Amidst all the EU worries about “Brexit Contagion” comes ironic, self-imposed contagion news from Jean Asselborn, Luxembourg’s foreign minister .
Asselborn says “Hungary Should Be Ejected From EU“.
Actually that’s impossible. And after diving into ECB analysis of EU legal documents, I wonder if the EU can enforce much of anything!
First let’s take a look at the expulsion threat bluff.
Expulsion Threat Bluff
Budapest’s refusal to accept the arrival of refugees had “massively violated” the EU’s fundamental values, said Jean Asselborn, who helped force through a plan to share out asylum seekers across the bloc.
As a result, Hungary “should be excluded temporarily or if need be forever from the EU”, Mr Asselborn said, according to the German newspaper, Welt.
His remarks on Tuesday mark the first time an EU foreign minister has called for another member state to be expelled from the bloc. They will also cast a shadow over efforts by EU leaders to map out a common future for the union, post-Brexit, at a summit in Bratislava on Friday.
On Tuesday, Peter Szijjarto, Hungary’s foreign minister, hit back. In an email released to the press agency MTI he said Mr Asselborn was “an intellectual lightweight” who “lives a sermonising, pompous and frustrated life … just a few kilometres from Brussels.”
“The comments are strange, coming from Luxembourg, the home of ‘tax optimisation’ and Jean-Claude Juncker [EU Commission president], who also talks about burden-sharing,” Mr Szijjarto said. “But we all know that simply means making Hungary bear the burden of others’ mistakes. The Hungarian government refuses — the Hungarian people will give their opinion [in a planned referendum] on October 2.”
Mr Szijjarto said his Luxembourg counterpart was “a classic nihilist” who “works tirelessly on destroying European security and culture”.
ECB Paper on Withdrawal and Expulsion from the EU and EMU
Please consider snips from the ECB working paper #10 on Withdrawal and Expulsion from the EU and 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
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 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.
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 obligations.
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 exhausted.
ECB rules require unanimous consent to change the treaty. While it cannot prevent a country from leaving, it cannot expel a country either.
Stripping a country of legal voting rights is not the end of the world, but even that requires a tremendous effort. Invoking Article 7, the stripping of voting rights, has to be approved by a qualified majority of states under the EU’s system of weighted voting.
Sanctions rules? They won’t be changed either. Changing sanction rules requires unanimous consent. Changing the treaty at all? Forget about it?
Enforcement of anything? How?
Rule of Law Threats
- On January 3, 2016 the European Commission Put Rule of Law in Poland Under Microscope.
- On March 12, 2016 Brussels produced Plans to counter ‘systemic threats’ to EU rule of law
- On June 10, 2016 the EU parliament threatened Hungary could lose EU voting rights.
Here’s a blast from the past. On February 1, 2000 the Wall Street Journal reported EU Threatens to Isolate Austria If Far-Right Party Takes Power.
They have a second chance on that one now.
Returning to 2016, On June 1, 2016, The Guardian reported the EU’s warning to Poland over the rule of law comes with risks.
In delivering a formal warning to Poland’s government about jeopardising “the rule of law”, the European commission (EC) has set up a showdown with Warsaw that it cannot be entirely sure of winning. The commission’s power over Warsaw is limited. The “or else” hovering behind EC vice-president Frans Timmermans’ admonishments is the eventual invocation of article 7 of the EU treaty and the withdrawal of Poland’s voting rights. That would be a serious step, but it would require the agreement of every other EU member. [I am not sure if that is precisely true based on above documents]. Warsaw would be able to count on the support of Viktor Orbán’s Fidesz government in Hungary, which has also been threatened with article 7 punishment, to block such a move.
Poland Refuses to Cooperate
On August 16, 2016, The European Council on Foreign Affairs reported Poland Chooses Confrontation Over Compromise with EU.
Why not? What’s Poland got to lose? Voting rights? Who cares?
Anything meaningful takes unanimous approval.
And If it’s not in the treaty, it won’t get there.
Russia What If?
If Hungary decided to trade with Russia, what could the EU do really do about it but piss and moan?
Brexit What If?
While pondering the above rules and procedures and empty threats, I cannot help but think back to the Brexit vote.
What if instead of a Brexit vote, David Cameron invited European Commission president Jean-Claude Juncker to a press conference?
I envision Cameron firing off this opening slavo: “We are not going to obey your jackass rules on immigration. What are you going to do about it?”
Those two sentences would have made quite a stir.
Juncker would no doubt have demanded an apology for being called a jackass to which Cameron could have apologized not to Juncker but to jackasses, a breed clearly superior to Juncker.
Here We Are
But here we are, with the UK gone, and open threats on Hungary and Poland, with likely threats on Austria coming right up.
The EU is splintering right before the nannycrats’ eyes. Jean-Claude Juncker and Angela Merkel do not realize they are to blame.
Juncker and Merker believe more integration and more rules, when voters of sick of both. There are serious trade trade issues, and the Italian banking system is insolvent. Unfortunately the focus is on nonsense.
For discussion, please see Michael Pettis Calls Surplus Trade Statements by German Finance Minister “Utter Lunacy”
Meanwhile, thanks to the dynamic duo of Juncker and Merkel, the EU is ready to embrace Turkey, a country guilty of far more EU rules violations than Hungary, Poland, and Austria combined.
The voting public can see through the hypocrisy of it all, the collective jackasses never will.
Mike “Mish” Shedlock