21 Juni 2022

Experimenting with European Democracy

Citizen-driven Treaty change and the Conference on the Future of Europe

The Conference on the Future of Europe (CoFe) – a year-long pan-European discussion on the future of the European Union, including both citizen deliberation and an inter-institutional debate on recommendations in its Plenary – came to an end on 9 May, with the presentation of a final report of 49 recommendations and 329 specific measures to the  presidents of the three EU institutions. The Conference promised a substantial form of citizen engagement, constituting in this regard a unique transnational and multi-level democratic experiment. Many knowledgeable observers have, however, expressed scepticism towards the experiment. Reasons for critical positions range from the idea that the whole event may have been purely a PR exercise, which did not allow for meaningful deliberation, to claims that the Conference reduced politics to a technocratic or even populist exercise, to doubts about the ‘external legitimacy’ of citizen deliberation in relation to wider European society, to suspicions that the process unduly provided voice to pro-European actors and has had a hidden federalist agenda, while its results are not supported by ‘authentic’ European citizens (views particularly held amongst right-wing conservative political forces). Even if Brussels insiders have duly discussed the event (admittedly including some voices with more positive views), it is fair to say that during the year-long Conference, the event has been largely ignored by the outside world. This seems to change now, as the potential consequences of the Conference are slowly becoming tangible. While originally and formally, the CoFe was not supposed to be about Treaty change, this is exactly what is now being called for, particularly through a motion for a resolution of the European Parliament, adopted on 2 May, and a general vote in Parliament on the final resolution on 9 June. The growing call for a Convention (also supported in a European Commission communication of 17 June), and hence potential Treaty change, is often directly related to the widely perceived idea that the EU is held hostage by its unanimity rule (also stressed in proposal 39.1 of the CoFe Plenary proposals, itself originating from recommendation 39 of the Citizens Panel on democracy and the rule of law). The anti-veto sentiment is strengthened by the obstructive political actions, abusing veto rights, of Hungary and Poland. A No-Veto Alliance in order to ‘put an end to national vetoes in European politics’ has formed between members of the EP, civil society organisations, and others. Another consequential result of the Conference might be the institutionalisation of forms of citizen deliberation in future EU legislative processes. If understood in a ‘thin’ form, this would form an addition to key legislative initiatives of the Commission, as suggested by von der Leyen on 9 May. If understood in a more ‘thick’ sense, it could take the form of permanently institutionalized Citizens Panels, as called for, for instance, by one of the CoFe’s participating citizens and by the civil society network CTOE. An intermediate option might be a procedure inspired by the permanent Citizens Council in East-Belgium.

The CoFe experiment

The Conference on the Future of Europe started with great difficulties , not least due to the Covid19 pandemic, but also due to inter-institutional tensions, and clashing positions with regard to citizen engagement and Treaty change, amongst others. Now that the Conference is formerly over, it is difficult to deny that the process has been innovative and has produced remarkable results. The process was far from perfect. This was evident in the organisation of the Citizens’ Panels, which had to discuss too many and widely ranging topics. The selection of citizens could have been more inclusive and could have included a political component in terms of contrasting political positions. The selection of experts in the CoFe was unclear and in many cases did not involve opposing opinions on the same topic (a common practice in deliberative events). Events often seemed to be organised in an ad hoc, last-minute fashion. Equally, regarding the Plenary, the way the citizens’ recommendations were discussed was hardly deliberative – often consisting in a long range of short statements by Plenary members -, while the procedures of both the Plenary and its 9 working groups were made up along the way. In fact, citizens themselves expressed concern about the way their recommendations were taken forward. In general, one of the most significant problems of the Conference – and of deliberative assemblies in general – remains the invisibility of the process to, and the involvement of, the larger public. A key problem of so-called ‘mini-publics’ is their connection to the ‘macro-public’, that is, European society at large. If there is little awareness and knowledge among the wider European citizens that this Conference was held, the benefits in terms of legitimacy and reduction of the EU’s infamous democratic deficit are more than likely to remain modest. More specifically, the claim that the Conference can be understood as a participatory prelude to a follow-up process of institutional change dominated by the institutions, as in a Convention, so as to claim that the latter process is embedded in citizen engagement, becomes difficult to uphold. But even if the process was far from perfect, it is difficult to deny that the outcome in the form of 49 recommendations with more than 300 measures proposed is impressive. The Conference – as an experiment in multi-lingual deliberation with an important citizen component – now forms an impressive legacy, and has created a precedence difficult to avoid in future policy-making. Of course, a crucial matter is what the exact follow-up will look like. Here is where the initial inter-institutional struggle around the Conference returns.

Follow-up: does Europe need a Convention?

As of now, it is still unclear what the exact follow-up to the Conference will be. A hesitant if not hostile approach was immediately articulated by 13 Member States on 9 May. The 13 states called – by means of an open letter – for a cautious approach regarding any Treaty change:

‘We recall that Treaty change has never been a purpose of the Conference. What matters is that we address the citizens’ ideas and concerns. While we do not exclude any options at this stage, we do not support unconsidered and premature attempts to launch a process towards Treaty change. This would entail a serious risk of drawing political energy away from the important tasks of finding solutions to the questions to which our citizens expect answers and handling the urgent geopolitical challenges facing Europe’.

In reply, 6 other Member States – including Germany, Italy, Belgium and the Netherlands – indicated a more moderate position: ‘We remain in principle open to necessary Treaty changes that are jointly defined’. On 10 June, the Council released a ‘preliminary technical assessment of the proposals’ of the CoFe. The main findings are that a ‘significant number of proposals and related measures are in the process of being addressed or are already addressed by the EU institutions’ and that ‘only a very limited number of specific measures would require Treaty change in order to be fully implemented’. In the Communication on the CoFe of 17 June, the Commission’s position is that

‘new reforms and policies should not be mutually exclusive to discussions on Treaty change. Treaty change should not be an end in itself and for the vast majority of measures, there is much that can and will need to be done under the existing treaties. Just like constitutional texts of the Member States, the EU treaties are living instruments’.

The Commission, however, fully endorses the EP’s resolution for starting up a Convention under art. 48 TEU:

‘the Commission will always be on the side of those who want to reform the European Union to make it work better, including through Treaty change where that may be necessary. In this spirit, the Commission welcomes the European Parliament’s willingness to use, for the first time, its powers acquired under the Lisbon Treaty to propose amendments to the Treaties. The Parliament has set out a number of areas where in its view changes to the Treaties should be discussed within a Convention. The Commission stands ready to fully play its institutional role in the procedure set out in Article 48 of the Treaty on European Union, and in particular to give its opinion in response to a consultation by the European Council.‘

In fact, the EP has taken the most activist approach in calling for a Convention and hence calling for Treaty change with its Resolution of 9 June, using the potential political – and perhaps constitutional – momentum in the wake of the Conference.

What kind of Convention?

The EP resolution was endorsed by 355 votes in Parliament. In the run-up to the vote, various political groupings in the EP have attempted to construct a coalition of the willing, with the Left, the Greens, and Renew in the lead, and trying to include a much more divided EPP. The final resolution of the EP saw significant concessions in order to appease the EPP. This raises the question of continuity with the CoFe and its promise to put the citizen at the centre of the future of Europe. From a democratic perspective, one significant and relevant matter is that the EP Resolution does not provide for any citizen involvement in a future Convention. Rather, it indicates the intention to proceed according to the idea of a ‘conventional convention’, in accordance with the Ordinary Revision Procedure of art. 48 TEU. Such a convention will see the interaction of institutions as well as stakeholders, but will not explicitly or formally involve a citizens’ component. This is striking in two ways. First of all, the experience of the Conference could in itself be understood as the demonstration and materialisation of a widely perceived need for more – and more structural and meaningful – citizen involvement in EU politics (as acknowledged by both the EP and the Commission). This is particularly true in the context of fundamental changes, such as with regard to the ‘higher norms’ of the EU. Secondly, the CoFe experience ought to be put into an international comparative context of democratic innovation. There is a build-up of international experiences – including the recent Chilean Convention – that point to the importance of including citizens in processes of fundamental and constitutional change. With the upcoming Council Summit on 23-24 June, it will become clear if the ‘coalition of the willing’ extends to a simple majority in the Council, as stipulated by art. 48(3) TEU. But even in the case the Council decides to go ahead with a Convention on the basis of art. 48 TEU, it is prone to endorse the classical Convention method, in stark contrast to a more innovative, participatory process which prominently engages European citizens. This could be a major mistake, not least from the perspective of those that endorse Treaty change, bringing to mind Marx’s proverb that history repeats itself, first as a tragedy, then as a farce. The original Convention on the Future of Europe of the early 2000s ultimately faltered due to a lack of widespread citizen engagement from the start, resulting in ‘no’ votes in the ratification referenda of two prominent Member States. This time around, it seems self-evident that a different approach must be followed. Treaty change in the post-Convention era has come almost to a stand-still. Beyond the formidable hurdle of Member State consensus on significant change, the revival of a European constituent spirit would equally need to meaningfully involve and convince European citizens.

SUGGESTED CITATION  Blokker, Paul: Experimenting with European Democracy: Citizen-driven Treaty change and the Conference on the Future of Europe, VerfBlog, 2022/6/21, https://verfassungsblog.de/experimenting-with-european-democracy/, DOI: 10.17176/20220621-153256-0.

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