Year L, 2008, Number 3, Page 186
Overcoming the Intergovernmental Conference Method in the Reform of the Treaties: What Further Steps Towards a Constituent Phase are Possible?*
1. What remains of this latest stage in the process of European unification
Even though it is not completely over, the phase in the process of European integration that began with the Laeken Declaration of 2001 is now near enough completion to be ripe for an overall evaluation.
Regardless of the eventual outcome of the Treaty of Lisbon, signed on 13 December 2007, it is now time to start thinking about “what comes next”. After all, we know from experience that just as one intergovernmental agreement is being signed, thoughts are already turning to the next reform.
Leaving aside the important recommendations made by the Convention, which were progressively watered down by the governments into the decisions on which the Treaty of Lisbon was ultimately based, the really novel aspect of this attempt to reform the European Union lies in the fact that it stemmed from a realisation of the limits of the intergovernmental conference (IGC) method, and used the Convention in a clumsy attempt to overcome them. The Convention can, in fact, be seen as an expedient to confer democratic transparency and decision-making capacity on the IGC method. Yet, in the end, the “Laeken model” not only retained the old IGC method in the decision-making stage, but also exposed all the limitations of the Convention, which derive from its lack of democratic legitimacy: the Convention failed to engage public opinion in a real debate, opted for a decision-making method (consenus) typical of diplomatic negotiations rather than insisting on a parliamentary-style mode of operation, and allowed the representatives of heads of state and government to dominate the proceedings.
Nevertheless, it has to be acknowledged that the decision to entrust the first stage in the process of reviewing the Treaties to a body like the Convention, quite apart from being perhaps the most that was possible without modifying the existing Treaties, constituted an important element of innovation in the method of reforming the EU’s founding Treaties, perhaps the most important that, after scrutiny of this latest stage in the process of unification (now drawing to a close), can be seen to remain.
It is thus this “half-step forwards” (whose effects have since been reduced by a series of small retreats) that we need to take as our starting point for analysing, in particular from the perspective of their procedural mechanisms and legal sustainability, the possible future evolutions of the process of unification. The question of the political will needed to support the project falls outside the scope of this analysis; it is a pre-legal requirement that must be assumed to be present. On the other hand, legal sustainability of the project itself, while not absolutely essential in the face of an overwhelming “revolutionary” political will, can at least facilitate its affirmation by countering some of the arguments that are mounted against it. As the great federalist jurist Piero Calamandrei put it, seeing that a thing is possible makes it easier to choose to do it, given that being able to facilitates wanting to,more than the other way round.
2. Thinking about what comes next.
Since the need to strengthen Europe’s political unity is a topic likely to come to the fore in the coming years — it is certainly to be hoped that it will —, now is probably not too soon to start reflecting upon the legal feasibility of the different hypotheses that, taking into account the political framework in which they will be set, might be advanced.
However, we need to start with a few preliminary considerations.
First of all — this is a prevalently political affirmation —, it is now an accepted fact that deeper political integration of the EU cannot be achieved through Treaty reform by 27 member states.
Here is not the place to examine the possibility of using enhanced cooperations (as provided for either by the Nice Treaty or by the subsequent draft treaties) as a means of pursuing deeper integration, given that the considerations I set forth in this paper refer to a unification scenario so advanced that an overcoming of the Treaties in force, of the Lisbon Treaty (currently in the process of being ratified), and even of the now historical Treaty establishing a Constitution for Europe, has to be taken as read. Nevertheless, it seems undeniable that enhanced cooperations could — within the current framework of the Treaties — serve as an important instrument for advancing the process of European unification. At the same, however, we cannot ignore their limitations, which concern their very feasibility, the risk of the process of integration becoming fragmented into a number of different cooperation agreements each entered into by different sets of countries (the so-called Europe à la carte), and their real capacity to allow the exercising of genuine supranational power, overcoming the Community method.
While, on the one hand, the difficulty of promoting political integration in the 27-member EU is widely acknowledged, on the other, it has to be appreciated that the EU is now such a well-established reality that it is practically unthinkable that a hypothetical core group of states set on pursuing unification might actually be willing to “go it alone”, unilaterally excluding the other members of the EU that do not share their intention; equally, it seems highly unlikely that a hypothetical minority of states unwilling to contribute to a deepening of the European unification process would ever resign themselves to withdrawing from the European Union.
In outlining possible ways of restarting the process of European integration, it is therefore necessary to try and marry two elements, in some ways antithetical to each other:
a) the possibility (likelihood) that only some of the member states would be willing to pursue political integration;
b) the need to preserve the bond, deriving from the current Treaties (or, rather, from the Treaty currently being ratified), that exists between the states that intend to go ahead with deeper integration and those that do not.
Another preliminary consideration concerns the best institutional instrument for moving us a step closer to political integration. It is time to leave the experience of the European Convention behind us, while nevertheless adopting an approach similar to the one it used: that of entrusting an ad hoc assembly — as regards the composition of this assembly there are different possible solutions that can be considered — with the task of discussing and approving the founding act of a politically united Europe. To avoid the limitations of the Convention, which (negatively) affected its work, this assembly would have to enjoy greater, and possibly direct, democratic legitimacy; in other words, it would have to be elected (in part at least) directly by the citizens of the participating states, at the end of an election campaign that had centred on the mandate to be given to the assembly.
3. The possible solutions.
There are a number of different procedures, each with its own particular characteristics, that could be implemented in order to arrive at the creation of an ad hoc assembly, preferably in part elected by the citizens. And all of them have to reckon with a series of questions, such as: 1) On what legal basis can the procedure be launched and regulated? 2) How would the procedure fit in with current Community law? 3) How and when would it be necessary to determine which countries are to be part of the project? 4) How and when would it be necessary to decide the best way of regulating relations between the entity that might arise from the quest for deeper political integration and the existing European Union?
Some hypotheses depend on a “stretching” the terms of art. IV-443 of the old draft Constitutional Treaty — now art. 48 TEU as amended by the Treaty of Lisbon. The idea, basically, is to convene (possibly through a simple majority vote by the Council) a new convention, which, however, would have different powers and a different composition from the one provided for by the abovementioned article.
One suggestion is to convene a “constitutional convention”. In this scenario, the convention would serve as a theatre of debate between the European Parliament (EP) and the national parliaments, but also of joint decision-making between the parliaments and the governments, given that the parliamentary representatives would have to be put on a par with the government representatives. This joint decision-making process between parliamentary and government representatives within the convention would basically eliminate the need for IGCs. There would then follow a ratification stage, in which a special clause would make provision for a voting system other than unanimity.
Others suggest that the convention should no longer be composed as dictated by the terms of the ordinary revision procedure (art. IV-443, now art. 48 TEU), and that it should be elected during European Parliament elections. The decisions of this ad hoc convention-cum-assembly would then have to be adopted by the governments and possibly ratified by a European referendum. States not wanting to adopt them could, through recourse to the old art. I-60 (now art. 50 TEU as amended by the Treaty of Lisbon), leave the thus modified EU. In this case, withdrawing states would have to negotiate the terms of their new relationship with the EU.
Although these procedures try to adhere to the framework of original Community law, both are actually departures from the Treaty rules on the convening of conventions/IGCs.
They present a number of limitations. First of all, it would be difficult to justify the convening, by a majority decision, of a “constituent” convention, or specially “transformed” ad hoc assembly. States opposed to starting a process of Treaty revision would certainly not agree to derogations from the TEU’s provisions on the composition and powers of the convention — derogations that, moreover, seem admissible only if decided by unanimity. Furthermore, in this context, countries that had, from the outset, opposed the pursuit of deeper political integration — this would be the essence of the mandate, probably proposed by a few states and/or the Commission and/or the EP — would end up participating in the convention or assembly only in order to delay its progress, or they may even openly boycott it. At the end of the whole procedure, the states opposed to greater unification, should they be in the minority, would be obliged, albeit after negotiation, to abandon the Union. And this would probably be considered an unacceptably high price to pay, even by the states in favour of unification.
Furthermore, the “constituent convention” would not be able to confer true democratic legitimacy on the process, or to engage public opinion in proper debate of the question.
Another possible solution envisages an essentially political agreement between, on the one hand, the states wanting to embark on a process leading to greater unification and, on the other, the rest. This agreement, which would be reached upon the emergence of a split over the convening of a convention with greater powers and/or after the presentation (probably by the EP) of a particularly innovative Treaty revision programme, could be set out in a European Council declaration — in the manner of the Laeken one — which would make provision for the election (or nomination) of an ad hoc assembly comprised solely of representatives of the states willing to accept the mandate that the declaration itself would define. At the same time, however, the declaration should outline the conditions that would govern relations between the legal entity that might spring from the work of the assembly and the existing EU, also making provision for the convening of an IGC to make any necessary changes to the TEU (e.g. in relation to common organs).
This solution, which would have a very weak basis in Community law, would be based on a unanimous agreement on the assembly’s mandate and on the way to manage the co-existence of the EU (which would not disappear) with the new entity that might be created. On the other hand, the fact that the pro-unification states would already have been identified at the time of the drawing up of the mandate would facilitate constructive management of the ad hoc assembly. Preferably, in this setting, there should also be an IGC which would work out, in detail, the terms of the co-existence of the two entities, on the basis of the preliminary agreement ratified by the European Council when it defined the assembly’s mandate.
A final possibility is that of convening the ad hoc assembly (or constituent body) entirely outside the framework of the European Treaties. This approach would allow interested states to sign an agreement among themselves to define the assembly’s mandate and procedures; later, upon completion of the work of the assembly, they would be required to decide, definitively, whether or not to be part of the entity springing from it. Part of the mandate could indeed be to define the relations between the new entity and the European Union.
This procedure would lie entirely outside the realm of Community law, but would not enter into conflict with it; in addition, it would presuppose the existence of a very strong political will on the part of the states promoting the initiative, which would have to be prepared to shoulder, by themselves, the responsibility both for bringing about the split with those countries that, despite having been invited to take part (or even after having taken part) in the first stage of the negotiations, should decide not to subscribe to the “basic” agreement, and also for managing relations with the EU, which these countries would continue to be a part of. It is a procedure that (albeit adjusted somewhat) is based on a model originally conceived of at a time when the process of European integration had not even begun. But it seems a difficult avenue to pursue today, when the highly structured and enlarged EU, even though it provides evidence of the success of the process of European unification, constitutes an obstacle to be negotiated.
On initial appraisal, all the different procedures outlined here have merits and defects, and thus none of them can be discarded a priori. However, the solution that appears worthy of more detailed examination is the one based on the establishment — as soon as the two sides manifest their differences, and thus before the start of a true constituent phase — of an agreement between the states intending to proceed in the direction of political unification and all the others. Indeed, this solution gets round the limitations of the previous Convention, and those inherent in a unilateral split from the rest of the EU.
This picture of the solutions upon which we might reflect is not exhaustive and it needs to be adapted to new and changing situations (one might think, for example, of the role of the EP after 2009). These solutions are hypotheses that, leaving aside judgements on their legal admissibility, or otherwise, are positive or negative not in themselves, but in relation to the political framework in which they will be debated.
* This paper is a reproduction (updated, slightly extended and briefly annotated) of the oral presentation given on October 12, 2007, in Forlì, at the meeting “L’attualità del pensiero di Altiero Spinelli nel centenario della nascita” (“Altiero Spinelli: the topicality of his thought a hundred years after his birth”) .
 See P.V. Dastoli, “Chi ha paura del super-Stato europeo”, in Il Mulino, 4/2007, p. 738; in more general terms, it has been noted, correctly, that the period since the Single European Act has been characterised by a permanent or semi-permanent process of revising the Treaties (see, M. Cartabia, “Riflessioni sulla Convenzione di Laeken: come se si trattasse di un processo costituente”, in Quaderni costituzionali, 2002, p. 443; see also U. Draetta, “Europe in 2002”, in The Federalist, XLII (2002), p. 76).
 On the Convention, see, among many possible sources, F. Clementi, “La Convenzione sull’avvenire dell’Europa: il mandato, l’organizzazione, i lavori”, in F. Bassanini and G. Tiberi (editors) Una Costituzione per l’Europa, Bologna, Il Mulino, 2003, p. 23 onwards.
 This has been underlined by P.V. Dastoli, op. cit., p. 738; S. Pistone, “Solo con il superamento dei veti nazionali si avrà una Costituzione europea”, in Piemonteuropa, n. 1/2 June 2007, p. 2.
 My critical views on this topic are set out in more detail and, above all, with reference to far more authoritative opinions expressed on this topic, in S. Aloisio, “Attualità delle riflessioni di Piero Calamandrei sul procedimento costituente europeo”, in A. Landuyt and D. Pasquinucci (editors), L’Unione europea tra Costituzione e governance, Bari, Cacucci, 2004, p. 102 onwards, and id., “Da Amsterdam a Laeken: la Convenzione europea”,in press in L.V. Majocchi (editor), L’Unità europea: ieri, oggi, domani. Le radici storiche, le ragioni e le prospettive politiche di un possibile rilancio europeo dopo la mancata ratifica della Costituzione, in Francia e Paesi Bassi. Congress Proceedings, Pavia, 30 November – 1 December 2006.
 P. Calamandrei, «Disegno preliminare di federazione mondiale – Presentazione” (1949), now in N. Bobbio (editor) Scritti e discorsi politici, I, 2, Florence, La Nuova Italia, 1966, p. 466, affirms: among the other factors that can lead men to want, there is also that of persuading them that, should they wish, the practical difficulties in the way of their goal are not insurmountable. The motto to want to is to be able to is more true the other way around: to be able to is to want to.
 This is a view now so widespread among politicians and commentators on European politics, etc. that there is no need for any citation, even purely by way of an example.
 For a comment on what is provided for by the Treaty establishing a Constitution for Europe — a text that remained substantially unchanged, even after the Lisbon Treaty — see G. Tiberi, “Le cooperazioni rafforzate”,in F. Bassanini and G. Tiberi (editors) La Costituzione europea, Bologna, Il Mulino, 2004, p. 191 onwards.
 The limitations of enhanced cooperations are highlighted by R.A. Lorz, “The Feasibility of a United States of Europe in an Enlarged European Union”,in The Federalist, XLVIII (2006), p. 158 onwards, and by G. Rossolillo, “Federal Core and European Union”, ibidem, p. 197 onwards.
 In this regard, see S. Pistone, op. cit., p. 3.
 P.V. Dastoli, op. cit., p. 739, talks of “an extraordinary application” of art. IV-443 of the Constitutional Treaty; this application was also retained in the text approved in Lisbon.
 The references are to the consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, n. C 115, on 9 May 2008.
 This is discussed by G. Montani, Relazione alla direzione del 15 settembre 2007, in www.mfe.it , p. 2.
 See P.V. Dastoli, op. cit., p. 739.
 The use of the referendum as a means of legitimising the process of European unification is another topic that cannot be touched upon here, but we can refer readers, once again, to S. Aloisio, “Legittimazione democratica del processo costituzionale europeo e strumento referendario”,in D. Preda (editor) L’Europa agli albori del XXI secolo, Bari, Cacucci, 2006, p. 375 onwards.
 The need to guarantee compatibility of different levels of integration has long been a focus of reflection. See, in this regard, A. Padoa Schioppa, “European Union and European Community: Two Incompatible Institutional Systems?”, in The Federalist, XXX (1988), p. 201 onwards, and id. “Notes on Institutional Reform of the EEC and on Political Union”, in The Federalist, XXXIII (1991), p. 62 onwards, but in particular p. 70.
 On this point, see L.S. Rossi, «Gli Stati Uniti nell’Europa»,in 301 - 16.06.06 www.caffeeuropa.it/unione/301rossi.html.
 In different ways, it is in fact reminiscent of Calamandrei’s proposal, presented in the lecture on the convening of a European constituent assembly which he gave at the international congress of Union of European Federalists, held in Rome from 7-11 November 1948, see P. Calamandrei, “La convocazione dell’Assemblea costituente europea” (1948), now in Scritti e discorsi politici, cit., p. 440 onwards.