The Union's treaty predicament

The European Council is facing a difficult predicament at its meeting on 23-24 June. The question before it, which can be decided by a simple majority vote, is whether to examine proposed revisions to the EU treaties (Article 48(3) of the Treaty on European Union). The revisionists, led by President Macron, are powerful, including, as they do, the leaders of the six founding members of the Union plus Spain. Their opponents are smaller and more disparate, including western eurosceptics led by Denmark, and the two eastern troublemakers, Hungary and Poland.

Two events trigger this important occasion. Ukraine is one. The other is the recently concluded Conference on the Future of Europe, which gathered a sample of random citizens plus the EU institutions, along with national parliaments, in a year-long debate. Both the Commission and the Council patronised the Conference but barely engaged in its substantive work. The Commission, in particular, having abandoned its historic role as Europe’s think tank, was spectacularly vacuous. The Council, of course, started and ended the Conference divided as to its merits and uncertain how to deal with anything it might come up with. Hence the present dilemma: the Conference has delivered conclusions that lean towards ‘more Europe’, not less, and cannot be simply dismissed.

The Conference was championed by the European Parliament, which is now trying to convert its conclusions into concrete proposals for treaty amendment (Article 48(2)). For MEPs, who do not always succeed in thinking strategically while acting tactically, this is a delicate moment. While Parliament’s declared objective is to secure a constitutional Convention, its immediate priority is to persuade the leaders to vote to examine one or more proposals to amend the treaties. As things stand, a joint resolution from the socialist, liberal, green and left groups to be voted on tomorrow (9 June) keeps the reform proposals as short, simple and incontrovertible as possible, designed to hook the European Council. MEPs need to keep intact the delicate reform consensus inside the House by sticking to bipartisan constitutional measures and avoiding policy questions that divide left from right.

Many of the Conference recommendations, such as greening the economy, are already under way. Others, such as the upgrading of public health and civic education as EU shared competences, are self-explanatory and relatively uncontroversial. One or two proposals, like Common Agricultural Policy (CAP) reform, are gloriously naive. The Conference was weakest on institutional and budgetary matters, where the citizens’ component lacked expertise, but it nonetheless united in calling for the power of veto in the Council to be replaced by qualified majority voting (QMV).

This brings us to the heart of the matter. Abolishing the veto at a stroke is much easier said than done. In constitutional terms, it would propel the Union forward towards federation. As we know, such a transformation is strongly contested, particularly in common foreign and security policy (Article 24(1)) where the abolition of unanimity is resisted even by states, like Denmark, which otherwise support the application of QMV on sanctions.

There is more agreement on how to promote QMV in the Council in legislative matters. The best way to do this is to unblock the general passerelle or bridging clause (Article 48(7)). This provision allows the European Council to switch gradually away from unanimity, sector by sector, as well as to convert special laws of the Council into the ordinary legislative procedure. But the Lisbon treaty insists that crossing this passerelle is only possible if agreed by every member state, as well as being subjected to the threat of a unilateral veto of any single national parliament. So the passerelle is effectively impassable.

Hence the need for treaty revision. Liberalising the passerelle requires suppressing the third paragraph of the clause, which would still leave national parliaments with their normal treaty rights to raise objections collectively to EU proposals on grounds of breaches of subsidiarity and proportionality. The fourth paragraph should be simply amended to allow the Council to deploy the passerelle by ‘super QMV’ — with a threshold of at least 20 states representing more than 65% of the population of the Union.

Lastly, to be consistent, Article 353 of the Treaty on the Functioning of the European Union should be suppressed. This notorious clause prohibits the application of the passerelle to four key provisions of the treaty concerning the ‘own resources’ or revenue of the Union (Article 311), the multi-annual financial framework (Article 312(2)), the flexibility clause (Article 352), and the decision-making procedure for determining the existence of a serious and persistent breach of the values of the Union (Article 354).

Tackling the veto through the methodology of the passerelle would allow the European Council to put off critical decisions about precisely when and where to surrender the veto. But it would render the treaty less prohibitive and more permissive, postulating future democratic change. This is the perfect tactic for those heads of government who are pro-European in the mode of St Augustine.

Should the leaders vote in favour of reopening the treaties to adjust the passerelle, Parliament will insist, as is its right, on the calling of a Convention to make recommendations to the eventual Intergovernmental Conference that will agree – or not – to make the actual treaty amendments. Any mandate the European Council, or the Parliament for that matter, may try to impose on the Convention will be of secondary importance. A successful Convention will rise above the usual interinstitutional quarrels, develop a dynamic of its own and gain constitutive autonomy. Good ideas will surface; bad ideas will sink. The job of a Convention is to achieve political consensus on a comprehensive package of reform between the member state governments and parliaments, the Commission and European Parliament.

One possibility is that the European Council agrees to take the first step towards treaty revision but then establishes a group of experts to prepare options for the Convention. There are good precedents for reflection groups that have, in one way or another, nudged the EU’s constitutional process forward. Any reflection group must be independent of the institutions and able to take evidence from them, including the Court of Justice. There is plenty to reflect upon. The current acute controversy about the rule of law in the Union suggests the need for wise heads if stalemate is to be avoided. The incremental federalisation of the EU budget and the emergence of a common fiscal policy require new powers for the Union’s economic government, including the social dimension. A shift of competences over energy supply would also be logical.

Ukraine’s bid for membership obliges the European Council to reassess and overhaul EU security and enlargement policies. The return of war to Europe highlights flaws in the EU’s own defence and poses questions about its future relationship with NATO. How to respond to President Zelensky’s application will be the other central item on the agenda of the leaders’ meeting. It will not be an easy debate: some members want widening without deepening, some deepening without widening, and others neither of the two.

The Commission’s formal opinion on Ukraine needs to address the idea of a new interim stage in the accession process, as floated recently by Macron. The concept of affiliate EU membership should certainly be considered by any reflection group, requiring careful deliberation on the balance of rights and obligations before the drafting of appropriate treaty adjustments. In any case, further enlargement of the Union will hardly be viable unless action is taken to reduce the prevalence of the Council veto and to shrink the size of the Commission (Article 17(5)) — both of which reforms would seem to require the endorsement of a Convention.

Whatever the European Council decides to do, it must not simply procrastinate. The Union has constitutional problems which need resolving. Everyone knows that the governance of the Union and its capacity to act effectively can and should be improved. This implies, among other things, strengthening the executive authority of the Commission. Brexit, not least, challenges the Union to bolster the democratic legitimacy of its institutions. Electoral reform of the Parliament is already proposed to install transnational lists for a pan-EU constituency, fought over by federal political parties. The controversy over the election of the next Commission president is still unresolved. And there is always the need, in the interests of simplification and clarification, to regularly update the treaties and codify settled case law.

At the European Council in a fortnight’s time, only 14 votes are needed to start this process of fundamental reform. Get counting.

Andrew Duff’s next book, ‘Constitutional Change in the European Union’, is published shortly by Palgrave Pivot.