Andrew Duff
Pandora, Penelope, Polity: How to change the European Union
John Harper Publishing, 2015
The fact that the European Union has alienated many of its citizens for its poor management of several recent problematic situations (from the euro and the Greek crises to the migrant flows) is unquestionable. So, a lot of people today are calling for changes to be made to the EU present mission and institutional architecture, which range from simply doing away with the Union, to reducing its competences and size and giving several powers back to the nation states, or to, on the contrary, taking advantage of the crisis and the manifest flaws for correcting what is wrong in the system, and making bolder steps towards larger competences awarded to the EU and a closer union.
To the third kind belongs Andrew Duff, a long-time federalist who was elected to the European Parliament for the East of England in the Liberal Democratic Party in 1999 and 2004, and from 2008 to 2013 has been the President of the Union of European Federalists (UEF); he is also member of the Spinelli Group from the start. His long involvement in the European institutions and his contacts with many leading figures of the European integration process make this little book (about 110 pages) quite instructive about the story, almost from within, of the thrusts and the hurdles that led to the various Treaties, as well as of the many missed opportunities and the countless compromises that for various reasons made those Treaties, including the present Treaty of Lisbon (ToL), also in their form (consider, for example, that the ToL encloses 38 Protocols and 65 Declarations!) and language, bureaucratic, almost impossible to be understood by the common citizen, full of complicated procedures and, as far as the institutional architecture is concerned, envisaging useless duplicates, insufficient powers and a wrong attribution of competences. No wonder then if the executive branch of the Union in particular is seen as inefficient by its citizens.
More than half of the book is devoted to describing the political and economic events from the Laeken Declaration of December 2001 to the ToL (entered into force on December 1, 2009) and to the present-day “revisionist” forces, touching in particular the happenings during and after the second Convention and the Constitutional Treaty (October 2004), and those during the economic and financial crisis. But it is not just an historical description of events, but rather a plain, well-reasoned and informative discourse, an in-depth and critical analysis not only of the facts, but also of the relations among institutions and even individuals. It also conveys to the reader the perception of the very great complexity of European affairs, of tortuous technicalities that can only be left to specialists, of delicate balances that must be found with difficulty.
Then Andrew Duff, after having set the stage, moves on to the proposals for change. The two pillars, I may say, are: firstly, “the Union government must be federal to be really democratic”, because it does not make sense to aim for less; secondly, “executive powers need to be concentrated in a reformed European Commission”. Federal is in opposition to inter-governmental or confederal, meaning that enough exclusive competences (clearly spelled out in a Constitution or in a Treaty, and to be kept to a minimum, keeping in mind the principle of subsidiarity) have been devolved by the national States to the Union, as necessary for the EU government to take decisions in those matters by the vote (most of the times a Qualified Majority Vote (QMV)) of the Union's constitutional organs, with no veto possible. This does not mean at all that the States will have no voice in European affairs: the European Council, representing them in its various configurations of Council of Ministers, shall become the first legislative body of the Union, while the Heads of State and Government will cease to operate in the daily affairs of the Union (such competences will be ceded to the Commission), but will decide on and provide guidelines in relation to “constitutional matters, to decisions affecting the membership of the Union, to the making of top appointments and to matters of high strategy in the realm of security and defence policy, such as Ukraine”. There will still be a permanent President of the European Council, who “would in effect be chair of the upper house of the Union's legislature: as such he, with the President of the European Parliament, would take up the co-presidency of the constitutive Conventions. In its constitutional role, the European Council should gain the right, co-equal with the Parliament, to sack the Commission”.
The Commission shall be structured like all the other governments of the world, with a Presidency and Ministries (or the likes), Agencies, etc., and a proper budget; this shall be presumably done for the most part by rearranging existing positions, but for sure new competences and above all new own budgetary resources will be required, as adequate “to match the scale of [the EU's] political ambitions”. A. Duff spends pages to argue for the arrangements to be done in the various sectors (the economic and monetary union, the common policies, the international policies, etc.). I will quote here just a few of the many new features proposed for such a government:
A powerful Treasury Minister [will] represent the eurozone in international financial negotiations... The Treasury Minister will also take the lead in the political dialogue with the ECB and in supervising and correcting national budgetary performance. The Commission's treasury will run lending and borrowing at the federal level and be responsible for managing the additional fiscal capacity of the eurozone... The famous 'no bail out' clause needs to be amended to allow the eurozone states to establish a system for the progressive, common pooling of a portion of sovereign debt, subject to strict conditionality.
A treaty change is needed to re-focus the European Council on setting the strategic orientation of the Union in international affairs, leaving to the Commission and Council the job of taking operational decisions, and to the High Representative and the Commission the role of initiating and coordinating policy. The High Representative must be allowed to take the lead in speaking for the Union in international fora, not least the UN.
The External Action Service should be brought entirely within a revived Directorate-General of External Relations of the Commission. Jean Claude Juncker's decision to invite the new High Representative, Federica Mogherini, back into the Berlaymont building from across the Rond-Point Schuman is a good start.
There are two valuable constitutional texts, one published in December 2002 and the other in 2013, to which Duff makes frequent reference, because both of them go in the federalist direction he has in mind. The first is the product of a working party established secretly by Romano Prodi, then Commission President, just when the Convention was working to the same goal (which infuriated Giscard d'Estaing); it was led by François Lamoureux and was nicknamed “Penelope”1 (she is one of the ladies in the book's title, faithful and successful in the end; the other lady is Pandora, the recipient from the gods of the box full of evil spirits, symbolizing here the paralysing fear of some Europeans to change things, lest unexpected problems arise and have to be solved).
The other text is a comprehensive draft constitutional treaty, entitled “A Fundamental Law of the European Union”2 , published by the Spinelli Group and Bertelsmann Stiftung (in short, “The Fundamental Law”). The Spinelli Group is an initiative launched in 2010 by Daniel Cohn-Bendit and Guy Verhofstadt, which gathers more than 110 MEPs (forming also a cross-party informal intergroup in the EP) and other pro-European personalities. Both publications constitute an advancement towards explicitly federal-type institutions and procedures for the European Union, and also a remarkable simplification in the text's organization, and an improvement in the clarity and language of the norms compared to past treaties. They may well serve as precious blueprints for future constitutional endeavors, and, in my opinion, would deserve to be better known and also become the object of discussion in particular within the federalist movements all over Europe.
A sub-chapter in the book entitled “Dealing with dissenters” is of some interest, remembering the past experience with the last Constitutional Treaty, that nobody would like to go through again (but how to avoid that for the next approval of substantial changes to the Treaties?), and the current presence of potential dissenters. Since in a federal polity unanimity is never required, a new Constitution will automatically enter into force when, say, five-sixths of the states have ratified it; the dissenting state(s) could then accept it “willy-nilly” and sign a declaration to that effect, or be offered the option to become associate members. The status of associate member (which could be offered not only to dissenters, but also to other states that share the EU's basic values and wish to have closer and stable relations with it) could allow for participation, under certain conditions (for instance, to acknowledge the jurisdiction of the European Court of Justice) and within some limits, in the EU institutions and in its common foreign, security and defence arrangements, and in the internal market. Such status, Duff writes, could “cater for the needs of Norway, Iceland and Switzerland”, but “might also be suitable for Turkey”, and might even “offer a parking place for the United Kingdom, on either a short-stay or long-stay basis, should it exercise its right not to remain a full member state”. It certainly deserves further consideration.
To discuss and decide on all the fundamental and ponderous changes to the Union Treaties that have only partially and briefly been presented here, and draw up a new Constitutional Treaty, it is necessary to call a new Convention, the third. Andrew Duff, of course, is perfectly aware that the general public opinion “is overwhelmingly anti-federal”, that some people “have already lost faith in the European project”, that some will be happy with just “tinkering at the edges” with only a small treaty revision. But he writes: “Our direction, inspired by history and driven by logic, is federalist. We insist that reform of the European Union must be structural because it is only a constitutive project which can realize the potential of the new polity in a legal and democratic way. Without a genuine constitutional approach no legitimate government of the Union will emerge”. There is to hope that the general situation in Europe and in the world will soon improve: if the economic crisis fades out and the economy gains momentum and people have more jobs, more money to spend, and more confidence in a better future, if the migration policies of the Union will become more rational and people get less emotional and frightened, hopefully also their attitude towards the Union could change...
Anyway, according to Art. 48(3) of the ToL, “if the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention...”, as happened in 2002-2003. What the book is recommending then is a “careful preparation” of the Commission and the European Parliament under the leadership of their Presidents, Juncker and Schulz; in particular, a significant role can be played by the Constitutional Affairs Committee of the EP (formerly presided over by Giorgio Napolitano) and by its federalist intergroup. As for the timing, Duff suggests that the Convention should be convened between 2017 (after the French and German elections and the UK referendum) and May 2019, when the elections to the European parliament will be held, and could also serve for the ratifications.
As I said, the book is informative about the European institutional affairs of the last decade, passionate in arguing for an already well-structured federal institutional project for Europe, ambitious in proposing such a project to be carried out in an unbelievably short time; an injection of sense of purpose in our cynical time.
1 www.cvce.eu/en/obj/penelope_draft_contribution_to_a_preliminary_draft_european_constitution_4_december_ 2002-en-d8e2c7a6-3da4-43e4-beb2-3740b6437fee.html (in French)
2 www.spinelligroup.eu/article/funamental-law-european-union. Also available on Amazon in e-book or paperback formats