September 22
2021
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Julia Fernández Arribas
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13th September 2021
Institutional law

Insight: “The Conference on the Future of Europe: towards a new version of the European venture?” by Julia Fernández Arribas

 

  1. The architectural shortcomings of the European Union 

The European Union is ‘too weak, too slow and too inefficient’, as French President Emmanuel Macron describes it. The limitations of its institutional architecture, such as the distribution of competences between the EU and its Member States, and in the EU’s decision-making process and executive powers, as established by the Lisbon Treaty, hamper the EU’s ability to act in some of the most strategic areas. The urgency to improve the EU’s effectiveness has been heightened during the COVID-19 crisis. The lack of competences on health and the decision-making process prevented the EU from effectively responding at its earliest stage. But the issue reaches far beyond the pandemic. The EU’s current governance system reduces its capacity to respond to ongoing challenges such as the threat to the rule of law, the migration crisis or multilateralism.

The visibility of these crises has politicised the debate on European integration, contributing to substituting the traditional ‘permissive consensus’ with the current ‘constraining dissensus’, and fostering the appearance of centrifugal forces in the Member States, which favour giving back control over strategic policies to the national level and reducing the EU’s competences. At the same time, the EU’s inefficiency has taken its toll on its democratic legitimacy. Because it is mostly based on the capacity of the EU to deliver policies with a positive impact –  understood as its output legitimacy, and this has not always been the case in recent years because of the limitations that the EU is subjected to, its democratic legitimacy has been called into question. 

The inefficient management of the last decade’s crises and its consequences show the limitations of the intergovernmental method, established by the Maastricht Treaty. This Treaty foresaw that strategic policies, linked to the core state powers, would be governed by a new decision-making process based on the coordination of the Member States. This method hinders the reaching of consensus, especially in times of crisis, as Member States’ interests tend to differ, working against the EU’s own efficiency. The intergovernmental method happens to be the least operative, limiting the EU’s capacity to act precisely when it is most needed.

Therefore, it is necessary to reform the governance model of the EU, for which institutional rigidity and national blockages will have to be substituted by a stronger ability to act and a more efficient decision-making process. The Conference on the Future of Europe offers the opportunity to do so, as it allows Member States, European institutions, civil society and citizens to reflect about the future of the EU and, in consequence, the reform of its institutional architecture.

The Conference was scheduled to start by Spring 2020. However, the irruption of the health crisis and the disagreement over the key elements of the Conference among the three institutions delayed its launch. A year later, the debate on the future of Europe has officially begun, potentially leading towards a new version of the European venture.

  1. The institutional dimension of the debate on the future of Europe 

Since the Brexit referendum, Member States, the European institutions and national parliaments have thoroughly reflected on the future of Europe. Two perspectives can be inferred from these reflections: the first one, defended by the Parliament and supported by a minority of the Member States, argues that the institutional reform and the strengthening of the EU’s input legitimacy are necessary to face its legitimacy crisis. On the contrary, the second one, supported by the majority of Member States as well as Ursula von der Leyen’s Commission, submits that in order to boost the EU’s legitimacy, the focus has to be on its policy regimes, rather than on its governance system, so as to deliver concrete actions with a positive impact for citizens.

If the Conference aims to amend some of the EU’s shortcomings, it will have to revise the institutional architecture of the EU, and not just discuss the cooperation between Member States in certain policy areas. This has been shown by the Conference’s precedents, such as the Messina Conference (1955), the Single European Act (1986) and the Convention on the Future of Europe (2002). These precedents, which significantly contributed to the development of the European project, had something in common: in all of them, the debate was focused on the institutional dimension.

For instance, during the Messina Conference, Member States agreed upon horizontal economic integration, achieving the creation of the European common market and Euratom. In a similar fashion, during the negotiations of the Single European Act, the Dooge Committee was established with the task of drawing the institutional reform of the European Economic Community (EEC). And, some years later, the Convention on the Future of Europe laid the foundations for the institutional reform of the EU, addressing issues such as the reform of the Commission, the EUCO’s institutionalisation or the inclusion of the Charter of Fundamental Rights in the Constitution.

Therefore, we see that, in order to deepen European integration and foster the development of the European project, the Conference needs to address the current institutional issues. Namely, increasing the EU’s ability to act, restoring the inter-institutional balance and replacing unanimity with qualified majority voting (QMV).

Increasing the EU’s ability to act

The European Union is limited by the principle of conferral, which restrains the action of the EU to the competences conferred upon it by the Member States through the Treaties. There are certain areas in which the EU has exclusive competences, meaning that it has the sole power to legislate and adopt binding acts, such as the internal market or the monetary policy. In other areas, the EU and the Member States share the competence to act, and there is a last group of areas in which the EU only has supporting competences, such as health, where it can simply support, coordinate or complement the Member States’ actions.

The further conferral of competences to the EU is necessary to strengthen its capacity to act, especially to face transnational threats that are better dealt with in a supranational manner, but it is nevertheless a controversial issue. Certain Member States deem it unnecessary to do so, either because they consider that a good use of the existing tools would be enough to pursue the EU’s goals, or because they advocate for an EU that does less, but more efficiently. Other Member States not only refuse to confer more powers to the EU, but also advocate for retrieving some of the competences that the EU already has.

Additionally, even when the EU has the capacity to act, it sometimes has inadequate powers to ensure the enforcement of its legislation. This has been the case with the non-compliance of EU norms in the context of migration and the rule of law in some Member States. As Federico Fabbrini points out, neither infringement proceedings nor the threat of Article 7 TEU procedure have changed the Visegrad’s disregard of the Council’s decisions on the relocation of migrants or the Court of Justice’s rulings on the independence of their judiciary. The EU’s inability to ensure the observance of EU Law among its own Member States threatens European integration, and should also be discussed during the Conference.

Restoring the inter-institutional balance

Another of the consequences of the intergovernmental method is the lack of an inter-institutional balance. Since the application of said method, Member States have acquired an increasing relevance in the decision-making process, leading to an imbalance in favour of the European Council, but which is detrimental to the Parliament, the Commission and even the Council. This is due to the fact that, during the negotiations of the Maastricht Treaty, Member States refused to delegate competences to the Commission and other supranational EU bodies, and opted instead to create an intergovernmental order in which they would maintain control over decision-making. An order that persists to the present day.

The crises that the EU has faced in the last decades have accelerated this imbalance, strengthening intergovernmentalism. This has been shown by the role adopted by the European Council in respect of the legislative initiative, which, according to the Treaties, corresponds exclusively to the Commission. Instead, the last one has progressively subordinated its power to the European Council, deciding to act only when it had its political backing. Similarly, even though the Council has the legislative competence according to the Treaties, the European Council has grown accustomed to negotiating agreements that would then be adopted by the Council. Additionally, the role of the Parliament in the intergovernmental configuration has become practically non-existent, as the negotiation of the measures to face COVID-19 showed.

The Conference on the Future of Europe can be used as an opportunity to restore the inter-institutional balance, in order to avoid the intrusion of the European Council in the Commission’s and Council’s competences, and to reinforce the role of the Parliament.

Replacing unanimity with QMV

The intergovernmental method has subjected a number of areas to unanimity in the Council, which implies that the veto of just one of the Member States can block the adoption of a decision in such areas. The policy areas subjected to unanimity are particularly sensitive or strategic for Member States – foreign policy, the tax system, which explains why many Member States hold veto powers over them.

The slowness and tendency for blockages that characterise unanimity have led the Parliament and even some Member States to claim its replacement with QMV by means of passerelle clauses, an option offered by the Lisbon Treaty. It consists of a variation of the simplified revision procedure of the Treaties, also foreseen Article 48 TEU. These clauses allow the European Council to authorise the Council to replace unanimity with QMV; but this authorisation not only requires a unanimous vote from the Heads of State or Government of the Member States, but also from the national parliaments and the European Parliament, which further complicates their application.

The only alternative to passerelle clauses would be reforming the Treaties, so as to establish the governance of these policies through QMV instead of unanimity, an option that could be discussed in the Conference on the Future of Europe.

  1. The limitations of the Conference on the Future of Europe 

If the Conference on the Future of Europe aims to amend the EU’s shortcomings, it will have to address the institutional dimension of the debate, as the Messina Conference, the Single European Act and the Convention on the Future of Europe have shown. However, the institutional issues have been relegated to the background in recent years. The turning point was the Brexit referendum, which changed the focus of the debate on the future of Europe from the EU’s governance model to its policy regimes. Through the 2016 Leader’s Agenda and the Rome Summit, the policy priorities of Member States were established, leaving aside the institutional debate.

Even though Juncker’s Commission tried to foster the debate on the EU’s governance model through its White Paper on the Future of Europe, foreseeing five different scenarios for the EU, the policy perspective prevailed in a context where ‘muddling through crises’ was the preferred approach by Member States. Therefore, the Conference is taking place in a context where the debate on the future of Europe is rather unambitious, and where the institutional dimension has been sidelined by the policy approach.

Even though, at first, there seemed to be a consensus about the need to reflect on the EU’s institutional reform during the Conference, the Council imposed its policy approach in the negotiations of its Joint Declaration, supported by Ursula von der Leyen’s Commission. This is because the majority of Member States seek to reinforce the EU’s output legitimacy, preferring to strengthen the EU’s policy regimes over its governance model.

The focus of the Conference in certain policy areas, instead of on the EU’s reform, hampers its capacity to amend its institutional shortcomings. However, this is not the only challenge that the Conference faces. As we have seen, the amendment of most of these shortcomings requires reforming the Treaties, which, at the same time, requires unanimity. An environment of proclivity towards Treaty reform is needed, which, at the moment, is hardly present.

The Council has rejected Treaty reform since the start of the negotiations, arguing that the Conference does not fall within the scope of Article 48 TEU, and therefore cannot lead to the reform of the Treaties. Additionally, 12 Member States, including Austria, the Netherlands and the Czech Republic, recalled through a joint statement that the Conference should focus solely on the policy priorities of the European Council’s Strategic Agenda, and leave aside the Treaty reform. The initial ambition of the Commission, and the persisting efforts of the Parliament, to foresee Treaty reform through the Joint Declaration of the Conference were unsuccessful, as there is no mention of it after all.

The combination of these two factors – the focus of the debate on the EU’s policy regimes rather than on its governance system, and reluctance towards Treaty reform – hinders the capacity of the Conference to reform the institutional shortcomings of the EU. The Conference, as it has been designed, will serve as an exercise to discuss the EU’s delivery on the identified policy priorities, but it will most likely not lead towards a new version of the European venture.

 

Julia Fernández Arribas is an Intern at EU Law Live

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