11 May 2022

EPC's Duff: How to trigger treaty change

The Conference on the Future of Europe debated the abolition of the veto to make EU decision-making more effective, but left no clear instruction as to how to realise its aspiration in terms of treaty change.

 With the Commission and Council less than eager to make a move, it falls uniquely to the Parliament to launch the process – Andrew Duff explains how it can be done: 

On the back of the Conference on the Future of Europe, the European Parliament is intent on triggering a treaty revision. The conclusions of the Conference are fairly self-explanatory and even unsurprising. It is not a shock to the system that the Conference, impelled in large measure by its citizens’ component, wants ‘more Europe’ not less, or that its main proposal in institutional terms is for the Council to abandon the veto. One does not have to be a federalist militant to realise that the European Union is impaired because the Council is stuck in confederate mode. Despite protestations of loyalty to the European project, national governments cling to vetoes and render decision-making slow, opaque and cumbersome. Eurosceptic forces have always tried to resist the ineluctable spread of what we now know, since the Lisbon treaty, as the ‘ordinary legislative procedure’ — that is, qualified majority voting (QMV) in the Council plus codecision with the Parliament.[1]

It becomes clearer every day why it will be impossible to build the new democratic polity at the supranational level if decisions are held up by only one of its member states — even for spurious reasons that may have nothing to do with the substance of the matter in hand. That is why the campaign to extend the scope of QMV has achieved iconic status. Every treaty reform since the Treaty of Rome in 1957 has advanced QMV in one way or another. Extending QMV enjoys a solid federalist logic. The constitutional Convention of 2002-03, chaired by Valéry Giscard d’Estaing, made bold strides towards abolishing the veto in most areas. This provoked a backlash, led by Britain. The Treaty of Lisbon, which was drafted after the defeat of the Giscard project, allowed the nationalists to claw back even more territory. The scope of QMV was further reduced, but the British so hated QMV they left the Union altogether.

Inventing the ‘passerelle’

By way of compromise, the device of the passerelle or bridging clause was invented. This provision permits the European Council to switch decision making from unanimity to QMV in any area other than that of defence. It also allows the European Council to change a ‘special legislative procedure’ into the ordinary legislative procedure. Such special laws of the Council pepper the treaty whenever an item of peculiar sensitivity to national sovereignists crops up. In those areas, the Council decides by itself, acting by unanimity, after informing or consulting the Parliament, sometimes needing MEPs’ consent, but never with regular codecision. Special laws of the Council apply, for example, to questions of taxation and the harmonisation of national laws.[2] They are also prescribed for cases where differences between national practices are particularly marked, such as family law, some aspects of social security and worker protection, and the choice and structure of energy supply. Special laws of the Council are required in another dozen or so areas, including extending the rights of EU citizenship, the levying of taxes, and deployment of the famous ‘flexibility clause’ which allows action to be taken to attain treaty objectives even where the treaty has not provided the necessary powers.[3]

If the passerelle was so clever, why has it never been used in twenty years to modify decision making? Extensive use of the passerelle, after all, would relieve the Union of the need to face another bout of treaty revision. This is because the Lisbon treaty insists that the passerelle can only be crossed if all member states agree to it unanimously at the level of the European Council and no single national parliament objects. The imposition of unanimity renders the passerelle effectively unusable.

Using the ‘passerelle’

The Conference on the Future of Europe debated the abolition of the veto at the level of abstraction and left no clear instruction as to how to realise its aspiration in terms of treaty change. The Commission which in past times, could have been expected to help push forward constitutional reform of the Union, has done nothing whatsoever. The Council, naturally, remains divided. So it falls uniquely to the Parliament to launch the process.[4] On 4 May Parliament voted in principle to change the treaties. Here’s what it should now do in practice.

There is no single, simple way to abolish unanimity in the Council, with the exception of Article 22 TEU which prescribes unanimity for decisions on the direction of common foreign and security policy. In the legislative arena, however, the situation is much more complicated. If MEPs are looking for a peg on which to hang their hopes of treaty change, including a new Convention, they would be well advised to target the passerelles — and more specifically the general passerelle clause of Article 48(7) TEU. The best way to deliver reform is to facilitate the use of the general passerelle by switching the method of its deployment from unanimity to QMV.

The Constitutional Affairs Committee of the Parliament should now propose to suppress the third subparagraph of Article 48(7) which would eliminate the power of a truculent or nationalistic parliament in any single member state to block the passerelle. National parliaments, acting collectively, would retain their powers under the treaty to object to the reform on the grounds of subsidiarity and proportionality.[5]

The last sub-paragraph of Article 48(7) should then be amended to read:

This means ‘super QMV’, with the threshold comprising at least twenty member states representing more than 65 percent of the population of the Union.

Lastly, Parliament must also propose the suppression of Article 353 TFEU which prohibits the application of the passerelle to four key provisions of the treaty, as follows:

• Article 311 on ‘own resources’ or revenue of the Union
• Article 312(2) on the multi-annual financial framework
• Article 352, the flexibility clause
• Article 354 which lays down the decision-making procedure for the application of Article 7 TEU determining the existence of a serious and persistent breach by a member state of the values of the Union.

Provoking treaty change in this straightforward but significant way should be enough to attract the support of the simple majority in the European Council that is required to proceed to a Convention and an eventual intergovernmental conference.[6] Limiting their first salvo to revising the passerelle clause does not preclude MEPs from adding much else to the reform agenda in due course. A Convention once reached will in any case develop its own momentum. This is the right way to launch the next phase of reform of the EU’s constitution. The time to kickstart is now.

Andrew Duff is an Academic Fellow at the European Policy Centre.  His latest book, ‘Constitutional Change in the European Union’, will be published shortly by Palgrave. @AndrewDuffEU

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