Zachary Sanfilippo – United, We Fall: Expelling Autocratic States from the European Union

Abstract

Since 2010, the Fidesz party has systemically and blatantly undermined Hungary’s democratic institutions. Led by the autocrat Orbán, Fidesz has rigged Hungary’s elections, packed its courts, and violated its citizens’ human rights. So far, it has done so without any real consequence from the European Union. This state cannot stand. The inefficacy of the EU’s current attempts to discipline Hungary suggests that a stronger remedy is necessary: expulsion. This Note argues that allowing expulsion of materially breaching Member States has not been foreclosed by CJEU jurisprudence and, indeed, advances the EU Treaties’ purpose of “ever closer union.” Should Member States retain their sovereign expulsion right, Article 60 VCLT operates as its guiding law. Using this framework, Hungary’s recent autocratic actions have violated the values of democracy, rule of law, and human rights contained in Article 2 TEU, which is an essential provision of “ever closer union.” As such, Hungary has likely materially breached its treaty obligations, and so is liable for expulsion. Whether there is the political will to achieve the required unanimity to effect expulsion remains unclear. What is clear is that keeping autocracies in the Union risks the legitimacy and long-term survival of the EU project.