To Reform’ Into Five Distinct but Overlapping Categories

European Political and Governance Studies

Academic Year 2017-2018

Professor: Martin WESTLAKE Assistant: Samuel VERSCHRAEGEN

RESEARCH SEMINAR

POLITICAL, INSTITUTIONAL AND CONSTITUTIONAL ISSUES

A Topology of Reform For the purposes of this seminar I would propose to divide understanding of the verb ‘to reform’ into five distinct but overlapping categories.

1. The first has a moral/ethical dimension. According to this sense of the word, something is wrong – morally or ethically – and must be corrected. To reform, in this sense, is to correct something, to stop a wrong, an abuse or a malpractice – or, at the least, to do away with the potential for such a malpractice. Many of the reforms in the package that followed on from the 15 March 1999 resignation of the Santer Commission were presented as being (and perceived to be) of this sort. These ranged from the adoption by the Commission of rules and guidelines governing, for example, the composition of Commissioners’ cabinets in terms of geographical distribution and the national origin of the chefs) to the creation of executive agencies (thus avoiding the need for potentially ‘rogue’ technical assistance offices) to the new (2004) financial regulation. Most were presented as being a sort of ’cleaning up’ of the Brussels policy-making process and of the institutions – but particularly of the Commission in its executive and budgetary functions.

2. The second, nuanced, category has a normative, as opposed to an ethical, dimension. It is not so much that something is morally or ethically wrong, but that something should nevertheless be different, or bettered, from a normative point of view. For example, one of the two challenges facing the EU identified by the Heads of State or Government in the 2001 Laeken Declaration was the growing gap between the Union and its institutions and the EU citizens they purport to serve.1 Accordingly, one of the

1 And it is a burning irony of the Lisbon Treaty's implementation that all of the ensuing measures designed to close the gap - as mostly set out in Title II of the TEU - were either minimised (who talks of participatory democracy now?) or significantly delayed (the European Citizens’ Initiative) or simply haven’t been perceived to have had any noticeable effect (for example, national parliaments’ red and yellow cards, the Committee of the Regions’s legal prerogative – unused so far - in relation to

overt objectives of the ensuing Convention and Intergovernmental Conference was to try and bridge this gap and thus reduce the EU’s so-called ‘democratic deficit’. That deficit could be categorised as a normative shortcoming (the EU should be more democratic, there should be less of a gap between the EU and its citizens) rather than a moral or an ethical one. This normative category of reform is more liable to different perceptions than is the first, ethical, category. For example, it is almost universally acknowledged that reducing the possibilities for fraud in the use of EU credits is a moral/ethical good – certainly, few would be opposed to measures that would make fraud more difficult. It is not, however, so universally acknowledged that the creation of a European banking union would be a normative good. The normative sense of reform is particularly prevalent in the constitutional, or pseudo- constitutional, arena.

3. The third category has a more neutral and positive (as opposed to normative) connotation of improvement. According to this usage, there is no implication that something is morally or ethically or even normatively wrong. On the other hand, there is a clear implication that something might be improved. This was true, for example, of the second challenge identified in the 2001 Laeken Declaration – namely, the prospect of a major enlargement of the Union and its consequences for the functioning of the institutions (in terms of efficiency). This prospect was behind such reforms as, for example, the creation of a permanent Presidency of the European Council and the attempted reduction in the number of Commissioners. Less value-laden considerations come into play with regard to this category. It was argued, for example, that reducing the number of Commissioners would make the Commission more efficient, or that the old-style rotating presidency of the Council of the European Union would be impracticable in a union of twenty-five or twenty- seven member states.2

4. The fourth category is an even more basic form of the term. To re-form is, simply, to change, though not necessarily in view of any moral or ethical or normative considerations or even any arguments of efficiency. (Examples of this sort of reform would include the 1999 reformulation of the acronyms denoting the European Commission’s Directorates General or the 1999 decision to move individual Commissioners away from the Breydel building – the Commission’s then headquarters - so that they could be housed closer to their administrative staff.3) Put brutally, some change can seem to be simply for change’s sake. But change, in the form of the ubiquitous ‘shake-up’ can also be salutary, although that very salutariness can become habitual.4 the principle of subsidiarity. Whether or not there is a causal relationship at work, it should also be pointed out that the gap, or deficit, has continued to grow. 2 In the event, as we know, the number of Commissioners was not reduced and the old-style rotating Presidency remained, although now accompanied by the slightly more permanent Presidency of the European Council. Has the efficiency of the institutions been enhanced by these improvements or suffered as a result of these vestiges ? This is at least arguable. See Westlake (3) for a prediction that the ‘reform’ of the Presidency of the Council of the European Union would in any case add to, rather than subtract from, the Union’s institutional architecture. 3 A ‘reform’ later quietly reversed when the Commission’s headquarters were once again relocated in the refurbished Berlaymont building. There was understandable silence about the amount of money involved in furbishing, refurbishing and restructuring the various buildings involved in this exercise. 4 See, for example, the way any incoming Secretary General or Director General is virtually expected to

5. The fifth category is political. For example, a centre-right executive might put the primary emphasis on de-regulation and completion of the single market as the most effective reform responses to the ongoing economic crisis or more generally as the most appropriate policy mix. A centre-left executive might put greater emphasis on ‘Keynesian’ investment, solidarity and consolidation of ‘social Europe’. A green approach might put more emphasis on renewable energy, access to water, carbon capture, the creation of ‘green jobs’, and so on. A Euro-sceptical party would put the emphasis on ‘less Europe’, national sovereignty and a more intergovernmental approach. A federal party5 would argue for more centralised powers and a greater EU budget (American or Keynesian style) or for a better balance between central powers/credits and the component parts of the Union (European style). A confederalist6 would argue for a balance between the two. All of these different approaches can, and do, appropriate the language and the vocabulary of reform. Thus, Jacques Delors (relaunching Europe), Jacques Santer (doing less better), Romano Prodi (reforming and enlarging) and Manuel Barroso (deregulating) were all reformist Commission Presidents, initially s/elected on the basis of reformist (in a political sense) agendas – as, indeed, is the current incumbent, Jean-Claude Juncker.

Permanent evolution?

In a variation on Trotsky’s concept of the “permanent revolution” one could say that finding itself in a process of “permanent reform” has become one of the basic characteristics of the European Union.’ I would further argue that the European Union is in a process of permanent evolution.7 If one takes such an organic, evolutionary approach then the European Union and its institutions can be understood as organisms constantly adapting to a changing environment. Evolution, in that sense, can be both progressive and regressive.8 Thus, Europe might be not so much ‘a journey to an unknown destination’9 as a perpetual journey or process of flux where, pace my own argument, there may never be a fixed constitutional end state or, rather, that end state may not occur for a very long time to come. According to such an approach, the mechanisms (formal and informal) that govern constitutional and institutional change are simply parts of the changing environment to which the Union has to adapt. In that context, it seems clear that the traditional reform method of engaging periodically in comprehensive treaty revisions involving complex trade-offs between a wide range of political, institutional and legal issues (preceded by a hubristic Convention) is decreasingly viable. The failed referenda of 2005, 2008 and 2016 have demonstrated that both national and

undertake a restructuring of the establishment plan of her/his institution/department. 5 Is federalism an ideology ? 6 Do they exist at EU level? 7 I have set out that case in Westlake (2), 1998. 8 These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union…’ (TEU, Article 48.2) For an excellent critical essay on the assumption of permanent progress, see Mark Gilbert, Narrating the Process: Questioning the Progressive Story of European Integration, Journal of Common Market Studies, Vol. 46, N° 3, pp. 641-662. 9 Shonfield, Andrew, 1973.

EU political elites are encountering increasing difficulties in securing the necessary support for such major reform packages. The choreography will, in any case, surely become increasingly complex.

This seminar is intended to provide a critical framework for advanced research into the main issues and processes of the constitutional, institutional and political10 reform of the European Union and of its institutions and procedures. It will focus on the reform issues which have arisen out of the euro zone crisis, impending Brexit, the ongoing migration crisis and previous reform processes leading from the Declaration of Laeken (2001) to the implementation of the 2009 Treaty of Lisbon reforms. The seminar will bring a critical eye to bear on the whole concept and process of reform. How are reforms generated? Where do reform ideas and proposals come from? In what circumstances? How are they sustained? How is their success measured, if at all? If nothing changes subsequent to reforms, were those reforms necessary? Or, on the other hand, would the situation have been worse if they hadn’t been implemented? What is the difference, if any, between reform and change? How is continuity ensured? Is the very term ‘reform’ a misnomer? And is there any sort of collective memory of the reasoning behind various reform processes?

Areas covered

The subjects covered will depend on the topics chosen by the participants for their Master’s theses. These topics, however, should try to fit into one of the following areas:

 Evaluation of the Union’s actual needs for reform in the light of internal and external policy challenges and future challenges such as, for example, the euro zone (Five Presidents’ Report, UK Settlement), Brexit, the migration crisis and further enlargements;  Assessment of the Treaty of Lisbon (including the Juncker Commission) reforms in terms of their implementation to date and their capacity to meet the identified major challenges which they were supposed to help the Union meet;  Analysis of major elements of the Treaty of Lisbon reforms and their implications for the further evolution of the EU system (e.g. the new Presidency system, the new High Representative, the new institutional balance (including the ‘Spitzenkandidaten’ procedure), the European Citizens’ Initiative, the new subsidiarity early-warning procedures, changes to EU action possibilities in various policy fields such as the area of freedom, security and justice);  Evaluation of the political ‘costs’ of the Treaty of Lisbon in terms of further differentiation (e.g. extended ‘opt-outs’ and facilitated enhance cooperation) and missed reform opportunities (could Brexit have been avoided?);  Evaluation of the methods of EU treaty reform (Convention method, IGC method, new simplified treaty revision procedures under the Treaty of Lisbon, the UK Settlement device).

10 And also administrative reform – if of sufficient interest.

Conclusion: A Timely Topic

It is a good time to be observing the EU reform process.

The Union’s efforts to deal with the euro zone crisis have led it inexorably to the conclusion that it must create some sort of banking union (as set out in the June 2015 ‘Five Presidents’ Report’). This might or might not require treaty change but would definitely require reforms in terms of the role and powers of the institutions and the creation of new mechanisms and new forms of cooperation and coordination. Part A of the draft February 2016 Settlement with the United Kingdom was intended in part to anticipate such reform in the absence of Treaty change.

That draft Settlement fell on 23 June 2016 and the Union now finds itself confronting the first ever departure of a Member State and the first ever use of TEU Article 50. Meanwhile, the definitive departure of Sterling from the EU might reduce the need for complicated governance mechanisms between ‘ins’, ‘pre-ins’ and ‘outs’ (though Denmark and Sweden will surely still seek reassurances) but the euro zone must still find a way forward towards greater consolidation.

Last but not least, the Union’s chronic migration crisis is undermining the Schengen mechanisms and some Member States’ fundamental commitment to free movement.

In all of these areas – euro zone, ‘Brexit’ and migration – fundamental reform is required and, indeed, envisaged and yet, given the rise of populist and Eurosceptic forces, must be achieved without Treaty reform.

In conclusion, therefore, this research seminar is happy to consider subjects falling within all of the categories set out above and even, indeed, the subtle category of reform without reform!