TREATY CHANGE

The current treaty says that treaty amendments shall be agreed in an intergovernmental conference “by common accord” of all the member states [50].  The Spinelli Group would put the onus for drafting the revised treaty on to the shoulders of the Convention, working by consensus [51].  We would only retain unanimity at the level of the European Council for a decision to reject an amendment proposed by the Convention. 

The EU has mounted two Conventions. The first, under the presidency of former German Federal President Roman Herzog, in 1999-2000, drafted the Charter of Fundamental Rights. The second, in 2002-03, led by former French President Valéry Giscard d’Estaing, drafted the constitutional treaty that failed to be ratified in 2005 but out of which came the Treaty of Lisbon. Composed of representatives of each of the EU institutions and national parliaments, both Conventions took on a dynamic of their own and entered into free discussion of complex constitutional issues, in public, over a period of several months. Unlike the closed diplomatic forum of the inter-governmental conference, good ideas surfaced, bad ideas sank, and no government was able to wield a veto. The Convention method is a proven success and can now be developed as the normal way to conduct constitutional business in the EU. 

To the Convention membership already foreseen in the treaty, we would add a formal representation from the EU’s Committee of the Regions. The power of Europe’s cosmopolitan cities is rising, asserted in counterpoint to Europe’s nation states: it is right that this civic phenomenon is reflected in the Union’s constituent process. Regional parliaments with legislative powers also find their place in the Committee of the Regions, and can bring to the Convention their unique experience of subsidiarity in practice. 

When it comes to ratification of future treaty revisions, the Spinelli Group proposes that the European Parliament obtains the right to vote its consent before the amended treaty is sent to be ratified by member states in accordance with their own constitutional requirements. 

Most importantly, future treaty amendments must be enabled to enter into force once they have been ratified by only four-fifths of the Union’s states, representing three-quarters of the population [52].  This change will prevent future treaty revision from being held up, as has often occurred in the past, by only one or two states. It will also bring the EU into line with all other federations and comparable international bodies: it is obvious that any large organisation exposes itself to debilitating chronic paralysis when it can reform itself only by rigid unanimity. An important precedent has been set when the European Council has shown flexibility with respect to the entry into force (albeit outside the framework of Union law) of the treaties establishing the European Stability Mechanism treaty and the fiscal compact treaty [53].  Member states which ultimately baulk at accepting the amended treaty should have the option, besides secession, of associate membership [54].

The treaties’ current ‘simplified revision procedure’ that may apply to the internal policies and action of the Union still requires unanimity at the level of the European Council [55].  As mentioned above, we propose to ‘deconstitutionalise’ such amendments and render them subject to organic law.   

Unanimity in Council should be reserved for the decision to enlarge the Union’s membership, subject to the consent of the European Parliament, acting by an absolute majority [56].  The European Council has established three criteria specifying the terms and conditions of enlargement that could now usefully be inserted into the treaty [57].  New member states must be able to demonstrate:

  • stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
  • a functioning market economy and the ability to cope with competitive pressure and market forces within the EU;
  • the ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the 'acquis'), and adherence to the aims of political, economic and monetary union.

For EU accession negotiations to be launched, a country must satisfy the first criterion; to be concluded, all three. As with treaty revision, a new state should be admitted to membership once its accession treaty has been ratified by four-fifths of the member states comprising three-quarters of the population. 

[50] Article 48(4) TEU.
[51] Article 48(3) TEU.
[52] Article 48(5) TEU.
[53] See page 25.
[54] See page 19.
[55] Article 48(6) TEU, applying to Part Three of the TFEU. 
[56] Article 49 TEU.
[57] The criteria were first elaborated at Copenhagen in 1993 and then strengthened at Madrid in 1995. 

 

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