Edited by:
Guillermo Íñiguez
Reforming the Union: EU enlargement and the Franco-German report on Treaty
Table of Contents
1. Introduction
Guillermo Íñiguez
2. The Franco-German Report on EU institutional Reform: Origins, Recommendations and the Role of Lawyers
Franz Mayer and Thu Nguyen
3. Reforming the Treaties
Gavin Barrett
4. The Quagmire of EU Rule of Law Enforcement: Limits to jurisdictional Enforcement, limited Deterrence Capacity and Asymmetry
Carlos Closa
5. EU Enlargement and the Future of fiscal and economic Governance
Menelaos Markakis
6. Article 122 TFEU and the Future of the Union’s Emergency Powers
Paul Dermine
7. The joint Chamber of the highest Courts and Tribunals of the EU: an Appraisal
Ana Bobić
8. Europe’s Search for a democratic Dividend between Enlargement and Treaty Reform
Alberto Alemanno
Reforming the Union: EU enlargement and the Franco-German report on Treaty
Introduction
Guillermo Íñiguez
On October 6, 2023, the European Council issued its ‘Granada Declaration’. Among others, the declaration called for ‘a further enlarged Union’. Enlargement, the Council added, ‘is a geo-strategic investment in peace, security, stability and prosperity’; ‘a driver for improving the economic and social conditions of European citizens’, which ‘will make the EU stronger and will enhance European sovereignty’. A few weeks earlier, the Franco-German working group on EU institutional reform published a report titled ‘Sailing on High Seas: Reforming and Enlarging the EU for the 21st Century’ (‘the Franco-German Report’). The report noted that ‘for geopolitical reasons, EU enlargement is high on the political agenda, but the EU is not ready yet to welcome new members’. Building on this, it made a set of recommendations aimed at improving the EU’s institutional architecture, thereby streamlining the enlargement process and facilitating the smooth operation of a 37-member European Union.
This symposium builds on both the Granada Declaration and the Franco-German report to consider the prospect and implications of Treaty reform in light of the Union’s looming enlargement. The symposium’s contributions are authored by leading academic voices in the study of the European Union. They make a compelling case for Treaty reform, highlighting how the latter can contribute to a more effective Union and suggesting possible ways forward in their respective areas. While they engage in detail with the Franco-German Report, they do not provide a section-bysection commentary. Instead, they use the report as a blank canvas, building on its recommendations to advance their own proposals. In doing so, they illustrate many of the legal and political difficulties posed both by enlargement and by Treaty reform, but also highlight its opportunities to build a Union fit for the 21st century.
In the symposium’s first contribution, Franz Mayer and Thu Ngyuen, both of whom were members of the Group of Twelve that authored the Franco-German Report, trace the report’s origins and set out its key findings. In doing so, they also engage in a broader reflection about the role of lawyers in the process of Treaty reform.
Their piece is followed by Gavin Barrett’s, who makes the legal and political case for Treaty reform and highlights how this process cannot be dissociated from the Union’s enlargement. Reforming the Treaties, he argues, is not a mere thought experiment. Instead, it is essential for the Union’s very survival in an increasingly complex global scene.
Carlos Closa focuses on rule of law enforcement, one of the Franco-German Report’s central areas of concern. Closa examines what he labels the ‘quagmire’ of rule of law enforcement in the European Union, exploring the limits to jurisdictional enforcement, the Union’s limited capacity for deterrence, and the power asymmetries within the Council.
The Report’s proposals on fiscal and economic governance are analysed by Menelaos Markakis, who finds himself in agreement with many of the Report’s findings. Indeed, Markakis argues that ‘most of those reforms are necessary and should be implemented regardless of the demands associated with a future EU enlargement.’ Conversely, Paul Dermaine traces the origins, evolution, and recent rebirth of Article 122 TFEU. As he convincingly argues, ‘any reflection about future treaty revision should include Article 122 and the EU’s crisis powers.’
Turning to institutional reform, Ana Bobić explores the thorny issue of judicial dialogue, and situates it within the broader debate on Treaty reform. Building on previous proposals, she calls for the creation of a ‘joint chamber of the highest courts and tribunals of the EU’. In light of recent standoffs between national courts and the Court of Justice, she
Reforming the Union: EU enlargement and the Franco-German report on Treaty
argues, a joint chamber would promote greater dialogue between the Union’s legal systems, thereby helping to mitigate some of these constitutional tensions.
Finally, Alberto Alemanno’s contribution makes the case for a ‘democratic renewal’ within the Union. The accession process, he argues, provides an invaluable opportunity to rethink democracy within the European Union, paving the way for a bottom-up democracy which gives added legitimacy to the Union. Only by doing this, he concludes, can citizens’ trust in the Union be regained.
The European Union is an organic, ever-changing creature. Twenty years after its 2004 enlargement, following two decades of near-permanent ‘polycrisis’, and with the prospect of another major expansion, the time is ripe to consider whether its Treaties are fit for purpose. The present symposium seeks to contribute to this debate by suggesting possible ways forward for the Union. Far from prescribing uncompromising solutions, however, it hopes to pose the right questions. It will then be for Europe’s agora to chart a way forward.
The Franco-German Report on EU institutional Reform: Origins, Recommendations and the Role of Lawyers
Franz Mayer and Thu Nguyen
Fundamental questions are back on Europe’s agenda: the European Union is reconsidering its geography, institutions, competencies, and funding. For geopolitical reasons, EU enlargement is high on the political agenda, but the EU is not ready yet to welcome new members, neither institutionally nor policy-wise. Its institutions and decision-making mechanisms were not designed for a group of up to 37 countries and, as they are currently constituted, make it difficult even for the EU27 to manage crises effectively.
The mandate
Against this backdrop, the French and the German Ministers of State for Europe, Laurence Boone and Anna Lührmann, invited 12 independent experts to form a ‘working group on EU institutional reforms’. Our task was to develop reform proposals that would help to increase the EU’s capacity to act, protect its fundamental values, strengthen its resilience, and bring it closer to European citizens in preparation for potential future enlargement and as a followup to the Conference on the Future of Europe. Our group’s mandate was set as the following: How can the EU be made enlargement ready while also improving its capacity to act, protecting the rule of law, enhancing democracy and preserving fundamental European values?
The Group of Twelve, as we call ourselves, met at least biweekly in digital two-hour sessions and as well as in several inperson meetings over almost eight months. While our composition was Franco-German, we approached the questions from a trans-European perspective. During our work, we invited experts, decision-makers – both former and active – as well as advisors from other EU and candidate countries to numerous confidential exchanges, during which we received valuable input. Notably, while we had many intense discussions on the content of the questions, we never experienced a division line between the French and German experts in the group.
The report
The recommendations in our report are divided into three chapters: 1) protecting the rule of law as a fundamental principle underlying the EU’s functioning; 2) addressing institutional challenges in five key areas of reform; and 3) managing the process of widening and deepening the European Union.
It was not clear from the beginning that the protection of the rule of law would receive a chapter separate from the other reform areas, but something that only emerged during our discussions as we discussed the centrality of rule of law principles for the EU’s functioning. After all, the rule of law is not only one of the fundamental values on which the EU is based. Most of the EU’s policies, including the single market, rely on the assumption that member states have functioning justice systems. To strengthen EU rule of law instruments, we make recommendations in two areas: First, to make the rule of law conditionality mechanism an instrument to sanction breaches of the rule of law and, more generally, systematic breaches of the European values enshrined in Article 2 TEU and to introduce conditionality, similar to the model of NextGenerationEU, for all future funds. Second, to refine Article 7 TEU by removing the possibility of one member state blocking the whole procedure and by introducing more automaticity into the decision-making process.
Reforming the Union: EU enlargement and the Franco-German report on Treaty
In the main reform chapter, we address five areas of reform, which we consider to be the most crucial for the EU’s future. Two aspects should be noted here: First, not every idea which we discussed in the group is included in the final report. We neither propose reforms which would radically change current institutional balance of the EU, nor do we recommend ideas which we consider to be politically too difficult to implement at this moment in time, even if they are good ideas. Second, while the premise of the report is the question of how the EU should prepare for enlargement, we believe that some of the reforms proposed in the report should be implemented even if enlargement was substantially delayed.
The first key area of institutional reform is making the EU institutions enlargement-ready. This relates to practical questions such as the size and organization of the EU institutions in an enlarged EU. Recommendations include not to increase the number of seats in the European Parliament beyond 751 MEPs as well as to extend the trio format of the Council presidencies to a quintet of presidencies, each spanning half of an institutional cycle. We also propose two options on how to avoid a too big and ineffective Commission with more than 35 Commissioners.
The second key area of reform is the issue of decision-making in the Council and in particular the danger of blockages in areas where unanimity still prevails. We recommend that, before the next enlargement, all remaining policy decisions should be transferred from unanimity to QMV. To make this transition more acceptable for sceptical and smaller member states, we also propose the creation of a ‘sovereignty safety net’ as well as a re-calculation of QMV voting shares and an opt-out option for policy areas transferred to QMV.
In the third area, to improve EU-level democracy, we make recommendations relating to the EP elections as well as the appointment of the next Commission President after the 2024 European elections. We also recommend making use of existing participatory instruments to prepare for enlargement by including citizens from candidate countries. In addition, we propose the establishment of a new independent Office for Transparency and Probity (OTP) in charge of monitoring the activities of all the actors working in or for the EU institutions.
In the fourth area of reform, which concerns the EU’s powers and competences, we inter alia recommend strengthening provisions on how to deal with unforeseen developments, competency-wise, and a better inclusion of the EP in Article 122 TFEU. We also propose to create a ‘Joint Chamber of the Highest Courts and Tribunals of the EU’ to foster nonbinding dialogue between European and Member States’ courts.
Lastly, we consider the question of EU resources to be the fifth vital area of reform for enlargement. A reform of the policies of the budget itself would have exceeded our mandate, which is why we limit ourselves to the recommendation of establishing a thorough spending review to reduce the size of some spending areas and to increase others. In addition, we make proposals on how to make the EU budget more flexible and apt for the future. In particular, we recommend increasing the EU budget in the coming budgetary period both in nominal size and in relation to GDP as well as the introduction of new own resources to limit tax optimisation, avoidance and competition within the EU. We also propose to move decisions on the multiannual framework towards QMV for spending and to align its length to the institutional cycle of the EU. Lastly, we think the EU should be enabled to issue common debt in the future.
Our third chapter deals with the question of how manage the process of widening and deepening the EU. We lay out six different options for Treaty change and explain their advantages and disadvantages. At the same time, we believe that an enlarged EU will require a degree of flexibility to function. For this, we lay out different principles for differentiation within the EU, with the most fundamental ones being the respect for the acquis communautaire and the integrity of the EU’s policies and actions, and the use of the EU institutions to avoid an intergovernmental Europe à la carte. In a simplified manner, we envision the future of European integration as four distinct tiers: the inner circle, the EU; associate members, and the EPC, with a rule of law frontier around the third tier.
The enlargement process itself also fell outside our mandate. Nonetheless, we felt that the report would not be complete without at least some general principles on how to manage the enlargement process. We also believe that there should be a mutual commitment goal for the EU to try and become ready for enlargement by 2030; candidate countries should work to fulfil all accession criteria by then. The accessions themselves should be broken down into smaller groups of countries (‘regatta’) with a set of principles to guide future enlargement strategies.
The role of lawyers
There were three lawyers in the group. Why lawyers? Lawyers do not normally concern themselves with the future. Even in the present, they look to the past. The law we apply today is the political wrangling of yesterday, the passionate debates and battles that have coagulated into law. As lawyers, we spend most of our time looking in the rear-view mirror. So it is probably not the best idea to ask us about the road ahead.
At the same time, lawyers are needed at some point. They have to put the political choices into coherent legal language, consistent terminology. They can say what the framework of the political choices is, what is possible and what is not possible. They are the gatekeepers. But normally, the hierarchy is clear: the political decision comes first. This may lead to results that do not correspond to legal textbook solutions or established conventional legal doctrinal wisdom. Famously, Deirdre Curtin considered the result of the 1993 Maastricht Treaty ‘a Europe of bits and pieces.’ Nevertheless, the role of law and lawyers is to process political choices even if they lack coherence: law can transform complexity into coherence, avoiding constitutional chaos. Consider the example of differentiated integration that we discuss in the report. If principles for differentiated integration are not agreed upon beforehand, then lawyers and courts will develop them. Or take the example of Treaty change, which is another topic we cover in the report: if standard approaches do not work, untested options may lead further.
Conclusion
Although many things have changed profoundly in the past two decades, we see a lasting value in the EU legal framework, its institutional system, and its procedures, which have allowed for joint progress and inclusive decision-making that serve EU citizens’ and countries’ interests. This is why our report does not rethink European integration ‘from scratch’ but proposes adjustments to fit the new realities, both in terms of deepening and in terms of flexibility. Arguably the most crucial insight is that we highly recommend thinking in terms of ‘the cost of non-action’. Given that neither global changes nor internal challenges will become lighter, time and decisiveness is of the essence. Choosing to not reform the EU or not to integrate candidate countries with a strong commitment to the EU and its principles and values would come at an even higher price for the EU, its Member States and its citizens.
The EU could be in very real danger if not enough is done to prepare it for the future.
Franz Mayer is professor at the Faculty of Law at the University of Bielefeld. He holds the chair of Public Law, European Law, Public International Law, Comparative Law and Law & Politics.
Thu Nguyen is Deputy Director of the Jacques Delors Centre, Hertie School.
Reforming the Union: EU enlargement and the Franco-German report on Treaty
SUGGESTED CITATION: Mayer, F., and Thu Nguyen: ‘The Franco-German report on EU institutional reform: Origins, recommendations and the role of lawyers’, EU Law Live, 13/12/2023, https://eulawlive.com/op-ed-the-franco…r-and-thu-nguyen/