Keywords

The percipient Henry Kissinger criticised European leaders for turning in on their own soft-power preoccupations and neglecting the need to build a new world order. “Europe”, he wrote, “thus finds itself suspended between a past it seeks to overcome and a future it has not yet defined” [Kissinger p. 95]. Few Europeans reacted to his call—and certainly not the recent leaders of Britain or Germany.

One who did was Emmanuel Macron. Soon after his election in France in 2017, Macron gave a hefty lecture at the Sorbonne in which he painted a picture of a European federal union properly equipped to enjoy full sovereign autonomy. He argued, among other things, for the introduction of transnational lists for the European Parliament and the reduction in size of the Commission.Footnote 1 He proposed the holding of democratic conventions to debate the future of Europe. Later he promoted the idea of a “Conference for Europe in order to propose all the changes our political project needs, with an open mind, even to amending the treaties”.Footnote 2 The Conference on the Future of Europe was the eventual result—an ambitious attempt in the digital age to involve EU citizens directly in deliberating on a pan-European basis the shape of things to come.

The Conference on the Future of Europe

Starting work in May 2021, the Conference adopted curiously cumbersome rules of procedure which left it up to a plenary composed of more than 400 people to sluice the recommendations of citizens’ panels and working groups. An executive board made up of representatives of the three EU institutions drafted a final report.Footnote 3 The European Parliament, led by Guy Verhofstadt, has been keen to maximise the opportunity posed by the Conference. The Council, divided as ever about constitutional next steps, works to minimise the outcome. The Commission, which in normal circumstances could be expected to act as the EU’s think-tank, has been spectacularly vacuous in its approach to the Conference. Von der Leyen astonished MEPs when she told them she intends to follow up on its proposals before she knows what they are.Footnote 4

While much of the discussion (hampered as was everything by the pandemic) was rather abstract, some clear preferences emerged from the citizens’ panels.Footnote 5 There was strong demand for more EU education in schools, better EU information policy and more cultural exchanges. The citizens suggested holding occasional EU-wide referendums and regular online polling to test EU policy. They would institutionalise a European agora or citizens’ assembly. In a quest for more self-reliance, the citizens inclined towards protectionism. They want a tougher and more uniform EU asylum and immigration system, tempered by decency, and linked to the needs of a more fully integrated European labour market. They would reinforce the powers and resources of Frontex, the EU border force, and support joint EU military action for defensive and humanitarian purposes. Higher EU spending, more social policy and tougher regulation are popular. The citizens want harmonised EU corporation tax—but are silent on the matter of EU direct taxation. Unsurprisingly, a majority wants the Union to have more powers in public health policy, upgrading the “protection and improvement of human health” to become a fully shared competence of the Union.Footnote 6

On constitutional matters, the citizens’ element of the Conference wants the stronger and wider enforcement of the rule of law across the Union. Like Macron, the citizens favour transnational lists for the European Parliament and the development of federal political parties. They support extending the use of QMV in the Council so long as the interests of smaller states are protected. The national veto should be kept only for decisions on the enlargement of the membership of the Union and changes to fundamental rights. In general, the citizens’ panels are in favour of ‘more Europe’, not less, including a much larger EU budget. They urge the Union to be innovative. They support reopening the constitutional process, thereby confounding the prejudice of ‘treaty fatigue’, which still seems to prevail in the Council and beset several national parliaments.

A Reflection Group

With the Conference concluded, the next step is to draft concrete proposals for action, including those requiring the kind of treaty amendments we have outlined in this book, and packaging them together to make a logical whole. A small reflection group of wise heads might be tasked with that job. The expert group should take evidence from each of the institutions (independently of each other) about the strengths and weaknesses of EU governance. We would be especially interested in the considered opinions of the Commission and Court of Justice. Expert evidence from other sources should also be welcomed.Footnote 7

There are many useful precedents over the years of official reports authored at arm’s length from the institutions that have nudged the constitutional evolution of the Union in the right direction. The Spaak Report in 1956 laid the foundations for the common market. The Vedel Report in 1972 showed how increasing the powers of the European Parliament would need it to be directly elected. The Tindemans Report in 1976 illustrated how the aggrandisement of the role of the heads of government in the European Council should be balanced by the directly elected Parliament and the wider use of QMV in the Council. The report of the Three Wise Men in 1979 urged greater use of the flexibility clause to combat ‘euro-sclerosis’.Footnote 8 The Dooge Report in 1985 opened the door to the IGC which led to the creation of the single market. The Penelope Report in 2002 presented a federalist counterblast to the prevailing intergovernmentalism in the Convention [Duff 2015].

Altiero Spinelli, as a member of the Commission, had been one of the driving forces behind the Commission’s very ambitious contribution to the Tindemans Report.Footnote 9 Spinelli gave a further major impetus to the political integration of Europe in 1984 when, by then an MEP, he persuaded the Parliament to vote for a draft federalist treaty.Footnote 10 The governments were at pains to be seen to react positively to the initiative even though they harboured many reservations about the detail of the proposals. Parliament’s influence reached another high point during the Giscard Convention.

In February 2017, MEPs voted through a report written by Verhofstadt that already advocated the beginning of a new round of treaty revision.Footnote 11 The Parliament argues that lessons should be learned from the secession of the UK. Although it is open to some form of differentiation, Parliament is opposed to opt-outs from central EU common policies and wishes to eliminate rebates from the budget. The mission of an ever closer union has to be reaffirmed “in order to mitigate any tendency towards disintegration and to clarify once more the moral, political and historical purpose, as well as the constitutional nature of the EU”.

A Convention

Welcoming the outcome of the Conference on the Future of Europe, Emmanuel Macron called for a wider European confederal political community (including the UK and Ukraine) to be built around a federal core.Footnote 12 He is supported by a large majority of the European Parliament in taking forward these ideas.Footnote 13 In making at long last its formal proposal for transnational lists, the Parliament has already changed the context. Constitutional reform again becomes thinkable. The next step is for either Macron or the European Parliament—preferably both—to trigger the ordinary revision procedure.Footnote 14 An obvious move would be for MEPs to propose to facilitate the use of the unused passerelle clause by changing the method of its deployment from unanimity to QMV.Footnote 15 The European Council will then have to decide by simple majority to summon a new Convention to be followed by another Intergovernmental Conference.Footnote 16 Those who live in perpetual fear of opening Pandora’s Box must be persuaded to regard the constitutional treaties of the Union as a lively contract between the Union’s states and citizens which need continual reassessment if they are to remain fair and fit for purpose. Constitutional change is good news. It should not be traumatic; it can be regular and methodical. Improvements can always be made.

Certainly, the treaties read as literature can be bettered—especially in those early articles which try to explain what the Union is and is not. The next treaty revision should not pass up the opportunity to polish its language throughout.Footnote 17 The Treaty on European Union and the Treaty on the Functioning of the European Union, each with their own preamble, have equal legal value and make numerous mutual cross-references. For the sake of simplicity and clarity, the two should be brought together again in one treaty as they were in the Constitutional Treaty of 2004. The result would be a single document, much shorter, more rational—and readable [Spinelli Group & Bertelsmann]. Also welcome would be the resurrection of the clauses on the Union’s anthem and flag which were unceremoniously ditched by the Treaty of Lisbon.Footnote 18

One last sub-edit will be the excision from the text of all reference to the United Kingdom of Great Britain and Northern Ireland as a member state, along with its dependent overseas territories, plus those several protocols and declarations bearing opt-outs and cop-outs with which the British encumbered their partners in 2007.Footnote 19 But the UK’s secession also opens the door to making more substantive improvements to the treaty language on common foreign, security and defence policies which Lisbon decorated with qualifications and conditionality, mainly to cater for British reservations. Other countries which once hid behind Britain’s obfuscations will have their chance to come clean.

The overall objective of the Convention must be to render the new treaty less prohibitive and more permissive than its predecessors, enabling the Union to act capably when and where it needs to do so. The installation of the category of affiliate membership makes indispensable the reinforcement of the Union’s executive. Without a strong centre, the Union will be unable to take on additional responsibilities on behalf of the wider Europe and the Atlantic Alliance. Many of the other suggestions made in this book support that thesis, if only to prevent from spreading the kind of disintegration epitomised by Brexit and the unwinding of the acquis as espoused by Orban and his fellow travellers.

A convincing justification of the need for a more centralised government implies, too, a willingness to adopt a more teleological approach to the politics of integration than we have seen for decades. The Union cannot continue to fall back on the lazy nostrum that because it is somehow sui generis its constitutional evolution can be left up to natural selection. Nor can we just hope that good things will happen to the European project by accident. We have enough recent experience of bad shocks to fear for the resilience of the Union. European unification is not condemned to succeed. In these uncertain times, the EU needs powerful leadership if it is not to drift into irrelevance, threatened by Russia, marginalised by China and the US, and incapacitated in the face of climate change, pandemics and large-scale immigration. The Conference on the Future of Europe seems already to have reopened the debate, long since dormant, about what is meant by the mission of “ever closer union among the peoples of Europe”. It falls to another Convention to follow this up.

Over twenty years since the last Convention, the European Union must prepare to take some difficult constitutional decisions. With the advantage of hindsight, we know more than we did in 2002 about the problematique of European integration—and much more than was known earlier in the heady days at Maastricht after the fall of the Berlin Wall. The Union should be alert to the necessity of reaffirming every now and again the general principles of democratic government, subsidiarity and the separation of powers through a robustly independent judiciary. Advances in EU citizenship, many given effect by settled case law of the Court of Justice, should continually be codified in treaty form. Beyond that, the locus of executive power must be firmly established in a unified presidency of Commission and Council, and the machinery of law-making overhauled.

No matter how the rules for treaty revision are modified for the future, the upcoming Convention and IGC will have to conform to the rubric of the existing Treaty of Lisbon. This suggests that the parcel of reforms to be tabled needs to be wide and ambitious enough to garner the support of all those who share a stake in the Union’s future. Tinkering at the edges will not hack it. A package deal will only be possible if it is large. We have suggested some linkages in this book, and we propose the target date of 2029 for the completion of the exercise. In the meantime, the search should be on for a new Commission president in 2024 who will refuse to take the job unless he or she is allowed to reduce the size of the college—and chair meetings of the European Council too.Footnote 20

More Europe

We have pointed in this book to some lessons learned from Europe’s recent experiences which will shape the agenda of the Convention. New competences, fresh powers and instruments will from time to time be required if the Union is to exercise good governance at the supranational level. Wishful thinking is no basis for a foreign and security policy. EU enlargement is a powerful tool of geopolitics and must serve the security interests of the Union and its (understandably nervous) citizens. Economic and monetary union will not work well through bad times without a common fiscal policy, the issuance of eurobonds and a decent federal budget. A banking union is now an essential addition to the armoury if the eurozone is to be stabilised.

Realisation is dawning even in the camp of the frugalists that confederations are more difficult to run than federations. Smaller member states discover that they have more clout in the Council under QMV rules than under unanimity when any one state (especially a big one) can threaten to wield a veto. Rebalancing voting weights in the Council will help to keep the peace. No true democrat can rest easy in the current situation where legal powers are transferred in very many sectors to the Union level but political agency is guarded jealously by the nation-states. A significant majority of Members of the European Parliament now know their own legitimacy will remain impaired unless they can be bolstered at election time by the coming of age of proper European political parties, matured by dint of competition on transnational electoral lists.

Europe’s energy crisis propels the case for treaty change in energy policy. We see in real time the problems caused by simply leaving energy supply in the hands of member states: over 40 per cent of the EU’s gas now comes from Russia. An adjustment of powers in energy would also allow for the full incorporation of Euratom under the new single constitutional treaty. Euratom’s present powers concerning nuclear safety should be added to the list of the Union’s exclusive competences.Footnote 21 In an encouraging breakthrough, the European Council is now prepared to adopt a similar collective approach to the purchase of oil and gas as it assumed in extremis to the supply of coronavirus vaccine. At its March 2022 meeting, the leaders agreed to “work together on voluntary common purchase of gas … making optimal use of the collective political and market weight of the EU and its Member States to dampen prices in negotiations”.Footnote 22 Significantly, the common purchases platform will be open for the participation of the Western Balkan states, Ukraine, Georgia and Moldova: differentiation within the Union combined with flexibility without.

We know that the Union has to define and manage its own borders effectively if it is to be a trustworthy neighbour. The many millions of refugees and displaced persons from Ukraine deserve to be well received as they cross over the borders of the EU. They go mainly into Hungary and Poland which, ironically, are the two member states with nationalist governments most hostile to refugees and asylum seekers. Here it falls to the Commission to police high standards and initiate and implement workable common policy. In one of the many swift and positive reactions to the Ukraine crisis, EU legislation enacted at the time of the Balkan War is being deployed for the first time. Refugees from Ukraine are being permitted to scatter as they will across the EU without visas, avoiding intra-EU borders.Footnote 23 The Dublin refugee convention, first drafted in 1990, is beyond repair.Footnote 24 The Lisbon Treaty is deficient in this respect in that it consigns to member states the sole right to determine the volume of third-country immigrant workers.Footnote 25 There are good social and economic reasons for having better-coordinated labour market policies—an advance which would also help the Union develop a policy of managed immigration that catered for the demographic challenge of Europe’s ageing society.

As the pandemic recedes, and with migration pressures still high, the Schengen agreement needs rescuing by a revitalised set of common policies in the field of justice and home affairs. If necessary—which it appears to be—a core group of federally minded states must be prepared to take things forward in this sector under the provisions of enhanced cooperation. Differentiation will also be needed if the investigatory and prosecutorial powers of Europol and Eurojust are to be raised to face squarely the growing challenge of international organised crime and war crimes. More generally, enhanced cooperation should be deployed as necessary on a regular basis to build the vanguard of federalist member states.

The federalisation of the Union will allow it to make up much lost ground on the international scene. It is striking, for example, that India and South Africa, both supposed democracies, choose to side with China in helping out Putin at the UN. The European Union needs to recover quickly from the shock of Ukraine if it is to burnish its appeal to the worldwide community and help counter the widespread aversion of non-aligned countries to the West. Without that, it will be unable to augment its contribution to the cause of international justice, the fight against climate change and the raising of living standards, especially in Africa. After years of introspection, a confident unified executive in Brussels backed by a more popular Parliament will be in a position to advance the Union’s profile on the world stage. In contradistinction to Russia, one looks forward to EU initiatives in the OSCE and at the global fora of G7, G20, the United Nations and the IMF. The Union will have earned the authority to take the lead in peace initiatives, not least through the European Security Council. Once Europe has found how to speak with one voice, it should have something important to say.

Federal Union

Slowly but surely the logic of the federalist case, originally so powerfully articulated by Jean Monnet, Robert Schuman and Altiero Spinelli, is gaining new respect (except, oddly, in academia). After a long period when eurosceptic or conservative governments held the whip hand in the Council, Europe’s federalists are finding their voice [Spinelli Group; Verhofstadt; Fabbrini]. As the 2022 French presidential elections show, the far-right can enjoy spasms of electoral success. But with the exceptions of Hungary and Poland, the electorate across most of the EU maintains a fairly solid liberal-democratic consensus. Britain’s nationalist government is out of the constitutional picture. Albeit inadvertently, the financial crash, the climate crisis, the coronavirus pandemic and lately the Ukrainian war have greatly accentuated the need for the Union to be able to take effective common action against shared threats. Nationalists are confounded by the logic of integration. Democracy remains the best weapon against autocracy. To the European eye, Donald Trump seems a very foreign gentleman. President Putin amply fills the role of external integrator, like Stalin and Brezhnev before him.

Fortunately, the new German government promises to put greater emphasis on EU reform and less on mere cohesion. The coalition agreement of December 2021 between the Social Democrats, Liberals and Greens even talks of the further development of a “federal European state” (föderalen europäischen Bundesstaat).Footnote 26 It recognises that Germany has a special duty towards the EU. The Scholz government emphasises the importance of the rule of law; it supports the calling of a Convention to change the treaties; it wants a larger role for the Charter and the introduction of transnational lists. Immediately after the invasion of Ukraine, Berlin announced a dramatic increase of €100 billion in defence expenditure and a reversal of thirty years of Russian appeasement. The EU also broke new ground in advancing €1.5 billion from its European Peace Facility to the Ukrainian armed forces, including lethal equipment.Footnote 27 This is soft power no longer. And we still find at the heart of Europe’s political project the Franco-German axis, just as it was in Schuman’s day. That Mario Draghi joins Emmanuel Macron and Olaf Scholz in the European Council looks like a historic opportunity not to be missed. Draghi told the European Parliament that he wants “pragmatic federalism” to lead through treaty change to “perfect federalism”.Footnote 28

We have tried to show why, in such challenging times, the Union should be confidently advancing the prospectus of an alternative level of efficient post-national government—not suppressing national politics but enhancing the capability of national governments to act pertinently and effectively. According to public opinion surveys, the wary citizen seems to understand this shift of paradigm rather instinctively, especially when it comes to the big global issues of the day which leave small national parties and politicians, rooted in their own country, looking fairly hapless. Europe’s political class needs to seize this bigger constitutional moment if the Union is to catch up with democratic reality. People say they trust the EU more than they trust their national governments, and many more have a positive rather than a negative view of the EU. In the recent Eurobarometer poll, taken just before Russia’s invasion of Ukraine, 62 per cent are optimistic about the future of the Union, against 35 per cent negative.Footnote 29

Positive views notwithstanding, however, none of the changes proposed and others mentioned in this book will come about unless the leaders of Europe take decisive action over the next few years. Certain modest improvements to the EU institutions could already anticipate treaty change. Most reforms require the formal revision of the EU’s two treaties and the Charter of Fundamental Rights. The group of reflection, which we recommend, should be charged with driving out obsolescence from the old treaties and producing a clear and cogent roadmap towards a more federal Union for the benefit of future legislators who may choose to take that route. The overall aim is to produce a more settled constitutional framework for the Union within which normal left-right politics can be played out and the debate about deeper integration continues without endangering the collapse of the whole edifice. Fear of reform must be overcome if the Union is to thrive long into the twenty-first century.

The emerging European federation must be ever mindful of the need to respect the principle of subsidiarity at home. The impact of deeper European integration can have domestic constitutional consequences inside several member states resulting in a greater regional devolution of powers: these shifts may need to be reflected in the EU treaties. The Union must do no harm to the internal democracy of the states, and it should be ready to accommodate new forms of national, regional and municipal government, as well as adapt to innovatory approaches to popular consultation, deliberation and representation. The active participation in EU politics of affiliate members, with their own democratic life and constitutional systems, should contribute to the vitality of Union governance and add usefully to the pluralism of the Brussels system.

Another pitfall to avoid is to fall victim to the mania of sovereignty. The EU is already a distinct polity and established legal entity.Footnote 30 As it becomes a more centralised European power, it will be bound to take on some appurtenances of sovereignty at the federal level. In his 2017 Sorbonne speech, Emmanuel Macron made a great deal of sovereignty.

Only Europe can, in a word, guarantee genuine sovereignty or our ability to exist in today’s world to defend our values and interests. European sovereignty requires constructing, and we must do it. Why? Because what constructs and forges our profound identity, this balance of values, this relation with freedom, human rights and justice cannot be found anywhere on the planet. This attachment to a market economy, but also social justice. We cannot blindly entrust what Europe represents, on the other side of the Atlantic or on the edges of Asia. It is our responsibility to defend it and build it within the context of globalization.Footnote 31

In less rhetorical mode, Macron then goes on to explain that he wants the EU to be more autonomous, strategic, productive, self-sufficient and secure. His political manifesto for Europe stands up on its own feet and is even more justified after Russia’s attack on Ukraine. Setting out a list of sensible objectives for Union policy does not need, in my view, to be clouded with the mysticism of sovereignty. An obsession with sovereignty misled the nation-states of Europe to their many disasters of the twentieth century. British anti-Europeans making a fetish of national sovereignty led to the cataclysm of Brexit. The souverainisme of Marine Le Pen would return France to ultra-nationalism and cause the swift dissolution of the European Union.

In fashioning the constitutional identity of the new European federation, therefore, we need to strike the right balance between autonomy and assertiveness. Sovereignty—whether it be of the state or popular sort—is at best a nebulous concept wide open to different interpretations. Within this globalised world, where Europe’s crowded states are so deeply dependent on each other, the salience of the question of who is sovereign over whom recedes [MacCormick]. Federalists need not cloak themselves in the sovereignty language of nationalists to justify their project. Whatever the future of Europe, it will be up to our successors to decide it. Our mundane task is to establish here and now a suitable, robust, functional and democratic constitutional framework. Macron, older and wiser, might temper his language about sovereignty: no doubt he recognises that re-election is not apotheosis.

Constitutional Patriotism

As Habermas argues, the best way for Europe to combat nationalism is to install good federal government along liberal principles. Crafting a constitution within which pragmatic government can be carried out on a settled basis will in itself attract a new loyalty, even patriotism, of the EU citizen.

The constitution of a successful federal polity will be regularly adaptable as successive generations consider how best to govern themselves on a pan-European basis. That is why the revision and liberalisation of the constitutive procedures themselves are such an important part of the package of proposals outlined in this book. Already, contrary to the usual commentary, member states are no longer the exclusive ‘masters of the treaties’. As Giscard d’Estaing quickly realised, treaty revision is no longer politically possible without the consent of the European Parliament. The installation of the Convention as a constituent body involving European and national parliamentarians was one of the Lisbon Treaty’s most critical innovations. It is high time to use it again.

The upcoming constitutional moment may not settle for all time the finalité politique of the Union, but it should serve to confirm the federalist nature of this unique experiment in peaceful European unification. The hope of an ever closer union will be handed on safely to the next generation. If Europe’s leaders can define its future in this way, as Kissinger urges, it will have reached an important watershed in European history.

Building a new form of democratic multinational government up above the level of Europe’s rickety old nation-states has not been easy. Nor can it be quick. We have seen in this book what a blizzard of treaty articles, ornate voting rules, opaque procedures and protocols are involved. Anybody who took part in Brexit knows how difficult it has been to unwind and dismantle the ties that bind a member state to the existing Union. Completing the federal union will need skill and determination on behalf of technocrats and politicians, plus a great deal of leadership from the EU’s present inchoate institutions and disparate national governments. Luck will also help, including having at the Convention the right people in the same place (not Zoom) at the right time.

A collective sense of pride in the history of the European Union would not go amiss. It has borne unique witness not only to a Germany peacefully united but also to a Germany that has joined into a federal pact with its historic enemy, France. Since 1945, liberal, secular democracy has spread peaceably across the continent. Europe is no longer a congested jumble of warring principalities and nation-states or of flailing empires. That is why Putin’s behaviour, which takes us back to fascist times, is so shocking. In interrupting the post-Cold War international order, Russia has challenged the legitimacy of the cause of European unity. Against such disruption, the Union must shine a light brightly on dissenters, democrats and anti-nationalist voices in Russia. Across the rest of the world too, where illiberal and undemocratic states are the norm, people look for hope of reform to the values of Europe.

It was no small thing for the Union to build first a single market where goods, services, money and workers could move easily between states. Then an area of freedom, security and justice was established to protect its own citizens as they took advantage of free movement. The conferral of EU citizenship carried certain important rights, not least the democratic franchise to a joint parliamentary assembly and the fundamental right to speak freely. Common institutions were created, including a court and an executive. But if it is now to take greater care of the wider European neighbourhood, the Union must become yet more state-like. And that means intensifying its quest for a democratic federal government.

This book has argued that the EU is now ready for its next constitutional moment when it can move forward confidently to a fuller and more rewarding federal union. Spurred first by the COVID-19 pandemic and then the Ukraine crisis, the EU should recognise it has reached a watershed in its history. Constitutional reform will have to command the support not just of its institutions and member states but also of its own people, EU citizens, who will properly insist on democracy and fair play. One reason this may be the moment to reinforce the federal character of the Union is that Europe’s electorate is more literate and better networked—and more culturally European—than ever before.Footnote 32 For younger generations, as well as for Europe’s many recent immigrants, the logic of modern Europe prevails over the pull of the old nation-state. Newcomers should be more alert than old hands in recognising a watershed moment when they see it.

Federal Europe is a project which only makes sense, and will only be concluded successfully, if we remember what European unity is for, how fortunate Europeans are in the greater scheme of things, and what value we can bring to others around the world if our experiment in post-national democracy works.