The Traffic-Light Manifesto, a Big Bang for the EU Institutions?
A conversation with Prof. Dr. Sacha Garben
The German coalition partners have unveiled their coalition manifesto. Out of the 177-page strong document, 7 pages are entirely dedicated to the European Union, with several policy proposals on the future of the Union’s institution.
We had a chat with Professor Sacha Garben, permanent professor of EU law at the College of Europe. Sacha Garben is furthermore an official in the European Commission, currently on special leave to be at the College of Europe.
The manifesto states the German government will support the necessary Treaty revisions based on the results of the Conference on the Future of Europe (CoFoE). While the CoFoE didn’t seem to matter much for the previous government, the next one seems committed to the exercise, at least on the paper.
How is the CoFoE going? What could it or should it end up doing? And how hard will it be to get the Treaty changes done ?
Firstly, we should take a moment to contemplate how very striking, how potentially game-changing, the remarks in the manifesto concerning the Conference on the Future of Europe are. The manifesto indicates that it “should lead to a constitutional convention and to the further development of a federal European state”. That really is a remarkable ambition, all the more coming from one of the Member States constitutionally most committed to maintaining national ‘sovereignty’ and whose Constitutional Court seemed to have ruled out a federal European state.
How is the CoFoE going? Well, it took a while for it to get underway, due to some inter-institutional wrangling, as well as the pandemic. But currently, it seems to be gathering steam: there are a growing number of events ongoing, both ‘top-down’ (organized by the EU institutions) as well as ‘bottom-up’ initiatives by civil society. The prospective outcome of the CoFoE is open-ended: there has not (yet) been a commitment to a Treaty revision (or other concrete deliverable). For an important Treaty revision, we would need a Convention in the sense of Article 48(3) TEU to take place, followed by an intergovernmental conference (of Article 48(4) TEU). The manifesto clearly indicates that Germany now supports taking that next step. So the CoFoE may be used to provide input for such a, now significantly more likely, Constitutional Convention. The CoFoE was already strongly supported by the French President Macron. Now that also Germany is throwing its significant political weight behind it, and without the UK there to temper European ambitions any longer, it may open the road to some fundamental changes indeed.
The parties also stated their willingness to reinforce the European Parliament by giving it the right to legislative initiative, transnational lists and making the spitzenkandidaten procedure mandatory. How important would this change be for the European Union?
Didn’t Member States already make it clear that they intend the Commission to remain a creature in the hands of the Council, as apparent with Ursula von der Leyen’s nomination in 2019?
A strengthening of the European Parliament is always important for the European Union. While from a legal perspective the right of initiative is perhaps the most fundamental of these three proposed reforms, what I would actually expect to have most impact on the functioning of the EU is the transnational lists (or any other change to make the European elections more ‘European’), to try to overcome the problem that European elections have often functioned as ‘second-order national elections’ with therefore a diminished representative legitimacy, as well as diminished appeal to voters. The turn-out in the last European elections was already more promising than before (after years of declining numbers), and transnational lists are (as political scientists predict) likely to play a positive role in increasing those numbers further. Personally, I think a pan-European constituency is crucial for the legitimacy of the EU as it currently stands, let alone for a possible development towards a European Federal State (as, I should stress again, the manifesto supports!).
The manifesto expresses a willingness to increase the use of qualified majority voting for the EU’s Common Foreign and Security Policy (CFSP). This is already permitted by the Treaties. What does this proposal mean and what are the consequences?
The move to QMV would serve to make the EU more effective in its foreign policy, and it would be a step away from the intergovernmental method that has mostly characterized this area up until now, towards the supranational method. However, even if QMV were to apply, the decision-making process in this area still fundamentally differs from the Community Method, most importantly in terms of parliamentary involvement and jurisdiction of the CJEU. This continues to pose legitimacy concerns from a constitutional and democratic perspective. While a measure of executive dominance is perhaps not uncommon for foreign policy also as the national level, it could be argued that the EU-level exacerbates that executive dominance without sufficient safeguards in return. From that perspective, it may actually be problematic to proceed to QMV without any further actions to legitimize the CFSP by bringing it closer to the Community Method.
This leads to a more general point, and perhaps one of the most fundamental ones in the manifesto: it indicates that the coalition “will give priority to the Community method again”. This is a highly significant, and in my view very desirable, departure from Germany’s previous stance. Chancellor Merkel, as illustrated by her famous Bruges-speech at the College of Europe, had been a leading advocate of the “Union-method”. This intergovernmental approach may seem effective for ‘problem-solving’ but presents a range of legitimacy problems because it avoids the carefully designed constitutional and democratic safeguards and checks-and balances in the Community Method and especially the ordinary legislative procedure (OLP). The OLP is the world’s greatest achievement in transnational constitutional democracy, while the Union-method is just traditional international power-play with all its attendant problems. Critics and supporters of the EU alike endlessly talk about its alleged democratic deficit. While there is always room for further improvement, I don’t see that there really is a profound problem as regards the Community method. The Union method, on the other hand, as for example applied in the Euro-crisis and in the EU’s migration policy, suffers from deep democratic and constitutional defects, including from a fundamental rights perspective. So, to abandon it in favor of the Community method, would be a silver bullet to fundamentally legitimize European integration.
The manifesto puts forward that justices at the CJEU should have a non-renewable 12-year term to avoid political capture at the Court. Is this really an issue?
Specifically as regards the idea that “to strengthen” the CJEU, “the term of office for judges should be extended to twelve years on a one-off basis”, I am not really sure that this addresses a pressing issue. In your question you indicate that this would be to “avoid political capture”, and it is true that a non-renewable and sufficiently long fixed term would possibly be a way to do so, but I am not aware that political capture is currently a problem.
Actually, I would like to draw attention to the sentence in the manifesto that comes before this proposal about the term of CJEU judges, which I was very surprised by, and which is potentially groundbreaking: “We want the rights under the EU Charter of Fundamental Rights to be enforceable before the ECJ in future even if a Member State acts within the scope of its national law.” Currently the EU Charter of Fundamental Rights only applies to the Member States when they act in the scope of EU law, and while this has been given a relatively broad interpretation, to extend its application in this sense would turn the CJEU into a fully-fledged human rights court and would lead the EU a fundamental step closer towards Federal statehood; it would basically complete the process of ‘constitutionalisation’ of EU law that was started by the CJEU in Van Gend, Costa and Internationale all those years ago. It remains very doubtful that national constitutional courts, including the German Bundesverfassungsgericht, will accept such a move – there are chances that they would consider that development so fundamentally incompatible with the national constitution that a new national constitution would have to be adopted to allow for this. However, that would be the case anyway if the coalition’s ambition of a European Federal State came to pass... You see, the manifesto really is revolutionary!