EPC's Duff: How to trigger treaty change
11 May 2022
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:
“For the adoption of these decisions, the European Council shall act by qualified majority vote according to the procedure laid down in Article 238(3)(b) after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.”
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. @AndrewDuffEUEPC
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