A collective ‘right of expulsion’ from the EU or EMU?
The recognition of a unilateral right of secession by the drafters of the Lisbon Treaty inevitably prompts the following question: if Member States are to have the right to secede voluntarily, should there not be a possibility for their fellow Member States to expel them from the EU if their participation were to be deemed undesirable or prejudicial by their partners and if the latter were to fail to persuade them to withdraw from the EU or EMU voluntarily? Under what conditions and following what procedures could such a right of expulsion be exercised? The prospect of expulsion came to the fore in June 2008, when Irish voters rejected the Lisbon Treaty, an event that was to trigger one of the most acute crises in the recent history of the EU. This Part examines the existence of a right of expulsion from the EU and EMU, the possible rationale for its introduction (assuming that such a right does not already exist) and the extent to which the lack of such a right would be an obstacle to a Member State being left behind by its partners.
A. A Expulsion from the EU or EMU: doctrinal considerations
Unlike the Charter of the United Nations (UN), Article 6 of which expressly provides for the possibility of a UN Member being expelled for persistently infringing the principles of the Charter, there is no treaty provision at present for a Member State to be expelled from the EU or EMU. The closest that Community law comes to recognising a right of expulsion is Article 7(2) and (3) TEU, allowing the Council to temporarily suspend some of a Member State’s rights (including its voting rights in the Council) for a ‘serious and persistent breach by a Member State of the principles mentioned in Article 6(1)’ of the EU Treaty. This might be thought of as a preliminary step to the expulsion of a Member State, but it is not the same as its definitive expulsion. The idea that the treaties should explicitly provide for a possibility of expulsion was discussed in the 2001-2003 Intergovernmental Conference responsible for drafting the ill-fated Constitutional Treaty, but was abandoned. The same idea resurfaced more recently in the discussions on the Lisbon Treaty, but was once again abandoned. If a right to expel Member States from the EU or EMU does not exist, could such a right be asserted or should it be introduced? Several considerations are relevant here, all of which militate against the assertion, by way of interpretation, or otherwise, of a collective right of expulsion from the EU or EMU.
The first objection to reading a right of expulsion into the treaties is a formal one. A Member State’s expulsion from the EU or EMU would inevitably result in an amendment of the treaties, for which the unanimous consent of all Member States is necessary under Article 48 TEU. Given that a Member State’s expulsion would, by definition, be contrary to the presumed wish of that Member State to continue its membership of the EU, a right of expulsion would be inconceivable, since it would have to entail an unauthorised Treaty amendment, in breach of Article 48 TEU. Besides, it is likely that some Member States would object to the introduction of a right of expulsion in the treaties, coupled with an amendment of Article 48 TEU to make that possible, since this would expose them to the risk of being forced out at some future date. Moreover, apart from it being politically almost inconceivable, forcing a Member State out of the EU or EMU would inevitably give rise to tremendous legal complexities. This, perhaps, explains why expulsion has not been, and may never be, provided for in the treaties. While, by and large, these complexities would not differ qualitatively from those relating to a Member State’s voluntary withdrawal, their resolution would be even more complicated in the case of a Member State’s expulsion, because of the risk of legal challenges by disgruntled natural persons, legal entities or even countries, objecting to the loss of the rights that they or their nationals may have acquired from membership of the EU and invoking their legitimate expectation of maintaining these in perpetuity as an obstacle to expulsion. The position has been cogently summarised as follows –
‘participation in the European Union gives rise to a wide web of rights and obligations to citizens, companies and governments. To erase all those obligations at a stroke by expelling the member state would create huge confusion and penalise ordinary citizens and ordinary businesses, who rely on their rights of residence and free movement, to name but two’.
The third and perhaps most serious objection to the assertion or introduction of a collective right of expulsion from the EU or EMU is conceptually similar to one of the more potent objections to the existence of a unilateral right of withdrawal discussed in Part One of this paper. The extent to which asserting such a right would be legally possible must ultimately depend on whether, as a sanction or a remedy, expulsion and its rationale would be consistent with the letter and the spirit of the sanctions and remedies already provided for in the text of the treaties. On the compatibility of a collective right of expulsion with the letter of the treaties, a commentator has rightly argued that ‘the EC Treaty provides a set of remedies which can be invoked against the errant State, and there are no grounds for implying any additional remedies in the Treaty’. As discussed above, the exhaustive list of sanctions provided for in the treaties does not include a right to withdraw ‘in protest’ against a fellow Member State’s failure to comply with its treaty obligations; the same is true of expulsion, which is not catered for in the treaties, however serious or repeated a Member State’s non-compliance may be and however much its departure may be desired by its partners. On the compatibility of a right of expulsion with the spirit of the treaties, such a right would clearly be irreconcilable with the rationale of the existing body of sanctions for a Member State’s infringements of Community law. Even a cursory examination of the sanctions provided for in the treaties shows that their purpose is not to punish a Member State for failing to live up to the expectations of the other Member States, but to encourage it to comply with its treaty obligations99. Since expulsion would put a Member State in a situation where it would no longer be able to comply with its obligations, however genuine its remorse for past mistakes and however firm its commitment never again to fail to meet its obligations, such a right would be at odds with the treaties, and in particular with the conciliatory rather than punitive nature of their sanctions for infringements of Community law. From this perspective, it is doubtful whether expulsion is conceivable, even as a measure of last resort, after all other means for turning round an errant Member State have been exhausted100. This is because even so restrictive an application of a purported right of expulsion would not obscure the clear discrepancy between the modest effects of the treaty provisions for sanctions and the radical effects of expulsion or, a fortiori, the conflict with the requirement for unanimity in Article 48 TEU for decisions resulting in an amendment of the treaties.
Thus, not only is a collective right of expulsion not provided for in the text of the treaties, but, what is more, the legitimacy of its assertion or introduction would be highly questionable, both legally and conceptually. This main conclusion inevitably raises two further questions. Does the exclusion of a collective right of expulsion deprive the EU of the ultimate deterrent against a Member State’s non-compliance, the existence of which would otherwise presumably ensure compliance? And, if so, would there not be a need to introduce such an explicit right in the treaties, so that the risk of a Member State failing to comply with its obligations is countered by the threat of its expulsion? These questions hark back to the fundamental jurisprudential question of whether sanctions are an integral part of any rule of law (even if only implicitly) or whether valid rules of law can exist even in the absence of sanctions for their infringement. An account of the evolution of legal thinking on this matter, and, in particular, of Hart’s challenge to Austin’s positivist theory of the law as ‘the command of the sovereign, backed up by sanctions’, lies outside the scope of this paper. However, for those who subscribe to the view that legal rules and sanctions are independent of one another, neither the lack of a possibility of expulsion nor the absence of any other sanction for breaches of Community law obligations is an aberration that some may feel the need to guard against through the assertion of a collective right of expulsion, nor does the lack of sanctions diminish the binding effect of Community law. In any case, the sanctions already provided for in the treaties and the damaging publicity from a Commission decision to commence infringement proceedings against a non-compliant Member State or an ECJ ruling against it are potent enough, even without the legal possibility of the errant Member State’s expulsion from the EU or EMU.
B. Indirect avenues of expulsion?
If expulsion from the EU is not an option under the treaties, does that mean that leaving an obstructive Member State behind would be impossible? Are there no indirect avenues for achieving much the same result? In the following there is a brief examination of these possibilities and the likelihood of their application. One possibility would involve the extensive use by the errant Member State’s partners of the ‘enhanced co-operation procedure’. The purpose of this procedure, which is set out in Articles 43 to 45 TEU (now replaced by Article 20 of the TEU), is to ensure the asymmetric participation of a group of no fewer than eight Member States in a Treaty-based cooperation mechanism capable of enhancing integration between the Member States that are willing and able to prosecute European unification to its logical conclusion. While promising, as the least ‘isolationist’ alternative for a recalcitrant Member State, and more advantageous than intergovernmental cooperation outside the EU, the enhanced cooperation procedure has its share of drawbacks. The most obvious of these are that: (i) enhanced cooperation has never been used since its introduction by the Treaty of Amsterdam [el texto es de 2009; desde entonces sí ha habido cooperaciones reforzadas]; (ii) it is not available in all areas of EU policy-making and activities (with Common Foreign and Security Policy being excluded); and (iii) the substantive and procedural conditions provided for its use in the EU Treaty are fairly strict. If it were supplemented by additional measures including extra-EU treaties or other informal action, the enhanced cooperation procedure could represent a genuine alternative to the treaties’ decision-making mechanisms, helping marginalise more ‘minimalist’, less ‘integrationist’ or otherwise ‘uncooperative’ Member States.
An alternative and somewhat more radical possibility would be for the mainstream Member States to agree on a new, treaty-based partnership with ‘an independent institutional structure outside the framework of the “old EU”’ (effectively, a ‘new Union’) to be ‘worked out, approved and ratified solely by the states participating in this new entity’. While, on the face of it, this alternative might appear ingenious, it would not be ideal. One obvious disadvantage of ‘recreating’ the treaties with one member fewer is that the new ‘replacement’ treaty would exist in parallel with the existing treaties, even though these would be no more than empty shells. There would inevitably be appreciable scope for competition between the ‘old’ Union and the ‘new’, and the risk of a division within Europe as a result of their rivalry. Besides, the alternative of a new treaty being entered into after its signatories have renounced the existing treaties could only work if all mainstream Member States agreed to leave the errant Member State out of the EU. In all likelihood, such a decision would be thwarted not only by the threatened Member State but also by some of its more Euro-sceptic partners. Ultimately, the likelihood of a ‘new’ Union coming into being is fairly small, requiring ‘a massive political effort on the side of the participating states’ and entailing ‘yet another Treaty adventure, the outcome of which is totally unpredictable’.
Thus, marginalising a Member State, even if not formally expelling it, would not be impossible, but none of the avenues available for achieving it would be ideal. Persuading a Member State to withdraw, by making use of the proposed exit clause or resorting to the regular Treaty revision procedure, may be the better option.
Fuente: PHOEBUS ATHANASSIOU, Withdrawal and Expulsion from the EU and EMU: some reflections, European Central Bank Legal Working Paper Series, n. 10, 2009; disponible en https://www.ecb.europa.eu/pub/pdf/scplps/ecblwp10.pdf.
Aclaración: EMU = Economic and Monetary Union / Unión Económica y Monetaria.
Castellón de la Plana, 30 de junio de 2015.