TOWARDS A STRONGER UNION: WITH OR WITHOUT TREATY CHANGE?

JULIE SMITH PROFESSOR, DEPARTMENT OF POLITICS AND INTERNATIONAL STUDIES, UNIVERSITY OF CAMBRIDGE

As it entered its eighth decade, the European Union (EU) faced a series of unprecedented challenges. One large country had just left and others sought to challenge the underlying principles that had shaped the integration process since its inception, namely democracy and the rule of law. Meanwhile, the Union was facing the challenge of the COVID pandemic, which raised questions of competence and effectiveness; health is not an EU competence, yet the consequences of COVID were not just about health—they were in part economic—and they clearly went beyond borders. Brexit, democratic backsliding and COVID all impacted the EU in different ways and all stand to have consequences for the Union as it looks to the next decade and beyond. Brexit was a turning point that offered the possibility of further integration and a stronger Union, or disintegration and a weaker entity; democratic backsliding provides an unambiguous and intentional challenge to the Union, making it weaker; reform of practice and perhaps the treaties is needed to strengthen the Union in the face of these attitudes; by contrast, the response to COVID provides some grounds for optimism that the European Union stands to integrate further. Substantive reform to increase the formal powers (or “competences”) of the EU typically necessitates treaty change. Thirty years’ experience since the ratification of the Maastricht Treaty have proved how difficult this can be to achieve, given the widely divergent interests and preferences of the EU’s Member States and, crucially, the fact that treaty reform can only be decided by unanimity among the Member States. These factors have ensured such reforms have remained off the agenda since the Lisbon Treaty came into effect in November 2009.54 This contribution explores the competing pressures favouring more or less integration posed by backsliding and the COVID crisis, as well as the difficulty of securing treaty change even without the UK as the Union’s long-standing “awkward partner.”55 While Brexit highlighted the ability of the 27 to speak with one voice, quite at odds with some who feared or hoped that Brexit might lead to the collapse of the Union, the nature and difference of the 27 Member States constituting the European Union in the 2020s is such that further integration remains challenging and the prospect of securing treaty reform is quasi impossible, owing to the fact that revision of the treaties can only be ratified by unanimity.

The first of January 2021, almost 70 years after the founding Treaty of Paris establishing the European Coal and Steel Community had originally been signed, marked the first day of a new era. The Europe of 28 had been reduced to 27, with the final departure of the United Kingdom marking the end of a protracted process of withdrawal, commonly dubbed “Brexit.”56 For the first time a fully-fledged Member State had left the postwar organisation that had been created with the vision of ensuring peace and security in Europe. The aims

54  Danish voters initially rejected the Maastricht Treaty in 1992, while the Irish voted against the Nice and Lisbon Treaties. In all three cases, the results were overturned in second referendums and the treaties came into effect. By contrast, the Constitutional Treaty failed in 2005 when by French and Dutch citizens voted resoundingly against it. 55  This term was coined by Stephen George many years ago. 56  The UK formally left the EU on 31st January 2020 but was in a transitional phase outside the institutions but inside the single market and customs union until 31st December 2020.

and ambitions of both founding states and latecomers were similar: to ensure stability and security for their citizens through what Karl Deutsch called a “security community.”57 By building mutual trust, alongside pooling resources, the sort of border disputes that had triggered centuries of conflict across Europe would cease. The initial results were positive and contributed to calls to expand, driven not by expansionist zeal among the existing members but from other states seeking the perceived benefits of membership. From an initial Community of six West European states, the Union would expand to the north-west, south, and east as a variety of domestic and international changes swept the continent.

Over the years a variety of factors underpinned the existing Member States’ decision to expand the Union. One factor in particular was to prove crucial both to decisions to expand and the evolving political landscape in Europe, namely the hope of consolidating democracy in fledgling democracies, initially those emerging from right-wing dictatorship— Greece, Spain and Portugal in the 1980s. After the collapse of Communism in Europe, a significant group of Central and Eastern Europe states in transition followed a similar path towards liberal democracy and EU membership. For the existing Member States there was a clear interest in having stable neighbours that would not look east to Russia for their security or ideological guidance.58 For the elites leading the transition in southern and Central and Eastern Europe, there was an equal interest in securing membership of the “club,” in part for the economic benefits they anticipated, but also to embed their transition into the Western comity of nations, a widely articulated wish in Central and East European states that desired a “return to Europe.” The apparently magnetic attraction of the Union was beneficial to newcomers and established members alike, as the latter demanded that would-be members commit themselves to a number of criteria, including respect for the rule of law and minority rights, and that they should be functioning democracies. Under these so-called Copenhagen criteria, the EU set the rules of engagement for states seeking membership to reflect the norms and values of the EU.59 Rhetorical commitment to these ideals alone was not sufficient: through the carefully elaborated enlargement process, the European Commission would rigorously review not just governments’ stated commitments to meeting the criteria but the actual practices in the country, seeking to ensure that newcomers genuinely met the requirements of membership rather than merely paying lip service. Failure to do so would ensure they remained as candidates sometimes, as the case of Turkey most visibly highlights. Indeed, candidates from Central and Eastern Europe were held to far higher standards than existing members, whose democratic or other credentials could not be monitored or censured.

The European Commission hailed enlargement as the Union’s best tool of foreign policy, enabling it to effect change in neighbouring states, thereby fostering a more stable region. Conditionality was explicit, the carrot of membership providing sufficient incentive

57  Karl W. Deutsch [et al.]: Political Community and the North Atlantic Area: International Organization in the Light of Historical Experience. Princeton University Press, Princeton (NJ), 1957. 58  In the 1980s there was still concern about the threat of Communism even in Western Europe, particularly in Spain. 59  There were other criteria, including on administrative and judicial capacity and the having a functional market economy, but it is the first criterion relating to democracy that is most germane to the current piece.

for most leaders to bring about change domestically. Such change was expected to be irreversible. There was an implicit assumption that after accession states would become ever more embedded into the process of integration, and that (liberal) democracy would become ever-more deeply embedded domestically, as had been the case in the erstwhile Mediterranean dictatorships, Spain, Portugal and Greece, whose membership could be counted a great success in terms of democratic consolidation. Little thought was given to the idea that states might in fact drift away from the European norms and values to which they had appeared so committed during their quest for membership, that leaders might only have been paying lip service to the Copenhagen criteria or that their successors would simply reject the aims and ambitions espoused by the proponents of joining Western institutions. There are few sanctions against those who do, legally or in practice. The introduction of Article 7 of the Treaty on European Union (TEU) initially in the 1997 Treaty of Amsterdam, which allows for members to be suspended if they breach the norms and values enshrined in Article 2 of the TEU, 60 does not provide the same sort of leverage for the Commission against Member States as it enjoys vis-à-vis candidate states, or indeed the sort of leverage it wields vis-à-vis withdrawing Member States.61 States can be suspended if they are found to be in breach of Article 7 but this has never happened, not least because of the unanimity requirement; there is no power to expel a Member State and, indeed, it could prove counter-productive to introduce such a provision even if it were likely to secure agreement. After all, one can only imagine the publicity that a leader such as Orbán would secure if Hungary were to be suspended, nevermind expelled from the Union. Equally, the European-level political parties have been reluctant to expel member parties deemed in breach of their norms, with Hungarian Fidesz Party for many years a member of the European People’s Party, despite its widely divergent ideology.

The upshot of the rapid enlargement at the start of the 21st Century is that, two decades on, the European Union is less integrated than proponents of enlargement had hoped, and the very values underpinning the process are contested, leading to fears of disintegration. The criteria that were intended to ensure that newcomers could survive and thrive in the EU were also intended to protect the EU itself from a race to the bottom or any sort of implosion. The practice was rather different. In particular, two of the Union’s poster-children of the post-Communist transition, Poland and Hungary, have become the most vocal critics of European norms and values, with Poland in particular challenging the role of the Court of Justice of the European Union (CJEU) and its purported incursions into national sovereignty, putting it on a collision course with both the EU and Polish citizens, and leading to concerns

60  Article 2, Treaty on European Union states: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail.” Source EU-LEX. 61  It became clear during the four and a half tortuous years between the UK’s vote to leave the EU and its final departure that the EU-27 could set the agenda for withdrawal negotiations, just as they do for countries seeking to join. States seeking to join or leave the Union are equally seen as “demandeurs,” always on the back foot compared with the core membership.

of Polexit—a Polish departure from the Union.62 While this prospect was swiftly dismissed in Poland, it was nonetheless indicative of a drift in opinion in many EU Member States regarding the relationship between EU and domestic law, representing a challenge to the long-standing CJEU ruling that the former has primacy over the latter, first argued in the landmark Costa v ENEL case of 1964. British Eurosceptics had long criticised the Court and even former EU Commissioner Michel Barnier targeted it for criticism in September 2021 in a pre-election speech in France that invoked the spectre of national sovereignty in the vein of Eurosceptics across the continent. Nonetheless, the sole backer of the Polish Court’s decision seemed to be Hungarian Prime Minister Viktór Orbán, whose own journey from a young liberal in the post-Communist period to authoritarian nationalist leader leaves him almost isolated in Europe, advocating as he does “illiberal democracy” in a clear and intentional snub to the rest of the Union. His strong showing in national elections ensures, however, that he can claim to be representing Hungarians and to have a democratic mandate, even if his preferences are a far cry from those he and others appeared to embody during transition. Poland and Hungary’s apparent rejection of the norms and values of the EU are not identical, or even unique. There are concerns, for example, about possible backsliding in Romania, Bulgaria and Czechia, not to mention the language used by the rotating President of the EU, Slovenian PM Janez Janša, even if none of these cases seem directly to challenge the future of the European Union. What is unique about the Polish and Hungarian cases is the willingness of these two states to back each other in the face of criticism from other Member States, the EU institutions or even international condemnation, which highlights a major problem for the EU: under Article 7 (2), any decision that a state breaches Article 2 of the Treaty on European Union has to be made by unanimity among the rest of the European Council members; Poland and Hungary can simply block any such determination by the remaining 25 Member States. The unanimity rule presents a major problem for ensuring the integrity of European values, especially respect for the rule of law. A similar issue prevails in the process of treaty reform, which also requires unanimity of all 27 Member States, thereby rendering reform hard to achieve, especially if the proposal were, for example, to entail provisions to sanction countries that deliberately defect from European norms. Any state, large or small, can effectively block reform, whether at the time of negotiation or through the ratification process. During negotiations it may be possible to persuade smaller and poorer Member States to concede on specific points in return for financial or other benefits. At the time of ratification when either a national parliament or the citizens directly in a referendum might reject the proposed treaty, such trade-offs are less feasible. In practice, no national parliament has succeeded in blocking treaty reform to date but the citizens have, most clearly in the French and Dutch rejections of the Constitutional

62  See in particular ruling of the Polish Constitutional Tribunal on 7th October 2021, which put Poland on a collision course with the EU, notably the leaders of France and Germany, and led to mass protests across Poland, where citizens remain strongly favour of EU membership.

Treaty in 2005.63 The unanimity rule can create major log-jams and the Catch-22 is that it can only be amended by unanimity. In the current, divided EU it seems inconceivable that such a change could be made. Without it, the ability to foster the values that for so long underpinned the process of European integration are under threat. These states are not the first to challenge aspects of European integration, particular vis-à-vis the role of the courts and loss of sovereignty, as was the case in the UK for years prior to its departure from the EU.

For some, Brexit had set the unwelcome precedent, as it seemed to offer the potential for the demise of the integration process, certainly in the immediate aftermath of June 2016 when the United Kingdom voted to leave. Eurosceptics hoped and Europhiles feared that Brexit might inspire other states to follow suit. Yet the integration process has long been characterised by progress through crises of which Brexit was perhaps not even the most significant of the last decade. Indeed, the Eurozone crisis of 2010, the refugee crisis of 2015 and the COVID crisis of 2020 all potentially posed greater threats to the European Union, and the 27 seemed swiftly to unite around a shared position in negotiating the UK’s departure. Any attempts to pick of states was rapidly rebuffed. Moreover, even long-standing critics of European integration such as Marine Le Pen in France and Matteo Salvini in Italy both toned down their rhetoric in the wake of the British referendum, as the benefits of departure began to look less compelling.

Europe will be forged in crises, argued Jean Monnet, one of the EU’s founders. At times his comments have appeared valid, for example when the Fiscal Compact was agreed in the wake of the Eurozone crisis of 2010, yet at other times crises have appeared to lead to stagnation and if not disintegration at least a stalling of the integration process. In some cases, the result has been treaty reform, the most formal and arguably effective way of strengthening the integration process. At other times, however, changes and reforms have taken place outside the formal treaty framework, owing to differences of opinion among Member States which meant that securing treaty reform would be impossible. Such was the case with the Fiscal Compact which was agreed as an international treaty not an EU treaty precisely because the British Prime Minister refused to support any EU treaty.

It is important to understand a little bit of the history of the integration process in Europe in order not to repeat the mistakes of the past. In particular, the 30 years since the end of the Cold War and the most notable reform of the foundational treaties, the Treaty on European Union (the Maastricht Treaty) of 1993 have been a period during which a divide between elites and people has become increasingly pronounced. The early years of the integration process were predicated on co-operation among the signatory Member States, which came together in order to secure peace, prosperity and security. Little attention was paid to the democratic underpinnings of the integration process but the success of integration in the early years ensured that citizens were broadly content with the process. They may not have enjoyed democratic engagement and there was no direct way to hold decision-makers accountable. Nonetheless, opinion polls indicated that citizens were not dissatisfied.

63  The only treaty to be rejected by a national parliament was the European Defence Community treaty in 1954 on a procedural motion in the French Assemblée Nationale.

Moreover, decision-making among six Member States was a relatively straightforward process. Politicians and officials could sit around a table, make eye contact and interact on a very personal basis. Over the years, repeated expansions of the European Union as it was to become rendered such interactions increasingly difficult and led some Member States to feel they had insufficient influence in the process and decision-making of integration. Even in the Europe of the Six, there were disagreements, most visibly seen in the so-called crisis of the empty chair precipitated in 1965 by French President Charles De Gaulle. Decisionmaking by unanimity, which at the time was the rule for all policies at the European level, proved to be extremely difficult. Various treaty reforms from the Single European Act of 1986, the Maastricht Treaty and most recently the Lisbon Treaty of 2009 altered the decision-making procedures substantially, ensuring that most decisions are now taken by qualified majority voting in the Council of Ministers rather than requiring all Member States to agree by unanimity.64

By contrast, the process of treaty reform itself remains one that is driven by the need to secure unanimity among all Member States. Even the very smallest states, which may feel they have little influence in other areas, have the power to block treaty reform and some have indeed shown that potential to do so. Thus, any attempt to secure treaty reform in the European Union is overshadowed by the need for unanimity. Progress requiring treaty reform can always be held hostage by the views, desires and interests of a minority. A situation that was perhaps difficult in the context of the 1950s, when there were six Member States, potentially becomes intractable in Europe of 27 (and a fortiori of 28 when one of the members was the UK). This is a particular problem given the diversity of interests of the 27 and the fact that not all Member States appear to share the same values as those of what one might call core Europe. This has been particularly marked since some of the newer Member States from Central and Eastern Europe have drifted from the commitments to liberal democracy and the rule of law that are so integral to the integration process. For many years, it was easy to assume that difficulties about deepening integration could be laid at the door of the United Kingdom, which was renowned for its Euroscepticism. With the withdrawal of the United Kingdom a variety of scenarios about the future of Europe emerged: the EU might collapse; some Member States might follow the British example and withdraw; some Member States would finally demonstrate their Eurosceptic credentials, once the UK was no longer there to do it for them; or, on a more positive note, Brexit might actually enable the 27 to integrate more deeply, freed from the small-c conservative and Eurosceptic UK’s influence.

It is very easy to assume that many of Europe's problems arose because of the United Kingdom, especially the English, given that Scotland and Northern Ireland had rather different views on EU membership. On that reading, Brexit therefore allowed some to assume that the time had come to remake Europe in a more Federalist direction. This certainly seemed to be the approach of French President Emmanuel Macron and perhaps of his choice for

64  In most cases the European Parliament has a right to “co-decide” with the Council of Ministers; a change from the early years when the EP’s role was extremely limited.

Commission President, Ursula von der Leyen. Initially at least it seemed that the 27 were united. As early as September 2016 they were speaking with one voice, whereas the United Kingdom was speaking with many voices. For those who had assumed and in some cases hoped that Brexit would be the beginning of the end of the European Union, this was a remarkable turn of events. Eurosceptics including Marine Le Pen in France and Salvini Italy distanced themselves from the previous views, seemingly recognising that Frexit, Italexit or any other sort of break from the integration process would not be politically popular. This temporarily at least, seemed to foreshadow a very positive scenario whereby the 27 would form a tighter, more integrated union, perhaps even leading in a federal direction.

However, the UK's departure from the European Union, which formally occurred on 31 January 2020 (a transitional period lasted until 31 December of that year), coincided with the start of a global pandemic caused by the COVID-19 virus. As with the Eurozone crisis and the refugee crisis before it, the COVID crisis had an asymmetric impact on the European Union, with Italy initially hit hardest and receiving little apparent support from the rest of the Union. In part, this was perhaps understandable. As German Chancellor Angela Merkel pointed out, health is not an EU competence. However, the effects of the health crisis went much further than just health or health care provision, given the huge financial consequences of tackling the virus, coupled with the need for each state to look to its own borders, in turn impacting the Schengen arrangements. The ramifications thus were in both the economic field and border control both of which were very clearly EU competences. Moreover, the Commission President in particular pushed for closer cooperation in dealing with the crisis and for EU level procurement of a vaccine once it became available. This stage was now potentially set for closer cooperation, albeit at that stage not on the basis of treaty reform. If the presidents of the European Commission and of France were in favour of deepening integration, perhaps via an explicit transfer of competences necessitating treaty reform, they alone would not be enough to secure major changes. All 27 Member States would need to be on board and the nature of the integration process and of the 27 members since the Big Bang enlargement of 2004 is such that cooperation and agreement cannot be assumed. Treaty reforms tend to be package deals, allowing some proposals that suit each Member State, allowing them to compromise in other areas. They tend not to focus on just one issue, such as healthcare. Since one of the biggest challenges facing the Union in 21st Century relates to democratic backsliding, treaty reform would be the ideal time to introduce new measures to sanction back-sliders. However, as discussed, several Member States in Central and Eastern European had elected governments that were less wholeheartedly supportive of liberal democracy and the rule of law than the founding Member States. They would undoubtedly reject any moves to reform the treaties if they preferred approach to democracy and the rule of law were explicitly threatened. It is ironic that states which were only enabled to join the European Union after the collapse of Communism in Europe and which had been so wedded to the idea of joining as many Western institutions as possible in order to re-establish their European credentials should so swiftly backtrack on the norms and values expected of EU Member States. Their drift coupled with rules on unanimity render desirable treaty reform difficult to envisage in the coming years. By contrast, cooperation outside the treaty framework might be more feasible, allowing those states

that wish to press ahead in certain policy areas to do so on the basis of international rather than European law. This is a far cry from the hopes and expectations of the founders, but a pragmatic response to the realities of European politics in the 2020s.