Year LV, 2013, Single Issue, Page 81



Reforming the European Decision-Making Process: Legitimacy, Effectiveness and Clarity







The economic and financial crisis has raised fundamental questions about the future of European integration.[1]Indeed, the European states — in particular the eurozone members — have realised that, in order to recover their sovereignty vis-à-vis the markets and thereby the capacity to make decisions about their own future, they have to form a more coherent system. While, on the one hand, the idea of forming a banking union has progressed rapidly over the last few months, and the debate regarding certain aspects of economic and fiscal union has continued (notably the opportuneness of pooling part of the debt), on the other, stricter, common rules have already been adopted, the European Stability Mechanism (ESM) has entered into force, and there has been a strengthening of the resources and role of the European Investment Bank.

Given the transfer of competences that these joint measures imply, the question of political union can clearly no longer be eluded. European decisions must enjoy adequate democratic legitimacy[2]in the eyes of the citizens and the decision-making mechanisms must be simple and clear enough to be effective and transparent. Without these elements the citizens will not accept economic union and questions will continue to be asked about the political vision behind European decisions, and this, in turn, will be liable to weaken and even threaten the survival of the entire economic integration project.

Against this background, the present paper examines the terms of the debate, identifying several concrete proposals and looking at their legal feasibility in view of the type of reforms that they would entail. They can thus be divided into proposals involving: (i) innovations that nevertheless leave the Treaties as they stand; (ii) limited changes to the Treaties under the simplified revision procedure provided for in Article 48 TEU; (iii) more extensive Treaty modifications under the ordinary revision procedure also provided for in Article 48 TEU.


1. Political union: what are we talking about?


1.1. A Necessary Clarification.

As an effect of the present crisis, doubts over the democratic legitimacy and efficacy of the European decision-making process have returned very much to the fore. Even though the renewed debate on these issues is to be taken as a positive sign, some points need to be clarified and warnings issued in order to prevent it from falling into the trap of abstract slogans whose only effect would be to create more disillusionment.[3]

The concept of federalism, an ever-present element in the debate on political union, needs particular clarification. Objectively, federalism is a system of organisation of powers based on the division of competences between different levels of government. However, it must be distinguished from the concept of the federal state.[4] The latter is discussed in the context of the debate on the future of the European Union, without, however, helping to clarify it. On the one hand, in fact, the EU is not a state and therefore conflicts are liable to arise over the distribution of powers between the nation states and the other levels of government; on the other hand, there can be no denying that the EU already hascertain traits and instruments of a federal nature, namely, among others, a currency, a central bank, a budget, and a parliament elected by direct universal suffrage. The crisis has also led to increasing federalisation of EU economic policy: indeed, the creation of the ESM and the strengthening of the instruments of economic governance (the six pack, the fiscal compact, and the two pack) lay the foundations for true fiscal federalism. Similarly, the banking union will lead to the creation, within the ECB, of a European supervisory authority and, probably, of a bank resolution mechanism. From this perspective, the choice of the term “federal leap” is clearly an unfortunate one in two ways: first, it does not reflect the reality of today’s EU, which already has characteristics of a federal nature[5] and, echoing the expression “a leap in the dark”, it conveys uncertainty and somehow elicits anxiety.

This confused and inaccurate use of political terminology can potentially lead to dangerous misunderstandings. In the economic field, it influences the debate on the reform of EU economic governance. This is, indeed, why, outside France, the proposal for an economic government[6] has not been well received, a situation that highlights the very real need, in relation to European economic policy, for clarity, simplification and legitimisation.

The differences that this debate brings out are the same ones that, in Europe, characterise the differentnational political cultures. In France, the term government is synonymous with politicisation and interventionism; in Germany it recalls the desire for rules designed to be independently implemented, while in the UK and central Europe it raises the spectre of a federal state liable to limit individualfreedoms. Being unable to reach a common vision of the European political and economic system, i.e. of federalism, the member states are also unable to come to an agreement on common governance and ultimately on the collective management of European public goods (macroeconomic stabilisation, climate and energy, European defence, and so on).[7] And yet such an agreement is precisely what is now not only necessary but desperately urgent! The objective of the political union should therefore be to strengthen the legitimacy of the European decision-making process, at the same time, making it more effective and easier to understand.

1.2. The Terms of the Current Debate.

The debate on political union is alive in many EU member states, especially Germany where it is being conducted at the highest level.[8] In September 2012, the foreign ministers of eleven EU member states[9] signed a document that may be regarded as the first attempt to formalise a project for political union. In December 2012, the European Council President Herman Van Rompuy chose the European Council summit to present a roadmap for the creation of genuine economic and monetary union,[10] identifying four key challenges, including the achievement of a strengthening of democratic legitimacy and accountability.

While three of the proposed unions (the banking, fiscal and economic unions) have been the focus of considerable attention, no detailed proposals have yet been advanced with regard to political union. An important exception in this regard has, however, been the recommendation to create, albeit as yet without specifying a time frame, a single body responsible for representing the eurozone externally and for giving it a single voice in international settings like the IMF.[11]

Despite numerous appeals,[12] nothing concrete has yet come of Van Rompuy’s address. Angela Merkel seems to be in favour of a new convention,[13] while José Manuel Barroso, President of the European Commission, has called for a “democratic federation of nation states.”[14] Angela Merkel and Michel Barnier have proposed that the President of the European Commission be elected by direct universal suffrage. Jean-Claude Trichet has recommended the creation of a new post: that of eurozone finance minister.[15] However, such interventions never lead to anything; these proposed steps continue to be postponed to some (even remote) future time, and specific commitments are never made.[16]

Furthermore, whereas many aspects of the integration process (fiscal federalism, banking union, the status of the non-eurozone EU members, especially the UK) are no longer taboo subjects, in many states (including France until recently) there is still no debate on its political and democratic aspects. In this regard, it is worth noting that on May 16, 2013 the French president François Hollande declared his country’s willingness to give substance to a political union.[17] The nature of this substance soon started to emerge in Franco-German proposals[18] aimed at creating a full-time President of the Eurogroup and an offshoot of the European Parliament responsible for the euro area.

The Urgency of the Reform.

For the past four years or more, the priority, quite understandably, has been to find solutions to the economic crisis. In that time, the conditions for creating an effective European economic framework have become clear: on the one hand, there has to be, at European level, macroeconomic and financial supervision, which must in turn be supported by the corrective instruments that are needed in order render it effective and credible; on the other hand, the eurozone must ensure that it has its own means of preventing and dealing with the crises that its single states are unable to resolve.

However, the citizens remain perplexed by the increasing federalisation of European economic policy decisions.[19] Surveys show, alarmingly, a growingmistrust of the main European institutions.[20] As a result, precisely at a time when the competences of the European institutions are increasing and they are being called upon to make decisions in sensitive areas intimately bound up with sovereignty, they seem to lack adequate democratic legitimacy.

For some years now, the legitimacy of European decisions has been an increasingly pressing issue. Indeed, since the start of the 1990s, the EU has been experiencing an unprecedented legitimacy crisis. The best informed analyses highlight the following trends: a progressive structuring of opinions (during the 1980s and 1990s) followed by a gradual process of “politicisation” (emerging in the referenda held in France and the Netherlands in the spring of 2005 and then in Ireland in 2008). The effect of this gradual process of “political learning” on the part of the citizens was to bring to an end the “permissive consensus”[21] that had characterised public opinion towards Europe since the beginning of the European integration process: there is now no member state whose citizens “blindly” trust their elites to manage, to best effect,their European interests.[22] The citizens want the right to speak. This is a situation that, apparent for many years, has been rendered even more evident by the crisis.

The fact is that, coupled with the crisis, the citizens’ growing mistrust of the European institutions and of the current reforms has presented the EU with a major political challenge. Either the European leaders show that they can agree on measures sufficient to deal with the crisis and respond to the criticisms regarding the EU’s democratic and executive deficits and, in so doing, encourage the emergence of a European people (demos) and help to give real meaning to the concept of European citizenship, or they risk facing a rise in euroscepticsentiment, given that, without such agreements, any further integration will not be accompanied by the necessary levels of democratic control and decision-making capacity. There is a risk that many Europeans will fall back on their sense of national identity in the belief that only the nation can guarantee them their political rights.

Moreover the rise of extremism and populism is symptomatic of Europe’s legitimacy crisis. The various elections — presidential and general — held across Europe (from Sweden to Hungary, not forgetting France, Italy, Denmark, Belgium and Greece) confirm the strength of the populist forces and of the far right, both of which promote, in the arena of public debate, a form of economic and cultural (identity-based) protectionism. These extremist and populist anti-European forces criticise the power held by the national and European élites and seek to gain leverage by challenging the democratic and political legitimacy of the European institutions.[23]

The current situation constitutes an emergency that Europe’s leaders can no longer hope to manage while at the same time postponing their more ambitious ideas to some future time. This is particularly true in France, a country that is still traumatised by the events of 2005 and in which every party lives in fear of becoming dividedover the issue European institutional reform. It is absurd, really, since both the ‘yes’ and the ‘no’ brigade share, for the most part, the desire to make Europe more democratic. But if they go on refusing to enter into this debate, there is a risk that the ‘no’ faction will grow, in other words that an increasing number of citizens will refuse to accept transfers of major economic competences to Europe.


2. Making Political Union Concrete


In this context, several solutions might be put forward for strengthening democratic legitimacy and accountability vis-à-vis the citizens.

2.1. Strengthening European leadership.

The economic crisis has thrown down a real challenge in terms of the leadership, coherence and efficacy of European governance.[24]Indeed, in a crisis situation in which the EU and its member states should be coming up with answers that will truly help the Europeans to overcome the difficulties they are experiencing, the citizens, with frustration, are beginning to see the limitations of European governance and its “executive deficit”:[25] the weakness of the European executive power, the polyarchic nature of the Community institutions and therefore the absence of clear political leadership, the competition between institutions and states, and the slowness and unpredictability of the negotiating process between member states. From this perspective, resolving Europe’s “executive deficit” means starting with the creation of a clearer, more legitimate and more accountable leadership.

— A first step could be that of merging the presidency of the Commission with that of the European Council, a solution that would help the EU to speak with one voice. The Lisbon Treaty allows for this innovation: it was precisely to create this possibility that the ban on also having a national mandate was retained in the Lisbon Treaty whilst that on having more than one European mandate was withdrawn. The European Council would merely have to appoint a single person to fill the two posts. This solution would strengthen the political legitimacy of the president, who would thereby enjoy both Community and intergovernmental legitimacy; he would also be answerable politically to the European Parliament.

A change of this kind would not require amendment of the Treaties. An inter-institutional agreement would suffice.[26]

— The single president mentioned above could be elected by indirect universal suffrage, along the lines of what is provided for by the laws of the vast majority of the EU member states (i.e., appointed by the European Parliament), a circumstance that would require the European Council to undertake, even informally, to appoint, as President of the Commission, the candidate nominated by the party or coalition that has a majority in the European Parliament. At a later stage, it would be possible to raise the question of an election by direct universal suffrage, as suggested by the CDU during its Leipzig congress in 2011. This would have the advantage of giving the EU President democratic legitimacy and a clear democratic mandate.

Under the Treaties as they presently stand, the European Council can undertake (i) to nominate, as President of the Commission, the candidate presented by the party that won the European elections (an undertaking that would be consistent with the European Council’s obligation, under the Treaties, to take into account the results of the European elections, (ii) to elect the President of the European Commission as President of the Council. Any change in the method of appointing the President of the Commission or of the Council, with a view to an election by direct universal suffrage, would require a revision of the Treaties according to the ordinary procedure (intergovernmental conference preceded by a convention, unless the European Parliament were to accept the absence of a convention).

— With regard to the European elections it would appear appropriate to ensure that the lists put forward by the national parties belonging to a European party share the same name and programme in all the member states. Each party should also put forward a candidate for the post of President of the European Commission.

This reform would not require amendment of the Treaties.

— One of the problems to solve regarding European elections is that of defining political majorities that are clearer than they have been to date.[27] From this perspective, the suggestion of applying a majority bonus to the party winning the elections[28] would be worth exploring within the framework of a reform of the European electoral system.

Any change in the system used to elect MEPs requires a revision of the Council decision on the election of MEPs. Under article 223 TFEU, the procedures for electing MEPs are established by a unanimous Council decision, after the approval of the European Parliament by a majority vote of its members. To enter into force, this decision has to be ratified unanimously by the member states.

— Redefining the composition of the European Commission. This is an aspect crucial to the legitimacy of the Commission, which has been criticised for having evolved in the direction of an intergovernmental model and allowed itself to turn into a kind of second Council. In order to break away from the principle of “representation” of the member states within the College of Commissioners, the President of the Commission should be given the possibility to choose the portfolios given to the commissioners (without negotiation taking place between the states) and to create a hierarchy of portfolios by creating “Deputy Commissioners”.

It is possible to change the number of members of the European Commission without modifying the Treaties via a simple decision on the part of the European Council acting unanimously (art. 17 par. 4 TEU). However a change to the rules governing the Commission’s composition, which breaks away from the equal rotation principle between the member states and the principles set by article 244 TFEU, would require a revision of the Treaties according to an ordinary procedure (IGC preceded by a convention).

— Better communication by the European Commission. The College of Commissioners should make public the results of its weekly meeting to a much greater extent than it does at present (its work remains relatively confidential, even though it is, in many ways, same as that of a council of ministers. This is partly because the minutes of a College meeting are not available until a week after the event itself). At the very least a press release summarising the main points addressed and the main decisions taken should be published on the very same day. Finally a European audiovisual agency might be created to do more than what is done within the framework of the existing initiatives (Arte, Euronews).

This reform could be implemented with the Treaties as they stand.

2.2. Involving the National Parliaments in Economic and Budgetary Supervision.

In terms of strengthening democratic legitimacy, the national parliaments and the European Parliament have a decisive role to play.

— The implementation of article 13 of the fiscal compact[29] would make it possible to increase the involvement of the national parliaments in decision-making processes and therefore also the legitimacy of decisions taken concerning budgetary control.[30] This implementation could be based initially on a conference of eurozone MEPS belonging to the European Parliament’s Committee on Economic and Monetary Affairs (excluding those from states that have not ratified the fiscal compact), and of the chairs of the national parliaments’ finance committees and economic affairs committees. This eurozone conference could adopt initiative reports and issue opinions or resolutions.

The means for implementing article 13 of the Fiscal Stability Treaty could be laid down in the framework of an inter-institutional agreement.

— The eurozone conference would be given an important role within the economic and budgetary supervisory mechanisms that are envisaged for the member states of the economic and monetary union. It would meet in regular sessions; it would also be possible to convene complementary extraordinary sessions. On the basis of the reports presented by the member states and the Commission (which should allow a consolidated view of euro area public finances), but also of investigations that it might launch of its own initiative, this institution would monitor the solidity of the eurozone and the member states’ respect of the commitments made (a qualified minority of MPs/MEPs might be given the power to have recourse to the European Court of Justice in the event of a breach). It would also need to be informed of progress achieved in the implementation of measures relating to the conditions governing aid programmes and would have the power to convene hearings with the national ministers, the President of the ECB and the President of the Eurogroup.

There would need to be a Treaty revision using the simplified procedure provided for by article 48 par. 3 TFEU. However, within the limits of the competence of the eurozone conference, Treaty modification according to the ordinary revision procedure (ICG preceded by a convention) cannot be ruled out.

An institutional change in the monetary area (the possibility of convening hearings with the Presisent of the ECB, which the latter is obliged to attend) would be possible using the simplified procedure envisaged by article 48 par. 3 TFEU, but it would require a decision on the part of the European Council acting unanimously after consultation with the European Parliament, the Commission and the European Central Bank.

2.3. Strengthening the Legitimacy and the Role of the European Parliament.

— Greater proportional representation of the European population would strengthen the democratic legitimacy of the European Parliament whose present composition far from satisfies the principle of equal democratic representation: for example, the number of MEPs per inhabitant is twice as high in Finland as it is in France. But since, in a democratic system, citizens must all have the same political rights, their vote should carry the same weight.[31] This principle, i.e. that the number of inhabitants per MEP should be same in all countries (nevertheless making provision for a minimum representation in order to guarantee that even the least populous member states are represented), is an objective criterion that it is difficult to fault.[32] Now, in view of the substantial increase in the powers of the European Parliament introduced by the various Treaties, strengthening the democratic legitimacy of this institution — moreover the only one to be elected by direct universal suffrage — has become a major and a necessary challenge, as the decisions of the German Constitutional Court continue to underline.[33]

A modification of this kind would require a revision of article 14 par. 2 TEU according to the ordinary treaty revision procedure (IGC preceded by a convention).

— Acknowledgement of the European Parliament and Council’s joint right to legislative initiative. The “monopoly on initiative” enjoyed by the European Commission applies only to the “Community pillar”. Indeed, in the areas that, prior to the Lisbon Treaty, came under the second (common foreign and security policy) and third (justice and internal affairs) pillars, the member states have a joint right to initiative with the European Commission. It might be appropriate to extend this rule to the areas of the Community pillar, not with the aim of restricting the Commission’s prerogatives, but rather to add a democratic element to the initial stage of the Community decision-making process. A sharing of the right of initiative between, on the one hand, the Commission (which would retain this prerogative), and, on the other, the MEPs and governments of the EU member states on the other (in the shape, for example, of a joint right to initiative between these two branches of European legislative power) would offer two advantages over the system in force at present: (i) it would meet the democratic requirements that form the basis of representative democracy(in which the executive and legislative bodies share the power topropose legislation), (ii) it would give the citizens the feeling that they are being heard and that their European and national representatives are able to convey their requests.[34] This innovation might be presented as a complement to the citizens’ right to initiative introduced by the Lisbon Treaty.

A modification of this kind would require a revision of the Treaties (art. 225 TFEU) according to the ordinary procedure (ICG preceded by a convention).

— Giving the European Parliament the opportunity to play a greater role in the supervising excessive deficits and macroeconomic imbalances, as part of a modification of article 126 TFEU. In particular, the European Parliament should be able to decide by a simple majority to launch an excessive deficit procedure or the procedure for excessive macroeconomic imbalances on the basis of a recommendation made by the Commission, should the Council have decided not to follow the Commission’s opinion.

This reform would require a Treaty modification according to the simplified revision procedure of article 48 par. 6 TEU.

— In order to strengthen the technical expertise available to the MEPs, a European council of economic advisors could be created, which the European Parliament and eurozone conference could consult. The Parliament and conference would also be allowed to seek the opinion of the European Economic and Social Committee, so as to be able to gather, in addition, the viewpoint of the body representing European civil society.

The creation of a European council of economic advisors would be possible with the Treaties as they stand. Conversely, explicit provision would have to be made, in the Treaties, for the possibility of the European Parliament consulting this council (and the European Economic and Social Committee). This would require modification of the Treaties, according to the simplified revision procedure, which demands a unanimous decision by the European Council (art. 48 par. 6 TEU).

2.4. Increasing the Legitimacy of Eurogroup and Eurosummit Decisions.

— Bringing the Eurogroup under the control of the European Parliament, creating the post of Vice-President of the Commission and of the Council responsible for matters relating to the euro and economic affairs, so as to create the European finance minister called for by Jean-Claude Trichet and Wolfgang Schäuble. This person would fulfil two roles contemporaneously: that of Commissioner for Economic and Monetary Affairs and that of President of the Eurogroup, which, from that moment on, would be accountable to the European Parliament. He would enjoy the status of Vice-President of the Commission and of the Council. He would be supported by the Eurogroup working group for the preparation and follow-up of meetings concerning only the eurozone member states, and by the Economic and Financial Committeefor meetings concerning all the EU member states. Under his authority he would have a general secretariat of the eurozone treasury, whose mission (range of tasks) would depend on the objectives of the fiscal union being created (in particular using the existing guarantee mechanisms and budgetary instruments).[35] The Vice-President of the Commission and of the Council responsible for the euro and for economic affairs would be the political voice of the euro. He would be responsible for communicating the Eurogroup’s decisions and for representing the eurozone within the international financial institutions. He would be responsible for explaining how the eurozome member states’ budgetary and structural policies form a coherent policy mix with the ECB’s monetary policy. Finally, he should regularly address the eurozone conference.

The tasks of this Vice-President of the Commission and of the Council responsible for the euro and for economic affairs could be defined within the framework of the Eurogroup Protocol.

— A committee responsible for the euro should be created within the European Parliament. The eurozone institutions (the ESM, the “Troika”) should be accountable for their actions before this committee. The president of this committee would also be invited to the Eurogroup mettings and Eurosummits so that his opinion might be heard.

This modification might come as part of a revision of the Eurogroup Protocol.


3. What Methods Should be Used?


For the process of European integration to advance, it must be understood that the question of the method to be used is inextricably bound up with that of the political will that is required. The legal instruments are, in fact, technical instruments at the service of a political project whose survival depends on the fact that it is proposed by the states and accepted by the people.

3.1. The Centrality of the Dialogue Between France and Germany.

From this perspective, the period leading up to the European elections of May 2014, which will culminate in the selection of the next President of the European Commission, is crucial, because it will oblige those involved in the European debate — governments, citizens, civil society — to declare the direction they wish to impart to the process of building Europe. It is, in fact, clear that it is not so much written texts as practical political action that will prove decisive. Indeed, the EU’s capacity, or otherwise, to advance will depend very much on who is chosen to lead the European institutions. In this regard, the differences that have arisen in recent weeks between the President of the European Commission and some national leaders are, at once, worrying and reassuring: worrying because they undoubtedly have the effect of rendering the EU more fragile at what is already a time of great political, economic and social uncertainty; reassuring because they mark the start, finally, of a true politicisation of the European debate, which was something quite unthinkable until just a few years ago.

The relations between France and Germany, on the other hand, merit a different analysis, as they may be seen as a particularly reliable gauge of European political will. We know from the lessons of the past that the European project does not advance unless there is convergence between France and Germany. In this regard, the recent tensions between Paris and Berlin should not be overplayed. Franco-German relations have always been influenced by domestic electoral cycles and the early part of a term of government is typically something of a trial period, in which leaders first judge and then gradually get to know each other.[36] The first year of Hollande’s presidency was no exception and now, after a period of tension, Franco-German relations seem to be entering a new era. However, whereas Germany, until now, has always promoted a federal vision of the European project (while France remained more attached to an intergovernmental solution), it now seems to be tempted to place the economic and political leadership of the eurozone in the hands of the states rather than the European institutions.[37] This change of direction could signal a new balance in Franco-German relations, whose apparent evolution is taking place in a setting in which Germany is showing a new readiness to develop special relations with other member states, be they the UK or the countries of central and eastern Europe.

This declining federalist fervour on the part of Germany, coupled with a real weakening of French influence within the EU,[38] has implications as regards the method used to organise economic governance in Europe and to create, when the time comes, the political union. For this reason, different possible methods need to be identified and their feasibility analysed bearing in mind the relations between political forces within the EU and their chances of reaching the objectives set.

3.2. Evolution with or without Treaty Revision?

To begin with, there are certain steps that could be taken without altering the current legal framework and that would simply require the interested states to give eurozone economic governance a political dimension. These undoubtedly include the appointment of a full-time president of the eurozone (who would therefore have no other, national mandates) and the establishment of timetables for the economic and fiscal convergence of the member states and for achieving unified representation of the eurozone within the IMF and the World Bank. All these are reforms that could certainly be introduced using the mechanisms envisaged by the current Treaty framework, providing there exists the political will to carry them through.

However, it is clear that, political signals aside, the achievement of full integration of the eurozone in the economic and banking spheres, thereby completing its monetary integration, will require a significant evolution of the current legal framework; but how might this be pursued?

An initial option could be to use the instrument of enhanced cooperation between the 17 — soon to be 18 — euro area countries. The Lisbon Treaty does, in fact, make provision for more extensive recourse to enhanced cooperations, which can now be established in all the areas of European action, providing they involve at least nine member states and do not contravene the Treaties. Thus, enhanced cooperations could be undertaken in relation to specific issues, as was the case of the agreeement on the introduction of a tax of financial transactions, which was entered into by eleven member states. But this is, precisely, an instrument designed to be applied in specific sectors — the EU patent and the law applicable to divorce and legal separations with international implications, for example — rather than to a broad project for economic union.

In these circumstances, the ordinary Treaty revision procedure would seem to be best route to follow in order to move the process of European integration forward. This is the method that has always been used in the past, be it in relation to the creation of the single market (the Single European Act) or the single currency (Maastricht Treaty), or to the area of common foreignand security policy or European policy on asylum and immigration (Amsterdam Treaty). Today, however, it is no longer certain that there exist the political conditions necessary for revision of the Treaties, i.e. the unanimity of the member states necessary to approve and ratify the changes proposed. Opting for the Treaty revision route would have the effect of opening, once again, the Pandora’s box of demands, from different member states, for special treatment, starting with the UK which, more than ever, seems set on redefining the terms of its relations with the European Union.[39]

3.3. Recourse to an Intergovernmental Treaty?

Whereas the unanimity needed in order to revise the European Treaties seems unlikely ever to be reached, there remains the possibility of having recourse to the constituent method through the signing of an international treaty, compatible with the founding Treaties.[40] This method has already been used in the past: in the area of cross-border police cooperation, for example, it led to the signing of the Prüm Convention in 2005, which rapidly became part of the acquis communautaire. A definite advantage of using an international treaty is that it does not need unanimous ratificationby the signatory states in order to take effect. Indeed, the conditions of its entry into force could be similar to those governing the entry into force, in 2012, of the Fiscal Stability Treaty (fiscal compact).

It must nevertheless be recognised that choosing the option of an international treaty instead of European Treaty revision would possibly signal a renunciation of more decisive steps towards the economic and fiscal federalism that the crisis has shown to be necessary. This option would reinforce the intergovernmental character of the economic and monetary union, and thus raise questions regarding the democratic integrity of this political project. Clearly, with the people(s) of Europe expecting the European project to be founded on political legitimacy, the European Parliament and the national parliaments cannot be excluded from the process of economic integration. In other words, any step towards closer European integration must be accompanied by the achievement of closer democratic integration.

3.4. Recourse to the “Convention” Method?

Recourse to the use of “conventions”, not just to revise the Treaties but also to legitimise the European project, is an original approach that deserves to be examined in depth. After all, conventions, which bring together national MPs, MEPs, government representatives and members of the European Commission (i.e. complementary sources of legitimacy), have already been shown to work.

Specialised conventions — whose composition would vary depending on the issues being examined — might be convened by the European Council, which would authorise them not to legislate, but to define proposals on major aspects of European integration. These proposals, insofar as they fall within the framework of the current Treaties, would be submitted to the European legislator for examination.

From the European social model to the community budget, the debate over the Union’s borders or the future of the common agricultural policy, a more frequent use of conventions would be an intelligent way of involving the national parliaments, whose role, far too often, is confined to that of censors of the construction of Europe. In this way they would become a real driving force and one, moreover, that is not out of touch with national public opinion.

What Compromise is Possible?

Clearly, since both Treaty revision and the signing of an international Treaty, are avenues that present certain limitations, there exists no ideal solution. For this reason, the final part of this analysis is given over to the outlining of a compromise that might be deemed acceptable, namely a Treaty modification that:

— consolidates the existing international treaties (EMS, fiscal compact) in a Protocol on Economic and Monetary Union to be annexed to the TFEU;

— creates a revision procedure for this protocol, which authorises the EMU member states to modify the provisions of the TFEU specifically relating to EMU without the need for ratification by the non-eurozone member states. Every new provision would, of course, have to be compatible with the other provisions of the Treaties;

specifies, in the framework of a Protocol on the United Kingdom, the areas (in addition to the internal market) in which the UK continues to participate. In this framework the UK would clearly cease to have a voice (in the European Parliament and in the Council) on decisions relating to areas in which it has decided not to participate. As regards the EU budget, the UK would have a say only on issues relating to the areas in which it participates, but not on the budget as a whole. Finally, the UK would retain an opt-in right regarding policies in addition to those in which, under the terms of the Protocol, it had already undertaken to participate.

introduces amendments that strengthen the democratic legitimacy of the European institutions (cf. the proposals set out herein).

The crisis, the European citizens’ growing mistrust of the European institutions, and the reforms now under way bring Europe face to face with a major political challenge.

With the European elections on the horizon, the time has come to get the debate started. Even though France and Germany’s presentation of a joint document in the run-up to the European Council summit of June 27-28, 2013 must be viewed positively, the EU’s future institutional framework and policies still need to be clarified.

The recent Franco-German initiatives are, in fact, somewhat ambiguous and raise a series of questions that need to be answered, for example that of the future full-time Eurogroup president’s accountability to the European Parliament. In addition, the idea of strengthening intergovernmental coordination raises the question of the risk of competition, on economic matters, between the two branches of executive power (the Commission and the Council) and between the two different sources of provisions (intergovernmental treaties within the eurozone and EU Treaties). How can all these elements be reconciled? Moreover, the powers of the offshoot of the European Parliament responsible for the eurozone would also need to be clearly specified. How would this body exercise its democratic control? Would it have the power of co-decision with the Council on economic matters? Would it exercise any control over the “Troika”? Would it have the power to question and approve the appointment of the President of the Eurogroup? Finally, everything is still very vague as regards the method to be used and, in particular, the possible amendment — even limited, in line with Germany’s wishes — of the Treaties. In this last scenario, advances in eurozone integration would clearly bring to the fore the difficulties concerning the framing of the relationship between the EU and the eurozone, in other words the need for stronger differentiation between the status of the eurozone and that of the broader EU (i.e. the EU countries that are not part of the eurozone, in particular the UK, which would seize on any Treaty revision procedure as an opportunity to renegotiate derogations).

The crisis has had the effect of eliminating many taboo terms: political union, fiscal federalism, banking union. The debate must be pursued in more depth in order to speed up the introduction and implementation of the reforms that are now desperately needed in order to restore the citizens’ faith in the European institutions.


Table summarising the proposals presented


No Treaty revision

Ordinary Treaty revision procedure

Simplified revision procedure

Revision of the Eurogroup protocol

Single presidency of the Union (merging of the presidency of the European Council with that of the Commission)



Election of the President of the Union by the European Parliament




Modification of the voting method applicable in European elections



Modification of the number of Commission members



Composition of the European Parliament – suppression of the degressive proportionality rule




Revision of the strictly egalitarian rotation rule between member states envisaged by the TEU for the composition of the Commission as of 1 November 2014.




Better communication by the European Commission



Acknowledgement of the European Parliaments right to initiative




Implementation of art. 13 of the fiscal compact

X (inter-institutional agreement)


Creation within the European Parliament of a committee responsible for the euro



Creation of a European council of economic advisors



Strengthening of the European Parliament’s role with regard to excessive deficit control




Creation of a Vice-President of the Commission and of the Council responsible for the euro and economic affairs





[1]This text is a reviewed and updated version of the article by T. Chopin, J.-F. Jamet, F.-X. Priollaud, Une union politique pour l’Europe, Questions d’Europe, Policy paper of the Robert Schuman Foundation, n. 252, 24 September 2012.

[2]Democratic legitimacy derives, first of all, from the democratic definition of the political goals of the European institutions. It also assumes that the legislation necessary for achieving these goals is democratically voted upon. Finally it requires democratic control of the implementation of this legislation.

[3]On this point, see T. Chopin, L’union politique: du slogan à la réalité, Rapport Schuman sur l’Europe. L’état de l’Union 2013, Paris, Lignes de repères, 2013.

[4]Against this prevailing argument, see O. Beaud, Théorie de la Fédération, Paris, Presses universitaires de France, 2007.

[5] Y. Bertoncini, Saut fédéral ou unions politiques?, in Le Mot de Notre Europe, 22 June 2012.

[6]On this point, see J.-F. Jamet, L’Europe peut-elle se passer d’un gouvernement économique?, Paris, La documentation française, 2nd ed., 2012.

[7] See the works by S. Collignon on the “République européenne, in particular The European Republic. Reflections on the Political Economy of a Future Constitution, Beterlsmann Foundation, 2003 and (with C. Paul), Pour la République européenne, Paris, Odile Jacob, 2008.

[8] Angela Merkel was very explicit in an interview granted to several European newspapers on January 19 2012: “Over a long process, we will transfer more powers to the Commission, which will then handle what falls within the European remit like a government of Europe. That will require a strong parliament. A kind of second chamber, if you like, will be the council comprising the heads of government.” … “And finally, the supreme court will be the European court of justice. That could be what Europe’s political union looks like in the future (…).” See U. Guérot, The Euro Debate in Germany: Towards Political Union?, European Council on Foreign Relations, ECFR, 5 September 2012.

[9] Cf. Final Report of the Future of Europe Group comprising the Foreign Ministers of Austria, Belgium, Denmark, France, Italy, Germany, Luxembourg, The Netherlands, Poland, Portugal and Spain, 17 September 2012.

[10]Towards a Genuine Economic and Monetary Union, 5 December 2012. See also the Conclusions of the European Council of 13 and 14 December 2012.

[11] Cf. European Commission, A blueprint for a deep and genuine economic and monetary union. Launching a European Debate, 28 November 2012, COM(2012) 777 def., and Towards a Genuine Economic and Monetary Union, op. cit..

[12] Cf. in particular S. Goulard and M. Monti, De la démocratie en Europe. Voir plus loin, Paris, Flammarion, 2012.

[13]Cf. The Future of Europe: Merkel Pushes for Convention to Draft New EU Treaty, Spiegel Online International, 27 August 2012.

[14] State of the Union Address to the European Parliament, 12 September 2012.

[15] Cf. Speech by J-C. Trichet, then president of the ECB, on the occasion ofthe presentation of the 2011 CharlemagnePrize, Aix-la-Chapelle, 2 June 2011.

[16] François Hollande, in an interview with Le Monde, 18 October 2012: “L’union politique c’est après, c’est l’étape qui suivra l’union budgétaire, l’union bancaire, l’union sociale.”

[17] François Hollande : “L’Allemagne, plusieurs fois, a dit qu’elle était prête à une union politique, à une nouvelle étape d’intégration. La France est également disposée à donner un contenu à cette union politique (…). Ce n’est plus une affaire de sensibilité politique, c’est une affaire d’urgence.”, introduction by thePresident of the Republicat the press conferenceofMay 16, 2013.

[18]La France et l’Allemagne ensemble pour renforcer l’Europe de la Stabilité et de la Croissance, 30 May 2013,

[19] Cf. T. Chopin and J.-F. Jamet, L’Europe sans les Européens, Libération, 14 December 2012.

[20] Standard Eurobarometer 78 / Autumn 2012.

[21] The expression “permissive consensus” was invented by V.O. Jr., Key, Public Opinion and American Democracy, New York, Alfred A. Knopf, 1961, and was first introduced in relation to European integration by Lindberg and Steingold in their assessment of the support of public opinion for European integration, in Leon N. Lindberg and S.A. Scheingold, Europe’s Would Be Polity. Patterns of Change in the European Community, New Jersey, Prentice Hall, 1991.

[22] See, for example, L. Siedentop, A Crisis of Legitimacy, in Prospect, 2005, or J. Thomassen, Citizens and the Legitimacy of the European Union, The Hague, WWR Web publication, n. 19, 2007. On this point, see also T. Chopin, La crise de légitimité de l’Union européenne, in Raison publique, Presses de la Sorbonne, n. 7, 2007.

[23]For an analysis of the rise of populism in the various EU member states, see A. Laquièze (et. al.), Populismes: l’envers de la démocratie, Paris, Vendémiaire, 2012.

[24] V. T. Chopin L’Europe face à la nécessité de décider: un leadership politique européen est-il possible?, in Rapport Schuman sur l’Europe. L’état de l’Union 2011, Paris, Lignes de repères, 2011; Id. Vers un véritable pouvoir exécutif européen: de la gouvernance au gouvernement, Questions d’Europe, Policy paper of the Robert Schuman Foundation, n. 274, 15 April 2013 and How the EU could overcome its Executive Deficit, Policy Network, May 2013.

[25] We borrow this expression from N. Véron The Political Redefinition of Europe, Opening Remarks at the Financial Markets Committee (FMK)’s conference on “The European Parliament and the Financial Market”, Stockholm, June 2012. Cf. also N. Véron, Challenges of Europe’s Fourfold Union, Hearing before the US Senate Committee on Foreign Relations: Subcommittee on European Affairs, on “The Future of the Eurozone: Outlook and Lessons”, August 2012; and P. Ludlow, Executive Power and Democratic Accountability, Eurocomment, Quarterly Commentary, September 2012.

[26]An inter-institutional agreement is an act adopted jointly by the EU’s institutions in their area of competence by which these govern their means of cooperation or undertake to respect a set of fundamental rules. Inter-institutional agreements are born of the practical requirement of the institutions to specify certain measures in the Treaties, relevant to them, in order to prevent conflict and to adjust their respective competences. Originally they were not part of the Treaties and were formally introduced with the Lisbon Treaty, in article 295 of TFEU.

[27] Except for the EPP-Liberal agreement in 1999 that introduced, for the first time, a partisan split within the European Parliament.

[28]For more details, see T. Chopin and L. Macek, Après Lisbonne, le défi de la politisation de l’Union européenne, in Les Etudes du CERI, n. 165, Centre d’Etude et de Recherches Internationales, Sciences Po, 2010.

[29] Article 13 of the new Treaty stipulates that “the European Parliament and the national Parliaments of the Contracting Parties will together determine the organization and promotion of a conference of representatives of the relevant committees of the European Parliament and representatives of the relevant committees of national Parliaments in order to discuss budgetary policies and other issues covered by this Treaty”.

[30] Y. Bertoncini, Les parlements de l’UE et la gouvernance de l’UEM. Quelle dimension parlementaire pour l’“Union politique”?, Tribune, Notre Europe – Institut Jacques Delors, 11 April 2013.

[31] V. T. Chopin and J.-F. Jamet, La répartition des sièges de député au Parlement européen entre les Etats membres: un enjeu démocratique autant que diplomatique, in Questions d’Europe – Policy paper of the Robert Schuman Foundation, n. 71, 2007.

[32] A simple solution would be to have an MP for X (e.g. 1) million inhabitants with a minimum of one or two MPs per member state.

[33]The German Constitutional Court’s decision on the Lisbon Treaty stresses that the democratic principle applied to a State means the respect of certain conditions that the Union does not fulfil, notably the fact that the European Elections are not undertaken according to the “one man one vote” principle. On this point we might refer to the discussion onLes conséquences du jugement de la cour constitutionnelle fédérale allemande sur le processus d’unification européenne, Fondation Robert Schuman / Konrad Adenauer Stiftung, September 2009.

[34] V. Y. Bertoncini, Europe: le temps des fils fondateurs, Michalon, 2005.

[35] J. Pisani-Ferry has underlined the risk linked to such a fusion/merger, hypothesising a situation which a Commissionerrequestssanctionsagainst a stateandthenchairsthe Councilduring whichthe proposalis to berejectedor accepted. Actually a similar situation exists in the field of competition: the European Commission investigates and decides, under the supervision of the EU Court of Justice. Nevertheless Jean Pisani-Ferry proposes another solution, just as readily envisaged: the creation of an independent budget committee that would make it possible to “extérioriser la surveillance des déficits excessifs en la confiant à une autorité distincte des services de la direction générale des affaires économiques et financières (ECFIN), (…), sur laquelle le commissaire n’aurait pas autorité. La mise en place d’un tel comité budgétaire indépendant libèrerait le commissaire de son rôle de procureur et permettrait alors d’envisager qu’il cumule ses fonctions avec celle de président de l’Eurogroupe.”, in Assurance mutuelle ou fédéralisme: l’euro entre deux modèles, Bruegel, 8 October 2012, available at:

[36] Cf. H. Utterwedde, Coopération franco-allemande: des tensions productives, in T. Chopin and M. Foucher (eds), Rapport Schuman sur l’Europe. L’état de l’Union 2013, Paris, Lignes de repères, 2013.

[37] Cf. P. Ricard, L’Allemagne s’est convertie à une Europe des Etats et à un pilotage économique de la zone euro, Le Monde, 24 June 2013.

[38] Cf. F.-X. Priollaud and D. Siritzky, Que reste-t-il de l’influence française en Europe?, Paris, La documentation française, 2011.

[39] Cf. T. Chopin and J.-F. Jamet, Grande-Bretagne: sortir du dilemme, Le Figaro, 24 January 2013; J.-F. Jamet, Several Europes but which ones ? A proposal to rationalise European Integration, in T. Chopin, M. Foucher (eds.), Schuman Report on Europe. State of the Union 2013, Springer, 2013; T. Chopin “Two Europes”, in Europe in search of a new settlement. EU-UK relations and the politics of integration, London, Policy Network, 2013.

[40] V. J.-C. Piris, The Future of Europe: Towards a Two Speed Europe?, Cambridge, Cambridge University Press, 2012.


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