The EU must embark on a path to treaty change and a new European Convention

The Conference on the Future of Europe was launched on Europe Day, May 9, 2021 with plenty of political assurances from the EU about reinvigorating European democracy. European Commission President Ursula von der Leyen avowed to launch a politically inclusive Conference which would put European citizens at the centre of the process. It was a pledge to refrain from executive overreach, and a clear signal that the process would amount to a genuine exercise in transnational participatory democracy. But with the end of the Conference nearing, it is worth asking: has the Conference lived up to its ambitious promises? The reality may be a mixed picture, but several useful lessons for the future of the Union can already be drawn. 


First off, what exactly is the Conference on the Future of Europe?

An overt drawback of the Conference is just how few Europeans appear to be aware of its existence. The media has seemingly missed the significance of the Conference and thereby overlooked the process as it has unfolded. The Conference on the Future of Europe was launched as a joint endeavour of the European Commission, Parliament, and Council. Its aim is to function as a deliberative platform for European citizens to address the challenges that confront the EU, to consider the solutions, and to define common aspirations for a future Union. It is a ‘bottom-up’ exercise with participants from all EU member states, and encompasses stakeholders at local, regional, national and European levels of governance. The most visible participatory element of the Conference are the four “European Citizens’ Panels” that are each made up of two-hundred randomly selected citizens, meant to reflect the EU’s demographic, geographic, and socio-economic diversity. To briefly elaborate on the procedure: first, the Citizens’ Panels discuss multiple thematic topics ranging from climate change and education, to migration and democracy. The Panels subsequently form recommendations that are addressed to the “Conference Plenary”, a body made up of citizens, civil society, social partners, EU politicians, and national politicians - which in turn - deliberate further and adopt concrete proposals. These proposals are then referred to an “Executive Board”, which is tasked with drafting the final Conference report. In the last stage, the Board’s final conclusions are examined by the “Joint Presidency” of the three EU institutions, which decide on any actionable follow-up to the Conference within their own designated competences. 

Does the Conference fall short on its promises?

A common observation about the Conference is that EU member states have been fairly apprehensive. From the very start, many national governments have called for the Conference not to adopt any recommendations that may create legal obligations. They have also strongly cautioned against any support for amending the balance of competences between the EU and its member states, or between the EU institutions, as this would imply treaty change. But if European citizens are called-up and invited to engage in a lengthy political process, then they should also be able to expect some form of binding outcome. Since European citizens have been specifically invited to deliberate on a future European Union fit-for-purpose, then all degrees and forms of change should naturally also be up for consideration. The lack of commitment by national governments to the Conference’s potential outcomes has also been coupled with a lack of agreement amongst the different institutional components on what the Conference should aim to achieve. The ambiguous goals of the Conference have been confusing for many citizen-participants, who have been frequently overloaded with information and not always had sufficient time to prepare for their engagements. The Conference has been further criticised for a lack of procedural clarity, especially within the working groups of the Plenary, where many participants have expressed discontent with the vague decision-making process. There have thus been clear lapses in procedural transparency, but also a lack of accountability on the part of the institutional components. The weak link between the initial citizen-derived deliberative phase at the ‘bottom’, and the executive decision-making phase at the ‘top’, has created a feeling of executive overreach amongst numerous citizen-participants and civil society observers.  

Despite some expected shortfalls, it is worth recognising that the Conference itself is already a great step in the right direction; an overwhelmingly positive signal that European leaders want to curtail legitimate perceptions of a democratic deficit and make participatory mechanisms permanently embedded in EU democracy. The Conference was able to adapt to many practical challenges and improve its working procedures over the course of the past year. When compared with the beginning of the process, there is now a stronger sense of accord between the different groups, and a much better expectation that the Conference will finish with tangible proposals for reforming the EU. The crisis in Ukraine has also had an impact on assessments about the Conference's significance, especially among the member states. The Conference has spurred newfound vigour for European democracy - especially amongst its youngest participants - and created political momentum for greater change. The Conference should thus be seen as a necessary stepping-stone for bigger changes yet to come. A significant proportion of the Citizens’ Panel’s recommendations included proposals that warrant fundamental treaty change. We at Democracy International have repeatedly called for fundamental treaty change to improve upon the democratic functioning of the EU’s institutional decision-making framework, but also to give European citizens a direct say on EU policy. It is also our position that treaty change shall be undertaken by invoking the ordinary revision procedure enshrined in Article 48 of the Lisbon Treaty, which mandates for the establishment of a European Convention process. Likewise, several decisive voices at the Conference - such as Guy Verhofstadt, Co-Chair of the Executive Board, and many members from across the Plenary - have signalled that the Conference must be followed by a new European Convention. 

The new European Convention

The Conference on the Future of Europe, with its multilingual digital consultation platform and its unprecedented citizen-led discourse, has shown us that new, innovative forms of participatory democracy are here to stay. But there is in-fact, a way for citizens to go beyond mere participation in terms of their political input, by being empowered to set the agenda and vote on proposed reforms. The most democratic way for the EU to undergo fundamental treaty change is thus by means of a European Convention, because it could go beyond participatory mechanisms by also allowing for proposals to be directly democratically legitimated by constituents. To reiterate, a central drawback of the Conference was that citizens were unable to attain any directly binding outcomes for their inputs, but this is likely guaranteed not to be the case with the ordinary revision procedure (ORP) and the ensuing European Convention. So why is this the case and how does it work? 

The ORP can be initiated by the Commission, Parliament or national governments. But given the current political momentum it is likely that the European Parliament will call for the process to start. Article 48 of the Lisbon Treaty, which regulates all means for EU treaty change, defines the ORP as having no predefined limitations on the kinds of amendments that may be proposed. This would allow for any kind of fundamental treaty change, which includes amendments to the balance of competences between the EU institutions, or between the EU and its member states. The technical procedure of the ORP is somewhat intricate and includes several stages of consultations with the relevant EU institutions. The most politically decisive step and biggest potential obstacle is whether there will be enough support in the European Council, as it has to vote by simple majority to approve any proposal for a new Convention. If successful, the European Council President would be automatically mandated to convene a European Convention. Unless the Parliament is sure about the European Council’s commitment ahead of time, it is unlikely that they will trigger the procedure. 

Article 48 contains relatively few stipulations about the ensuing Convention. This presents a unique opportunity for European citizens and civil society to try and shape it into a democratically empowering, transparent and accountable process! Article 48 requires the Convention to have representatives from national parliaments and governments, the European Parliament and the European Commission, but it does not regulate their relative proportions or their precise roles beyond intrinsic competences. It is clear, however, that a Convention must offer a significant role for citizens and that there should also be a forum for non-institutional and non-governmental actors to participate. One of the biggest lessons learned from the European Convention of the early 2000’s was that not involving citizens meant that few Europeans felt any ownership of the final draft. Once the Convention outcome had to be ratified at national levels, France and the Netherlands held referendums which were voted down by their citizens. This was perhaps to no surprise, given that their only role was to approve a text they had no role in shaping. As such, it is imperative that we avoid this sort of democratic trauma from taking place again, by making sure that citizens are involved in every step of the process. The Convention should deeply integrate mechanisms for citizens to be involved in setting the agenda from the onset. A Convention process could, for instance, conduct an initial phase of citizens’ consultations to gather ideas directly from constituents, before committing any topics for deliberation at the Convention. On account of the deliberative phase, a lesson from the Conference on the Future of Europe was that random citizen selection can still leave certain groups with skewed propensities for participation. For example, people that had previous knowledge of the EU were more likely to participate, which may have favoured more educated participants. The deliberative body of a future Convention could thus be improved vis-à-vis the Conference in terms of diversity by taking socio-economic status, minority representation, and other determinants better into account. 

An essential quality of a democratically legitimate Convention, is the aforementioned need for direct democratic legitimation by constituents. The final draft text of the Convention needs to be put up for an EU-wide referendum, but it is the member states themselves that will have to organise national referendums in line with their own constitutional requirements. Some member states like Ireland would already require a national referendum for a European Convention text to be approved, while other states like Germany would conduct a non-binding consultative referendum due to having no legal basis for a federal vote. These ideas are non-exhaustive and largely open-ended proposals, but they give some insight into the core qualities of a democratically sound future Convention. It is undeniable that the Conference has created demand for a new European Convention, and they will likely share several parallels in terms of their participatory mechanisms and organisational structure. That being said, it is imperative that all current study and analysis of this grand exercise in European democracy be directed to yield as many transferable insights as possible. It is time for citizens and civil society organisations to seize on the momentum for change, apply the lessons of the Conference, and demand that we hold a Convention where political power is equally derived from citizens and not just governments!