The Conference on the Future of Europe

Overcoming the blockade of treaty change

Despite this obvious need for reform, the EU and its member states have only been able to find solutions to the many internal and external challenges over the past decade with great difficulties. One reason for this is that treaty change has become taboo. Since 2009, the EU has not touched its trea­ties during any of its structural crises – the Euro crisis, the migration crisis, Brexit, and the contestation of the rule of law.

A common argument against reforming EU primary law is that the EU treaties are based on a complex package of compromises between member states. Changes to the trea­ties would require unravelling this package, akin to opening Pandora’s box. The ratifica­tion process also harbours great political risks. In the end, not only all national gov­ernments, but also national parliaments, constitutional courts, and in some cases the citizens, via referendums, must approve treaty amendments. Such amendments are therefore very time-con­sum­ing and not suitable for responding rapidly to crises. For instance, eight years passed from the Laeken Declaration (2001) to the Constitutional Treaty and, finally, the Lisbon Treaty (2009). Even the “simplified treaty amendment procedure” to secure the European Stability Mechanism in 2011–2013 by adding a single sentence to Article 136 of the Treaty on the Functioning of the EU took more than two years (see SWP Comment 50/2015).

Hence, a majority of the member states will attempt to block treaty change from the Conference agenda. That would be a mis­take on two counts. On the one hand, it would exclude reform proposals that require treaty changes – for example, in the institutional area. On the other hand, it would block the opportunity to link policy areas, which is precisely what the Conference would be well-suited to do with its broad, long-term approach. It would there­fore be better to keep the outcome of the Conference open and to neither demand nor categorically rule out treaty changes.

Reforms only during crises

Both a feature and a symptom of the block­ade of treaty change is that, in the last decade, changes could (almost) only be pushed through during crises. “Every crisis also offers an opportunity” has become a com­mon saying in Brussels. The EU has indeed often adopted far-reaching integration meas­ures in a very short time. But these steps were taken only under high pressure, and they only went as far as was necessary to contain the immediate crisis. Two exam­ples illus­trate this “integration in crisis mode”.

The first example is the Eurozone. Here, the member states agreed to set up first a temporary – and later a permanent – Euro “rescue fund” with the European Sta­bility Mechanism to contain the sover­eign debt crisis. With the Euro Plus Pact and the Fiscal Compact, groups of 19 and 25 mem­ber states, respectively, reached two agree­ments on budgetary measures. In 2014–2015, the Eurozone also established the first components of a banking union. How­ever, since the acute crisis pressure started to subside in the Eurozone from 2015 on­wards, completion of the banking union has hardly progressed.

A second example is the common asylum and migration policy. In 2015–2016, the EU significantly expanded the mandate of its bor­der control agency, Frontex, in a rela­tive­ly short period of time and adopted the controversial refugee distribution scheme. However, since significantly fewer refugees are now arriving in the EU, a thorough re­form of the asylum and migration system has stalled.

What these examples have in common is that the reform processes have a) only come about as a result of severe pressure due to crises, b) been ad hoc in response to indi­vid­ual, particularly pronounced crisis indi­cators, and c) not addressed structural deficits. In con­trast, progress in the reform processes not driven by crises has been slow. For exam­ple, in September 2016, the heads of state and government of the EU-27 launched the “Bratislava Roadmap” to underline the EU’s capacity to act and its added value in response to the Brexit vote. Although individual legislative projects such as the establishment of a Travel Information and Authorisation System were adopted, the fundamental problems of the EU’s asylum and migration system, which were the focus of attention, could not be resolved. Later, then-president of the European Coun­cil, Donald Tusk, initiated the “Leaders’ Agenda” for 2017–2019. As part of it, the 27 heads of state and government agreed to tackle reform blockades, inter alia on the banking union and the democratic legiti­macy of the EU. However, in the absence of any pressure from a crisis, none of these dossiers registered substantial progress, even though they had been declared Chef­sache (a matter for the bosses).

An EU that is only capable of reform during crises cannot be stable in the long run. As a political construct with loose direct links to its citizens and a scarcely evolving European public sphere, the EU is particularly dependent on output legitimacy. Every existential crisis damages its accept­ance among the population. Consequently, the Conference needs to demonstrate that the EU is capable of generating reform initia­tives without acute crises pressure.

The conference as a trilogue

The institutional squabbles over the man­date of the Conference, however, were as much about its structure as its overall aims. With regard to the composition of the Conference, the EP, the Council, and the Com­mission agree that not only nation­al governments and the Commission but also the EP and national parliaments should be represented. Although the Council explicit­ly distinguishes the Conference from a con­vention, its composition thus corresponds to the model of the latter, as provided by Article 48 (2) TEU.

In addition to the pandemic, an inter­institutional dispute over the leadership of the Conference has delayed its launch. At the Constitutional Convention, the Pre­sid­ium, under the leadership of former French President Valéry Giscard d’Estaing, had a decisive influence on the final outcome. The EP therefore called for the Conference on the Future of Europe to be led by a co­ordinating body made up of representatives of the three main EU institutions, but under the leadership of the EP. The Coun­cil, on the other hand, called for an inde­pendent “eminent European person”, i.e. a former head of state or government, to take the lead.

As a compromise, the EU institutions have agreed that the Conference should be under the shared leadership of the Presi­dents of the Parliament, the Council, and the Commission. They will be assisted by an Executive Board composed of three rep­re­sentatives from each institution plus four observers – mainly so that each party group in the EP can have a seat at the table. Although this compromise defused the dis­pute over the leadership issue in order to get the Conference started, it simultaneously created a very complex structure at its top. In effect, this imports the institutional struggles right into the leadership of the Conference. It also turns the Conference into an institutionalised trilogue, in which the three main EU institutions, accompanied by national parliaments, wrestle over the future direction of the Union.

Another controversial issue is how to deal with the outcome of the Conference. The EP wants all institutions to commit themselves to implementing the Conference’s recommendations as fully as pos­sible. The Council, on the other hand, only wants to have a report drawn up for the European Council. In that case, the Con­fer­ence would be in danger – similar to the EU citizens’ dialogues in 2018 – of failing to deliver any meaningful policy reforms.

Previous experience with participatory democracy in the EU

Even before the pandemic, the EU was struggling with participatory democracy. When it comes to comparable instruments of citizen participation, the EU institutions have so far hardly been willing to translate citizens’ recommendations into political initiatives. For example, the Treaty of Lis­bon introduced the European Citizens’ Initiative (ECI), which enables Europeans to make proposals for legislative initiatives to the Commission. The ECI has been available since 2012. The previous Juncker Commission also organised citizen consultations, in which Europeans were able to submit their feedback on legislative initiatives to the Com­mission via internet surveys. Inspired by French President Emmanuel Macron’s Sorbonne speech in 2017, the member states also held national citizens’ dialogues in 2018.

However, the results of these citizen par­ticipation formats have hardly been incor­porated into the EU’s decision-making pro­cesses. Also, due to major logistical hurdles, only 6 out of 76 registered ECIs have reached the threshold of one million signatures. The Commission has evaluated five of them but did not fully implement the proposals of any of the successful ECIs. As a rule, it referred to existing EU legislation or on­going legislative processes. In two cases, the Commission remained completely inactive. A citizens’ initiative against the Transatlantic Trade and Investment Partnership (TTIP), which collected more than three million signatures, was rejected by the Commission on grounds of a lack of competence – wrongly, as the European Court of Justice ruled in 2017. The Commission’s citizen consultations on the abolition of daylight saving time, which attracted a great deal of attention in Germany, have also been in­conclusive to date. The citizens’ dialogues merely resulted in a report for the Council of the EU.

When implemented in this way, citizen participation weakens rather than strength­ens the democratic legitimacy of the EU. It creates an illusion of participation oppor­tunities but ends up having no impact. If the Conference is to generate positive impulses for democratic legitimacy from citizen participation, it should make sure that the following conditions are fulfilled. First, the citizens involved should be select­ed using representative standards to account for differences in age, gender, geographic location, socio-economic standards, and political affiliation. Ireland, for example, has practiced this successfully in its citizen consultations. Second, because the Euro­pean dimension and the pandemic make logistics considerably difficult, the EU should provide every conceivable logistical support for participation, from online plat­forms to the necessary translation services to covering the costs of physical consultations. Last but not least, citizen participation needs, above all, to be given assurances that its results will be incorporated into the deliberation processes between the EU insti­tutions.

Scenario 1: A counterproductive show

The first possible development is that the interinstitutional differences are not effec­tively addressed, and a lack of will to con­duct thorough reforms on the part of nation­al governments persists. As a result, the Conference is dutifully launched in 2021, but with an ambivalent mandate and on the basis of minimal compromise, accompanied by the continued scepticism of national governments concerning the fea­sibility of far-reaching EU reforms. During the course of 2021/22, citizens are involved in the debates digitally and, if possible, via physical meetings throughout Europe at some later point. More ambitious reform proposals, however, are dismissed either with reference to ongoing legislative pro­cesses in the EU, or because treaty changes would be necessary, which the mem­ber states reject. At the end of the pro­cess, the Conference leadership solemnly presents its results to the European Council – a report that invokes the European spirit but con­tains few concrete recommendations. The European Council duly takes note of the report and makes a non-binding promise to implement the citizens’ demands within the framework of its Strategic Agenda.

For the European Union, this would not only be another missed opportunity for reform. Organising a “Conference on the Future of Europe” with much fanfare, prom­ising an elaborate mechanism for citizens’ involvement, and then not taking their proposals seriously would ultimately only demonstrate how great the distance is between the EU citizens and Brussels. This would do more harm than good to the democratic legitimacy of the EU. Instead of strengthening the EU internally before the next crises – which are certain to arise – the Union would continue to be capable of reforms only when crisis situations come to a head and pose an existential danger. In the long run, such crisis-driven reactions rightly reinforce doubts about the EU’s capacity to act.

Scenario 2: A European impulse

In the counter-scenario, the Conference on the Future of Europe can be used as a cata­lyst for genuine European reform. In the course of the Conference, the participating national and European institutions succeed in drawing up a roadmap for structural reforms through the active participation of citizens. The reform proposals are presented to the EU institutions after extending the Con­ference to the end of 2022. After the Ger­man parliamentary elections in 2021 and the French presidential and parliamen­tary elections in 2022, there is a window of opportunity before the European elections in 2024 to push through substantial parts of these proposals, primarily with secondary law reforms, but also treaty change if necessary. As a result, the European elec­tions in 2024 can take place on a new, strengthened institutional basis.

Making this ideal-typical vision of the Conference a reality, however, will require considerable effort as well as courage, also from Germany, which should let go of the approach of gradual development of the EU only in times of crisis. Germany already took a major step into the unknown during the budget negotiations in the summer of 2020 by abandoning its traditional opposi­tion to the EU’s own debt in the face of the forecasted severe economic consequences of the Covid-19 pandemic. More such steps are necessary to make the EU fit for the future. To succeed, three conditions must be met.

First, the Conference should have an open mandate with no taboos. Treaty change can­not be a goal in itself, but neither should this option be categorically ex­cluded. In the interest of credible citizen par­tici­pation, the Conference should ensure from the outset that although citizens’ proposals are not intended to determine the outcome of the Conference, they are nevertheless incorporated into the deliberations in a concrete and comprehensible manner. The year 2020 has already shown how quickly the focus can shift politically – from an emphasis on institutional issues and the Spitzenkandidaten principle in the aftermath of the European elections in 2019 to the need to reflect on the competences of the EU in health policy in the wake of the Covid-19 pandemic. The decisions already taken on the Next Gen­eration EU (NGEU) fund – including the expansion of the EU’s ability to issue debt and the prospect of new own resources for the Union – also offer points of departure for additional reforms. These historic steps towards deeper integration would benefit from a close link to the Conference. Last but not least, institutional adjustments in foreign and security policy are also pressing and may require treaty change.

Second, a successful Conference depends on the political impetus from – and par­ticipation of – the national capitals. In the end, EU reforms will only be implemented if they receive the necessary support of national governments in the (European) Coun­cil. Treaty changes or more far-reach­ing reforms, such as the recent decision to renew the Own Resources Decision for the NGEU fund, additionally require the approv­al of the national parliaments.

Germany and France have a particular responsibility in this respect. In the course of the pandemic, the EU succeeded in initi­ating extensive changes in the EU budget with NGEU. The prerequisite for this was not only a classic Franco-German compromise, in which both sides overcame signifi­cant differences and made concessions to reach a joint understanding that most mem­ber states could support. It was also followed by a joint effort to involve various other groups in the EU – in particular the Frugal Four and the Visegrád states – which was sometimes a politically arduous process.

If the Conference is to be successful, a comparable European policy initiative from Berlin and Paris is just as necessary as the involvement of other groups of member states. From the autumn of 2021, the new German government in particular will be called upon to launch initiatives for the further development of the EU – in and outside the Conference – together with other (groups of) member states.

Third, the leadership of the Conference must succeed in combining the impulses from citizen participation, the European and national parliaments, and the national governments into a coherent package. The warning against opening Pandora’s box is justified when it comes to treaty changes. At the same time, a Conference in which package solutions can be combined with institutional reforms across all policy areas offers the chance to spark new momentum in the EU’s reform processes, which have been blocked for years. If the EU reform dead­lock is to be broken, the Conference on the Future of Europe needs an open man­date, the political support of the mem­ber states, and a leadership capable of tying the various political strands together into a workable compromise for reform.