The evolving situation emerging in Eastern Europe has become a watershed moment for Europe, challenging many of its fundamental assumptions. This eventually led to a Conference on the Future of Europe (CoFoE) in the first half of May, a month ago. There was intensive discussion between EU institutions to try and find least common denominators about how the European Union (EU) might be able to overcome its emerging challenges through institutional innovations in different areas.
It has emerged that the CoFoE gave particular attention to the issue related to possible abolition of the use of veto within the European Union (EU) framework. However, as expected there were differences of opinion pertaining to this matter between the European Commission and the European Council. This has underscored the fact that if this question is to be resolved, the European Parliament will have to be more proactive.
Analyst Andrew Duff, an expert on different aspects pertaining to the European Union, as usual, has taken a very positive approach regarding the denotations and the connotations of this on-going difficult process.
In an article published recently by him, he has noted that "on the back of the Conference on the Future of Europe, the European Parliament is intent on triggering a treaty revision. The conclusions of the Conference are fairly self-explanatory and even unsurprising.
It is not a shock to the system that the Conference, impelled in large measure by its citizens' component, wants 'more Europe' not less, or that its main proposal in institutional terms is for the Council to abandon the veto. One does not have to be a federalist militant to realise that the European Union is impaired because the Council is stuck in confederate mode. Despite protestations of loyalty to the European project, national governments cling to vetoes and render decision-making slow, opaque and cumbersome. Eurosceptic forces have always tried to resist the ineluctable spread of what we now know, since the Lisbon treaty, as the 'ordinary legislative procedure' - that is, qualified majority voting (QMV) in the Council plus co decision with the Parliament."
Such an approach clearly underlines that there are factors that undermine the possibility of building a "new democratic polity at the supranational level if decisions are held up by only one of its member states".
It be noted in this context that the campaign to extend the scope of QMV has achieved a special status within the paradigm of the European Union. It would also be worthwhile to remember that every treaty reform since the Treaty of Rome in 1957 has advanced QMV through one dimension or the other. This has been done to advance the principle of federalism.
It would also be correct to recall that the constitutional Convention of 2002-03, chaired by Valéry Giscard d'Estaing, made bold strides towards abolishing the veto in most areas. This however had provoked a backlash, led by Britain. Such a negative response eventually led to the Treaty of Lisbon, which was drafted after the defeat of the Giscard project. This was not the best thing to happen. Andrew Duff correctly underlines that this measure allowed the nationalists to claw back even more territory within the European Union. The scope of QMV was further reduced. Many have also suggested that this animosity towards the QMV principle by the British could have contributed towards their departure from the European Union.
Duff has mentioned that after lack of positive acceptance of the QMV principle, a compromise approach was subsequently created through "the device of the passerelle or bridging clause". This stipulation according to Duff permits the European Council to switch decision making from unanimity to QMV in any area other than that of defence. It also allows the European Council to change a 'special legislative procedure' into the ordinary legislative procedure.
Over the years such special laws of the European Council have been relied upon regarding the basic treaty whenever an item of peculiar sensitivity to national sovereignists has surfaced. In those areas, the European Council decides by itself, acting by unanimity, after informing or consulting the Parliament, sometimes needing MEPs' consent, but never with regular co-decision.
Special laws of the Council apply, for example, to questions of taxation and the harmonization of national laws. They are also prescribed for cases where differences between national practices are particularly marked- as in the context of family law, some aspects of social security and worker protection, and the choice and structure of supply of energy. Nevertheless, special laws of the Council are also required pertaining to some other areas- including extending the rights of EU citizenship, the levying of taxes, and deployment of the famous 'flexibility clause' which allows action to be taken to achieve treaty objectives even where the European treaty has not provided such necessary powers for this purpose
The positive potential that exists in the context of taking advantage of the passerelle principle has however not been availed of over the last twenty years to modify decision making. It has consequently been suggested by a few that constructive use of the passerelle principle might help the European Union if they are seeking any revision of the existing Treaty principles. This makes sense. However, as it stands today, the biggest hurdle that has to be overcome is the principle of the Lisbon treaty which insists that the passerelle can only be crossed if all member states agree to it unanimously at the level of the European Council and no single national Parliament objects. This existing requirement of unanimity makes the availing of passerelle successfully not viable.
Unfortunately, the Conference on the Future of Europe has debated the abolition of the veto at the level of abstraction but do not appear to have been able to agree, according to Duff on "how to realize its aspiration in terms of treaty change". The European Commission also appears to have refrained from pushing harder towards constitutional reform of the European Union. The European Council, as usual, also appears to have remained divided.
Consequently, according to analysts like Duff, the role has to be taken on in a stronger manner by the European Parliament if there is to be any glimmer of success in being able to change existing treaties within the matrix of the European Union.
Reference in this regard has been made to the need to abolish unanimity in the European Council, with the exception of Article 22 TEU which prescribes unanimity for decisions on the direction of common foreign and security policy.
Within the legislative context, it has also been suggested that if the Members of the European Parliament are looking to achieve their hopes of treaty change, including a new Convention, they need to seriously target the general passerelle clause of Article 48(7) TEU. In this regard, efforts need to be made, according to Duff, "to facilitate the use of the general passerelle by switching the method of its deployment from unanimity to QMV". In this context, the Constitutional Affairs Committee of the Parliament could also try "to suppress the third subparagraph of Article 48(7) which would eliminate the power of a truculent or nationalistic parliament in any single member state to block the passerelle." National parliaments, acting collectively, could nevertheless retain their powers as provided under the treaty, to object to the reform on the grounds of proportionality.
The last sub-paragraph of Article 48(7), according to the European Policy Centre may then be amended to read: "For the adoption of these decisions, the European Council shall act by qualified majority vote according to the procedure laid down in Article 238(3)(b) after obtaining the consent of the European Parliament, which shall be given by a majority of its component members." Implementation of such a QMV principle could be based on the threshold comprising at least twenty member states representing more than 65 percent of the population of the Union.
Lastly, it has also been suggested that the reform process could be taken forward by the European Parliament proposing the suppression of Article 353 TFEU which prohibits the application of the passerelle to four key provisions of the treaty- (a) Article 311 on 'own resources' or revenue of the Union, (b) Article 312(2) on the multiannual financial framework factor, (c) Article 352 stipulating, the flexibility clause and (d) Article 354 which lays down the decision-making procedure for the application of Article 7 TEU determining the existence of any serious contravention or continuous violation by a member state of any the recognized values of the European Union.
These are valuable suggestions that might be able to contribute towards the possibility of altering any aspect of a treaty in a straightforward and significant manner. This prospect could also be facilitated through the support of a simple majority in the European Council for proceeding towards the convening of a Convention and an eventual intergovernmental Conference.
The evolving scenario within the European Union is creating challenges of different dimensions due to the current socio-economic and political scenario. The whole world is monitoring the developments in Europe. Consequently, positive measures addressed towards reform of the EU's existing Constitution would help to simplify matters.
Muhammad Zamir, a former Ambassador, is an analyst specialised in foreign affairs, right to information and good governance. [email protected]