Could we found a new EU without Hungary and Poland?

To someone outside the EU bubble, this may seem like legalese - peripheral to the urgent political issues of the day - the Covid-19 pandemic, climate change, Donald Trump.

Indeed, media reporting of the recovery-fund in July spilled much more ink on Rutte's attempts to cap the total amount of grant money, than on the attempt to link the disbursement of cash to democratic performance.

But Europe's rule of law crisis will remain once this public health crisis abates. The future of the EU as a union of democracies is at stake.

Tensions over member states reneging on democratic fundamentals have been around now for almost a decade, and increasingly focus on Hungary and Poland.

In Hungary, Viktor Orban has presided over the dismemberment of independent media, the ostracisation and abuse of refugees, fired judges and undermined the courts, and recently took to ruling by decree during the height of the pandemic.

In Poland, Jarosław Kaczyński and the governing hard-right Law and Justice party have entirely restructured Poland's judicial branch to bring it under executive and legislative control, transformed public television into state propaganda and cracked down on LGBTI+ activists.

A third of Poland is now a self-declared 'LGBTI-free zone'.

Taboo broken

Rutte's comment is the first time the leader of an EU country has publicly considered the possibility of the EU integration project continuing without recalcitrant states.

The chosen wording - of "founding an EU without Hungary and Poland" - was also interesting, as it showed a subtle awareness of the legal difficulties that these questions raise.

In 2016, Jean Asselborn, the Luxembourgish minister of foreign affairs and former deputy prime minister, made headlines when he said "We cannot accept that the fundamental values of the European Union are flagrantly violated. Those who, like Hungary, build fences against refugees fleeing war or violate the freedom of the press and the independence of the judiciary, should be temporarily or, if necessary, permanently expelled from the EU".

While Asselborn's sentiment was strong and clear, the immediate practical and legal problem was that the EU treaties simply do not allow for the expulsion of an EU member state.

The only mechanism to leave the EU is Article 50, of Brexit fame.

And Article 50, as we know all too well, must be triggered by the member state that is to leave "in accordance with its own constitutional requirements".

In other words, even if Hungary and Poland were to continue down the path of dismantling their democratic institutions to become frankly autocratic, there is, legally, nothing that other EU member states could do to remove them from the EU.

The legal mechanism that does exist to impose sanctions on such states, Article 7, also suffers from an important handicap.

Theoretically, the Article 7 procedure can lead to member states losing their right to vote in the European Council.

However, a crucial procedural step, determining that a member state is in breach with EU fundamental values (such as democracy and the rule of law) requires EU countries to agree unanimously.

The current situation, where democracy and the rule of law are being dismantled in two states simultaneously, therefore leads to an impasse.

Both states can simply decide to support one another in the European Council - as indeed both Hungary and Poland have committed to doing.

Legal difficulties

Rutte's offhand suggestion - to re-found a democratic European Union without Hungary and Poland - avoids this dead end.

After all, there is no legal barrier to stop all other members from withdrawing from the EU via the Article 50 procedure and then setting up a new supranational organisation (the 'New European Union'?) in its place.

The old European Union would cease to exist, or continue only as a husk.

Protecting the democratic accountability and legitimacy of EU institutions and EU law by excluding autocratic member states in this way would be a radical choice.

Such a move also comes with severe costs, including to democracy.

Many Hungarians and Poles have actively and audaciously opposed their governments' autocratic projects. With them in mind, refounding a democratic EU seems harsh, lamentable, even unjust.

They would lose many important freedoms, like their right to work and travel in other member states. They would no longer be protected by the stringencies of EU labour, employment and competition law, nor could they have their transnational interests represented in the European Parliament.

However, doing nothing is also not an option.

The legitimacy of EU institutions, procedures, and law is fragile. It is in a large part a function of the democratic mandate of the governments of its constituent member states.

If Hungary and Poland continue to slide to autocracy, the EU as a whole loses any democratic claim to authority. Our EU citizenship loses its democratic character.

And so we return to Rutte's offhand remark.

Perhaps it was largely a rhetorical flourish to play to Dutch nativism and bolster his image of a straight-talker who shoots from the hip.

But his words mark a truth that few so far have been willing to face: the European Union faces an existential question regarding democratic backsliding: will it continue to include - even to subsidise - increasingly autocratic member states?

Or will it do whatever necessary to protect the fundamental values of the European Union?