Over the years, there have been numerous discussions, especially in the media, about sanctioning or even getting rid of Member States that seemed to no longer be in line with the European Union’s values. In recent times, one Member State concerned by such discussions was Poland, due to its judiciary reforms that were considered to be a threat to the independence of the country’s judiciary. 1 A while later, Romania was also the target of such speculations after raising rule of law concerns due to the institution of a stricter liability for magistrates and amendments to the Criminal Code regarding a reduction of punishment for abuse of office. 2
The latest country to be hit by rumours regarding its future status as Member State of the European Union is Hungary. This comes in the context of the new coronavirus pandemic that has forced the states all around the world to take extraordinary measures. Hungary recently gave an emergency law that enables Prime Minister Viktor Orbán to rule by decree with no clear end-date. In addition, people who publish what are considered to be untrue facts regarding the pandemic can face several years in jail. 3 These actions have prompted the former Italian Prime Minister Matteo Renzi to state that that Hungary should be expelled from the EU. 4 Thus, the question arises: can a Member State be expelled from the European Union? What is the heaviest sanction that can be applied in these cases?
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The only article in the Treaties that are the fundament of the European Union, the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), that elaborates on the exit of a Member State is Article 50 TEU. The first paragraph of this article states that any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements. Therefore, this means that a Member State can only leave the EU voluntarily and cannot be expelled. The article further explains that the Member State must notify the European Council of its intention and then negotiations on an agreement can begin. The agreement shall be concluded on behalf of the EU by the Council after obtaining the consent of the European Parliament. This article also allows for the possibility of a former Member State to re-join the EU but that Member State must follow the same procedure as any other state that would like to accede to the European Union.
One might wonder whether it is possible to amend the Treaties, so that they include an expulsion provision. In theory, this is possible through the ordinary revision procedure described in Article 48 TEU. Proposals for the amendment of the Treaties can be submitted to the Council by the Government of any Member State, the European Parliament or the Commission. The Council must submit such a proposal to the European Council and the national Parliaments must be notified. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The Convention examines the proposals for amendments and adopts by consensus a recommendation to a conference of representatives of the governments of the Member States. The conference must determine by common accord the amendments to be made to the Treaties. The amendments enter into force only after being ratified by all the Member States in accordance with their constitutional requirements. Such an amendment is not likely to exist very soon, since there must be consensus in the Convention and in the conference and it must be ratified by all the Member States. In addition, such a measure would be against the spirit of the European Union, which promotes partnership, working together and compromise.
The most severe sanction that can be imposed by the European Union institutions on the Member States is the suspension of voting rights of the representative of the government of that Member State in the Council. The Council is an important organ of the European Union in which a representative of the governments of each Member State participates, this depending on the issue being discussed in each meeting. Together with the European Parliament, the Council exercises legislative and budgetary functions. Suspension of voting rights is regulated by Article 7 TEU and has never actually been applied up until now. There are several steps that need to be taken in order to achieve suspension of voting rights. First, the European Council, acting by unanimity, may determine the existence of a serious and persistent breach by a Member State of the values listed in Article 2 TEU. Among these values are the respect of human rights, freedom, democracy, equality and rule of law. The European Council can only act after the Member State in question is invited to submit observations and after the European Council receives a proposal in this direction from one-third of the Member States or from the Commission and the European Parliament gives its consent. In practice, it is very unlikely that such a breach would be determined by the European Council as unanimity is required and in general any Member State can find an ally who will refuse to vote in favour of the determination. Nevertheless, in case such a determination is made, the Council, acting by a qualified majority, may decide to suspend certain rights deriving from the application of the Treaties, including voting rights in the Council. In case this situation occurs, the Member State in question continues to be bound to its obligations that flow from the EU Treaties. The Council, acting by a qualified majority, has the power to subsequently modify or revoke such measures if the situation in that Member State changes.
To conclude, there is a lot of misinformation floating around the powers of the European Union institutions and that is being supported by journalists and politicians. From the articles of the TEU it becomes clear that there is no possibility to expel a Member State from the European Union. If a Member State is to leave, it shall be of its own will. The best example in this direction is the United Kingdom, who decided to leave the EU after a national referendum. It is also unlikely that an expulsion clause will ever be introduced through Treaty amendment. The biggest sanction that the European Union can impose for not following its values is the suspension of voting rights, which in fact is quite improbable to happen. Regarding the latest developments, Commission President, Ursula von der Leyen, has transmitted a warning towards Member States that take disproportionate measures in this crisis and endanger the existence of the EU fundamental values but did not specifically mention Hungary as the addressee of this message. 5 It remains to be seen how the situation in Eastern Europe will evolve and whether a Member State will ever have its voting rights suspended but we should remain optimistic that EU values will be maintained voluntarily by all Member States.
- D Boffey, ‘Poland risks losing EU voting rights in dispute over reforms to judiciary’ The Guardian (19 December 2017) accessed 10 May 2020.[↩]
- F Eder, ‘Brussels to Bucharest: We’re running out of patience’ Politico (13 May 2019) accessed 10 May 2020.[↩]
- J Rankin, ‘Hungary’s emergency law ‘incompatible with being in EU’, say MEPs group’ The Guardian (31 March 2020) accessed 10 May 2020.[↩]
- L Bayer, ‘Von der Leyen warns on emergency coronavirus measures after Orbán move’ Politico (31 March 2020) accessed 10 May 2020.[↩]
- J Rankin, ‘Hungary’s emergency law ‘incompatible with being in EU’, say MEPs group’ The Guardian (31 March 2020) accessed 10 May 2020.[↩]