Our editor Oliver Garner (Bingham Centre for the Rule of Law) interviews Tom Theuns, Assistant Professor of Political Theory and European Politics at the Institute of Political Science at the University of Leiden and principal investigator in the Dutch Research Council project “Protecting Democracy in Europe”. They talk about the possibility and justification of a mass-exodus of democratically minded Member States via Article 50 of the Treaty on European Union and the founding of an EU 2.0 in response to Member States becoming autocratic. Oliver and Tom not only touch upon the political feasibility of such a mass withdrawal, but also its legal problems, democratic legitimacy, and alternative solutions.
Oliver Garner: Hello, and welcome to the first podcast of 2022 for the RevDem Rule of Law section. Our guest today is Dr Tom Theuns, who has recently published in the Res Publica journal an article that argues for the creation of an EU expulsion mechanism to address Member State backsliding. This timely and thought-provoking proposal will be the topic of our conversation today.
Can you summarize your argument for why the EU should and can expel backsliding Member States?
Tom Theuns: To start, I should emphasize that the should and the can parts of the argument are separate. They function independently of one another. If we accept the normative argument, we can still reject that it is possible, and vice versa.
To start with the should, the normative argument is conditional. The idea is not that the EU currently should expel certain Member States, like Hungary or Poland against whom Article 7 TEU procedures have started. The claim is rather that the EU should be able to expel frankly autocratic Member States. This argument has two different parts. In the first part, I argue that allowing autocratic governments to participate in supranational law making both undermines the democratic legitimacy of EU law and policy and the civic freedom of EU citizens. If we agree with that, then we need to think of ways in which these governments can be excluded. And in the second part of the argument, I argue that it is incompatible with democracy to exclude autocratic governments from EU law-making if we continue to hold them subject to EU law and policy. This is because of the all-subjected principle in democratic theory. Continuing to subject someone to the law while excluding them from law-making is anti-democratic.
These two parts of the argument, that, on the one hand, it is anti-democratic to include these states, yet, on the other hand, it is also anti-democratic to exclude them but continue to subject them to the law, lead to the conclusion that we need to exclude them while not continuing to hold them subject. In that sense, we need to expel them.
The argument that the EU can expel Member States that are autocratic is a separate argument, as I said at the beginning. Here, the claim should be put very carefully. I am not a lawyer, but this is my best case for the point. I worked on this argument with a colleague from Maastricht, Merijn Chamon, who is a lawyer, and I think it holds. The idea is that pro-democratic Member States can exclude autocratic Member States from EU integration. This is an important nuance. My argument is not that the EU can expel autocratic Member States de jure but rather that the pro-democratic Member States can withdraw and re-found an EU 2.0 without autocratic Member States. This would leave autocratic Member States with an empty shell of membership in a defunct organization. Of course, this would be difficult to bring about politically, but legally speaking, there is nothing stopping pro-democratic Member States from collectively invoking Article 50 TEU, re-founding an EU 2.0 that replicates much of the institutional structure of the EU, and using their qualified majority in the Council to transfer the resources of the EU to the EU 2.0 as part of the withdrawal agreement.
That answer is a great springboard for this conversation. A foundational claim of your normative argument is that Article 7 TEU, the EU’s value protection clause, falls foul of a “performative contradiction” because the sanction of suspension of voting rights in the Council in order to uphold the values in Article 2 TEU itself violates the values of democracy and equality, and the “all-affected” principle.
Do you believe that depriving a subject of their vote over laws that will be binding upon them is always undemocratic? And in the specific context of the EU, how would you respond to the argument that such suspension may be proportionate because individuals are still partially represented in the laws that will be binding upon them as EU citizens through the voting rights of the European Parliament?
Let me start by specifying two things: First, as a matter of nuance, the argument for the anti-democratic nature of the sanction in Article 7 TEU is not that it violates the all-affected principle but the all-subjected principle. In democratic theory these two principles are similar, but they are different in that the all-affected principle seems to have a reach that is quite expansionary. Some political philosophers like Robert Goodin and Arash Abizadeh argue that it effectively covers everyone in the world, because everyone is affected in some way, if only by being excluded from the possibility to be involved in a decision had it gone another way. My all-subjected principle is slightly more limited.
Secondly, performative contradiction is one of the two arguments I make against the normative coherence of Article 7 TEU. In an article from 2020, which I published in the journal Global Justice: Theory, Practice, Rhetoric, I make an argument which is more focused on the democratic theory side, and more focused on the subjection claim. I introduce a new element in the Res Publicaarticle, which is the idea of performative contradiction. This is grounded on the view that Article 7 TEU seeks to communicate something. Amongst other things, it seeks to communicate the value of Article 2 TEU fundamental values like democracy or equality. In order to communicate these values clearly, the sanction needs to not undermine these values. Performative contradiction in the straightforward sense is when an utterance undermines the content of what you say. A classic example is when you say “I am dead.” You cannot say that you are dead because the utterance undermines the content of the statement. Here, it is a little bit more convoluted. It is not the utterance itself, but the sanction that undermines the values. I make a similar argument with regard to criminal disenfranchisement in an article which I published with Andrei Poama, a colleague of mine in Leiden, in the American Political Science Review.
The argument is that the sanction in Article 7 TEU – the suspension of voting rights of a Member State in the Council of the European Union – undermines the principles that flow from the values that Article 2 TEU enunciates, specifically democracy and equality.
Whether I think it is always anti-democratic to deprive subjects of participation as equals also in other contexts is an interesting question, but would take us quite far from our topic of discussion. To summarize briefly, I came to this theory via a study of criminal disenfranchisement. I am very committed to the claim that disenfranchising criminals is basically always anti-democratic. It is more complicated regarding disenfranchisement of people who do not have legal competence, like children or people with severe cognitive disabilities. Philosophically, it is more complicated because, in many cases, these people are not equally subject to the law, particularly to criminal law. Even there however, I tend towards the view that they probably should be enfranchised, but that is the subject of a different conversation.
Your argument about proportionality is interesting. As a democratic theorist, who comes from the perspective of the right to vote, I would make an analogy to the national level. It used to be the case that weighted voting was an ordinary position to take. Famously, John Stuart Mill thought that people who are educated should have more votes than the uneducated, and he is still regarded as an important democratic theorist. Now we widely reject that view, with some exceptions. And the reasons for why we reject that view is also why I reject the proportionality argument. Of course, it is important that if a Member State is disenfranchised inside the Council, its citizens would continue to be represented in the European Parliament. That is in a sense better than nothing. But it would still treat those citizens unequally and because, in my view, democracy is committed to equal representation, this would undermine foundational democratic principles.
As you mention in your answer to the first question, you utilize the withdrawal clause of Article 50 TEU as the legal mechanism whereby de facto expulsion could be achieved through mass withdrawal of all other Member States.
Are there any normative reasons why you do not propose the creation of an explicit expulsion sanction as a new sanction under Article 7 TEU? Or is the concern purely pragmatic, insofar as the vetoes of certain Member States would prevent the amendment of this clause?
Basically, it is largely pragmatic. I started the podcast by emphasizing that the should part and the can parts of the argument are separate. If we accept the should part of the argument, then we need to create an expulsion mechanism – if there is not one already. The can argument holds that there is something that can be used in that way in the current Treaty structure. Normatively, there is absolutely no reason why a sanction mechanism should not be created, and it would be cleaner and more straightforward to do this via Treaty reform. If Article 7 TEU were to be reformed, I would probably also want to reform other aspects as well such as the inclusion of a sanction mechanism of expulsion. You would have to think, amongst other features, about the unanimity clause, and the relative empowerment of Member State governments vis-à-vis the European Parliament and the Commission in the procedure. You would have to think about all of these things and the different normative justifications for them. I would be clearly in favor of including an explicit expulsion mechanism in a future EU Treaty. Politically, however, I think that this would be completely unfeasible, and it would never happen in the current European political climate. And that is why I think it is important to consider ways in which this could come about within the current Treaty mechanisms. Basically, I came at the Article 50 TEU angle by considering what I think would actually happen in an extreme case. People often reply to me by saying that this would never happen. I think this is taking things the wrong way around.
If a Member State were to act in a way that is frankly autocratic in an extreme way – for example, if we were to see a Member State turn to the violent oppression of the free press or the opposition – then disassociation with that state would become absolutely mandatory for Member States that are committed to fundamental values. And then withdrawal and re-founding would be one of the ways that this could come about.
It feels very important to see your argument as a response to a worst-case scenario, which leads us to a question on the can part of your argument. This may be more of a question for EU constitutional lawyers rather than a political theorist such as yourself, but I believe it has important ramifications for the efficacy of your proposal.
Do you believe that the Court of Justice of the EU would find such a maneuver compatible with the telos of Article 50 TEU to provide a sovereign right of withdrawal in accordance with an orderly procedure if the real intention behind the move was not withdrawal, but instead expulsion of unrelated Member States? And would such a move in fact undermine the right of those backsliding Member States not to withdraw and to continue participating in European integration, as evidenced by their non-triggering of Article 50 TEU?
This is a difficult question for me. I cannot speculate about what the judges would do as a matter of law. But as a political theorist, I can think with you, or with constitutional lawyers in general, about what I think the reasoning should be here. We might want to distinguish weighty uses of Article 50 TEU, such as this “withdraw and re-found” procedure which I describe with Marijn Chamon, from trivial use which the Court might potentially judge to be incompatible with the telos of Article 50 TEU.
Weighty uses of the “withdraw and re-found” procedure seem to me to be in line with the Article 50 TEU telos. When there is a particularly weighty reason to dissociate with a Member State, be it human rights violations or grossly anti-democratic practices, then it is important that Member States are able to do so.
Continuing to bind these Member States to supranational union with such an autocratic state would, I think, be highly problematic in light of the EU’s fundamental values. In those circumstances, I would hope that the Court of Justice of the European Union would find that the procedure is indeed compatible with the telos of Article 50 TEU.
That resonates with the interesting question of whether the Court of Justice may well find one day that the telos of European integration, of an “ever closer union”, may be better served outside of the current Treaty structure. There is, I think, an interesting jurisprudential question of whether those values can exist outside of the legal order. So, I think your argument is at least feasible for constitutional lawyers. And that connects to my next question about whether the use of Article 50 TEU would even be necessary in this situation.
We have discussed on twitter the historical example of the consideration of a de facto mass withdrawal by all Member States other than Denmark when their electorate rejected the Maastricht Treaty amendment. Could and should Article 48 TEU on Treaty amendment function as the appropriate time for such a de facto expulsion, or is the barrier again that Member States can veto such an amendment coming into force? In that case, would it be more transparent and appropriate for the other Member States to conclude an entirely new treaty-based constitutional order, rather than opaquely utilizing the withdrawal mechanism for the purpose of de facto expulsion? I suppose we would find ourselves in a legal question of whether Article 50 withdrawal is even necessary before this could be founded. Is it better to create a new Treaty structure explicitly, and do you think this should be linked to a failure to conclude a Treaty amendment in response to such a situation?
It would make sense to try other avenues within the current Treaty structure before resorting to a collective “withdraw and re-found” procedure via Article 50 TEU, including Treaty amendment via Article 48 TEU. Then there is the question of whether it is more transparent to conclude an entirely new treaty. I think an EU 2.0 treaty would function in international law, if I am not mistaken, as an entirely new treaty. There is an interesting political question: would that 2.0 structure replicate existing European Union institutions, and adopt large portions of the old Treaties, and potentially the acquis communautaire? Or would we use this as an opportunity to work on improving the structure of the EU?
The reason I avoid opening the box of wholesale revision of the Treaties is that then it starts to look even more difficult, politically, for a “withdrawal and re-found” to happen. In a case where the item on the agenda is really that of a Member State becoming frankly autocratic, dealing with that Member State is the priority. Questions of Treaty evolution in other aspects should take a backseat to that priority.
If these reforms were to inhibit the disassociation with an autocratic Member State, then they should be postponed. If they did not, and there is widespread agreement on reforming certain aspects, then I do not see why that should be off the table. Particularly, I think it would make sense to reform Article 7 TEU.
The next question returns to our starting point of normative issues. You have responded to criticism that expulsion would undermine the rights of citizens of those Member States through your position that, unlike nationality, EU citizenship does not provide the foundational ‘right to have rights’ in the words of Hannah Arendt. How would you respond to criticism based on the Habermasian argument, adopted compellingly by Markus Patberg amongst others, that EU citizenship and Member State nationality are co-equal constituent statuses, and thus expulsion would undermine the self-determination of European individuals? Effectively, does your argument fall foul of a democratic principle of ‘all affected statuses’?
I am very impressed by Markus Patberg’s work on this issue. It is a problem that is not easily resolvable. Your colleague Dimitry Kochenov has also raised issues about equality of citizenship. I do not want to be blasé on these issues.
Currently my view is that, while the democratic costs of expelling a frankly autocratic Member State would be very high – especially regarding citizens who have resisted the autocratization of that state – nevertheless the costs of continued supranational integration with an autocratic Member State would be higher still.
I fully accept that there are costs of exclusion. Once we do accept the costs of exclusion, we can think about ways to cushion those costs at the individual level. Because it is not in the article that we are discussing I do not want to speculate too much about the form that this would take. I know, for example, in the case of Brexit there was discussion about ‘associate EU citizenship’. I was quite convinced by the article by Martijn van den Brink and Dimitry Kochenov against associate citizenship. But we could think about ways to cushion those costs. At the end of the day, though, I am not entirely in line with this Habermasian idea of co-equal constituent statuses. My view is more along the line of Richard Bellamy’s idea of the voluntarist nature of supranational association. But these are very difficult issues, and I must say that it is entirely possible that my views on this will evolve.
One thing that struck me was the fact that your proposal may be regarded as sharing a familial resemblance with long-standing proposals for differentiation leading to a ‘core’ and ‘periphery’ of EU Member States.
Would there be any scope for the remaining Member States to conclude a new treaty with deeper constitutional ties on the basis of shared values, whilst leaving backsliding Member States in a more distant ‘associate’ position rather than leaving them within a Treaty ‘husk’?
In a sense, yes. And potentially that could be one of the options that would in fact play out once pro-democratic Member States threaten, convincingly, to exclude an autocratic member. I would imagine that this would start negotiations which would, hopefully, also result in some concessions through which that autocratic Member State would become less frankly autocratic in exchange for some kind of association, and some kind of integration in the free market. I do not at all support the view that we should completely isolate autocrats and that such isolation would further democracy. I think that this is unlikely to be true in most cases. The form is very important, and studying the empirical effects is very important. In many cases, linkages with autocratic states can lead to some sort of liberalization. I did some work on this for my PhD as well.
The phrase “a new treaty with deeper constitutional ties” immediately leads me to the thought that the current Treaties have pretty deep constitutional ties. We would need to do something about that if a Member State were frankly autocratic. Merely creating an alternative treaty, which goes further still, would not solve any of these problems.
And then there is the question of whether we should be in favor, at all, of a two or multi-speed EU. That is a difficult issue. Daniel Kelemen has raised some interesting issues against differentiated integration. I am a little bit on the fence here. Thinking through the lens of a democratic theorist, I am genuinely in favor of people having the freedom to decide to go further. And I am equally in favor of others having the freedom to decide not to do so when new items are on the table, such as new topics of integration. That being said, differentiation should not undermine what already exists in terms of, for example, its legal or normative coherence.
I have a personal interest in your article due to my own argument that a withdrawal clause reformed on the basis of the lessons from Brexit could help to address the values crisis. Do you believe there is any space for a middle-position whereby the EU institutions and other Member States would have more power to encourage a backsliding Member State to trigger Article 50 TEU, and force the nationals of that Member States into an existential discussion of whether a liberal democracy or EU citizenship is more important to them, rather than what may be regarded as your new ‘nuclear’ option of mass withdrawal and de facto expulsion?
There are very interesting proposals to be examined. One element of my argument that the ultima ratio sanction should be expulsion or exclusion from integration is that we should try everything else first, if possible. And, in my view, we are not now in a position where this kind of “withdrawal and re-found” procedure would be warranted against Poland and Hungary, for example. But different people will have different views on when that threshold is met. For me, there is still space for exploring alternative options such as reforming Article 50 TEU, even though there are difficulties in reforming the Treaty in general. If I understand it correctly, Article 50 TEU in terms of its historical origins was in fact created as an escape valve for precisely the context of a backsliding Member State, and not at all with the Brexit scenario in mind. Discussions with Kalypso Nicolaïdis have led me to this view, but I do not know a lot about the history. In the sense that the withdrawal clause was not meant for a scenario like Brexit, it has failed. We could think of ways in which it could be more effective to that end. If, however, a Member State were to become frankly autocratic, then I think there is a matter of urgency. This urgency would lend itself more to a form of expulsion or exclusion mechanism rather than to a mechanism that is pushing a Member State to make a choice itself.
My final question concerns the practicability of such a theoretically compelling argument. You have mentioned these difficulties in practice, but pointed out that the Dutch Prime Minister Mark Rutte made allusion in 2020 to the possibility of such a de facto expulsion. Do you believe there is any possibility that such an eventuality may come to pass? And if so, what do you believe would be required in practice to trigger it?
The Rutte quote is an interesting one to start with. He was talking in parliament, and in a rather round-about way, he was reflecting on conversations that he had with other European leaders in the context of the European Council. This suggests that it is something that has been discussed, that people are aware of or are thinking about this avenue in some way.
As to whether I think it is possible that such an eventually would come to pass, I think that conditionally if things were very extreme, it would almost necessarily happen.
If, politically, it were to become noxious for Member State governments that are committed to democracy vis-à-vis their own populations to continue to be associated with a frankly autocratic state, then something like this will have to happen. Now hopefully, of course, we would never get that far. This brings me to a second point. Pragmatically and practically, the primary function of my proposal is not to say that this should happen now, or at some specified point in the future – although in certain circumstances, I think it should. But clarity about the possibility of dissociation would, hopefully, lead to a politics whereby autocratizing Member States move back towards democratic values.
The transcript has been edited for length and clarity.
In collaboration with Alexander Lazović.