The Castle Method
Achieving Treaty Change Without Treaty Revision
The EU leaders’ informal competitiveness retreat at Alden Biesen Castle on 12 February produced a joint statement with a familiar ambition: completing the Single Market. Less noticed, however, is that the statement also sketches a programme of institutional and procedural reform. Those are changes to how EU law is initiated, crafted, delegated, reviewed, and repealed, as well as who controls those processes.
Buried in the language of “simplification”, it endorses: (i) greater reliance on omnibus packages; (ii) a general preference for regulations over directives; (iii) reduced recourse to delegated and implementing acts; (iv) the systematic use of sunset clauses; and (v) a crackdown on Member State “gold-plating”, coupled with a “deep house cleaning” of the acquis via an annual simplification report to the European Council. Commission President Ursula von der Leyen further undertook to report annually to the European Council on “simplification progress and cost reduction.”
This is not merely a competitiveness agenda. It is an attempt to re-engineer, through an informal summit, the EU’s constitutional and institutional architecture, without the safeguards of formal Treaty revision. The joint declaration provides, hidden as political guidance, quasi-instructions on the choice of legislative form, delegation architecture, and temporal validity. Those are matters that the Treaties assign to the Commission’s initiative and to the ordinary legislative procedure, and which the Court has treated as components of the Union’s institutional balance.
Its most telling symptom – one that deserves more attention than it has received – is the Commission’s recent Better Regulation Communication, which seeks to institutionalise the procedural shortcuts pioneered by the first ten omnibus packages – including the departure from the Treaty-enshrined requirement of public consultation and impact assessment. In doing so, the Commission pre-empts the EU Ombudsman’s criticism of those packages by proposing to replace the rules they violated with rules that permit what they did.
What’s at Stake and Why it Matters: Institutional Balance
To appreciate what is at stake and why it matters, it helps to understand what EU constitutional law actually requires, and what the Alden Biesen commitments systematically disregard.
The EU’s institutional architecture rests on a principle the Court of Justice has upheld since its earliest jurisprudence: institutional balance. Unlike the principle of conferral, which concerns the limits of EU power vis-à-vis Member States, institutional balance is an inter-institutional principle: it requires that the specific equilibrium of functions the Treaties distribute among the institutions be maintained, and that no institution may arrogate to itself the functions assigned to another, even with that other institution’s consent (Case C-149/85, Wybot, para. 23). In other words, institutional balance is not a right that institutions may waive at their convenience: it is a constitutional guarantee that protects the integrity of the legislative process itself (that is the Community method as reflected in the ordinary legislative procedure, with qualified majority in the Council) and with it those subject to EU law.
If the European Council may define general political orientations, it may not prescribe the form, duration, or procedural design of legislative acts, functions the Treaties assign to the Commission and the co-legislators. That prohibition, enshrined in Article 15(1) TEU, provides a constitutional firewall between intergovernmental politics and EU law-making: the guarantee that rules binding 450 million people are produced through processes that involve deliberation, democratic scrutiny, and judicial accountability.
Every reform in the Alden Biesen statement crosses that firewall.
The choice between a directive and a regulation, reliance on delegated acts, and the appropriateness of sunset clauses require context-dependent assessments, forming part of proportionality and subsidiarity reasoning specific to each legislative file. They are tasks for the Commission and co-legislators, policed by the Court with considerable precision. Any informal institutional rules that develop “interstitially”, as the joint declaration does, are contra legem. As such, it can’t be tolerated without fundamentally altering the institutional balance, with major consequences in terms of legitimacy and representation, and without the Court having been able to review that transformation.
Ordering a blanket shift toward regulations, mandating a general reduction of delegated acts, and making sunset clauses a default technique by political instruction pre-empt those decisions. It substitutes a single political preference for the case-by-case constitutional reasoning the Treaties and the Court’s jurisprudence demand.
Such instructions are not merely borderline illegal; they are constitutionally impermissible. It is the integrity of the Union’s legal order and institutional system that is being undermined.
Most consequentially, Article 17(8) TEU makes the Commission accountable to the European Parliament, not the European Council. Von der Leyen’s voluntary commitment to report annually to the European Council on her compliance with its simplification agenda establishes a structural accountability relationship with an institution the Treaties deliberately excluded from holding the Commission to account for its legislative choices. That exclusion reflects the constitutional design of the Community method, in which the Commission’s political independence from the Member States – guaranteed precisely by its accountability to an elected Parliament – is the precondition for its role as guardian of the general interest. A routine compliance relationship with the European Council on the Commission’s legislative technique risks hardening political guidance into supervisory control, in direct tension with the Treaties’ design of Commission independence and Parliament-centred political accountability.
True: each proposed reform, viewed in isolation, can be presented – at least politically – as pragmatic adaptation to geopolitical urgency. Yet, when jointly examined, they amount to a permanent reallocation of legislative power performed in manifest breach of the principle of institutional balance.
The Road Not Taken: The Single European Act of 1986
The Treaties provide a mechanism for exactly this kind of structural change: the ordinary revision procedure under Article 48 TEU, with a Convention, an intergovernmental conference, and ratification by all Member States. It is worth recalling that when European leaders last decided the Single Market needed a decisive relaunch, facing the same competitiveness anxieties and the same urgency, they used the Treaty revision route. The Single European Act of 1986 introduced qualified majority voting, strengthened the Parliament’s legislative role, and set a 1992 deadline for completing the internal market. Crucially, it did so by amending the Treaties, not by bypassing them. The Cockfield White Paper was a Commission – not a Member State-led – initiative addressed to co-legislators; the outcome was a ratified constitutional act. What distinguishes Alden Biesen from 1985 is not the ambition. Rather it is the deliberate choice to pursue constitutional reform through sub-constitutional means, in full awareness that the Treaty revision route remains available, albeit politically impracticable.
Ultimately, a dedicated procedure exists aimed at determining where power sits, how it is constrained, and who can call the Commission to account, to ensure constitutional choices are made with democratic legitimacy and not through informal summitry.
The provenance of the agenda
Before drawing conclusions, the provenance of these reforms deserves emphasis. Virtually all of them can be traced, word for word, to a German-Italian non-paper circulated ahead of the retreat, a non-paper by six northern Member States (Estonia, Finland, Latvia, Lithuania, the Netherlands and Sweden), and the Antwerp Declaration, adopted at the European Industry Summit by over 500 business leaders alongside Commission President von der Leyen. These were not Commission initiatives, independently assessed and brought to co-legislators. They were industry and Member State proposals, absorbed into a summit declaration, largely anticipated through a Better Regulation Communication designed to rewrite the procedural rules that the first omnibus packages had violated.
The Castle Method as an expression of EU constitutional drift
The constitutional strategy of the Alden Biesen reforms is to achieve Treaty-level results by sidelining what the Treaty requires: joint declarations, Commission communications, accountability commitments to the European Council, and Better Regulation guidelines designed to legitimise what the rules previously prohibited.
This is part of a broader, largely undetected EU constitutional drift. Unlike formal constitutional reform, which, however imperfect, is reversible, publicly deliberated, and produces legal norms whose content and origin are identifiable and challengeable, constitutional drift operates invisibly, accumulates through small steps each defensible in isolation, and by the time it is recognised for what it is, has already altered the institutional landscape in ways that formal law has not acknowledged and may no longer be able to correct.
The EU has been here before. Each time, from the growth of the European Council’s de facto legislative direction in the euro-crisis years, to the proliferation of intergovernmental agreements outside the Treaty framework, to the normalisation of emergency law-making, the justification was urgency. The geopolitical circumstances were always genuinely serious. And in each case, the constitutional costs were borne disproportionately by those with the least influence at the castle retreats: citizens, parliaments, civil society organisations, and the procedural rights that exist to give them a voice in the rules that govern them.
What is new about Alden Biesen is its unhibited departure from any attempt at comply with the constitutional boundaries within which member states may act within the European Union legal order. Five reforms to the structure of EU law-making, endorsed simultaneously, derived directly from industry and Member State non-papers, sealed by a Commission accountability commitment to the European Council, and partly pre-laundered against legal challenge by a Better Regulation Communication designed to rewrite the rules the packages violated.
The castle method denotes a mode of EU constitutional change in which the European Council uses informal summit declarations to prescribe not the policy directions of EU action, but the form, architecture, and temporal design of EU legislation—matters the Treaties assign to the Commission’s initiative and the ordinary legislative procedure—without triggering the visibility, deliberation, or democratic safeguards of formal Treaty revision. It operates through the accumulation of soft law instruments: joint declarations, Commission communications, accountability commitments, and regulatory guidelines that together produce Treaty-level institutional effects while never attaining that formal recognition. Unlike the Community method, which it displaces, the castle method is driven not by Commission initiative independently assessed in the general interest, but Member State proposals – typically incubated by the industry – absorbed into summit conclusions and subsequently laundered through administrative channels.
Unlike a Treaty revision, this process has no endpoint, no ratification moment, no constitutional off-switch. That is the defining characteristic of constitutional drift. And that is precisely why it deserves to be named for what it is.
In the past 15 years we saw drift to
– Trilog, an informal shortcut, now normalised, rarely any second readings anymore. Effect is immature law.
– regulatory intervention from trade policies beyond the acquis, an example are the eCommerce chapters of recent trade agreements
– directives get out of fashion, regulation for everything.
– The use of the informal term “act”.
– rapid growth of recital apparatus.
– we don’t speak about harmonisation anymore
– the single market portfolio does not carry the weight anymore
– further decline and parallelisation of the EESC, now just a provider of premises for hearings.
– weakening of Strasbourg as a seat
– shit to monolingualism
– legal proposals are published before they are properly translated
– regular leaks of legal proposals without any actions taken against that
– Recast was tried, nice technique, but is associated with failed dossiers as the 1049 reform to adapt it to the Lisbon Treaty.
– ” the Treaties assign to the Commission’s initiative but now case law supports the idea of a right to withdrawal associated with that if the EC does not agree in subtance. Technically the EC is supposed to make proposals, not have a role in the legislative process as such other than to guard the treaties.
– interference of third countries in legislative matters has amounted an unbearable level and the EC regularly fraternises with third country actors. Companies from third countries communicate and act in Brussels as if they were part of the constituency.
I would welcome democratic reforms, e.g. a higher importance of the RoP 47 process without treaty changes. The EC is supposed to become a legislative servant. Initiative does not imply pursuit, it is preparatory work for the legislator.
This is an excellent piece. Detailed, integral, logical, and principled. It also gets after a crucial part of challenges being faced on the other side of the Atlantic, and generally, in 21st century democracies: governance by emergency and crisis management.
This is true across almost all policy domains—foreign, fiscal, monetary, industrial, housing/urban, healthcare, etc.
Urgency—whether genuine or manufactured—begets a sense of emergency. It is tempting to resort to emergency powers, violate principles, and take the shortest path to achieving outcomes. Among even those acting in good faith, vision narrows, and curiosity or “open-mindedness” becomes false certainty or “closed-mindedness.”
A sene of emergency becomes justification for radical action to achieve desirable outcomes. The problem is that this skips two functions of institutional design and good governance: incentives and principles.
If you simply try to force your outcomes without designing good systems, your process for achieving those outcomes breaks, or breaks something somewhere else. When incentive structures that reinforce your process are misaligned, you get poor outcomes.
If you betray your principles to achieve your outcomes, even with aligned incentive structures, you undermine your credibility and trust. The system is less stable and likely does not last in the long-term.
Both of these are corrosive to democratic good governance over the long-term. Many well-intentioned, good faith actors, even in functioning democracies, can risk undermining the institutions they seek to protect and foster.
This is a lesson to be taken for students and practitioners in policymaking, economics, business, governance, and society, and one that Alemanno teaches well in this piece.
This is a technically impressive piece of legal analysis in service of a fundamentally misconceived political judgment. Put more simply: it misses the forest for the trees.
Dr. Alemanno correctly identified what happened at Alden Biesen and described it with considerable accuracy. Where the whole piece goes wrong is in treating procedural correctness as political wisdom.
The EU’s structural rigidity is not neutral; it has consequences. These consequences are already visible in the populist movements explicitly targeting EU institutions as unresponsive and captured. But, demanding stricter procedural compliance as a response to institutional dysfunction is, ironically, feeding the very delegitimation the author fears. The implied solution (to wait for treaty revision through unanimous ratification) is in fact paralysis dressed up in legal language. Paralysis in a genuinely broken system does not preserve the status quo. It hands the future to people with no interest in preserving any of it.
The Orban comparison is instructive, though not in the way Dr. Alemanno might expect. In Orban, the EU already weathered a genuine bad faith actor who systematically dismantled democratic norms while exploiting procedural protections to avoid consequences. The lesson? The rules as they stand don’t protect against bad faith actors – they empower them. The unanimity requirements and procedural architecture Dr. Alemanno is defending were Orban’s primary weapons. A more flexible majority-based core might have dealt with him faster and more decisively, but – and perhaps more importantly – the actions of such a core would never have been a question of legal architecture alone.
So, before anyone seriously suggests to do the unpalatable (full federalization) or the unthinkable (dissolution), Alden Biesen should be seen as a legally imperfect, pragmatic solution to an otherwise intractable problem. It may be legally adventurous, but it is being driven by actors broadly committed to making the system work better, not to destroying it.