In the aftermath of the Conference on the Future of Europe, member of the EU3D Advisory Board Andrew Duff argues that only a reformed EU can shoulder its serious responsibilities for the wider Europe. He explains what a reformed EU should look like in this blog post.
Photo by Ola Fras on European Union 2022 – Source : EP
Czechia, which holds the current presidency-in-office of the Council, is obstructing the constitutional development of the European Union. Opinion is divided about whether this is a matter of competence or because of long held euroscepticism. Probably both factors are in play.
The story, in brief, is that, after years of grumbling, MEPs have at last made a formal proposal to amend the treaties (Article 48(2) Treaty on the European Union). The Parliament’s most concrete demand in its resolution of 9 June is to change the decision-making process of the famous passerelle or bridging clause (Article 48(7)) from unanimity to qualified majority voting (QMV).
The Lisbon passerelle allows the European Council to convert a unanimous decision of the Council into QMV or to turn a special law of the Council into an ordinary law. It is of general application except, alas, for certain key issues proscribed under Article 353 Treaty on the Functioning of the EU. But because the passerelle itself can only be crossed by unanimity, it is in effect a paralytic provision. Its modification is therefore key to the deeper political integration of the Union.
The treaty states that once Parliament launches substantive proposals for treaty amendment, they should be submitted automatically by the Council presidency to the European Council. It is then up to the EU heads of government to decide by simple majority whether or not to examine the proposed amendments and, if desired, to call a Convention (Article 48(3)). Parliament can insist that a Convention happens.
However, in breach of their treaty obligations, the Civic Democratic Party (ODS) led government in Prague, which is embedded in the nationalist European Conservatives and Reformist (ECR) group in the European Parliament, is blocking progress. The Czechs threaten a vote in the General Affairs Council (GAC) on 18 November to reject Parliament’s proposal on the passerelle. Members of the European Parliament are considering whether to take the Council to the Court of Justice for its failure to act according to the treaty (Article 265 TFEU). They should do so.
This episode serves to highlight the importance as well as the fragility of the rotating presidency of the Council. The Czechs are not the first to fall way below the standards expected of them. The Slovenian presidency in 2021, under Prime Minister Jansa, sought to drag the EU’s political agenda on to territory favoured by the illiberal authoritarian Viktor Orban. The European agenda of the French presidency early in 2022 was blown badly off course by domestic elections. The Swedish presidency, up in January, will be beholden to the far right Sweden Democrats. Whatever next?
Shaking up the Council
No doubt the system of the term presidency made institutional sense in the old days. But the Treaty of Lisbon introduced a fixed term, neutral president of the European Council. It made a vice-president of the Commission chair of the Council of foreign affairs, and it authorised the Eurogroup to elect a ‘permanent’ chair from one of their number. These innovations bring continuity and stability as well as a degree of expertise to the job of chairing Council meetings and of representing the Council to the outside world.
What has not worked well after Lisbon is the transmission system between the European Council and the lower Council formations. The GAC, whose job it is to prepare and then execute the decisions of the European Council, lacks authority and strategic direction (Article 16(6)). The other formations of the Council are badly coordinated. Law-making trilogues with the Commission and Parliament are of variable quality.
For these reasons, in my new open access book, Constitutional Change in the European Union, I propose the abolition of the rotating presidency. Commensurate changes involve the creation of a treasury secretary in the Commission to chair the Council of Economic and Financial Affairs. And I suggest that the lucky person nominated in 2024 to succeed Ursula von der Leyen as Commission president should not accept the job unless he or she can both reduce the size of the college to 18 members (Article 17(5)), as well as taking for themselves the chair of the European Council (Article 15(5)) — thus relieving everyone of the need to find a replacement for Charles Michel.
Out of the impasse
All these ideas were discussed at the Convention of Giscard d’Estaing in 2002-03 but have since fallen out of vogue. It is time to bring them back. The main aim must be to allow for the evolution of discernible and efficacious government at the federal level. The Union must get to be much better governed if it is to meet its very many challenges, domestic and international, and reverse the drift to disintegration. Effective EU government needs a settled constitutional framework which is more permissive and less prohibitive than that prescribed by the Lisbon treaty — hence the importance of modifying the passerelle clause. These changes and others involving every institution, as well as ending the need for rigid unanimity with respect to any future treaty amendment, will help the EU find the way out of the constitutional impasse in which it is now trapped.
I argue that only the Union so reformed will be able to shoulder serious responsibilities for the wider Europe. Differentiation between existing member states and among the EU’s neighbours is a complex business of paramount importance. The vaguely convened and ill-defined conference to establish a ‘European political community’ is certain to fail unless the new body is to be governed by the EU and grounded in EU primary law. A diplomatic process based on a mere political declaration will be headed for futility.
In my book, I propose a new category of affiliate membership of the Union with a threefold purpose: as a voie de détresse for Hungary and possibly Poland, a temporary staging post for Ukraine, and a long-stay parking place for the United Kingdom. I even chance a martyr text for affiliate members (Article 49a). Affiliates would participate in a new European security council whose function would be to keep the Americans in Europe, rather, as is sometimes suggested, to boot them out.
Naturally, eurosceptics argue that the time is not right for treaty revision. They always do. As evidenced by its abysmal display during the Conference on the Future of Europe, von der Leyen’s Commission has neither a collective nor incisive view about constitutional reform. While the European Parliament becomes more coherent and decisive, the Council remains leaderless and divided. Ill prepared as Europe is to take its next steps towards ever closer union, can a positive majority of the 27 states be persuaded to take the first steps towards another Convention?
A useful interim stage would be to appoint an expert reflection group to prepare options for treaty change. Such a group must have full autonomy from the institutions and a remit wider than the narrow confines of the EU. Another disingenuous pretence by the Council at reaching inter-institutional harmony prior to the calling of a Convention would do much more harm than good. There are useful precedents for calling on groups of wise folk to help the sclerotic institutions out of a bind. It is time to revisit them.