Accession negotiations are an ongoing topic in the European Union. Currently, especially Eastern European States are seeking to join the EU which confronts the current member states with the question of how they want to shape the EU of the future. The urgency of the issue increased further after the Russian attack on Ukraine and the Ukrainian aspirations to join the EU. With the current Accession candidates being Albania, Bosnia and Herzegovina, Moldova, Montenegro, North Macedonia, Serbia, Türkiye and Ukraine, an Enlargement is on the cards.
At the same time, the EU is subject to numerous criticisms. The EU appears powerless against breaches of the rule of law and is facing disintegration efforts in several member states.
This calls for reforms to resolve the discrepancy between calls for Enlargement and growing criticism on the EU’s functionality. For this purpose, a Franco-German expert group was established. The Institute for Legal Policy invited the three lawyers that were part of this “group of twelve” to discuss their results that were presented in the report on the 18th of September 2023.
The Colloquium took place online on the 16th of November.
I. Introduction by Prof. Dr. Antje von Ungern-Sternberg
In her introduction, Prof. Antje von Ungern-Sternberg emphasized that the EU is facing various crises and challenges such as war, climate change and migration. Despite recognizing the criticism on how the EU is dealing with this task, she concluded: “If we want to uphold a European understanding of human rights, democracy and rule of law, we need the EU”.
Prof. von Ungern-Sternberg pointed out as the two big assets of the report that it suggests specific reforms and, recognizing the problem of political feasibility, considers whether a treaty change is needed and proposes several options to obtain each goal.
She then introduced the speakers: Prof. Franz Mayer who holds a chair for public law, European law, international public law, comparative law and legal policy at the Universität Bielefeld, Prof. Gaëlle Marti from the Université Jean Moulin Lyon 3, a professor of public law and director of Center for European Studies, as well as Dr. Thu Nguyen, the deputy director of Jacques Delors Centre in Berlin and host of the podcast EU to go.
II. Prof. Franz Mayer: Introduction of the expert group’s mandate and work
Prof. Franz Mayer began with discussing the role and purpose of the reform. He pointed out that after the enlargement, the EU could have up to 37 members, which would be a significant difference to today’s EU and raises the concern that the EU is not yet ready for such a step. He argued that while there might have been a general feeling after accomplishing the Treaty of Lisbon that no further reform would be needed for a long time, this has been proven wrong. For this reason, Mayer explained, the French and German Ministers of State Laurence Boone and Anna Lührmann invited the twelve independent experts to develop reform proposals that would enhance the EU’s capacity to act, protect fundamental values, strengthening its resilience and bring the EU closer to the European citizens. He further outlined the working groups mandate which aims for making the EU ready for enlargement, protecting the rule of law and enhancing democracy and clarifies that the working groups task was not to review policies, but to focus on institutional reforms. Mayer went on to emphasize the good collaboration within the Franco-German team and the benefits of interdisciplinary and international exchange. He closed by explaining the structure of the report which, firstly, deals with protecting the rule of law, secondly covers institutional challenges and five key areas of reform and thirdly addresses questions related to managing the enlargement of the EU.
III. Dr. Thu Nguyen: The rule of law
Dr. Thu Nguyen presented the group’s reform proposals concerning the rule of law.
First, she stressed the central role that this topic has in the eyes of the expert group. She described the rule of law as a “non-negotiable principle for the EU’s functioning” and emphasized the premises of independent national courts and non-corruption in national administration. “There is no way to compromise the rule of law.”, she concluded her introduction, and emphasized that therefore, it must be respected by any State joining the EU and must be fully respected at any time. Because the working group noticed the EU’s failure to avoid “backsliding” of member states, the group of twelve proposes reforms to ensure that the rule of law is respected.
Second, Nguyen reviewed the current instruments. She explained that when more than two member states are violating the rule of law, the sanctions mechanism of Art. 7 TEU was unusable because of its unanimity requirement. She further pointed out that dialogue-based instruments were not successful. As tangible instruments she named the budgetary conditionality mechanism which was adopted in 2020 and infringement proceedings by the ECJ.
Third, she summarized the group’s recommendations:
- Strengthening of the budgetary conditionality mechanism:
Because a strict link between the rule of law violation and the EU budget has to be proven, the possibilities to use this mechanism are limited. A widening of its scope was proposed, which would require a treaty change. Until then, the mechanism should already be used in a more preventive manner. Additionally, new funds should be conditioned in the same way as the NextGenerationEU funds, where the Commission had the power to withhold approval without the member states’ consent as it is needed to withdraw funds under the budgetary conditionality mechanism.
- Reforming Art. 7 TEU to make it workable:
The unanimity requirement should be replaced by a majority of 80%and the procedure should be automated through time limits and automatic sanctions if the European Council does not act.
Finally, Nguyen explained that the working group decided against recommending an exclusion clause because that would alter the nature of the EU strongly and would have negative effects on the citizens of the State being excluded from the EU. Instead, the EU’s instruments applied if a State breaches the Rule of Law should make the EU-membership highly unattractive for such States.
IV. Prof. Gaëlle Marti: The six options of treaty reform
Prof. Gaëlle Marti explained first, that while treaty changes are often unpopular, some of the changes suggested in the proposal require a formal treaty revision. Therefore, the expert group has included six options for treaty modification.
- The first option is the ordinary revision procedure as described in Art. 48 TEU, which requires not only an Intergovernmental Conference (IGC) but also a convention. As benefits of this, Marti pointed out the transparency and mobilization of citizens.
- As a second option she presented the possibility of this process with only the IGC. She explained that this option bears the risk of the reform being challenged in courts since the legality of not convening a convention depends on the extend of the amendments.
- The next option is to link the reforms to accession by using accession treaties to incorporate the required changes. Marti considered that this option has the advantages of combining both pro-deepening and pro-enlargement interests and only requiring a single vote in national parliaments and referendums, but also entails the disadvantage that the treaty-revision would depend on the speed of the next accession.
- The fourth option, a framework treaty which contains all the necessary changes for an “EU of 30+”, was called an “out of the box solution” by Marti. This framework treaty would be decoupled from accession treaties which still need to be concluded subsequently. She argues that while such a framework treaty is not included in the TEU, the convention was not included either and therefore “there is a room in EU law for creative solutions.”
- The same framework treaty could also be prepared by a convention, which would enhance transparency and enable the possibility of including candidate states in the process.
- The last back-up option in case of deadlock due to the double-unanimity requirement is a supplementary treaty between the willing member states.
Marti expressed the opinion that no member state should be forced into an EU they do not like, but at the same time single states should not be able to block progress. Therefore, the working group included in their report the idea of four concentric circles with different levels of integration: First, the inner circle can be described as the already existing Eurozone but could also be a coalition of the willing. While the second circle is simply the EU itself, the working group also includes two outer tier circles: A third circle created by associate membership, which is centered around the single market and also requires its members to respect the rule of law in any case while being independent of the accession procedure, and lastly a looser form of integration for states who want to cooperate only with regard to certain geopolitical subjects.
V. Prof. Dr. Franz Mayer: Conclusion
Finally, Prof. Franz Mayer stated in his conclusion that the report also dealt with topics such as the question of powers and competences, which they did not consider a pressing matter, and the role of the ECJ. Concerning the latter, the expert group posed the idea of a “joint chamber” of EU’s highest national courts, but Mayer emphasized that this does not mean that the ECJ, which the report labelled as the “Court of competence” should be supervised. Mayer highlighted the role of lawyers in such a reform proposal as the ones who examine feasibility and as “the guardians of coherence.”
VI. Prof. Dr. Birgit Peters: Commentary
After hearing the three experts, Prof. Birgit Peters followed with her commentary on the report. She focused on four aspects:
First, she agreed with the proposals concerning the rule of law which she considered “much needed”. However, she questioned why the contents of the rule of law were not spelled out anywhere.
Second, Peters supported the classification into four different circles of integration which she considers as an accurate depiction of the current political reality. Peters congratulated the expert group on outlining this version of a Europe of different velocities which does not search for a minimum standard but allows for diversity.
Third, regarding participatory democracy, she pointed out that no suggestions of introducing new instruments were made but instead the report suggested to use the old ones while providing more information on how to use them. While Peters concurred with the latter, she remarked that voluntary instruments can be problematic since they are at discretion of the user who will often not use them since they are considered inconvenient or even perceived to delay decision making.
Finally, Peters criticized that while the group of twelve has highlighted the importance of climate protection, no proposals on any institutional or substantive reforms were made that would make the EU’s actions in the area of environment and sustainability more effective.
In the following discussion, the speakers reacted to the commentary, and answered questions from the audience, that i.a. focused on the role of the supplementary treaty, whether the understanding of the EU will change with enlargement and on the “way forward” from now.