarily but does not provide for forced expulsion. Due to the notoriously challenging framework of the European Council, as per Article 15(4) TEU, consensus would be required in order to amend such treaties, meaning that introducing such amendments could prove challenging when considering the veto power that every Member State possesses. Furthermore, the introduction of such measures could bring about significant affects on not only the economic stability of the country, but a loss of the freedoms of movement. The process could potentially be started taking a less sudden approach, in which Article 7 TEU would be strengthened by lowering the unanimity requirement for sanctions, making it easier to impose penalties on non-compliant states.

Conclusion

The practice of removing countries from international organisations is not one which is common, especially due to the fact that membership of international organisations is voluntary. States not sharing the core values of an organisation are often willing to leave on their own initiative, although within the EU the only Member State to leave this exclusive club to date is the United Kingdom. Despite this, ongoing challenging with rule of law and judicial independence highlight the growing requirement for stronger enforcement mechanisms. It is evident that future treaty revisions must discover methods in order to enhance the EU’s ability to address the constant breaches of its fundamental principles.

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21 February 2025

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