Institucional reform in the EU: the need is pressing
After the summer break, we resume our contributions to the Conference on the future of Europe. This series is devoted to institutional reform. The reform that has been so often sketched out, but rarely tackled. It has always been present in the European debate, because the institutions through which policies are implemented must adapt to realities and needs, otherwise they will be diluted in the mists of time and thus make impossible the challenges we have been facing since the first European Communities were created.
It is therefore understandable that voices are now being raised warning of the limitations of a Conference on the future of Europe such as the one we are discussing, where the debate on what needs to be done, i.e. on policies, seems to leave to one side the debate on how to do it, by means of what instruments and with what results, which is a matter for the institutions. Antonio Bar expressed his regret at this, because, as he said, the new needs were well known: In case we had forgotten, the pandemic, on the one hand, and the Afghanistan crisis, among others, on the other, are daily pointing out shortcomings (in health policy and foreign policy, for example) arising from a decision-making process that must be overcome if we, as Europeans, are to make a difference in this globalised world in which, if we continue to fail to respond adequately, we will count for less and less.
It has not been possible for us to tackle everything that this institutional reform, this updating of the instruments of democracy that Europe needs, requires. There is so much to point out that it has been necessary to select certain aspects, although we must not give up raising others that also appear to be unavoidable.
For example, if we have to deal effectively and quickly with all the shortcomings we have noted in order to respond to the socio-economic crisis exacerbated by the pandemic or to have an active policy that allows us to act in a coordinated manner to protect our citizens and those who also need it in Afghanistan, we cannot continue to be governed by the unanimity rule for decision-making in the Council; Antonio Hermosa shows us how complex organisations have been overcoming it and proposes, rightly in my opinion, that it should only apply to the entry of new members into the EU.
Institutions cannot be set in stone. And their reform has to respond to a certain logic. The federal logic which, as Carlos Carnero rightly explains, has been present throughout the evolution of the Union, although people are afraid to call it that and the term "federative" is often used so as not to frighten the timorous who, out of fear of not calling things by their name, do nothing more than distort its content. This logic would require legislation to be considered under a bicameral system in which the European Parliament would be the lower chamber, directly representing citizens, and the Council of the Union would represent territorial interests in the manner of a senate, thus reinforcing the institutional balance that should be considered in complex societies, as was the case when the American framers managed to consolidate, under The Federalist, the principles of equality and justice without undermining freedom and democracy, providing a framework of thought that is still relevant today despite the passage of time.
It is true that, for this to take shape, certain other things need to change: the European Commission must be a real executive, better emanating from the Parliament by electing its (the Commission's) President from among the leaders of the parliamentary groups formed by popular election. And it would also be necessary to have a European electoral law, provided for in the Treaties but never adopted, based on common principles and which, at the same time as electing members in the Member States, would make transnational lists possible; there are various techniques that would allow this, a little like the double vote that exists in Germany for the election of the Bundestag (the chamber representing the population).
It is also necessary to strengthen interinstitutional cooperation with the Member States, at parliamentary level, by turning the early warning instrument into a real mechanism for collaboration in the drafting of rules, strengthening the links between the European Parliament, the national parliaments and the regional parliaments with legislative powers.
More complicated is the organisation of the judiciary, which also requires an "institutional relocation" as guarantor of the principle of the primacy of Union law and, at the same time, of the fundamental rights of individuals. This would imply a better "dialogue between courts"; between the European Union's Court of Justice and those of the States on the one hand, especially in relation to Constitutional Courts and the "reserves of sovereignty" that some claim. The recent case of the German Constitutional Court against the European Central Bank, accusing the EU Court of Justice of acting ultra vires in economic matters; and the much more recent case of the Polish Constitutional Court, denying the primacy of EU law, which has provoked a deep crisis at the heart of the Community legal system, are both examples of a "non-dialogue" that Europe cannot afford.
Moreover, as Montse Enrich explains, the coexistence between the EU Court of Justice and the European Court of Human Rights must be in line with the provisions of the Treaties, overcoming the problems, which certainly exist, for the ratification of the European Convention on Human Rights by the EU, thus ensuring that, In the area of fundamental rights, the procedures to be established would not give rise to problems of competence between the two Courts and would allow for interaction between them, so that rights would not only be formally recognised but would also have real effectiveness throughout the Union.
Democracy in this Europe of ours would be much improved if institutional reform were seriously addressed. The Parliament, whose legitimacy is indisputable, has gained a lot in social inclusion and representativeness, not only because of the inclusion of more and more women in it, as Julia Sevilla explains, calling for presence to change the essence as well. And it would also be necessary, in order to strengthen the chamber's representativeness, to give it legislative initiative (without the Commission losing it) as well as to improve the legislative procedure and the instruments of control, in the sense indicated by Carlos Uriarte.
And what can we say about the informal mechanisms that mark out, with excessive protagonism and lack of control', decision-making in various areas? I am referring, for example, to the Eurogroup, made up of the ministers of economy and finance, who elect their president by majority vote and who take such far-reaching decisions as, for example, those that later led to the Next Generation EU funds; this Eurogroup should be regulated and subject to parliamentary control, so that it would never happen again that a president unanimously rejected by Parliament could continue until the end of his term of office without anyone coughing up to him. Or the "Committee of 5 presidents" (of the Parliament, the Council, the Commission, the Eurogroup and the European Central Bank), which also takes important decisions through informal meetings and at which a meeting was held not long ago excluding the President of the Parliament because, being Italian, he might have a position too favourable to his country's government on the issue of funds to alleviate the crisis resulting from the pandemic; a curious situation: the only president of an institution directly elected by the people is excluded.
These somewhat "bizarre" situations are a real breach of the rule of law, a value of the Union according to Article 2 of the Treaty on European Union, protected by the penalty procedure for infringement of values, because the rule of law requires legal certainty and a balance/control between the different powers, as established at the Hague Congress after the Second World War, which declared that the rule of law, democracy and human rights must be the frontier of our Europe. For without the rule of law there is no democracy, and without democracy there are no rights.
It is not for nothing that, when the so-called Venice Commission was set up, it was formally established as a "European Commission for Democracy through Law". Lest, as happened in the inter-war period, the rule of law and democracy be confused with totalitarian implosion over the whole of Europe's citizens, disguised as the will of the majority and respect for legal rules. A better interrelation between the mechanisms of the Council of Europe and the European Union could perhaps introduce instruments for conflict resolution, both between the two organisations and between them and their respective Member States, since we have seen how, on too many occasions, crises such as the Balkans, the situation in the Middle East, or the lack of a relevant migration policy, would have required joint action, which is currently beset by great difficulties.
Institutional reform must therefore be aimed at strengthening the links between citizens and the Institutions. It must provide new operating rules for those Institutions which have to decide on issues that directly affect citizens' lives, in both the micro and macro sense, and which must enable Europe to project the values that underpin it to the rest of the world. It is therefore necessary to strengthen the Union's democratic sense, on the one hand, and, on the other, to provide it with a decision-making process in keeping with the changing times.
Teresa Freixes
Jean Monnet Professor ad personam. Vice-President of the European Academy of Doctors and President of Citizens pro Europe