Why the Conference on the Future of Europe must be followed by an EU-wide referendum in case of treaty change recommendation

2019-12-02 News

With the instalment of the new European Commission on 1 December, the EU institutions are getting ready to develop an agreement on what is foreseen to be the grand project for the upcoming legislative term: the Conference on the Future of Europe (hereafter: Conference). This two-year Conference is meant to involve the EU institutions, civil society and citizens ‘as equal partners’.[1] Furthermore, many see it as a prelude to possible future treaty change. If this Conference is to have political and democratic significance – that is, if it is to be an effective prelude to any possible future treaty change – the EU institutions must make an important commitment at the very start of the Conference: in case the Conference gives a positive recommendation for treaty change, a politically binding EU-wide referendum must be held, asking citizens to support the Conference recommendation for starting a reform of the EU treaties. This article explains why.

The EU treaty under which we currently operate – the Lisbon Treaty – has come into force exactly ten years ago, on 1 December 2009. Since then, the topic of comprehensive treaty change has not been seriously considered within EU political circles – and for understandable reasons. The process that led to the Lisbon Treaty has been a traumatic experience for many EU believers. The process started with the Laeken Declaration in December 2001, establishing the European Convention, and it has taken eight long years for a new treaty to come into force. During these eight years, there have been 6 national referendums on the ratification of proposed treaty changes, three of which were negative (in France and the Netherlands in 2005, and in Ireland 2008). No matter how traumatic this experience may have been, any responsible European must recognize that the question of treaty change cannot be ignored forever. Angela Merkel recognized this publicly as early as 2011: “A community that says, regardless of what happens in the rest of the world, that it can never again change its ground rules, that community simply can’t survive. I’m convinced of this.”[2]

The Conference on the Future of Europe in light of the reignited debate on treaty change

A decade after the Lisbon Treaty came into force, the question of treaty change is a serious topic of discussion once again. The general logic with which the EU institutions are currently approaching the Conference of the Future of Europe makes sense in the light of this discussion, for two reasons: firstly, unlike the Convention of the early 2000s, the EU institutions aim to involve citizens from the very start in this process that may eventually result in treaty change. The fact that the EU institutions are seriously considering ways to involve representative samples of randomly selected EU citizens is a further sign that the EU institutions are learning from past mistakes when it comes to citizens’ engagement. Secondly, the EU institutions approach the question of treaty change with an open mind, not pre-empting the outcomes of discussions among citizens and with politicians. That is to say, unlike the European Convention of the early 2000s, the Conference on the Future of Europe is not directly meant to prepare treaty change, but it will serve the purpose of exploring the need for and interest in treaty change. The difference is subtle yet meaningful. The raison d’être of the Conference will be to identify, deliberate and agree on the strategic objectives for the EU for the next five to ten years. The question of the desirability of treaty change is only of secondary relevance, as it concerns the degree to which treaty change is necessary in order to fulfill the identified strategic objectives.

Even if citizens participating in the Conference do not care so much about the question of treaty change per se, they do care about the extent to which the EU will deliver on the strategic objectives identified during the Conference. They want to see that their own input has an impact on the output of the Conference, and they want to see that the output of the Conference has a clear and visible impact on the follow-up process. Because why else participate in the Conference? In order to prevent the Conference from turning into a ‘talking shop’, the interinstitutional agreement on the Conference should clearly specify how the output of the Conference will be followed up on. More specifically, the output of the Conference should have a significant and binding impact on the follow-up process. Hereby we need to differentiate between the recommendations that can be implemented within the current framework of the treaties, and recommendations requiring treaty change. When it comes to the former category, the EU institutions need to commit towards implementing the Conference recommendations, which involves a commitment from the Commission to develop legislative proposals and a commitment from the European Parliament and the Council to adopt a constructive attitude in the way that these proposals are subsequently reviewed and amended, before being turned into legislation. The question of follow-up on the second category of recommendations is arguably more complex.

Why the decision to start treaty change cannot be left to the European Council

According to the non-paper by the German and French governments, “the final document with recommendations should be presented to the EUCO [European Council] for debate and implementation.”[3] This formulation may sound strong, but it is sufficiently vague for the European Council to retain all discretionary power in its evaluation of the results. This is not acceptable. While formally speaking only the European Council can make the decision to start an official comprehensive treaty change procedure, as laid down in Article 48 of the Treaty on the European Union, we need to find a way to deal with a possible Conference recommendation for treaty change that is democratically satisfactory and politically effective.

If the European Council were to retain all discretionary power in assessing a Conference recommendation for treaty change, neither of these two conditions would be met. It would not be democratically satisfactory, because the European Council currently already has the possibility to decide on starting a treaty change procedure. A possible Conference recommendation for treaty change would not change anything in the way the decision on starting the treaty change procedure is taken. This would reduce the Conference to being a ‘talking shop’ when it comes to the discussion on treaty change, greatly limiting its political significance for politicians and citizens alike. However, not only would this option for deciding the treaty change question not be democratically satisfactory, as perceived from the perspective of the Conference and its impact, it would arguably also lack political effectiveness, in terms of its capacity deliver on the promise of treaty change. That is to say, in case the Conference recommends treaty change, and the European Council decides to follow this recommendation and to start the official procedure, this does not mean that such a decision carries sufficient political capital and popular support to lead to the effective implementation of the Conference recommendation for treaty change. The official process towards treaty change is lengthy, and the final proposal for treaty change does not only require the unanimous support of all the Heads of State and Government of the EU and their national parliaments, Ireland will also be constitutionally obliged to hold a referendum on it. Similarly, quite a number of other national governments would be under pressure to hold a national referendum on treaty ratification as well – the times of permissive consensus towards European integration are over. In other words, if the decision to start a treaty change procedure were to be taken by 27 or 28 people only – the members of the European Council – it is highly likely that the EU will face another constitutional crisis soon, like in 2005 and 2008. The fact that people will have had the chance to participate in the Conference, and thus to shape the Conference recommendation on treaty change, and indirectly the European Council decision to a start treaty change, will not be enough to develop the broad popular ownership that such a decision needs in order to result in the successful development and implementation of a treaty for our Union.

Why the European people must authorize any possible future attempt at treaty change

The only viable alternative to this trajectory is to subject any possible future Conference recommendation for treaty change to a popular vote, asking all EU citizens to support the reform of the treaties along the lines proposed by the Conference. The European Council, in turn, should commit itself to respecting the outcome of such an EU-wide referendum, and to start the official treaty change procedure if requested by the European people. This would be democratically satisfactory, as the presence or absence of a Conference recommendation for treaty change would make a clear and visible difference in the follow-up process: a positive Conference recommendation would automatically result in an EU-wide referendum. Even if the European people decide not to follow the Conference recommendation, the Conference would have been given a fair chance of impacting the decision on treaty change. Additionally, an interinstitutional commitment at the very start to hold an EU-wide referendum in case of a positive Conference recommendation for treaty change would create an incentive for anyone involved in the organization of the Conference to design the process in a manner that is as open and inclusive as possible, so that any possible recommendation coming out of it already counts on a great amount of political, popular and stakeholder support. In addition to the fact that this option would allow for a democratically satisfactory conclusion of the Conference, it would also maximize the chances for any decision to start treaty change to be politically effective. If the European Council is given an EU-wide popular mandate for pursuing treaty change, it greatly enhances its chances of getting a final proposal for treaty change passed the ratification hurdles. It would enable the European people to take some ownership of the treaty change process, which is a precondition for a positive assessment of the final result.

It may sound crazy to some to make something as seemingly distant from people’s everyday’s concerns – the decision on revising the EU’s constitutional framework – the subject of an EU-wide popular vote. However, it is not that unprecedented: in 1999, the Swiss Canton of Zürich held a referendum on whether or not to have a comprehensive reform of its constitution. The proposal to start a constitutional reform passed, and so did the proposed constitutional changes in a second and final referendum in 2005.[4] Additionally, only very recently, the Chilean parliament decided to hold a referendum on whether or not to change its constitution, following the demand of protesters.[5]

If these examples do not offer sufficient proof that an EU-wide referendum on the question of treaty change is possible, and that it is the most sensible way of deciding on the follow-up of a Conference recommendation for treaty change, one must answer the question: what is the alternative? If the EU is ever able to change its ground rules again, it must find a way of involving citizens in radically new ways. If the Conference on the Future of Europe is to feed into the EU’s strategy of doing treaty change differently, then there must be a clear connection between the outcomes of the Conference and the possible start of an official process of treaty change. An EU-wide referendum is the only effective and democratic means to make this connection.

[1] https://ec.europa.eu/commission/sites/beta-political/files/political-guidelines-next-commission_en.pdf

[2] https://www.reuters.com/article/us-eu-treaty/analysis-eu-risks-reopening-pandoras-box-with-treaty-change-idUSTRE7AF1BM20111116

[3] https://www.politico.eu/wp-content/uploads/2019/11/Conference-on-the-Future-of-Europe.pdf

[4] http://www2.zhlex.zh.ch/appl/zhlex_r.nsf/0/C1256C610039641BC12567F500415B7A/$file/102.pdf

[5] https://www.aljazeera.com/news/2019/11/chile-agrees-hold-referendum-constitution-5-191115221832042.html