After the recent conclusion of the Conference on the Future of Europe, the EU is facing a decision about whether to launch a reform of the EU treaty, the first such effort since the Lisbon Treaty entered into force in 2009. While the European Parliament is strongly in favor, member states are divided. Several governments take the view that the EU has shown itself to be resilient and capable during many tough years of crisis management and does not at present need structural reforms. But others believe that revisions to the existing text would make the EU more effective in tackling future challenges. This article looks into the two dynamics of change in European integration, the regular treaty reforms of earlier decades and the crisis-driven improvisation that marked the last thirteen years. It also suggests a pragmatic approach toward limited treaty amendments as the most constructive way forward under the difficult circumstances of today.
The Conference on the Future of Europe
After a year of work, the Conference on the Future of Europe concluded its business on May 9, 2022. Most Europeans won’t be aware that it ever happened. In terms of eliciting the interest of the public, the enterprise has been singularly unlucky. First, the pandemic delayed and hindered its work; then, the Russian aggression against Ukraine overshadowed the endgame. A process conceived to frame the future of European integration thus took place in almost complete obscurity.
The fact that EU institutions approached the conference in very different ways did not help. The European Parliament aimed for an ambitious deepening of integration similar to the constitutional convention of 2002–2003. From the parliament’s point of view, the conference’s recommendations should be implemented through new legislation as well as through treaty change. By contrast, the Council of Ministers wished to avoid a reform dynamic that would be hard to control and made clear that the conference did not imply treaty change. The European Commission, for its part, emphasized the citizens’ panels and the digital platform as innovative instruments to enhance citizen participation in EU politics.
In actual fact, the four citizens’ panels, made up of 200 randomly chosen citizens each, turned out to be the centerpiece of the conference. The selected citizens showed impressive engagement in deliberating on topics ranging from health, climate, and social policy to migration and foreign policy. Given the extremely broad subjects and the narrow time frame (just three two-day sessions per panel), the process fell short of real deliberative democracy, which ideally should involve citizens carefully weighing options and converging toward broadly acceptable solutions to difficult problems. Instead, the citizens drafted lists of recommendations for future EU action. During the latter part of the conference, the plenary and its working groups filtered and repackaged these recommendations into a document with forty-nine proposals encompassing more than 300 measures.
The proposals demonstrate a clear preference for stronger EU action, particularly in areas that are close to the life experience of normal people, such as health, social welfare, education, the environment, and migration, among others. Experts have estimated that a considerable number of the recommendations would require treaty change, mostly through strengthening the EU’s competencies in the respective areas. However, many of the proposed measures seem to be addressed as much to national authorities as to EU institutions, and some recommendations essentially support existing EU projects.
Critics of the conference—such as the representatives of the European Conservatives and Reformists (the ECR Group), a conservative political faction of the parliament who walked out at the end—complained about a blatant pro-EU bias in the proceedings. This is not entirely groundless. While the citizens were randomly selected, those who were EU skeptics, less educated, or members of marginalized groups were understandably less willing or able to sacrifice time to discuss arcane EU matters. Still, the final document doubtlessly reflects genuine concerns shared by large numbers of EU citizens.
How Should the EU Follow Up?
The crucial question now is the implementation of the proposed measures. All three institutions—the council, the commission, and the parliament—had promised to examine swiftly how to follow up to the outcome of the conference according to their various competencies and procedures. As European Commission President Ursula von der Leyen explained in the closing session of the conference, implementation in some cases would just mean pushing forward existing EU initiatives. In other cases, new legislative proposals would be needed, which she would announce in her State of the Union speech in September.
As was to be expected, the controversial aspect of implementing the conference’s recommendations concerned treaty change. The European Parliament adopted a resolution demanding a convention on treaty change. It also identified a list of proposed amendments, which included new or strengthened EU competencies in the areas of healthcare, education, energy, and defense, as well as economic and social policy; the introduction of majority voting on a number of additional topics; greater powers for the European Parliament over the budget; a parliamentary right of initiative; and more effective procedures for the protection of the EU’ values.
But launching such a convention falls to the European Council, which, according to Article 48 of the EU Treaty, decides on this matter by simple majority.
Opinions among member states on the idea of a treaty convention vary. A group of thirteen governments from Northern, Central, and Eastern Europe published a letter in which they declared themselves opposed to “premature attempts to launch a process towards Treaty change.” They point out that the EU’s handling of recent crises has shown “how much the EU can deliver within the current Treaty framework.” There is thus, in their view, no need to rush into institutional reforms in order to deliver results. The composition of this group is interesting. The initiative looks like a preemptive strike of the northern and eastern periphery against the threat of a more integrated core Europe. Many of these countries are on record as defenders of national sovereignty and as skeptics of an EU dominated by France and Germany.
The letter of the thirteen was quickly followed by a letter of six countries from the “core”: Belgium, Germany, Italy, Luxembourg, the Netherlands, and Spain. (France shares this approach, but as the current EU council presidency, it did not sign on in order to maintain neutrality.) These countries declare themselves “in principle open to necessary treaty changes that are jointly defined.” They propose an “interinstitutional process” involving the European Parliament, Council, and Commission to support “consensus-building” on these matters.
Given the strongly held views of the advocates and opponents of treaty change, it will not be easy to come to a solution. Although the European Council could decide this through a vote, it is more likely to seek consensus, even though this may take considerable time. A consensus approach also seems plausible given that the chances of success of a convention would be slim, if even its launch had been controversial among EU members. Ultimately, any treaty change has to be agreed by all governments and ratified in all member states.
Change Through Treaty Reform, 1958–2009
The approach of the European Parliament to the conference’s follow-up reflects the traditional view that significant reforms to the EU require amending the basic texts underlying it. According to the parliament’s long-standing approach, the EU needs to follow the promise made in the treaty’s preamble of an “ever closer union” and, through amendments to the treaty, reinforce the supranational aspects of European integration such as the powers of the parliament, the governing role of the commission, and decisionmaking by majority vote, while gradually eroding the intergovernmental elements, in particular the power of individual governments to block progress.
The first five decades of European integration roughly followed this trajectory. Leaving aside the accession treaties and minor amendments, five major treaty reforms took place during this period. These reform conferences brought about major developments of EU policies such as the common currency, new EU powers on justice and home affairs, and the common foreign and security policy. They provided for more majority voting and also resulted in a major shift of institutional power toward the parliament. However, they fell short of the federalist vision supported by many members of the European Parliament, as the Council of Ministers and in particular the European Council preserved their central positions in the EU system.
Over the years, treaty reform became increasingly difficult. In an enlarged and more heterogeneous union, it proved much harder to reach agreement on the proposed changes. Ratifying the finished text in all states, which in some required a popular referendum, also became more challenging as the proposed changes became more salient to citizens and as populist forces gained ground in many countries. All recent treaty reforms have been initially rejected in one or two countries and could only be saved through repeated referendums, usually after additional concessions to the concerned country. This strategy didn’t work in the case of the Constitutional Treaty of 2004, which was sunk by two negative referendums, in France and the Netherlands. However, most of this treaty’s substance was salvaged some years later through the Lisbon Treaty, which continues to serve as the constitutional foundation of the union.
Reform Without Treaty Change, 2009–2022
Over the past thirteen years, treaty reform basically fell off the agenda. While EU leaders such as former German chancellor Angela Merkel and French President Emmanuel Macron recognized that the Lisbon Treaty had a number of shortcomings and would have to be replaced eventually, there was no appetite whatsoever to tackle this anytime soon. Throughout this period, the EU was fully occupied with managing one emergency after another, from the 2007–2008 financial crisis to the massive inflow of refugees to the UK’s departure, the coronavirus pandemic, and finally the Russian invasion of Ukraine.
Interestingly, this period of constitutional stagnation was also a time of far-reaching and dynamic innovation. As the historian Luuk van Middelaar has brilliantly described it in his books, during a decade of emergencies the EU learned to improvise and in the process transitioned from technocratic rulemaking to dealing with events.
Thus, the EU narrowly avoided a breakup of the Eurozone by bailing out numerous member states, establishing emergency funding programs, agreeing on new binding fiscal rules, and launching the banking union. The European Central Bank, for its part, initiated innovative financial operations to stabilize the member states’ banking systems and offer unprecedented financial support through bond purchases.
With the exception of a two-line amendment to facilitate the setting up of the European Stability Mechanism, all this radical shoring up of EU financial architecture was accomplished without touching the treaty. Under acute pressure from the financial markets, the European Council agreed on these steps during long, late-night sessions. They were implemented through secondary legislation based on a generous interpretation of existing treaty provisions or—in the case of the European Fiscal Compact—through an intergovernmental agreement.
The mass influx of refugees and migrants in 2015–2016 provided the next shock to the system. This time, the EU’s response was handicapped by deep internal disputes on how open or restrictive policies should be and by clashing interests of the countries of first arrival, the transit states, and the countries of final destination. In view of these divisions the EU has failed to this day to agree on fair burden-sharing among member states. But it greatly reinforced its institutional capacities to secure its external borders and partly succeeded in externalizing migration management to non-EU countries. Its agreement with Turkey in March 2016 to block further refugee movement into Greece has been much criticized by civil society, but it can be considered the EU’s first geopolitical deal.
The arrival of the coronavirus pandemic in early 2020 at first seemed to paralyze the EU, as internal borders went up and governments competed for medical supplies. However, in the following months the commission regained the initiative. It first secured the continued functioning of the internal market and then—despite weak EU competencies in the area of healthcare—launched the collective vaccine program, which despite considerable starting pains proved a significant success. Even more consequential was the vast recovery package (NextGenerationEU) agreed upon in July 2020, which broke long-standing taboos. For the first time, the commission borrowed large sums in the financial market and then distributed the funding mostly as grants rather than loans. For the four years of the duration of the program, overall EU funding would almost double.
Finally, the union responded to Russian aggression against Ukraine with a coherence and determination rarely seen before. It launched a barrage of sanctions, mobilized enormous additional funding for Ukraine, and—even more dramatically—for the first time ever delivered weapons to a country under attack. Overcoming their long-standing divisions, EU countries also opened their borders to a huge wave of refugees from Ukraine.
These developments over the past thirteen years proved the wisdom of EU founding father Jean Monnet’s famous sentence from his memoirs of 1976: “Europe will be forged in crises, and will be the sum of solutions adopted for those crises.” However, the EU’s transition from rulemaking to operational action did not conform to the federalist script, which assumes a constitutional process driven by parliamentarians. Throughout these years, most of the union’s game-changing action came from the European Council, the only body capable of improvisation, as only the heads of governments have the necessary authority to take decisive action under acute time pressure. The European Commission had a vital role in providing expertise and in leading the operational implementation of the action decided by the heads of governments, whereas the European Parliament was limited to its function as a co-legislator for the regulatory follow-up.
2022: Improvisation Plus Treaty Change?
The union now faces the question of whether it wishes to revert to the earlier method of EU reform through treaty change (by launching a convention in follow-up to the Conference on the Future of Europe) or whether it prefers to continue to rely on improvised responses to upcoming challenges. Of course, the two approaches are not necessarily alternatives. Supporters of a convention will explain that by increasing its competencies and enhancing its decisionmaking abilities, the union can become more capable of responding to emergencies. In fact, the European Parliament proposes to introduce a special clause in the treaty empowering the commission (at the request of the parliament and the council) to act in emergencies. But skeptics, such as the thirteen signatories of the earlier-mentioned letter, will question whether the political conditions for far-reaching reforms are there and whether the risks of a failed treaty reform are justifiable, given the EU’s overall positive record in managing past and ongoing crises.
For the simple reason that there is no end in sight for the multiple crises besetting Europe, it seems plausible that change through improvisation will remain the prevailing method of EU development. The Russian aggression against Ukraine will continue and its economic and social fallout—in terms of energy and food crises and rising inflation—will doubtless get worse. Further geopolitical challenges are likely, and continued U.S. support and leadership cannot always be counted on in view of the uncertainties of U.S. domestic politics. And the devastating impact of climate change becomes more painfully evident from month to month.
Against this backdrop, it is in fact doubtful whether EU decisionmakers will have the bandwidth to engage in an ambitious, open-ended convention on treaty reform. And without their active engagement, such a process is likely to end in blockage. Also, a broad agenda for treaty change risks reigniting the ideological divisions between the promoters of a federalist EU and the defenders of national sovereignty, divisions that have been largely dormant over the past ten years.
At the same time, a carefully designed process to amend the treaties can help in making the EU better equipped to tackle upcoming challenges. In some areas, strengthening the EU’s competencies would be useful. For instance, there is a strong case, corroborated by the experience of the pandemic, that a stronger competency in health policy would help the EU manage transnational health-related problems better. Another key demand of the conference—replacing the unanimity requirement with majority voting—would also enhance the EU’s effectiveness and appears particularly necessary in view of the potential further enlargement of the EU. This would certainly be a proper subject for discussion in a convention, although it could also be accomplished without a formal treaty amendment under the so-called passerelle clauses of the treaty, which allow transiting to majority voting on the basis of a (unanimous) decision of the European Council.
A pragmatic approach to amending the treaty would probably largely follow the suggestions of the letter of the six countries. It would first require a detailed analysis regarding which of the conference’s proposals would require treaty amendments and which could be implemented through secondary legislation. This should be followed by consultations between the European Parliament, Commission, and Council aimed at exploring the feasibility of treaty amendments. Depending on the outcome of such talks, the European Council could then decide to call a convention with a clear mandate defining the scope and the objectives of this exercise. On this basis, the convention could finish its business rather soon.
Such a (presumably) relatively modest treaty reform need not be the end of the story. If this focused approach—different from the vast, open-ended treaty conferences of past decades—proved successful, there would be greater readiness to do this again in light of changing circumstances or upcoming enlargements. However, whether the EU succeeds in finding a way forward on treaty reform or not, one perspective seems clear enough: as the era of crises will certainly continue, the EU will experience important, additional changes of policies and structures brought about by improvising under the pressure of acute emergencies. In fact, the union’s very future will depend on whether it manages to preserve and enhance its ability to respond creatively to new challenges, especially challenges that were not foreseen by the authors of its foundational texts.
