The EU’s Constitutional Interpretation of Article 50 TEU: Be Careful What You Wish For

The Brexit negotiations are well underway and things are turning sour. Negotiators trade reciprocal accusations, UK ministers are already accusing the EU of blackmail, nobody agrees on the money, nobody agrees on the role of the Court of Justice… This might be typical of the theatrics of every complex and publicized negotiation, but in the time-frame of only two years (almost one and a half by now) it appears as if the UK is heading towards an ugly and uncontrolled hard Brexit.

One could argue that this is all the UK’s own making. However, after spending two days in a conference listening to the opinion of several EU officials on the subject, it is obvious that this is also the desired and intended result the EU is looking for. The EU is starting to twist the UK’s arm and it is proving to be surprisingly easy and apparently risk-free. The more the Commission twists, the more the Brits seem to cry in agony and frustration, as they slowly but relentlessly realize what a miserable and poor card they have been left with. The EU is even beginning to act bullyish and with disdain. The EU is slowly realising that Brexit might be painless for Europe after all, and that its Institutions and officials might get to enjoy displaying public and unembarrassed humiliations of a respected nation now gone rogue.

In the course of the past days I have heard from EU officials the most robust of constitutional interpretations of Article 50 TEU. In their opinion, Article 50 TEU is not an unclear provision, but a crystal-clear rule with nothing much to interpret: in two years you either pay or you go, and if you go you are gone for good. Any transitory regime will not be a piece of cake, quite the contrary: accounts must be paid and, just to make things even clearer, the regime should have a suspensive clause in case of breach. The more the UK government and UK business cry for reason and flexibility, the more bullyish the EU approach becomes, and it is legally bullyish, because the reason for the EU’s rigid stance is due to the law. It is the law that demands that accounts must be paid first. It is the law that requires a step-by-step process. And it is the law that imposes the compulsory jurisdiction of the Court of justice.

It is the law, EU constitutional law. And Article 50 TEU is part of it.

I will admit that I agree with the EU’s official stance. I think it is legally sound and it is in line with the wording of Article 50 TEU. The UK does have indeed international obligations vis-à-vis the EU resulting from its withdrawal from the Treaties. I also agree that a transitional agreement must be minimally adapted to the circumstances of the transition and, if necessary, include suspensive clauses to ensure enforcement. And I certainly agree that the Court of Justice cannot be side-lined in the interpretation of EU law. The EU has the legal argument right. What it might be mismanaging badly is the timing and the politics.

A robust constitutional interpretation of Article 50 TEU poses a problem in the context of Brexit, and it has to do with the history of the provision. As Lord Kerr reminded Politico’s readers in a very interesting piece, Article 50 TEU was mostly a provision to counterbalance Article 7 TEU and to thus avoid enacting mechanisms to suspend or terminate membership of a rogue Member State. If Article 7 TEU was ever triggered, the rogue State would have to either return to sanity or voluntarily walk out the door. A Member State could not stay indefinitely under suspension resulting from Article 7 TEU proceedings. Thus, Article 50 TEU was the polite invitation to please leave (voluntarily, of course) the European club.

Fast-forward now to 2017 and it is quite surprising to see how events have unfolded. A Member State that is far from being a rogue State, the United Kingdom of Great Britain and Northern Ireland, is now on its way out of the EU through Article 50 TEU proceedings. And two rogue Member States (or governments, to put it more precisely), Poland and Hungary, are displaying their immunity vis-à-vis Article 7 TEU as they carry on with a domestic frontal attack against the rule of law and the EU’s most basic values. The two rogue Member States have figured out that they can block Article 7 TEU because they can reciprocally vote against any measures being taken in the European Council against them. A legal gimmick allows them to carry on with membership at the same time that they implement their illiberal agendas with astonishing immunity.

By promoting a robust constitutional interpretation of Article 50 TEU against the UK, common sense would advise us to apply the same approach to Article 7 TEU vis-à-vis the rogue States that are now undermining the EU’s values. In the same way that the EU stands firm in refusing to negotiate a trade agreement in the withdrawal agreement because it is contrary to the Treaty, the same firmness and command should apply to Articles 2 and 7 TEU. The consequence of upholding a constitutionally robust interpretation of Article 50 TEU, is that its twin provision, Article 7 TEU should be interpreted in the same way too.

However, we are witnessing quite the opposite. So far, Member States are mute about their Polish and Hungarian partners, and the firmness they display when commenting on Article 50 TEU suddenly disappears when the attention is brought to Article 7 TEU. If this approach continues in the following months, the EU could find itself pushing out the door one of the most venerable and respected democracies in the world, whilst keeping two rogue States that have decided to obliterate the rule of law in their domestic constitutional orders. The EU would be putting itself in the preposterous position of fighting away a country that should be kept close to Europe, but refusing to fight precisely the kind mischief that Articles 7 and 50 TEU were designed to prevent.

I very much agree with the EU’s legal understanding of Article 50 TEU, but if the approach towards Poland and Hungary remains unchanged I’m afraid that it could all end up backfiring very badly. Not because Brexit might turn up bad for the EU in the short-term (it will not), but because the departure of the UK and the confirmation that illiberal politics are free for Member States to play with, might end up being lethal in the long-term for European integration. And that would seriously undermine everything the EU stands for. And then Brexit, in the long-term, like a hidden old bomb that appears in excavations many years after it was dropped, could explode with fierce voracity in the very face of the EU.