The National Case for Reforming the EU Treaties

It is now a year since the Convention on the Future of Europe set-out a series of recommendations on reforming the EU, many of them emerging directly from ‘juries’ of EU citizens. These reforms prompted the European Parliament to call in a June 2022 Resolution for a new Convention to alter the EU Treaties. The response of the European Council to that step – both then and since – has been a big fat no. The EU is be-set by multiple policy crises, with several governments (the most recent being that of Emmanuel Macron) facing deep domestic political conflicts. A year long process of institutional reform, which would then require unanimous national agreement and is hence doomed to failure, seems the last thing national leaders need.

This has tended to frame the debate on Treaty reform. Those favouring it are the classical pro-Europeans who complain about the EU’s democratic deficit and argue that the EU needs ambitious new powers in areas like health and defence to face its current challenges. As a result, calls for Treaty reform are framed in the language of ‘more Europe’ and the classical idea that EU states are more and more inter-dependent and therefore require closer political cooperation. The problem, however, with this framing is obvious: it appeals precisely to those already sympathetic to Treaty reform and alienates those who do not or see it only as a process where they might lose. This is even more problematic as the potential ‘losers’ are the very actors who carry a monopoly on actually instigating Treaty reform in the first place (the Member States). Serious pro-Europeans therefore have to first and foremost engage with the right question – what do the Member States have to gain in re-opening the Treaties (given its obvious political costs)?

In truth, Treaty reform in the EU is the exception rather than the rule. The EU carried the same Treaty from 1957 to 1986 and has also carried the same Treaty since 2007. In the twenty year period in between, ‘serious’ Treaty amendments happened five times (not including one failed attempt). In this short piece, I want to argue that four arguments of either explicit or implicit importance in encouraging states to engage in Treaty reform in this ‘reform period’ are of decisive importance again now. Many of these arguments have already found their way into political discourse (for example into the cautious opening of the German government to Treaty reform) while others have not. The key to making the national case for Treaty reform may therefore lie in demonstrating to the Member States that these factors make opening-up the Treaties in their national interest.

Enlargement

By the early 2020s, the EU thought it was done with enlargement, captured by the oft-used term ‘enlargement fatigue’. The Ukraine conflict, and simmering tensions in the Western Balkans, has however put enlargement firmly back on the (geo-)political agenda. Enlargement poses many of the same questions to EU leaders today as it did in the first rounds of enlargement in the 70s and 80s. Do you want to bring new Members in under existing institutional and legal arrangements, or do you want to change them to your advantage first before the new Members arrive? Successive Treaty reforms in the 80s, 90s and 2000s were also therefore about the dynamic between insiders and outsiders. This was most clear in the 2001 Nice Treaty where Member States commonly acknowledged that only a radical increase in QMV (and the insertion of what is now Art. 7 TEU) would make the EU ‘ready’ for the massive increase of members from 2004.

While the EU is unlikely now to face 10 new members in a single enlargement, there is no doubt that the entry of the Ukraine, or West Balkan states, would significantly diversify the Union and challenge its decision-making structures. A key element therefore in the national case for Treaty reform is to convince the Member States to make the necessary changes now or be forced to integrate new states into a framework that they know is likely to become increasingly dis-functional.

Integration by ‘stealth’

This, however, was not the only factor driving the reform of previous Treaties. Many of those Treaties, particularly Maastricht and Amsterdam, focused on building new institutions to tackle policy challenges. Examples include the European Central Bank, the European External Action Service and the range of agencies built-up during the 90s and 2000s. Such independent institutions have become increasingly important since 2007. Lacking the legal powers to tackle dramatic new policy crises – such as the Euro, refugee and Covid crises – the EU has essentially had to read new powers into existing legal provisions. Much of this work has been done by independent bodies, the most obvious example being the ECB (which has interpreted its primary and secondary mandates as including a range of activities from quantitative easing to prioritizing carbon neutral assets). The Commission has of course been playing the same game, the most dramatic of which was its decision to build the Recovery Fund on the basis of the emergency powers provided through Art. 122 TFEU.

Much of the attention regarding these developments has focused on their legal effects (such as the objections of the German FCC to new EU economic powers). A more fundamental objection, however, may concern their political effects. Simply put, do the Member States wish to continue to allow EU institutions to independently and dynamically interpret their powers or instead themselves seek a clearer say in what EU institutions can do and what they cannot? To take the example of the recovery fund, while the Member States of course agreed to it in the harrowing context of the Covid pandemic, its desirability and legal permissibility in the medium-term is much more questionable (and requires addressing unresolved question such as how debt instruments should be financed and re-paid).

Treaty amendment has always, therefore, been not just about empowering the EU institutions but controlling them i.e. using Treaty reform to direct the EU’s policy priorities and tie institutions to the mandate the Treaty provides. By refraining from Treaty reform, the European Council is ceding significant power to other EU institutions, which can use moments of crises and emergency to move integration forward and mold policies in their own image. A useful analogy is the Single European Act of 1986 – facing decades of ‘integration through law’, the introduction of QMV through the SEA was also an act of national empowerment, allowing the Member States to shape EU law through ‘positive integration’ (as an alternative to highly judicialized integration). This dynamic also applies today – can the Member States fully trust independent EU institutions to act in line with national interests, or are they better using the Treaty to place themselves back in the driving seat of long-term integration?

Subsidiarity and re-balancing power

In truth, Treaty reform does not always succeed in this task of putting the states back in the driving seat. However a Treaty provision is framed, it is always open to interpretation. Into this interpretive space, EU institutions can (and in a way must) develop their own agency. It is precisely for this reason, however, that Treaty reform is also often used to establish certain procedures to render accountable EU policy-makers, or otherwise to attempt to return regulatory autonomy to the national and local levels. Each prior stage of Treaty reform contains examples of this – the Single European Act therefore established the basis for what is now known as ‘comitology’/committee control of delegation; Amsterdam saw the addition of a specific protocol on Subsidiarity; and Lisbon further refined that protocol (for example by establishing a mechanism for national Parliaments to reject Commission proposals). All of these mechanisms spoke to an explicit trade-off – the EU gets certain powers, but the national level also gets compensatory mechanisms to re-balance power where it is extended too far.

This speaks directly to the discussion over ‘integration by stealth’ above. Treaty reform would be a way to give greater teeth to existing mechanisms to allow for subsidiarity in EU law or to establish new mechanisms to do so. Pro-reformists need therefore to get their thinking caps on – what would be the kind of grand institutional bargain such that Member States (and important actors within Member States, such as Trade Unions or regional governments) – could be re-assured that they will still have meaningful voice in new areas of EU policy? This is particularly important given that many of the most pressing demands for reform (such as a shift away from unanimity in areas like foreign policy and defence) would reduce national voice.

The Treaty’s substantive shadow

Lastly, there are two ways of thinking about such ‘voice’. One is to think short-term i.e. is an EU policy on X in my interest as a Member State? The second is to think long-term i.e. can I develop a mode of EU integration that is to the long-term advantage either of my state or my political party? In this long-term mind-set, the extensive EU literature on ‘over-constitutionalisation’ is relevant. One of the very consequences of the Treaty being hard to change is that it casts an incredibly long shadow – we are essentially living now with the policy choices of the generation of political leaders in power in the mid 2000s.

Treaty change therefore provides a unique opportunity for political leaders not just to establish policies for the here and now but for the long-term. Much has been written about the imprint of Christian democracy on the original Treaties – the establishment of the EU therefore projected a model of ‘responsible government’ and free markets long after its initial proponents in the 1950s left office. Recent Treaty changes also reflect this – the Amsterdam Treaty thus significantly upgraded the level of social rights protection enjoyed under EU law largely because it co-incided with the election of a string of centre-left governments.

Establishing a new Treaty provides current governments with a massive substantive opportunity – it allows them to set the substantive parameters of the EU in a way that will be exceedingly difficult for future leaders to change (a lesson present leaders are well aware of). As is well known, the EU has a number of populist governments. The majority, however, cleave towards the political mainstream and would represent the main agenda-setter in any IGC or constitutional convention. EU leaders would be wise to look forward as well as back – what kind of political leaders will lead the EU in 5-10 years and what kind of political and institutional constraints would the EU leaders of today prefer them to be under? The last argument for Treaty change now therefore speaks explicitly to the Treaties’ counter-majoritarian effects – by altering the Treaty, national leaders have a unique opportunity to give the future EU their own lasting imprint. This last national argument for Treaty reform is perhaps the most insidious (to be clear this is a tactical rather than normative argument!), but for that very reason important for proponents of reform to keep in mind: national leaders are conscious of their legacy and this can work in favour of EU reform as well as against it.

One need not always think of Treaty reform as a zero-sum game between the national and EU levels. At best, prior Treaties paved the way for policies that strengthened both levels alike. This piece has also ignored a further serious issue – even once the European Council agrees to open the Treaty reform box, the next perilous step is addressing conflicts between Member States over reform. Treaty reform requires, however, making the first step i.e. that the establishment of a new Treaty would not only allow the Member States to better achieve their political objectives but allow them to adequately control the direction of future integration. The truth is that national leaders – if they embark on Treaty reform – are taking a massive risk; first and foremost to their political careers. Asking those leaders to put Europe and country first is noble but it is also naïve. Those for a new EU Treaty need to be prepared to answer the question anyone asks before embarking on a risky new deal: what’s in it for me? There are still plenty of good answers to this question.