"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
"ReDCE Especial The rule of Law 1/2024 (Francisco Balaguer Callejón and Miguel Azpitarte ed.)"
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To present the democratic problem in the European system, firstly, I will directly examine the provisions of the Treaties and, secondly, the practices of the European Institutions; finally, I will take into account the behavior of governments and institutions of the Member States.
It is not easy to define what is good for European democracy. It is easier to observe what harms it. And this brings us to the premise behind the theme of democracy.
The Western spirit has long believed in democracy and specifically parliamentary democracy as a source of freedom and equality. It is therefore in this context, that the link between the political form of democracy and the safeguarding of freedom and equality was given by the legislative law created by the representation of the electoral body. To this was added, in the course of the experience of constitutionalism, the control over the law entrusted to special bodies of justice that protect constitutional principles and, in particular, the liberties, and, last but not least, in governments subject to the trust of the Parliament or directly to that of citizens.
All this, net of nationalism, the terrifying dictatorships of fascism and Nazism, and two world wars, have served to represent that particular form of state which, with a polysemous expression, we call the “rule of law” and with which we mean a system that controls the exercise of public power through law.[01]
What space supranational integration and European federalism (obviously understood in a different meaning from that of the 19th century) offer to the figure of the “rule of law” is not clearly expressed. Certainly, the Court of Justice in its jurisprudence made clear reference to this when it qualified the European system as a “Community of law”,[02] but in practice, no European government has so far made a clear pronouncement on this point; if anything, the expression “rule of law”, in the European system, was used to assess the position of some Member States, when it was considered that there was a violation of the democratic principle, as in the case of Jörg Haider’s Austria, for which a special commission was established,[03] and subsequently until recently in the cases of Hungary and Poland, even if up to now no formal initiative has been undertaken against these States, but simply indirect warnings.[04]
In particular, regarding the principles of the rule of law and, more specifically, the democratic principle, concerning the European construction, both political science, and constitutional law present recurring difficulties, even just talking about it, so much is still strong today, the dogma of the sovereign State emerged from Westphalia, on the crest of which the European construction and the process of integration are found.
Hence the perspective, apertis verbis, of European democracy faces the hesitations of the integration process, to clarify the current condition of fundamental rights, the fruit of the community life of European citizens, and the political process necessary to achieve peaceful coexistence, a collaboration between governments and solidarity with States outside the Union.
The West and, in particular, Europe already has good literature on this approach which is a more than solid theory of political integration, capable of providing adequate responses even to the current condition of globalization.
Therefore, the invocation of a resurgent “State sovereignty” to counter the dynamics of globalization and to involve supranational (European and international) policies in this aversion is an unintelligent and harmful political reaction.
But what in Europe has been defined as “sovereignty”, and which sees some particularly active right-wing political forces, such as the AfD, La Lega, Rassemblement National, Vox, etc., is only part of the phenomenon; much more sordid is the “sovereignty” of the political left which is based on the assumption that only the State can guarantee social rights, an assertion devoid of demonstration that serves political purposes to affirm a centrality, not of the person, but the state.
Sovereignism, as we have seen, in recent years has also been peculiar to the governments and institutions of the Member States, even those who define themselves as “democrats” and advocates of the “rule of law”, when they have put the dictates of federalism out of the way of European and supranational integration.
Ultimately, the comparison between “State sovereignty” and “federal integration”, which characterizes the current European political phase, passes entirely through the meaning that is recognized as “democracy”, as an instrument for the composition of European political unity, capable of keeping the spirit of domination at bay among the Member States that feeds the current differences over the future of Europe, effectively questioning its values and principles.[05]
We start from the proclamation of Article 2 TEU, according to which
Here democracy seems to have no particular relevance and represents one of the “values” on which the Union is founded and which are common with the Member States.
Hence, although the term “democracy” can be defined by presupposition based on the political and institutional reality that the “stipulators” of the Lisbon Treaty have had in mind, concretely Art. 2 tells us almost nothing about what kind of democracy is the European one, and to be more precise, about what kind of democracy is that of the Member States, and its enunciation as a value may not be sufficient for an effective affirmation of democracy.
Article 10 TEU, made up of surprising statements to be inserted in a source that is formally an international treaty, comes closest to our theme.[07]
“1. The functioning of the Union shall be founded on representative democracy.”
“2. Citizens are directly represented at Union level in the European Parliament.”
“Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.”
“3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”
“4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.”
As difficult as it may seem to believe, this is not the language of a Treaty but of a constitution. Expression as representative democracy, citizens and representation, Member States and representation, democratic accountability, political parties, and the will of the citizens of the Union, refer to constitutional concepts.
And again, if we consider the hypothesis of the initiative on behalf of the “Citizens of the Union” (“not less than one million citizens who are nationals of a significant number of Member States”) “of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties” (Article 11, para. 4, TEU) and other prerogatives of European citizenship,[08] the result is a regulatory framework for relations between citizens and the Union not unlike that which most democratic Constitutions provide for relations between citizens and the State.[09]
What’s more, the Treaty goes much further: on the one hand, it clearly defines its citizens: “Every national of a Member State shall be a citizen of the Union”, states Article 9 second sentence TEU, and adds immediately after that, “Citizenship of the Union shall be additional to and not replace national citizenship”.[10] On the other hand, the position of the Member States is also defined based on respect for the principle of equality of these “before the treaties”, that is before the legal order of the European Union, and “inclusive of regional and local self-government their national identity, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government” and respect extends to the “essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security”; and, for the latter, it is specified that it “remains the sole responsibility of each Member State” (Article 4 TEU).[11]
In addition, the Treaties make a considerable effort to configure a form of European government in parliamentary terms concerning relations between the Commission and the European Parliament, even though the Commission cannot be considered as a state government.[12] In this sense, on the one hand, “the European Council, acting by a qualified majority, shall propose, to the European Parliament, a candidate for President of the Commission”, “taking into account the elections to the European Parliament and after having held the appropriate consultations” (art. 17, paragraph 7, TEU), and, for the other, “the Commission, as a body, shall be responsible to the European Parliament”; furthermore, “the European Parliament may vote a motion of censure of the Commission” and, “if such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties he carries out in the Commission” (Article 17, paragraph 8, TEU). Moreover, now at the basis of the identification of the candidate for President of the Commission, by the European Council is the indication (starting from the 2014 European elections) on behalf of the European parties of their respective candidates for the Presidency of the European Commission, for which the parliamentary structure of the European form of government has acquired a strong political connotation, in line with accountability before the European Parliament.
The hagiographic framework that contains all the elements of a representative and parliamentary system, could be said to be strengthened precisely by Art. 14, para. 1, TEU, which provides: “The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission”.[13]
Moreover, this model could be said to be completed by the provisions of the Treaty from which we obtain the tension for the formation of a “European public space”, in which “the institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action”; moreover, they “shall maintain an open, transparent and regular dialogue with representative associations and civil society” (Article 11, paragraph 1 and 2, TEU). To this must be added, still, the procedures for consulting the interested parties by the European Commission, “to ensure that the Union’s actions are coherent and transparent” (Article 11, paragraph 3, TEU).[14]
We are perfectly aware that this institutional design was born as a reaction to one of the strongest arguments used against the legitimacy of the European legal system: that of the “democratic deficit”.[15] European law - it was observed above all from the beginning - would not have a democratic matrix, like that of the state, which would be the product of parliaments endowed with legislative power and accountable to citizens; and this would result in a lack of legitimacy of this law resulting from the agreement of state governments to escape precisely democratic control.[16]
Hence, the famous theory of “counter-limits” formulated by the Italian and German Constitutional Courts,[17] despite the impressive work carried out by the Court of Justice of affirming historical judgments, such as Costa / Enel, Simmenthal, Internationale Handelsgesellschaft, the prevalence of European law on state systems and constitutional provisions and the contemporaneity and immediacy of the effectiveness of European law in State systems (so-called Effect Utile).[18]
It is indisputable that the democratic strengthening of the European order, starting from the direct election of the European Parliament in 1979, has been an imposing phenomenon and such as to make the question of the democratic deficit of the Union a real myth;[19] nevertheless, it is equally undoubted that the European democratic principle still suffers, on a concrete level, from great limits and, to make it fragile, various political, institutional and cultural factors contribute so that the issue of European democracy arises - albeit in different terms from past - still as an open question.
Let’s start with the criticisms of the “European Parliament” institution. From some parts it is observed that the representation in the European Parliament would not be that of a real Parliament in the modern sense, for at least two reasons: firstly, there is no European electoral law written exclusively by the European Parliament and this would undermine the independence that it should characterize the representative institution; secondly, a Parliament that does not have the full power of legislative initiative looks more like a parliament of the Ancien Régime than a modern parliament.
The efforts made to consolidate the parliamentary institution are also known for both of these aspects, such as the adoption of decisions and regulations to limit the discretion of the Member States in formulating their respective electoral laws and thus achieve “a uniform procedure in all Member States or in accordance with principles common to all Member States” (Article 223 TFEU); just as, in the various passages due to the stratification of the Treaties, it was reached the provision that the majority of the members of the European Parliament “may (…) request the Commission to submit any appropriate proposal on matters on which it considers that a Union act is required for the purpose of implementing the Treaties” (Article 225 TFEU). But that these are remedies that do not completely overcome the constitutional criticisms is evident from the provisions of the treaties themselves; so much so that the Commission could not submit any proposal, simply communicating its reasons to the European Parliament.
Even more radical is the criticism of how to distribute the seats in the European Parliament. As is known, the rule envisaged is that of degressive proportionality, which is a mechanism by which an over-representation of the smaller state entities is obtained at the expense of the larger ones.[20] Rivers of ink have been spilled on degressive proportionality to say that it invalidates the same representativeness and that degressive distribution of seats, if it is generally justified for the second chambers as an expression of the Member States, would have no basis on the chamber that would intend to express general representation, as precisely the European Parliament; but this is not at all true, since Chambers of General Representation are composed, almost always due to territorial conditions, with a degressive proportionality.
But the real crux of the European Parliament is not so much the degressive distribution of seats, which has its cause of justification in the solidarity between the Member States, but rather the very concept of “general representation”, which has no firm foundation in the Treaties. They indeed state that citizens are directly represented, at the Union level, in the European Parliament and that this is made up of representatives of the citizens of the Union, but what the members of the European Parliament represent is not clearly stated, rather, it is not said at all. Beware, since 1979 the Parliament has been progressively led towards the acquisition of a general representation of the interests of the European Union as such and its citizens; but these efforts have been subject to constant contestation which has played against European democracy.
This is not the place to delve into the theme of political representation, we assume that it is a “collective institution” relating to the relationship between representatives and represented, without being at the same time unitary on this relationship (as it concerns all representatives and all represented), and singular (as regards each representative and all represented).
Fractures due to the chosen electoral mechanisms are reflected in every national political representation, both in how the territory is “cut” electorally and in the calculation mechanism for the allocation of seats. Just think of the always imperfect segmentation of districts and constituencies, the opposite meanings of majority and proportional electoral mechanisms, and the presence of formal and virtual barring clauses, in the second case due to the different mathematical calculation systems for the allocation of seats, etc.
However, in the case of national elections, no one believes that this could undermine general representation as a collective institution, albeit in its conventional acquisition and mythologized by the history of popular democracy, and, therefore, that the single Member of Parliament is “representative of all the people “(“Vertreter des ganzen Volkes”, art. 38, para. 1, GG) or that “represents the Nation” in its entirety (art. 67 of the Italian Constitution), a representation that is characterized by the “responsiveness” of representative; and it is still evident that parliamentary prerogatives (not being accountable for the opinions expressed and votes given, the prohibition of the mandatory mandate, criminal immunities and the right to indemnity itself), are a direct consequence of this representation.
In the case of the European elections, however, there is a part of the doctrine, above all German literature, which considers the argument of degressive distribution of seats sufficient to re-emerge a representation segmented by nations, to frustrate the provisions of the Treaties on the representation of Union citizens, still considering it as the old representation of the peoples of the Member States; in short, once again to demolish rather than to strengthen European democracy.[21]
The treaties, despite the structural shortcomings of the European parliamentary institution, which have been mentioned, express the principle that “The functioning of the Union is based on representative democracy”. This statement is the fruit of the European democratic process, which has marked an evolution of Institutions and procedures, including the legislative procedure, and has given political depth to the process of European integration.
However, it cannot be ignored that the major limitations for a full and conscious European democracy derive from the same European institutional design that distinguishes between the democratic representation of European citizens - which sits in the European Parliament, which “shall, jointly with the Council, exercise legislative and budgetary functions” and directly the “functions of political control” - and the European Council - which “shall not exercise legislative functions”, but “shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof”, thus giving rise to a contradictory dualism. The split between the determination of general politics and political control cannot be without consequences (and not in a positive way) for the affirmation of European democracy.
As is well known, the European Council is an innovation that is due to the Maastricht Treaty of 1992, but the Intergovernmental Conferences (IGC), composed “of the heads of state or government of the member states” have been a constant in the process of European integration. There could be no other way to give life to the integration process than to use the typical instruments of the international community, in which diplomacy intersects with the formation of treaties that must be negotiated, stipulated, and executed in the legal systems of the contracting States.
The coining, by Hans Peter Ipsen,[22] of the expression, that “States are the Masters of the Treaties” (Die Herren der Verträge) is due to this historical phase, which was subsequently interpreted, out of the historical context of origin, such as the possibility for States to act at will and make and undo Europe as they see fit.[23] This is meaning without foundation in the thought of those who formulated the expression and in contrast both with the original meaning of the integration process, deriving from the will of the European States to give “direction to their future common destiny” and, with the evolution of this, “to continue the process of creating an ever closer union among the peoples of Europe”.[24]
We must also consider that the Intergovernmental Conferences and the necessary competition of the will of the States according to typical forms of international law were the only means to advance the integration process. It is known that, historically, the toolbox of federalism was formed thanks to international law and, gradually, it was enriched with the instruments of constitutional law.
Once the supranational entities were established, however, they took on the characteristics of the “common order” which, as such, is distinct from the international order, as well as from the internal one of the Member States.
The fact that the subsequent stages of integration required the intermittent appearance of the Intergovernmental Conferences and the formalization of new agreements, however, did not subtract autonomy from the European process which, to succeed and evolve, had, only and exclusively, its institutional resources and its law and the results of the IGCs remained strictly outside the European legal system. The implementation of any external agreements has always translated into the legal forms of the “common order” and the European institutions have always been the only active forces and have been, more often than not, able to surpass and directly determine the political growth of the common legal system, precisely because they acted in total autonomy. To be clear, on many occasions, it was the development and activity of the EU Institutions that determined the content of the IGC and this became evident above all with the three Delors Commissions.
This does not mean that the Member States and, specifically, their governments have remained active in the European Institutional dynamics. It is no coincidence that one of the original Institutions of the European institutional design was still the Council in which the Ministers of the Governments of the Member States sat; but, since structure determines function, the position of governments as a legislative Institution of the Community was profoundly different from that of governments themselves as bearers of national interests in an Intergovernmental Conference. In the first case, as for any legislator, it was necessary to reach a synthesis and this determined the common interest; in the second case, on the other hand, the right of veto prevails - a typical internationalist mechanism - with which one’s national interest is asserted.[25]
Consequently, when the Intergovernmental Conferences were institutionalized in the European Council, a strong intergovernmental element was inserted into the institutional design of the Union[26] which immediately conditioned the integration process that had taken place up to now, having the common political interest as its sole reference.
The European Council began to argue the Maastricht Treaty itself, which had just entered into force. We can recall the CIG of the time on citizenship and the principle of subsidiarity and the Amsterdam Treaty of 1997 itself, did not increase much more than before integration at the European level.
The presence of the European Council, moreover, created a subordination of the other Institutions; thus, instead of witnessing the growth of European democracy centered on the European Parliament, the relationship of trust with the European Commission, and the election of its President, we have witnessed the progressive submission of the European legislator to the intergovernmental assembly, to the point that the legislative activity takes place only if there is no veto by the European Council, or takes place according to its indications. The recent reform of the ESM is a somewhat paradoxical example of this conflict between intergovernmental Europe and democratic Europe.[27] Here all that remains is to consider that it is no longer the Treaty that guides the integration process and this process no longer assumes juridical-institutional forms as in the past, but integration has regressed to forms of fact that have also unbalanced the position of the equality of the Member States.[28]
This also explains why, with the successive enlargements, the presence of the European Council was decisive in excluding the strengthening of integration with institutional mechanisms of a federal type. It marked the arrest of the development of European democracy, preventing the formation of European political leadership.
Indeed, since this should have been assumed by the President of the European Commission, indicated by the political parties, and voted by Parliament, a figure was invented that should have given rise to a unitary representation of the European Council, establishing the figure of its President, who it has served to reduce the political legitimacy of the President of the Commission, the only body in which political legitimacy and democratic legitimacy merge; and what happened in the meeting of 6 April 2021 in Turkey, where the chair for Ursula von der Leyen had not been placed, is not only a question of hatred for women on the Islamic side, or a mere protocol error, but the externalization of this conflict between the two “Europes”.
Ultimately, we must deal with a simple idea of Europe, as a “container of governments”, which tries to make the Union look like a free trade area governed by fully sovereign states and continually claims powers for the Member States over the action of the European legislator.[29]
This type of Europe has made the salient points of the integration process fail, starting with the European Defense Community, in 1954, seeing as the resumption of a Common Foreign Policy and a Common Defense and Security Policy is still very primitive and insufficient, with reference to the contemporary challenges of terrorism, migration, emergencies of all kinds including pandemic ones, and, above all, the geopolitical confrontation that is increasingly characterizing globalization.[30]
Recently, in the face of the humanitarian crisis,[31] for which a common defense would have been useful, the governments of the Member States have accentuated their “sovereign” positions. It can be thought that the answer to the geopolitical problems of which the European Union is also a part, could be indifference towards the Mediterranean, or the erection of walls and Friesian horses between the States, as during the Second World War, or agreements in contrast with the values on which the European Union is founded and which are common to the Member States, such as that with Turkey, or, more recently, the invitation of some interior ministers of Member States addressed to Afghan refugees not to come to Europe?
Apart from the illegitimate behavior of these ministers, we must not forget that the right to asylum is part of the “common constitutional traditions” and in Europe, it dates back to before the existence of the same States, namely the Middle Ages and the right to hospitality and protection of the great Romanesque and Gothic churches of Europe. Furthermore, it should not be forgotten that the right to asylum is part of the area of freedom, security, and justice, for which the lack of foreign policy also affects, as the migration crisis has shown, the freedom of European citizens, due to that conjunction between foreign politics and internal politics, determined by the overcoming of internal borders and the establishment of a single external border of the Union.
There is no doubt that the inclusion of the European Council in the European institutional design served, above all, to build the second pillar of the common foreign and security policy (CFSP), entrusted entirely to intergovernmental methods. Even with the establishment of the High Representative for Common Foreign and Security Policy, with the Treaty of Amsterdam, the situation has not changed at all. One cannot speak of this as a foreign minister of the European Union, not even after the Treaty of Lisbon provided that the High Representative “guides the Union’s common foreign and security policy” (Art. 18, para. 2, TEU) and that he “is one of the vice-presidents of the Commission” (Art. 18, para. 4, TEU). In fact, in the first case the High Representative acts as a “representative of the Council”, and as we well know, a concept - that of an agent – which is very different from that of a representative; in the second case, then, the vice-presidency of the Commission constitutes another mortgage on the autonomy of the European Commission, as it absorbs the “responsibilities incumbent on this institution in the field of external relations”.
Moreover, it should not be forgotten that for the High Representative, although he is subject, along with the President of the Commission and its members, “to a vote of approval by the European Parliament”, the European Council can end his mandate by the same appointed procedure, that is with a qualified majority resolution and with the agreement of the President of the Commission.
Indeed, the true representation of the common foreign and security policy is kept strictly in the hands of the Member States. When we see the conversation between Chancellor Merkel or President Macron, and President Putin or President Trump, or even witness the meetings between Draghi and Biden or Xi Jinping, the European public opinion now perceives that those talks and those encounters let Europe confront Russia, the United States, or China and no longer Germany, France or Italy.
Is this impression wrong? It seems to have to be answered that European public opinion is right, not only because visually the leaders of the Member States appear represented by the European flag, as well as by the national flag, but above all because the object of the talks is the duties imposed on goods for the respective markets and in the European case, for the entire internal market or international agreements concerning the whole European Union. Certainly, European leaders can also negotiate national agreements, as happened in the case of vaccines against Covid-19, but this does not exclude that the representative office of every leader or great European leader for the entire European Union is a fact.
If this is the condition of the relationship with European public opinion, the question is, then, whether we can be satisfied with a political representation of the whole of Europe in the world scenario, in fact, fragmented and essentially lacks a unitary political power. The need for the European Union to be a single power diplomatically is growing and cannot fail to force us to rethink the European institutional design.
The political reality is also pressing on Europe for a common security and defense policy, as well as for a foreign policy so that it becomes a single entity. After the rejection of the EDC in 1954, European defense in the period of the “cold war” was based on NATO, but the world has changed. The international community is conditioned by complex geopolitical platforms and the role of the United States as guarantor of the West has been greatly reduced. The Treaties already provide for a series of useful provisions, but an effective strategy of common security and defense is still missing.
The objectives of the CFSP, namely: the defense of European values and fundamental interests, as well as the independence and integrity of the Union, and the strengthening of the security of the Union, in all possible and necessary forms, require thinking to a more integrated common foreign and security policy, with which the European Union can speak univocally and with one voice and also has an autonomous military capability that can support its defense and international image.
All this raises, instead of intergovernmental conduct of the CFSP, a demand for federal institutions and presupposes the strengthening of European political democracy. Democratic control of the economy, through regulations and directives, serves, but is no longer sufficient compared to the international scenario, and runs the concrete risk of crumbling in the face of the claims of the Member States to keep their foreign power separate, without understanding that international relations condition European interests and, at the same time, the national interests of individual Member States.
This is another important chapter that conditions the democratic growth of the European Union. Compared to the initial period in which the European legislator was the exclusive set of governments of the Member States, precisely the increase in European regulatory powers, due to the functional nature of the competences, led to the need for legislative production subject to the bond of the democratic principle.
Despite the undoubted innovations that have occurred over time in this area with the increased role of the European Parliament in the legislative procedure, already after the Maastricht Treaty the Union was accused of having too many competences, which above all, in the light of the subsidiarity principle, could grow out of all proportion. Hence the request to block the acquisition of legislative powers by the European institutions and possibly to restore powers to the State level. This line of interpretation of the excess of European competences has run through the entire debate, from the White Paper on European Governance to the Laeken Convention and the Constitutional Treaty of 2004, and has had its finishing point in the formulation of the Lisbon Treaty of 2007, which, on the one hand, it has given us a greatly weakened internal market and, on the other, it has outlined strongly delimited European competences.[32]
As is well known, the test case for the division of powers between the European Union and the Member States was the economic and financial crisis, during which the ability to carry out an anti-cyclical policy was lacking, both for the consistency of competences and for the limits that marked the Union budget and the size of its own resources; despite the attempt to give an effective response also in terms of solidarity, already in May 2010, through the establishment of the European Financial Stability Facility.[33] This fund represented a response through Art. 122, para. 2, TFEU, the something implied that the financial instrument would act on the initiative of the Council, following a proposal from the Commission, to grant, under certain conditions, Union financial assistance to the Member State that requested it and the President of the Council would have informed the European Parliament of the decision made. Moreover, this instrument would have been accompanied, by the European Commission, by another fund for an additional 60 billion euros with funds raised through another structure, the European Financial Stabilization Mechanism, using the Community budget as a guarantee.[34]
However, it is due precisely to the intervention of the European Council of December 2010 that the financial intervention of the European institutions to combat the economic-financial crisis is put out of the question and in its place involving an entirely intergovernmental structure, such as the European Stability Mechanism. The path is widely known and starts from the decision with which a paragraph is added to art. 136 TFEU, to constitute an alternative legal basis to that of art. 122 and to exit from the law of the European Treaties. It leaves the interinstitutional collaboration, the responsibility of the European Commission, and the control of the European Parliament, that is, from the entire democratic circuit, and thus reduces financial support to an intergovernmental issue.
The issue of the ESM is certainly not yet over, but fortunately, in the case of the Covid-19 pandemic, the experience of the economic and financial crisis has been useful and the instruments derived from art. 122, para. 2, TFEU, like the SURE and the Next Generation EU, have not been questioned, while the so-called Health ESM was rejected by the Member States.[35]
But, if we go in order, we observe that very soon the flight from the European Treaties turned out to be a mistake and the crisis continued to threaten Europe and the euro, also due to the weaknesses inherent in the economic and monetary union. The crisis required concrete activities to bring about economic recovery. Activities that the European institutions could not activate due to the paralysis in which intergovernmental Europe had placed them and the Member States which, after a long negotiation, reached the signing of the MES and Fiscal Compact treaties between February and March 2012.
On the other hand, the simple regulation of State budgets through the Stability and Growth Pact and macroeconomic surveillance also effectively prevented the Member States from carrying out counter-cyclical public policies. Europe legally obliged the Member States to stabilize their budgets, but, for each stabilized euro, this resulted in a loss of two euros in GDP.
Fortunately, the initiatives of the European Central Bank, which operated as an authentic federal Institution, averted the crisis of the European system and the euro.
When the tension in the financial markets had reached a real peak and it was feared that the Greek crisis could threaten the very survival of the euro, the President of the ECB, Mario Draghi, in his speech to the Economic and Monetary Affairs Commission of the European Parliament, on 19 December 2011, argued the need for the ECB to maintain the banks’ access to financial markets with refinancing operations to support the credit offer of the euro area and with the issuance of covered bonds and to facilitate the functioning of the euro area money market.
Subsequently, the decisive intervention of the ECB was envisaged. President Draghi in an interview with Le Monde, on 21 June 2012, stated that safeguarding the Euro is part of the mandate of the ECB and, at the same time, that the Euro was irrevocable.[36] Furthermore, he envisaged a scenario of shared sovereignty because in the long term the euro should be based on a greater degree of integration.[37]
Finally, the same president of the ECB in London, on the occasion of the meeting at the Global Investment Conference, on 26 July 2012, reiterated the irreversibility of the euro, with words of strong political significance,[38] but above all, he affirmed the competence and mandate of the ECB compared to sovereign bonds, as the premiums that are charged on the loans of sovereign States would have to do with convertibility, with the risk of convertibility and would therefore fall within the mandate of the ECB.[39]
These are statements that, in the context in which they were made, produced an essential good in a moment of crisis, namely trust. Thanks to this position, gained in the Governing Council of the ECB on 2 August 2012, it was possible to proceed with the activation of the Outright Monetary Transactions (OMT) program.[40]
The criticisms leveled at the work of the ECB are known, such as that of having made the purchase of securities on the market in the absence of an adequate legal basis, a spurious and unfounded accusation that came from institutions of Member States who wanted the other Member States to fail, violating the principle of solidarity of the Union and without realizing that no State could save itself alone and above all at the expense of other European partners.
Only in the June 2012 European Council, did the heads of state and government finally appear ready for a common integration project. For the first time in a long time, the principle was affirmed that more Europe and not less Europe were needed to tackle the crisis. Thus, the idea of a Europe founded on four fundamental elements emerged: a fiscal union, a financial union, an economic union, and a political union. The European Commission immediately launched the Blueprint for an authentic and deepened Economic and Monetary Union in November 2012 which developed the new process of integration and on which all the European institutions agreed.[41]
In particular, the Commission’s Blueprint deserves to be remembered here, more than for the economic and financial aspects, which also have considerable importance, precisely for the theme of European democracy. Once the strengthening of the economic and monetary union and, in particular, of the banking union and financial markets had been carried out in the short and medium-term, a series of political actions should have been witnessed, culminating in a revision of the Treaties themselves. for the strengthening of political integration.
In a longer-term (third) phase (over 5 years), the Blueprint envisaged the creation of “an adequate sharing of sovereignty, responsibility and solidarity at the European level”, based on which it should have been “possible to create an autonomous budget of the eurozone, which gives EMU the fiscal capacity to support shock-hit Member States” and keep the euro safe. Moreover, this would have allowed “the common issuance of public debt”, which would have improved “the functioning of the markets and the implementation of monetary policy”.[42]
Finally, in a vision that should be a reality as of now, the Blueprint had provided that “this progressive further integration of the euro area towards a full banking, fiscal and economic union (would) require parallel steps towards a political union with a reinforced democratic legitimacy and accountability” and that “the progress in terms of integration (would) also have to be reflected externally, notably through steps towards a united external economic representation of the euro area”.[43] The something would have meant a growth in European sovereignty including the common foreign policy since the internal market and currency require not only a common economic policy but above all a strong and shared supranational sovereignty.[44]
In this regard, the changes hypothesized to adapt the European Treaties to the degree of financial responsibility (“Further financial mutualization requires commensurate political integration”), which is required of the European institutions, are consciously anchored to the issue of the transfer of sovereignty by the Member States, asserting that “the level of democratic legitimacy always needs to remain commensurate with the degree of transfer of sovereignty from Member States to the European level”.
Furthermore, the amendments to the treaties hypothesized by the Blueprint would have aimed to ensure accountability “at that level where the respective executive decision is taken, whilst taking due account of the level where the decision has an impact”. This would mean that, if a decision is a European responsibility, it is up to the Institutions, but, if one reflects on the Member States, it cannot fail to consider the opinion of each of these on that decision.
It follows “that it is the European Parliament that primarily (would need) to ensure democratic accountability for any decisions taken at EU level, in particular by the Commission” and “a further way of strengthening the EU’s legitimacy would (have also been) to extend the competences of the Court of Justice, i.e. by deleting Art. 126 paragraph 10 TFEU and thus admitting infringement proceedings for Member States”.
Finally, concerning the legitimation processes, it was stated that the way of proceeding of the institutions, especially in the coordination of economic policies, cannot be given by the intergovernmental method, but by the community one: it is not by chance that the ESM is questioned (“one fails to see – you can read in the Blueprint – how parliamentary accountability could be organized for an intergovernmental European level seeking to influence economic policies of individual euro area Member States”).
Therefore, the generalization of the ordinary legislative procedure was hoped for, overcoming what happened with the Lisbon Treaty where, in the face of the ordinary procedure (co-decision between Parliament and Council), there are so many exceptions in favor of the special legislative procedure led by the Council, to make the provision of the ordinary legislative procedure seem merely residual.[45]
Furthermore, it would be required to subject the ESM, through incorporation into the Treaties, to the scrutiny of Parliament and the modification of the treaty should also entail the strengthening of the democratic accountability of the ECB in its capacity as supervisor of banks.
Ultimately, the Blueprint seemed to lay the foundations for a European fiscal policy (budget) financed with resources deriving from European taxation and the creation “of a structure akin to an EMU Treasury within the Commission”, to “allow for political direction and enhanced democratic accountability”. The Union would also have the ability to issue bonds that “could create new means through which governments finance their debt and offer safe and liquid investment opportunities for savers and financial institutions, as well as a euro area-wide integrated bond market that matches its US dollar counterpart in terms of size and liquidity”.[46]
The Blueprint also took up the need to “foster the emergence of a genuine European political sphere”, not only through the formation of a statute for political parties, deriving from the adoption of a regulation but also including, in the context of the European elections of 2014, “the nomination of candidates – as per time is now – for the office of Commission President by political parties”. It also referred to the possibility of a number of pragmatic steps that are possible under current EU electoral law”.
The major limitation of the Blueprint, already highlighted several times, was the timing with which the reforms were intended to be implemented. The Commission had already envisaged that the revision of the treaties and the strengthening of democracy should have been undertaken after 2020. Subsequently, in mid-2015, when the whole project of strengthening EMU was taken on by all Institutions, including the European Parliament, through the report of the five Presidents, the time horizon of the reforms was moved by another five years, namely: after 2025.[47]
The Blueprint, first, and the report of the five presidents, after, show that the European institutions have well understood the need to proceed with a revision of the European Treaties to effectively remedy the limits of economic and monetary union by broadening the base of democratic legitimacy. All the technical measures to achieve the banking union and that of the financial markets could feed the asymmetries of the European system and make the political condition of the Member States profoundly unequal if the European system of government is not democratized and the regulation of the internal market and economic and monetary policy are not subject to regulation and control by the European Parliament; and, hence, also the need to transform the ESM into an institutional (and no longer intergovernmental) fund, as well as to provide for the Union’s resources and to strengthen the European budget.
Tempting over political integration, as has been done in all these years, only because intergovernmental Europe has tried to prevail in order not to see its role, if not completely vanished, at least significantly reduced, has led to the laying of liens also on that part of EMU that has been strengthened, such as the banking union.
The paradox of the ESM shows this clearly. From 2017, the second phase of political union should have provided for both the integration of the European Stability Mechanism (ESM) into Union law[48] and the establishment of a euro area treasury, which, without prejudice to the decision-making autonomy of the Member States on taxation and the allocation of public spending could have served as a forum for collective decision-making processes related to a strengthened EMU.[49]
As is well known, the Juncker Commission, following this approach, had prepared coherent initiatives (in what was called the “policy package” of the EMU) immediately after the speech on the “state of the Union” by its President in September 2017.[50] Therefore, the proposed regulation had already been presented in December of the same year. This had to be approved by 2019, to determine the creation of the European Monetary Fund,[51] and presupposed the integration and absorption of the ESM into the legal order of the European Union. The importance of this reform lay, however, in the need to conclude the Banking Union by establishing common protection (a common backstop) in favor of the “Single Resolution Fund”.
However, the European Council, which negatively conditioned the contents and timing of the strengthening of EMU, did not allow the European legislator to approve the Commission’s proposal and, already in December 2018, had indicated a different path for the ESM from the incorporation of this within the EU law. The European Council, in the form of the Euro Summit, had reached an agreement for a revision of the ESM Treaty, which essentially left the intergovernmental structure of the instrument intact, thus marginalizing the European Parliament, even if it provides for a collaboration agreement with the European Commission; but, at the same time, the amendments made to the ESM Treaty have been able to allow the Mechanism to take on, in addition to the function of supporting the financial stability of the Member States, the common backstop of the Single Resolution Fund established by Regulation (EU) n. 806/2014[52]. The final agreement on the Revision Treaty was reached on 30 November 2020 and the treaty itself was signed between 27 January and 8 February 2021 and is expected to enter into force with the deposit of the instruments of ratification by all subscriber States.[53]
Ultimately, using a metaphor, we could say that the banking union would have a suit made by the European legislator and a coat, which covers the suit, sewn by the Member States in such a way as not to exclude that an intergovernmental institution, not democratically accountable, can influence European economic and monetary policy and its development.[54]
Here we can neglect the reference to other moments of real political crisis, such as the celebration of the 60th anniversary of the European Treaties with the “White Paper on the Future of Europe” which painted five scenarios, four of which rejected the very idea of moving European integration forward.[55]
The fact is that from the economic-financial crisis onwards, not only have there been a lack of pushes for integration but above all the governments of the Member States have remained without mental clarity. Thus, several fractures have crossed the Member States: the PIIGS countries (Portugal, Italy, Ireland, Greece, Spain), the frugal countries (Holland, Austria, Sweden, Denmark, Finland), the Baltic Republics (Estonia, Latvia, Lithuania), and, last, but not least, the authoritarian democracies (Hungary, Poland).
The European Institutions have also been trapped in the austerity network, with a regulation almost unknown to any federal state. Not only the Stability and Growth Pact, but above all the entire paraphernalia of macroeconomic surveillance, to control sovereign debts or economic surpluses, have engaged the Commission, the Council, and the Parliament, placing them at the service of intergovernmental Europe and subordinating them to the aims of this, no longer thinking about the fate of the internal market, international relations, the position of the Union and the euro on the world scene, fundamental rights, European democracy, etc.
Now, this impasse has been executed by the Covid-19 pandemic. The virus has shown the limits with which the deepening of the EMU was conducted and the weaknesses of the failure to revise the treaties concerning democratic legitimacy, the centrality of the European Parliament in the European system of government; as well as the need to overcome intergovernmental mechanisms in the context of economic and monetary policy and to strengthen European policies, starting with health, for which the Treaty on functioning provides for a very limited scope of intervention, which has harmed the fight against the pandemic.[56]
However, it is not without significance that the reaction to the socio-economic crisis caused by the pandemic was profoundly different from the previous one against the economic-financial crisis. Many commentators have attributed this difference to the symmetrical nature of the pandemic compared to the 2010 crisis, but that’s not all. The pandemic has made it clear that the international question of the geopolitical location would have depended on the response to the crisis of the European Institutions and the Member States. In fact, beyond the problems associated with the origin of the virus, the pandemic certainly exploded at a time when the United States was downsizing its intervention abroad: from Syria to Afghanistan, etc., Russia still suffered from sanctions, and China showed strong international leadership. Well, if a unified response had been lacking, the virus would have exposed the European States to take different paths and break what little remained of common European politics, with negative results for all.
Hence the unified response of the Member States and the European Institutions. The measures adopted are known and can be divided into two different groups: on the one hand there are the measures that act on the European legislation that regulates the governing of the economy, such as the activation of the safeguard clause and the suspension of the Stability and Growth Pact (SGP),[57] the use to combat the pandemic of the Structural Funds[58] and the derogation from state aid;[59] on the other hand, instead, there is the formation of specific tools at European level, defined as the three safeguard networks, for workers, companies, and States, namely the SURE (Support to mitigate Unemployment Risks in an Emergency)[60] which operates as a social safety net,[61] the Pan-European Guarantee Fund (EGF) at the EIB,[62] mainly in favor of small and medium-sized enterprises, and the ESM credit line for public health expenses (ESM Pandemic Crisis Support).[63]
Alongside these two types of intervention is, on the one hand, the new Quantitative Easing of the ECB[64] and, on the other, the Recovery Fund Next Generation EU,[65] with the strengthening of the European budget (MFF 2021-2027) which is considered the main tool for Union recovery action.[66]
It is not necessary here to examine in detail the individual measures and tools put in place to combat the Covid-19 pandemic. Here it is important to consider that many of the prejudices that had conditioned the recovery of the European Union after the economic and financial crisis have been - as if by magic - overcome. Of course, it can be objected that these are temporary instruments, linked to the pandemic and that the SGP itself with the control of state budgets is destined to be restored at the latest in 2023. But this is not exactly the case.
To understand how the measures to combat Covid-19 affect the institutional set-up of the European Union and the development of the integration process and European democracy, it is necessary to clarify that not all the tools forged on this occasion have had the same success. The health ESM was completely rejected, due to the conditionalities present in the mechanism, which, even if attenuated, left the Member States wary; and almost ineffective EGF was found above all due to the rules of engagement for banks on EIB products, which are more complex than national rules, to which is added the issue of additionality concerning own resources.
A different situation, however, must be made for the SURE which constitutes a fund under Art. 122, para, 2, TFEU, managed based on European legislation by the European Commission, which, on the one hand, represents a form of debt sharing between the Member States and, on the other, has seen the issuance of European bonds (so-called “Social Bonds”).
It is very clear, at this point, how the Recovery Fund NGEU, due to the characteristics that the founding regulation has provided, namely being partly a loan fund and partly a grant fund, has imposed the implementation of some institutional and fiscal policy measures, overcoming the previous limits of integration and finally marking some steps forward.
For this reason, the NGEU is not just a fund under Art. 122, para. 2, TFEU, which gives rise to a form of real solidarity between the Member States, but above all an instrument of economic policy (perhaps the most important to date) regulated by the European legislator and governed by the Commission and, by the will of the European Parliament, the financing - and herein lies the novelty - is not entrusted exclusively to the market and the issue of euro-bonds, but it is also linked - for the part which consists of grants - to its “own resources”[67] which constitute growth in European taxation and budgetary capacity of the Union.
The circumstance, then, that it is being discussed, for the SURE and the Next Generation EU, to stabilize these instruments in the European system, overcoming their provisional character linked to the pandemic event, makes it clear how the Member States themselves seem to have understood the advantages that I can derive from the progress of integration in a crisis; hence even the favor for the strengthening of the European budget which would include the management of all resources, including the structural funds.
The last aspect to consider concerns the exceptions to the legal framework for governing state budgets. Here too, the idea that these are temporary exceptions linked to the pandemic cannot be fully accepted. Thinking, in fact, of a return to the Stability and Growth Pact and restoration of macroeconomic surveillance such as the one practiced until 2019 no longer appears adequate to the current political-economic reality.
In the meantime, it must be considered that the debts incurred by the Member States as a result of the pandemic, even if not completely written off, would deserve - at least - differentiated (even accounting) treatment. Moreover, at this moment in which the European institutions have undertaken the governance of economic policy, to achieve recovery, along the path of environmental transition and digital transformation, it is unthinkable that they prefer, as in the past, surveillance over growth. To use Joseph Stiglitz’s words, this is not the time to curb the debt, but to push GDP back up and this raises the question of revising the SGP. Indeed, as French minister, Bruno Le Maire observes, “Europe must show that it has learned the lesson of what it did not know how to do ten years ago”.
The Union has found, due to the pandemic, an impetus of solidarity and it is evident that this is determining a renewed federal aspiration and an increase in political responsibilities at a European level. The EU budget has been strengthened and European taxation can now make use of new “own resources” to support the NGEU project and the objectives of the green transition and digital transformation.
The progress made, on the path of joint action by the institutions and the Member States, is not the result of the far-sightedness of European governments, but of the irrepressible needs that the pandemic has highlighted. If something new at a European level has been done to maintain the strategic autonomy of the EU, and if many taboos, formed around the 2010 crisis, have now been considered errors committed in the integration process, it is due to the health crisis and the economic one that followed it. These crises needed immediate and common responses, making it possible to find consensus and majorities to approve the measures and implement them. Now, these results should be consolidated in the integration process, so a revision of the Treaties is desirable. This is the only way that allows Europe to transfer the positive experience of a specific historical moment in the incremental process of its political growth.
The Union has come from a long period of political suffering and the institutional set-up has not been adequate for the crises it has endured and the changes produced by global processes. Furthermore, the development of European policies and the exercise of competences have been slow, tiring, and short-sighted, because they were conditioned by the preservation of the status quo.
Therefore, as of today, there are many reforms to be made. The Union must complete the economic and monetary union; the banking union and the union of financial markets are still to be completed; the deepening of EMU, with the strengthening of the internal market, is combined with the consolidation of the European pillar of social rights and, after the pandemic, a European Union of health (the so-called European health resilience); moreover, the restoration of the budget rules presupposes a different regulation of the Stability and Growth Pact that reflects the current condition of the world economy; and, finally, the question of the ESM remains open, yet it cannot remain so, because it is not acceptable that an intergovernmental level can influence European policies without a true institutional responsibility of a democratic nature within the Union.
To the reforms induced by the demands of the economic government are added those required by the new international challenges and the Common Foreign and Security Policy (CFSP). These must grow continuously, as recent events have seen (which saw the withdrawal from Afghanistan and the submarine crisis), a symptom of “hyper-competitiveness” among the continentals that characterize the era of international relations. Even if Europe is aiming for forms of EU-NATO partnership, it must swiftly provide for a “European Defense Union” that allows it to act autonomously when necessary and in its interest.
In the last decade, however, the challenges have outweighed the demands of an economic nature and, in any case, both are so closely intertwined that they affect each other. In the current international context, no one can any longer think that existing problems can be addressed by a single country or by individual Member States. Indeed, the reorientation of the United States has made it clear that these issues necessarily require not only joint action by Member States but possibly joint political and institutional responsibility at a supranational level.
The whole new international panorama, for every question: from the need to face unprecedented threats such as those of viruses, migrations, terrorism, etc., is characterized by a heated confrontation of a geopolitical nature and shows that the spectrum of common problems has enlarged to the consistency it had at the time in which the Maastricht Treaty was signed in the early 1990s, with which the European institutions of the CFSP were brought into line.
The design of the European institutions can no longer remain that of that time and the distribution of competences achieved with the Lisbon Treaty is no longer technically adequate, especially if European actions are the only ones that can tackle common problems.
On the other hand, however, the increase in European powers cannot be in favor of a purely bureaucratic structure without an increase in parliamentary responsibility. Although the European bureaucratic apparatuses may appear capable and prepared, there could be the risk of a technocratic derivative that would distort the functioning of European democracy.
All that remains is to take note of how everything directly affects the theme of political union as well as that of institutional legitimacy and democratic accountability. These problems, on which the affirmation of the values of the Union depend, provided for by Art. 2 TEU, can no longer be postponed and the reform of the Treaties must address the need to put European order in a position to act as best possible in the interest of the Member States and, above all, of the European citizens who are at the center of the Conference on the future of Europe.[68]
In the spring of 2021, the Presidents of the three European Institutions (EP, European Commission, and Council of the EU) signed a “Joint Declaration on the Conference on the Future of Europe”, which bears the title “Engaging with citizens for democracy – Building a more resilient Europe”[69] and thus placed the Conference “under the authority of the three institutions, represented by the President of the European Parliament, the President of the Council and the President of the European Commission, acting as its Joint Presidency”.[70]
The Conference held its inaugural plenary meeting on 19 June 2021 and is due to present the results of its work in the spring of 2022. Its composition, which will be gender-balanced, is given by 108 MEPs, 54 from the Council of EU (two per Member State) and 3 of the European Commission, to these are added 108 representatives of all national parliaments on an equal footing, and 108 citizens who will participate to discuss the ideas that will be proposed in the citizens’ meetings and on the multilingual digital Platform. Particular attention is paid to the participation of young people.[71]
The Committee of the Regions and the European Economic and Social Committee will participate with 18 representatives, in addition to eight other representatives of the social partners and civil society. Finally, the High Representative of the Union for Foreign Affairs and Security Policy will be invited when discussing the EU’s international role. Representatives of key stakeholders may also be invited.[72]
The governance of the Conference is entrusted to the Executive Committee, which is composed of an equal representation of the European Parliament, the Council, and the European Commission, with three representatives and a maximum of four observers from each institution. The COSAC presidential troika will participate as a permanent observer and the Committee of the Regions and the European Economic and Social Committee may be invited as observers, as well as, where appropriate, other EU institutions and bodies and the social partners.[73]
The Executive Committee of Nine Representatives deliberates by consensus on all matters submitted to it and is responsible for taking decisions related to the work of the Conference (plenary sessions, panel, and multilingual digital platform) and its processes and events, as well as the supervision of the Conference during its development and the preparation of the plenary sessions, including the contributions of citizens and their follow-up.
The Executive Committee reports periodically to the Joint Presidency and elaborates and publishes the conclusions of the Plenary Conference and presents the final result of the Conference in a report to the Joint Presidency and the three Institutions.[74]
The Joint Secretariat is placed under the authority of the Executive Committee, made up of an equal number of staff members from the three Institutions, which takes all necessary measures to ensure the proper functioning of the Executive Committee and assists its representatives and observers.[75]
As you can see, this is a very different conference from that of Art. 48 of the TEU which operates in the context of the revision procedure of the European Treaties. It did not arise from a decision of the European Council and, even if it is clear that the debate will focus, in one way or another, on the reform of the Treaties, there does not seem to be a constitutional mandate to revise them. Indeed, the Joint Declaration simply states that the three institutions will rapidly examine how to effectively follow up on the report summarizing the results of the Conference, “each within their own sphere of competences and in accordance with the Treaties”.
The question about the usefulness of such a conference then appears legitimate. In this regard, it seems possible to observe how this Conference points to European public opinion in a double sense. On the one hand, originally, he wants European citizens to be the protagonists of the Conference. On the other hand, the Conference itself conforms - and this would be a novelty - to a European public sphere in which general political positions concerning Europe as a whole can find expression, through the so-called “Public debate”.
The Joint Declaration is, in this sense, very explicit when, defining the working method, which is then also codified in the regulation, it states that “the Conference on the Future of Europe is a citizen-focused, bottom-up exercise for Europeans to have their say on what they expect from the European Union”. Furthermore, the Conference “will give citizens a greater role in shaping the Union’s future policies and ambitions, improving its resilience”. Finally, Art. 1, paragraph 3, of the Rules of Procedure of the Conference, cited, emphasizes that “European citizens from all walks of life and corners of the Union will be able to participate, with young Europeans playing a central role in shaping the future of the European project”.
In the work plans of the Conference, therefore, there should be “a multiple of Conference-events and debates organized across the Union, as well as through an interactive multilingual digital platform”. Furthermore, “such Conference events, physical gatherings or in digital settings, can be organised at different levels, including European, national, transnational and regional levels and will involve civil society and stakeholders”.[76]
At a European level, the European Institutions undertake to organize European panels of citizens. Furthermore, “each Member State and institution can organize additional events, in line with their own national or institutional specificities, and make further contributions to the Conference, such as national citizens’ panels or thematic events bringing together input from different panels”.
The contributions of all events related to the Conference will be collected, analyzed, monitored, and published throughout the entire Conference through a multilingual digital platform, where citizens can share their ideas and submit contributions online.
On the one hand, “Citizens’ participation in these events should aim at mirroring Europe’s diversity” and, on the other, “a feedback mechanism (should) ensure that ideas expressed during the Conference events result in concrete recommendations for EU actions”.[77]
Ultimately, the Institutions with the Conference on the future of Europe have as their main objective the involvement of citizens and communities and the demonstration that the European Union “can provide answers to citizens’ concerns and ambitions”.[78] Furthermore, the Institutions “will seize the opportunity to underpin the democratic legitimacy and functioning of the European project, as well as to uphold the EU citizens support for our common goals and values, by giving them further opportunities to express themselves”. Finally, these underline the commitment “to working in the interests of Europe, our citizens, and European democracy, strengthening the link between Europeans and the institutions that serve them”.
The principles on which the Conference is based are inclusiveness, openness, and transparency, respecting the privacy of individuals, and EU data protection rules.
The Conference, its governance, and the events organized within it are based on the EU values enshrined in the EU treaties and the Charter of Fundamental Rights of the European Union. The Conference is recognizable through a unique identity and a Conference Charter to which all event organizers must adhere.
Never before has European public opinion had so much importance in planning European reforms as on this occasion, and certainly the Conference on the future of Europe constitutes an innovative participatory democracy scheme concerning the instruments provided for by Art. 11 TEU, and this gives a particular aspect to the entire operation conducted by the Institutions. In fact, until now the formation of European public opinion had a very limited consistency, being limited to the political forces (national and European) interested in the management of the institutions, the bureaucratic systems (national and European), and to those pressure groups interested in influencing the European actions. The overwhelming majority of European citizens remained extraneous to the European public sphere due to the distance between them and the institutions, even though many of their interests have now been dealt with at a European level rather than at a national level.
However, in recent years, precisely in the face of the crises that have gripped the European Union, from the economic-financial one to that of migration, to Brexit and the pandemic crisis, the participation of European citizens has grown significantly. giving rise to the paradox that the more the Institutions and the Member States appeared unable to conduct the process of European integration in the name of the common interest, the more European citizens became aware that the European response to their problems was the only possible response.
The 2019 European elections, with the increase in turnout, reflect the growing interest of European citizens in playing a more active role in deciding the future of the Union and its policies.[79] Now, the Conference on the future of Europe seeks to respond to these expectations, opening “a new space for debate with citizens to address Europe’s challenges and priorities”.
The Conference, therefore, overcoming what has hitherto been a difference between national democracy and European democracy, seeks to build tools to give voice to the multiple needs and interests of individuals and social groups in Europe and to mediate them in “recommendations” for the three Institutions.
The problematic point is not the work of the Conference, nor the initiatives and proposals of European citizens, but what the Institutions, on the one hand, and the Member States, on the other, will do once the work has been completed by the Conference with the presentation of the “recommendations”.
Moreover, the content of these would not have limits of merit but can concern any object with the most diverse proposals. The framework of European powers (i.e. the competences of the Union), the legal acts, and related procedures that are governed by the Treaties represent only a point of reference for defining the scope of the Conference, to which the unprecedented “areas” “where European Union action would have been to the benefit of European citizens”, and, in any case, European citizens are not subject to any constraints and, therefore, they “remain free to raise additional issues that matter to them”.
In any case, it seems possible to state that, after ten years of discussions and reflections, the reform hypotheses can be enucleated around a common principle and exactly the one for which the transfer of greater powers to the institutions and the growth of European taxation require greater democratic responsibility that derives from the direct legitimation of European citizens, since only this, albeit tempered by the presence of representative institutions of the Member States, can allow the integration process to emerge from the political crisis that surrounds it.[80]
It can be said that in this way the initial lack of finalization of the public debate is remedied and that the contributions deriving from the direct participation of European citizens, although multiple and heterogeneous, can give a precise indication. It will be up to the Executive Committee, assisted by the Joint Secretariat, both of these offices will be able to express a politically and technically significant capacity, to resume the impulses and proposals of the public debate, to arrange them with coherence, and logically ordered recommendations.[81]
In this way the three Institutions can profitably take further initiatives, since with the Declaration placed at the basis of the dialogue with European public opinion, the Institutions - as mentioned - have jointly committed themselves, not only to listen to European citizens but also to give follow up to the recommendations formulated by the Conference, “in full respect of (their) competences and the subsidiarity and proportionality principles enshrined in the European treaties”.
Therefore, a subsequent path could be envisaged, in which the fruits of the Conference on the future of Europe could pass from recommendations to “projects intended to modify the treaties” (Art. 48, para. 2, TEU) and could be presented by the Commission or the European Parliament, to the Council of the EU or, likewise, by a “government of any Member State”.[82] This would make it possible to formalize a procedure born outside the same provisions of the European Treaties.
It is evident, however, that such a project, based on federalism (greater integration) and democracy (more centrality of the European Parliament), has a strong impact and may not be crowned with success, since the final phase of the revision of Treaties provides for the unanimity of the consensus of the Member States for the approval and ratification of the amendments.[83]
After the experience of the Constitutional Treaty, with the enlargement and the various crises that the European Union has experienced, it is clear that today’s Europe is deeply crossed by internal frontiers, and not all the governments of the Member States, also in forgetting the internal divisions (and the frontiers) to each of these, today appear to converge on the idea of a more federal and more democratic Europe.
This is indeed the dead-end of European integration that all observers have considered or must consider. A treaty with the procedure of Art. 48 TEU, especially if its content is eminently political, would inevitably encounter, in the “conference of the representatives of the governments of the member states”, changes that mitigate its scope or, even worse, a distortion of the content, despite these they can be considered the result of democratic and direct participation of European citizens; without considering, then, that the ratification of the same treaty could also be refused by a single Member State, as happened in 1954 with the CED Treaty and in 2005 with the Constitutional Treaty.
The only way out, as has already been highlighted elsewhere, would be that of a Treaty that contains a European institutional design based on a more intense constitutionalization, namely “a federalization pact based on a common democracy”, signed by only one part of the Member States of the European Union.[84]
In this sense, European democracy would be the result of the action of the governments of the Member States, starting possibly those of the euro area, and they would be expected to choose to found the European Union federally, to reform the institutions, giving life to an authentic bicameral Parliament with general representation and a territorial representation of the States, with a common government and a common fiscal policy. Even sovereign debts should be placed under a single administration, without this meaning that position rents can be earned at the expense of the most virtuous countries, but simply that a way has been found to remedy the debt conditions of certain countries, without preventing or retard joint growth.
Finally, the most characterizing policies of a federation, such as foreign, security, and defense policies, must be fully placed under the responsibility of a European government, to which energy policy, the green deal, and digital policy must be added for which the European Union is making progress thanks to the NGEU.
This position revolves, therefore, as has already happened several times in European history, around the formation of a fundamental nucleus of States, endowed with strong leaderships responsible for the destiny of Europe, which make the political decision, even with a Treaty based on “enhanced cooperation”, according to the provisions of Art. 20 TEU, to give life to the first European federal formation, showing a model, defined “vanguard/rearguard”, as possible (Vorhut-Nachhut-Modell)[85], which in perspective allows all EU member states to join.
The next few years will tell us whether the Conference on the future of Europe will have had the hoped-for success.
When I presented this report, at the European Conference in Zaragoza on 29 and 30 September 2021,[86] there were still no winds of war over Europe.
Now, the Russian-Ukrainian conflict, which began on February 20, 2022, even if outside the European Union, has called into question one of the pillars of the European construction, maintained even during the years of the Cold War, namely the European pax.
After the fall of the Soviet Union, then, Europe had aimed at a dialogue with Russia and gave hope for its attraction to Europe.
The war marks the end of this hypothesis of collaboration and, at least at the moment, determines the estrangement of Russia and its world from European relations.
However, the war could catalyze the joint action of the institutions and governments of the Member States, accentuating not only the resumption of the CFSP but also the idea of perfecting it.
Here we had already said (see above para. 10) that the confrontations of a geopolitical nature, which characterize this historical phase, require a unitary approach to foreign policy and common defense that is not occasional, but structural; in collaboration with NATO, but autonomous and self-sufficient.
In the days of the war, the European Union tried to converge towards a common energy policy, accelerating the forecasts of independence from Russian energy sources, and realizing common military spending for the support of Ukraine, as well as acting in a coordinated way with sanctions in the against Putin’s Russia; it has also activated a humanitarian policy towards Ukrainian refugees, with the help of the temporary protection mechanism.
All of this still has not brought about a European foreign and defense policy.
For this to be possible, the structure of the CFSP must be transformed, and to achieve this transformation it is necessary to move from a policy based on the common interest of the Member States to a policy based on the general interest of the European Union.
In this sense, it is hardly necessary to emphasize that the “common interest” of the MS and the “general interest” of the EU are not comparable, as demonstrated by the adoption of the “strategic compass” in the common defense policy.
During the economic crisis, they wanted to create a European Treasury Ministry; during the pandemic, we realized that Europe’s health power is still too weak; the humanitarian crises have posed a defense problem at the external borders, including marine ones, as well as land borders, the formation of European civil protection, with the overcoming of the Dublin Regulation, and closer police collaboration; the war is now calling for a strong European energy policy, the construction of a more solid economic base and, last but not least, a common defense.
For its part, the Conference on the future of Europe has moved forward and should soon conclude its work. Its latest report of February 2022 already gives various indications on the various topics considered: climate change and the environment; health; a stronger economy, social justice and work; the European Union in the world; values and rights, rule of law, security; digital transformation; European democracy; migration; education, culture, youth, and sport.
These are the issues highlighted by the European crises during the last twelve years (i.e. since the entry into force of the Lisbon Treaty), which are receiving a strong cohesive approach in the digital platform, different from that mainly feared by governments, and the demand for “More Europe” that comes from European citizens can hardly be ignored in the reform of the European Treaties.
About “European democracy”, - the subject dealt with here - it should be noted that the ideas expressed touch on a wide range of problems. The most recurring themes concern the elections to the European Parliament and also the direct election of an EU President; the restructuring of European institutions and the question of the “federalization” of the European Union; and the need to increase citizen participation and consultation to help shape European decision-making and public space. Citizens who participated in the events of the Conference also consider it essential to increase knowledge on EU issues and promote a common European identity and often stress the need to protect democracy and uphold the rule of law in the EU.
If there is a lesson that can be drawn from the crises experienced by the European Union and the Member States, it seems this: the expansion of European powers has been unstoppable when it is accompanied by high economic growth that has dispensed well-being and allowed to redistribute income.
With the 1992 crisis, fear began to spread and, hence, the second thoughts that accompanied the aftermath of the Maastricht Treaty, thinking that when growth is lacking, the only solution can be a return to the nation-state. This vision, nostalgic for a past made up of sovereign states, led to the failure of the Constitutional Treaty and accentuated the weight of intergovernmental Europe. When the economic crisis arrived, the sovereign idea and the intergovernmental system prevented an effective response to the crisis to such an extent as to suggest a retreat of the European project; the humanitarian crisis also ended up strengthening this feeling of national selfishness: wealth was protected or accumulated to the detriment of others. Greece knows something about it.
The pandemic and the war have created a different awareness among European citizens - and this is the lesson - they have taken back the original foundation, as at the birth of Europe with the ECSC Treaty, to the process of European integration, for which the fear of natural disasters and war, as well as the desire for security and peace, go beyond functionalist conceptions and the intergovernmental dimension, because it is precisely in the heaviest crises that solidarity is needed, to forge common institutions and government policies and to stay united as European citizens; and having a strong democracy is certainly the best way to be united.
Resumen: Este trabajo examina la cuestión de la “democracia europea”. En primer lugar, analiza el problema democrático en el sistema europeo, para lo cual considera las disposiciones de los Tratados, las prácticas de las instituciones europeas y el comportamiento de los gobiernos e instituciones de los Estados miembros. Se destacan las debilidades vinculadas a la legitimidad democrática de la UE, y la necesidad de reforzar la centralidad del Parlamento Europeo en el sistema europeo de gobierno; así como la necesidad de superar los mecanismos intergubernamentales en el contexto de la política económica y monetaria, y más en general, de reforzar las políticas europeas. En segundo lugar, el trabajo plantea la propuesta de un Tratado que contenga un diseño institucional europeo basado en una constitucionalización más intensa, a saber, “un pacto de federalización basado en una democracia común”.
Palabras claves: Integración europea, democracia europea, Estado de Derecho, federalización, solidaridad, opinión pública europea, crisis de austeridad, pandemia de Covid-19, Conferencia sobre el futuro de Europa, Política Exterior y de Seguridad Común.
Abstract: This paper reviews the issue of “European democracy”. Firstly, it analyses the democratic problem in the European system, examining the provisions of the Treaties, the practices of the European Institutions, and the behavior of governments and institutions of the Member States. It highlights the weaknesses of the EU’s democratic legitimacy, and the need to strengthen the centrality of the European Parliament in the European system of government; as well as the need to overcome intergovernmental mechanisms in the context of economic and monetary policy, and more generally, to strengthen European policies. Secondly, the paper puts forward the proposal of a Treaty containing a European institutional design based on a more intense constitutionalization, namely “a federalization pact based on a common democracy”.
Key words: European integration, European democracy, rule of law, federalization, solidarity, European public opinion, Austerity crisis, Covid-19 pandemic, Conference on the future of Europe, Common Foreign and Security Policy.
Recibido: 2 de mayo de 2023
Aceptado: 2 de mayo de 2023
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[01] For a reference to the different visions of the “rule of law” see P. Costa - D. Zolo, Lo Stato di diritto. Storia, teoria, critica, Milano, Feltrinelli, 2002.
[02] See Court of Justice of the European Union, Judgement of 23 April 1986, C- 294/83, Les Verts/Parliament, in Coll., 1986; as well as Opinion of 14 December 1991, in Coll., 1991, I–6079, p.to 19.
[03] See the Report presented by M. Ahtisaari, J. Frowein, M. Oreja, 8 September 2000. The 3 experts, nominated by the President of the European Court of Human Rights on behalf of the 14 Member States of the European Union have drawn up this report to evaluate the opportunity to consider the state of democracy concerning particular profiles (rights of minorities, refugees and immigrants). This experience led to the introduction in the TEU (Article 7) of the procedure for preventive verification of the risk of violation of common values by the Member States.
[04] In the case of the European funds linked to the SURE and the MFF 2021-2027, a political settlement has been reached which still leaves the violation of the principles of the rule of law open for Poland and Hungary.
[05] On this point, it is possible to refer to S. Mangiameli, The Union’s Homogeneity and Its Common Values in the Treaty on European Union, in The European Union after Lisbon. Constitutional basis, economic order and external action, Springer, Berlin - Heidelberg - New York, 2011, 21-46; Id., Preamble, in The Treaty of European Union - A Commentary, Springer, Berlin - Heidelberg - New York, 2013, 1-41.
[06] See S. Mangiameli, Article 2, The Homogeneity Clause, in The Treaty of European Union – A Commentary, Springer, Berlin - Heidelberg - New York, 2013, pp. 109-155.
[07] See A. von Bogdandy, The European Lesson for International Democracy: The Significance of Articles 9–12 EU Treaty for International Organizations, in The European Journal of International Law, 2013, Vol. 23 no. 2, 315-334;Koen Lenaerts, The principle of democracy in the case law of the European Court of Justice, in The International and Comparative Law Quarterly, 2013, Vol. 62, No. 2, 271-315; J.-M. Porras Ramirez, Article 10, in The Treaty of European Union – A Commentary, cit., 417 ff.; G. Bonvicini (Ed.), Democracy in the EU and the role of the European Parliament, Rome, Istituto Affari Internazionali, 2009; S. Mangiameli, Il ruolo del Parlamento Europeo e il principio della democrazia rappresentativa, in Teoria del Diritto e dello Stato, 2009, 491–512; M. Kaufmann, Europäische Integration und Demokratieprinzip, Baden-Baden, Nomos, 1997.
[08] See Articles 20, 21, 22, 23 e 24 TFEU.
[09] See the contributions contained in J. Elster and R. Slagstad (eds.), Constitutionalism and Democracy, Cambridge, Cambridge University Press, 1988.
[10] On European citizenship first of all, we see E. Grabitz, Europäisches Bürgerrecht zwischen Marktbürgerschaft und Staatsbürgerschaft, Köln 197 0, where the notion of Marktbürgerschaft known by the Treaty of Rome is criticized, since, by binding it to the economic objectives of the Community, it could not have granted a real right of European citizenship to the citizens of the Member States; critical on point H.P. Ipsen, Europäisches Gemeinschaftsrecht, cit., 187 s., nt. 10; S. Magiera, Die Europäische Gemeinschaft auf dem Wege zu e inem Europa der Bürger, in DÖV, 1987, 221 ff.; R. Grawert, Staatsangehörigke it und Staatsbürgerschaft, in Der Staat 23, 19 84, 17 9 ff.; F. Cuocolo, La cittadinanza europea (prospettive costituzionali), in Pol. dir., 1991, 659 ff. U. Everling, Die Stellung des Bürgers in der Europäischen Gemeinschaft, in ZfRV, 1992, 241 ff.; M. Pierangelini, La cittadinanza europea. Un nuovo status per il soggetto comunitario, in Affari sociali intern., 1993, 1 81 ff.; V. Lippolis, La cittadinanza europea, Bologna 19 94; A. Randelzhofer, Marktbürgerschaft–Union–Unionsbürgerschaft –Staatsbürgerschaft, in FS Grabit z, München 1995, 5 81 ff.; S. Cassese, La cittadinanza europea e le prospettive di sviluppo dell’Europa, in Riv. it. dir. pubbl. com., 199 6, 86 9 ff.; M. Cartabia, Cittadinanza europea, in Enc. giur., Aggiorn., Roma,1996; E. Castorina, Introduzione allo studio della cittadinanza, Milano 1997; L. Azzena, L’integrazione attraverso i diritti. Dal cittadino italiano al cittadino europeo, Torino 1998, 49 ff.; S. Bartole, La cittadinanza e l’identità europea, in Quad. cost., 2000, 41 ff.; T. Schilling, Bestand und allgemeine Lehren der bürgerschüt zenden allgeme inen Rechtsgrundsätze des Gemeinschaftsrecht,inEuGRZ,2000,17.
[11] See M. Hilf, Europäische Union und nationale Identität der Mitgliedstaaten, in A. Randelzhofer (Ed.), Gedächtnisschrift für Eberhard Grabitz, München, Beck, 1995, 157–170; A. Bleckmann, Die Wahrung der “nationalen Identität” im Unions-Vertrag, in Juristen Zeitung, 1997, 52(6), 265–269; A. von Bogdandy, Europäische und nationale Identität, in Integration durch Verfassungsrecht, Veröffentlichungen der Vereinigung der Deutschen Staatsrechtslehrer, Berlin: De Gruyter, 2003, 62, 156–193; P. Kirchhof, P. (2004). Die Identität der Verfassung, in J. Isensee & P. Kirchhof (Eds.), Handbuch des Staatsrechts, 3. Aufl., Vol. II, Heidelberg, Müller, 2004, 261–316; I. Pernice, Der Schutz nationaler Identität in der Europäischen Union, in Archiv des öffentlichen Rechts, 2011, 136(2), 185-221; F. Balaguer Callejón, La Subsidiariedad en la Unión Europea, in Revista de derecho constitucional europeo, Nº. 31, 2019; S. Mangiameli, The European Union and the Identity of Member States, in L’Europe en formation, Nice, Cife, hiver 2013; S. Platon, Le respect de l’identité nationale des États Membres: frein ou recomposition de la gouvernance, in Revue de l’Union européenne, 2012, 556, 150–158; F.M.L. Besselink, National and constitutional identity before and after Lisbon, in Utrecht Law Review, 2010, 6(3), 36–49; B. De Witte, The rhetorical use of European and national identity in the political and legal discourse of the European Union, in T. Cottier & R. Liechti-McKee (Eds.), Die Schweiz und Europa, Zürich, vdf Hochschulverlag, 2010, 51 ff.; A. von Bogdandy, S. Schill, Die Achtung der nationalen Identität unter dem reformierten Unionsvertrag, Zur unionsrechtlichen Rolle nationalen Verfassungsrechts und zur Überwindung des absoluten Vorrangs, in Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, 2010, 70(4), 701–734; K. Dingemann, Zwischen Integrationsverantwortung und Identitätskontrolle: Das “Lissabon”-Urteil des Bundesverfassungsgerichts, in Zeitschrift für europarechtliche Studien, 2009, 12(4), 491–528; E. Di Salvatore, L’identità costituzionale dell’Unione europea e degli Stati membri, Torino, Giappichelli, 2008; S. von Zanthier, Berücksichtigung der nationalen Verfassungsidentität als gemeinschaftsrechtliche Pflicht – exemplarisch beleuchtet am Beispiel des Staatskirchenrechts, in W. Kluth (Ed.), Europäische Integration und nationales Verfassungsrecht, Baden-Baden, Nomos, 2007, 85–96; Ch. Walter, Europäische und nationale Identität in der Wechselwirkung. Überlegungen zur Integration durch Verfassungsrecht am Beispiel des Staatskirchenrechts, in W. Kluth (Ed.), Europäische Integration und nationales Verfassungsrecht, cit., 65–83; C. Magnani, Il principio dell’identità nazionale nell’ordinamento Europeo, in S. Mangiameli (Ed.), L’ordinamento europeo 1. I principi dell’Unione, Milano, Giuffrè, 2006, 481–506.
[12] See S. Mangiameli, The Institutional Design of the European Union after Lisbon, in The European Union after Lisbon. Constitutional basis, economic order, and external action, Springer, Berlin - Heidelberg - New York, 2011, 93-128.
[13] See S. Mangiameli, Il ruolo del Parlamento europeo e il principio della democrazia rappresentativa, in Scritti in onore di Michele Scudiero, Jovene, Napoli 2008.
[14] On this point see the indications of S. Niccolai, Il Metodo aperto di coordinamento e la Costituzione europea del genere, in P. Bilancia (a cura di) Federalismi e integrazioni sopranazionali nell’arena della globalizzazione: Unione europea e Mercosur a confronto, Atti del convegno di Milano, 14-15 dicembre 2005, Giuffrè, Milano, 2006, pp. 209-268.
[15] On this point, see M. Kaufmann, Europäische Integration und Demokratieprinzip, Baden-Baden, Nomos 1997; also P. Norris, Representation and the democratic deficit, in European Journal of Political Research, 1997, 32, 273–282; G. Majone, Europe’s “Democratic Deficit”: The Question of Standards, in European Law Journal, 1998, Vol. 4, No. 1, pp. 5–28; A. Moravcsik, In Defence of the “Democratic Deficit”: Reassessing the Legitimacy of the European Union, in Journal of Common Market Studies, 2002, Vol. 40, No. 4, pp. 603–34; as well as critically A. Follesdal, A., S. Hix, Why there is a democratic deficit in the EU? A response to Majone and Moravcsik, in Journal of Common Market Studies, 2006, 44(3), 533–562.
[16] The perplexities expressed regarding the democratic principle are remembered by the Bundesverfassungsgericht in the Maastricht judgment of 12 October 1993, in BVerfGe 89, (155). As was known then the German Federal Constitutional Court in the decision on the Lisbon Treaty (BVerfG, 2 BVE 2/08 vom 30.6. 2009, paragraphs 1-421) considered that, in the European system remains a profound lesion of the democratic principle and the system of Internal representation, precisely for the criterion adopted by the Treaty regarding the composition of the European Parliament (para. 280).
[17] See S. Mangiameli, Unchangeable core elements of national constitutions and the process of European integration. For a criticism to the theory of the “controlimiti” (counter-limits / Schranken-Schranken), in Teoria del diritto e dello Stato, 2010, 68-90.
[18] See M. E. Mendez-Pinedo, The principle of effectiveness of the EU law: a difficult concept in legal scholarship, in Juridical Tribune 2021, 11, 1, 5-29; and also V. Skouris, Effet Utile Versus Legal Certainty: The Case-law of the Court of Justice on the Direct Effect of Directives, in European Business Law Review, 2006, 17, 2, 241-255.
[19] As stated by A. Moravcsik, The Myth of the European Democratic Deficit, in Raisons politiques, Issue 2, 2003, 10, 2, 87-105, and in Intereconomics: Journal of European Public Policy (November-December 2008), 331-340.
[20] See Article 14, para. 2, TEU – “The European Parliament shall be composed of representatives of the Union’s citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats”.
[21] This orientation has openly been supported by the German Constitutional Court in the Lisbon Treaty judgment (BVerfG, 2 BVE 2/08 vom 30.6. 2009, paragraphs 1-421), where we read that “The reference to the Union’s citizens in Article 14.2 TEU Lisbon, is said to emphasise their position as the subject of legitimisation of the European Union without constituting a European people” (143); “The concept of Verbund covers a close long-term association of states which remain sovereign, an association which exercises public authority on the basis of a treaty, whose fundamental order, however, is subject to the disposal of the Member States alone and in which the peoples of their Member States, i.e. the citizens of the states, remain the subjects of democratic legitimisation” (229).
[22] See H. P. Ipsen, EuropäischesGemeinschaftsrecht, Tübingen 1972, 101 e 211, which stresses that “die Mitgliedstaaten haben damit als Subjekte des Völkerrechts und als Vertragsstaaten im Sinne des Völkerrechts gehandelt und sind folglich grundsätzlich den allgemeinen Regeln des Völkerrechts unterstellt“.
[23] Even for an interpretation of Ipsen’s expression in an absolutist sense we must thank, above all, the German Constitutional Court and the sentence on the Lisbon Treaty, cited, see para. 150 (“The Member States are said to remain the “masters of the Treaties” and are said not to have granted the European Union Kompetenz-Kompetenz”), para. 231 (“The empowerment to exercise supranational competences comes, however, from the Member States of such an institution. They therefore permanently remain the masters of the Treaties”), para. 235 (“What corresponds to the non-transferable identity of the constitution (Article 79.3 of the Basic Law), which is not amenable to integration in this respect, is the obligation under European law to respect the constituent power of the Member States as the masters of the Treaties. Within the boundaries of its competences, the Federal Constitutional Court is to review, if necessary, whether these principles are adhered to”), para. 271 (“On the European level, the Council is not a second chamber as it would be in a federal state but the representative body of masters of the Treaties”), para. 298 (“The Member States remain the masters of the Treaties”) and para. 334 (“From the continuing sovereignty of the people which is anchored to within the Member States, and from the circumstance that the states remain the masters of the Treaties, it follows - at any rate, until the formal foundation of a European federal state and the change of the subject of democratic legitimisation which must be explicitly performed with it - that the member states may not be deprived of the right to review adherence to the integration programme”).
[24] They are expressions taken from the preambles of the European treaties, which are valid as a political commitment (see S. Mangiameli, Preamble, inThe Treaty of European Union – A Commentary, Springer, Berlin - Heidelberg - New York, 2013, 1-41).
[25] It should be considered that the typical way of deliberating in the European Council is that of unanimity which is typical of an intergovernmental institution; on the other hand, the Council (of the European Union) mainly decides by a qualified majority (Article 294 TFEU). This further explains how the position of governments within the two institutions is profoundly different.
[26] See, about it, E. De Marco, Metodi intergovernativi, metodi “comunitari” e multilevel governance nell’ambito dell’Unione europea; J. Ziller, Metodo comunitario e metodo intergovernativo a confronto, nell’intrecciamento fra diritto europeo e diritto nazionale; F. G. Pizzetti, Metodi intergovernativi, metodi “comunitari” e multilevel governance per il governo degli ordinamenti sopranazionali: profili problematici ed aspetti evolutivi, tutti e tre in P. Bilancia (a cura di) Federalismi e integrazioni sopranazionali nell’arena della globalizzazione, cit, rispettivamente, 173 ff., 187 ff., 269 ff.
[27] As is known, both the Commission’s Blueprint and the Relationship of the Five Presidents planned to submit the ESM, through the incorporation into the treaties, to the control of the European Parliament and the modification of the Treaty should have also involved the strengthening of the democratic responsibility of the ECB in its role of supervisory authority on the banks. The design provided for a European fiscal (budgetary) policy financed, with its resources deriving from a European imposition (“a targeted and autonomous imposition power”) and the creation “of a structure similar to a ‘Treasure’ of the EMU within the Commission”, to “give a political direction and increase democratic responsibility”, so that the Union came in a position to resist any future economic shocks. It could also issue obligations from which resources could derive following the “possibility of issuing the EU sovereign debt”. The proposal was formulated to transfer the economic-financial functions of the ESM in charge of the "European Treasure" and to transform the ESM into the "European Monetary Fund", after its integration into the legal framework of the Union. When all this seemed acquired and the European Commission had already prepared a proposal for a regulation (COM (2017) 827) which would have solved the question of the incorporation of the ESM in the European institutional framework, to make a solid crisis management body in the context of the European Union, in full synergy with other institutions, intergovernmental Europe, despite the opposition of Italy, blocked the legislative proceedings and established the permanence of the ESM out of the European law as an intergovernmental institution. In fact, following the discussions held in the meetings of the Eurogroup (in particular December 2018 and June 2019), and of the vertices of 14 December 2018 and 21 June 2019, the general terms of the ESM Treaty reform were redefined, maintaining the previous structure.
[28] Intergovernmental mechanisms require a transfer of sovereignty by participating States, as well as the Community mechanisms that define themselves within the EU legal system. The difference between the two descends from the fact that the Community mechanisms increased the political capacity of common Institutions and European sovereignty, to the benefit of all Member States that are and remain in a position of equality; while intergovernmental mechanisms disperse the sovereignty conferred by the Member States, as the common decision tends to take place only in favor of some states and to the detriment of others, altering the principle of equality among the Member States (for an explanation of these profiles v. S. Mangiameli, The Constitutional Sovereignty of Member States and European Constraints: The Difficult Path to Political Integration, In The Consequences of The Crisis on European Integration And On The Member States. The European Governance Between Lisbon and Fiscal Compact, Springer, Heidelberg, 2017, 189-216).
[29] It is one of the five scenarios proposed by the “White Paper on the future of Europe. Reflections and scenarios for the EU27 towards 2025”, presented on the occasion of the celebration of the 60th anniversary of the Treaties of Rome, in March 2017.
[30] It should be remembered that art. 1 of the EDC Treaty provided: “Par le présent Traité les Hautes Parties Contractantes instituent entre Elles une Communauté Européenne de Défense, de caractère supranational, comportant des institutions communes, des Forces armées communes et un budget commun.” And the subsequent art. 38 laid the foundations for a political, federal or confederal and democratic Europe.
[31] For which you can consult S. Mangiameli, L’Unione europea e la crisi umanitaria, in Immigrazione, Marginalizzazione, Integrazione, a cura di A. C. Amato Mangiameli, L. Daniele, M.R. Di Simone, E. Turco, Giappichelli, Torino, 2018,
[32] For an excursus on the problem of European competences, see S. Mangiameli, La competenza europea, il suo esercizio e l’impatto sugli ordinamenti degli Stati membri, in Id., L’esperienza costituzionale europea, Roma, Aracne, 2008, 131-213.
[33] The maximum capacity of the fund was 780 billion euros (although the authorization given limited the loans to 440 billion euros). On the EFSF v. D. Kolb, M. Stallechner, The European Financial Stability Facility (EFSF) and the European Stability Mechanism (ESM): Structure, Objectives and Principles of Operation, München, GRIN Verlag, 2013, 1-41; C. Closa, A. Maatsch, In a Spirit of Solidarity? Justifying the European Financial Stability Facility (EFSF) in National Parliamentary Debates, in JCMS, 2014, 52, 4, 826-842; B. L. Horváth, H. Huizinga, Does the European Financial Stability Facility Bail Out Sovereigns or Banks? An Event Study, in JMCB, 2015, 47, 1, 177-206; E. C. ªerban, G. Þuãžueanu, The Influence of European Financial Stability Facility on System of Governance in European Union Countries, in Proceedings of the International Management Conference, Faculty of Management, Academy of Economic Studies, Bucharest, Romania, 2012, vol. 6(1), 756-766.
[34] See G. Thompson, The European Financial Stabilisation Mechanism (EFSM), Standard note SN/EP/5973, 19 May 2011, Library House of Commons; R. Palstorfen, To Bail Out or not to Bail Out? The current framework of financial assistance for Euro Area Member States measured against the requirements of EU Primary Law, in European Law Review, 2012, 771-784; T. Tuominen, Mechanisms of Financial Stabilisation, Research paper, Centro Studi sul Federalismo, Torino, November 2018.
[35] See S. Mangiameli, Covid-19 and European Union – The answer to the health crisis as a way for resuming the process of European integration, in Italian Papers on Federalism, Rivista giuridica on-line – Issirfa – Cnr, n. 1/2021, 17-48.
[36] To the question: So is the euro still in danger?, he replied: No, absolutely not. From the outside, analysts are seen to be imagining scenarios in which there is an explosion in the euro area. That underestimates the political capital that our leaders have invested in this union, as well as the support of European citizens. The euro is irrevocable!
[37] “Any move towards a financial, budgetary, and political union is, in my mind, inevitable. This will lead to the creation of new supranational entities. In some countries the transfer of sovereignty – I prefer to say sharing – that this implies is a major stake, in others it is no problem. But one must remember that with globalization, it is precisely by sharing sovereignty that countries can better preserve it. In the long term, the euro must be based on a greater degree of integration”.
[38] “Within our mandate, the ECB is ready to do whatever it takes to preserve the euro. And believe me, it will be enough”.
[39] “Then there’s another dimension to this that has to do with the premia that are being charged on sovereign states’ borrowings. These premia have to do, as I have said, with default, with liquidity, but they also have to do more and more with convertibility, with the risk of convertibility. Now to the extent that these premia do not have to do with factors inherent to my counterparty - they come into our mandate. They come within our remit. // To the extent that the size of these sovereign premia hampers the functioning of the monetary policy transmission channel, they come within our mandate. // So we have to cope with this financial fragmentation addressing these issues”.
[40] These are transactions that consist in the direct purchase by the ECB of short-term government bonds issued by countries in serious and overt macroeconomic difficulty (conditionality requirement). The situation of serious and overt economic difficulty is identified by the fact that the country has started a financial aid program or a precautionary program with the European Stability Mechanism or with the European Structure for Financial Stability. The start date, duration, and end of the OMTs are decided by the Governing Council of the ECB in total autonomy and in accordance with its institutional mandate.
[41] See European Commission, A blueprint for a deep and genuine economic and monetary union Launching a European Debate, Brussels, 30.11.2012, COM(2012) 777 final.
[42] See Blueprint, cited, page 13. On this document see the opinion of J. Habermas, Democracy, Solidarity and the European Crisis, Lecture delivered on 26 April 2013 in Leuven.
[43] European Commission, A blueprint for a deep and genuine economic and monetary union, cited, 14.
[44] On the point S. Mangiameli, The Constitutional Sovereignty of Member States and European Constraints: The Difficult Path to Political Integration, cited, 189 ff.
[45] In practice, however, there is a considerable increase in the ordinary procedure (in this regard, see S. Mangiameli, Intergovernmental Relations in the European Union, in Global Encyclopedia of Public Administration and Public Policy, Springer, Heidelberg, 2018).
[46] See Blueprint, cited, 13.
[47] Report by: Jean-Claude Juncker, in close cooperation with Donald Tusk, Jeroen Dijsselbloem, Mario Draghi and Martin Schulz, Completing Europe’s Economic and Monetary Union. The report was published on 12 June 2015 and presented to the European Council in June 2015, but the discussion on this was postponed to the European Council meeting in December 2015.
[48] The dangers of failing to bring the ESM into the legal framework of the Union were identified in the lack of a limit to the ratio between debt and capital, the lack of possibility of an accounting provision (also thanks to mortgages), to avoid transfers and years of financial immobilization of important resources of national budgets, and the danger that an independent guarantee fund with tasks of European and international importance could turn into a speculative subject.
[49] Report of the five presidents, Completing Europe’s Economic and Monetary Union, 20.
[50] The Commission's policy package consisted of a rich package of measures that summarized the further steps towards the completion of the Economic and Monetary Union and identified the legislative initiatives to be taken by 2019, while also remaining open to further developments until at least 2025. The package consisted of three communications (which concerned: the first, “Further Steps towards completing Europe's Economic and Monetary Union: A Roadmap” (COM (2017) 821); the second, “New Budgetary Instruments for a Stable Euro Area within the Union Framework” (COM (2017) 822); and, the third, “A European Minister of Economy and Finance” (COM (2017) 823)), a directive (the proposal for a Council Directive would have expressed the provisions to strengthen the fiscal accountability and for the medium-term budgetary orientation of the Member States (COM (2017) 824), with the aim of integrating the substance of the Treaty on Stability, Coordination and Governance (Fiscal Compact) in the legal order of the European Union) and three proposals for regulations (the first proposal was for the Regulation of the European Parliament and of the Council amending Regulation (EU) 2017/825 to increase the financial envelope of the structural reform support program and adapt its general objective (COM (2017) 825 final); the second proposal concerned a regulation of the European Parliament and of the Council amending Regulation (EU) no. 1303/2013 of the European Parliament and of the Council of 17 December 2013, laying down common provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development, and the European Fund for maritime affairs and fisheries and laying down general provisions on the European Regional Development Fund, the European Social Fund, the Cohesion Fund, and the European Maritime and Fisheries Fund and repealing the Council Regulation (EC) no. 1083/2006 on support for structural reforms in the Member States (COM (2017) 826); the third proposal was aimed at the creation of the European Monetary Fund (see next note).
[51] See European Commission, “Proposal for a Council Regulation on the establishment of the European Monetary Fund”, of 6 December 2017 (COM(2017)827).
[52] Euro Summit meeting (14 December 2018) – Statement, EURO 503/18, EUROSUMMIT 3; for the preparation of this orientation change see already Euro Summit, of 25 June 2018; Euro Summit meeting (29 June 2018) – Statement, EURO 502/18, EUROSUMMIT 2 and Eurogroup report to Leaders on EMU deepening, Press release 738/18, 04/12/2018.
[53] See Agreement Amending The Treaty Establishing The European Stability Mechanism (T/ESM-AMD/en); see also the “Statement by the Eurogroup President, Paschal Donohoe, on the signature of ESM Treaty and the Single Resolution Fund Amending Agreements” (Statements and remarks 49/21 27 January 2021).
[54] See the Agreement Amending The Agreement on the Transfer and Mutualisation of Contributions to the Single Resolution Fund (AA-EU/SRF/en); as well as the "Joint Declaration attached to the amending agreement relating to the Single Resolution Fund" (AA-EU / SRF / JD / en).
[55] See, anyway, European Commission, “White Paper on the Future of Europe - Reflections and scenarios for the EU27 by 2025”, 1.3.2017, COM(2017) 2025 final.
[56] To the European Union art. 6 TFEU, in the matter of “protection and improvement of human health”, recognizes “to carry out actions to support, coordinate or supplement the actions of the Member States”; and art. 168 TFEU surrounds this competence with particular constraints and, in particular, excludes the possibility that in this context there may be “any harmonization of the laws and regulations of the Member States” (para. 5), only recommendations being admissible in “public health” adopted by the Council on a proposal from the Commission and the adoption of “incentive measures designed to protect and improve human health and in particular to combat the major cross-border health scourges” by “the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions”.
[57] See the Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Investment Bank, and the Eurogroup, Coordinated economic response to the COVID-19 epidemic, of 13.3.2020, COM (2020) 112 final, 11; and the Communication from the Commission to the Council on the activation of the general safeguard clause of the Stability and Growth Pact, of 20 March 2020, COM (2020) 123 final. It is good to warn that the general safeguard clause does not suspend the procedures of the Stability and Growth Pact; simply allowing the Commission and the Council to take policy coordination measures under the Pact, departing from the budgetary obligations that would normally apply (S. Hauptmeier, N. Leiner-Killinger, Reflections on the Stability and Growth Pact’s Preventive Arm in Light of the COVID-19 Crisis, in Intereconomics 2020, 5, 296-300).
[58] The Eurogroup, welcoming the Commission’s proposal for a “Corona Response Investment Initiative”, agrees on the need to implement the necessary legislative changes to the structural fund regulations as soon as possible; and in fact, two regulations are adopted in the following days: Regulation (EU) 2020/460 of the European Parliament and the Council, of 30 March 2020, (amending regulations (EU) no. 1301/2013, (EU) no. 1303/2013 and (EU) no. 508/2014 as regards to specific measures aimed at mobilizing investments in the health systems of the Member States and in other sectors of their economies in response to the COVID-19 epidemic (Investment coronavirus)) and Regulation (EU) 2020/558 of the European Parliament and of the Council, of 23 April 2020 (amending regulations (EU) No. 1301/2013 and (EU) No. 1303/2013 as regards measures specifications aimed at providing exceptional flexibility in the use of European Structural and Investment Funds in response to the COVID-19 outbreak), whereby the Union legislature amended relevant regulatory frameworks, to allow Member States to mobilize all unused resources of the European Structural Funds investment and rural areas, so as to be able to cope with the exceptional consequences of the COVID-19 pandemic, with greater flexibility in the implementation of programs and a simplified procedure that does not require a Commission decision for changes to operational programs (Regulation 2020/460). Furthermore, to alleviate the burden that public budgets have to bear in responding to the public health crisis, Member States may request that, in the 2020-2021 accounting period, a co-financing rate of 100 is applied to cohesion policy programs. %, to be borne by the Union budget, in accordance with budget allocations and subject to available funds (Regulation 2020/558).
[59] A few days after the Communication of 13 March 2020 (COM (2020) 112), the Commission would have adopted another Communication on Temporary Framework for State aid measures to support the economy in the current COVID-19 outbreak, 19 March 2020, COM (2020) 1863 final.
[60] The “Support to mitigate Unemployment Risks in an Emergency” (SURE) represents one of the three safety nets (the one for workers) and allows financial assistance from the Union, initially up to EUR 100 billion in the form of loans from the Union to the Member States concerned (See the Communication from the Commission to the European Parliament, the European Council, the Council, the European Central Bank, the European Investment Bank and the Eurogroup, Coordinated economic response to the COVID-19 Outbreak, of 13.3.2020, COM (2020) 112 final; see also European Commission, Proposal for a Council Regulation on the establishment of a European instrument for temporary support to mitigate unemployment risks in an emergency (SURE) following the COVID-19 outbreak, 2.4.2020, COM (2020) 139 final; as well as Council Regulation (EU) 2020/672 of 19 May 2020, establishing a European temporary support tool to mitigate unemployment risks in the state emergency (SURE) following the Covid-19 pandemic).
[61] See K. Croonenborghs, The European instrument for temporary support to mitigate unemployment risks in an emergency SURE, in EU Law Live, 2020, May 30, 1.
[62] The EGF is also part of the global package of measures approved by the European Council on 23 April 2020 and constitutes a safety net for businesses and, in particular, SMEs (see the Conclusions of the President of the European Council after the videoconference of the members European Council, 23 April 2020, Declarations and observations, 251/20, 23/04/2020). At the initiative of the Eurogroup (in inclusive format of 7-9 April 2020, 17 April 2020, ecfin.cef.cpe (2020) 2329436, Report of the Eurogroup, in inclusive format, on the global economic policy response to the COVID-19 pandemic, 5/6, point 15) a pan-European guarantee fund of EUR 25 billion has been established, which could support EUR 200 billion in business finance with a focus on SMEs, across the EU, through promotional national banks.
[63] As regards the ESM, it was considered possible to base the support for the pandemic crisis on the existing precautionary credit line (ECCL) (enhanced conditions credit line), adapting it to this specific challenge. The only requirement for accessing the credit line would have been a commitment by euro area Member States to use this credit line for the internal financing of direct and indirect costs related to health care, treatment, and prevention due to the Covid-19 crisis. The total amount of credit that would be granted would be equal to 2% of the GDP of the respective Member State(s), taking the end of 2019 as a benchmark. The credit line should be available until the end of the Covid-19 crisis (Final letter from the President of the Eurogroup to the members of the Eurogroup in inclusive format; on the Eurogroup in inclusive format of 7-9 April 2020, 17 April 2020, ecfin.cef.cpe (2020) 2329436, Report by the Eurogroup, in inclusive format, on the comprehensive economic policy response to the COVID-19 pandemic, 5/6).
[64] On March 13, 2020, the ECB announces the resumption of Quantitative easing which is immediately boosted from the initial 130 billion to 750 billion in the session between 18 and 19 March with an Outright Currency Transaction (OMT) program, called the “Pandemic Emergency Purchase Program” (PEPP) (see the ECB press release of 18 March 2020 announcing the PEPP).
[65] The proposal for the Recovery Fund, the idea of which has received repeated consensus over time, from the European Council (23 April 2020) and the Eurogroup (7-9 April and 14 May 2020), was presented by the Commission with the Communication of 27 May 2020, with the significant title: “The moment of Europe: repair and prepare for the next generation” (The Commission should have presented some proposals in this regard and it did so with the Communication to the European Parliament, the European Council, the Council, to the European Economic and Social Committee and the Committee of the Regions, Europe's moment: Repair and Prepare for the Next Generation, 27 May 2020, COM (2020) 456 final). The European Council, at its extraordinary meeting in July 2020, approved the Commission communication authorizing the Commission to borrow funds, on behalf of the European Union, on the capital markets and to transfer the proceeds to Union programs in accordance with Next Generation EU (Extraordinary European Council of 17, 18, 19, 20 and 21 July 2020 - Conclusions, 21 July 2020, EUCO 10/20, point A3).
Ultimately, this plan would not only be considered as an economic plan, but as a project with a very important political significance, as it would also strive for a recovery based on EU values and fundamental rights, including social rights, and to ensure a stronger presence of Europe in the world. In particular, Next Generation EU is expected to be a new € 750 billion recovery instrument, integrated into a more powerful and modern long-term EU budget, not least because the funds raised should be repaid through future EU budgets, no earlier than 2028 and not after 2058.
The borrowed funds can be used for loans up to € 360 billion and expenses up to € 390 billion and the amount owed by the Union in a given year for repayment of the capital do not exceed 7.5% of the maximum amount of 390 billion euros for expenses (Extraordinary European Council of 17, 18, 19, 20 and 21 July 2020 - Conclusions, 21 July 2020, EUCO 10/20, p .to A8). The legal commitments of a program completed by the NGEU will be made by 31 December 2023 and the related payments will be made by 31 December 2026. For further details see S. Mangiameli, Covid-19 and European Union – The answer to the health crisis as a way of resuming the process of European integration, in Italian Papers on Federalism, Rivista giuridica on-line – Issirfa – Cnr, n. 1/2021, 17 ff.
[66] When in July 2020, after the decision of the European Council, the discussion on the Recovery fund opened, this was immediately linked to the EU budget, in the sense that the fund would be managed through the budget, with the Community method and with the participation of the European Parliament and in connection with the implementation of the green transition, the digital transition and the six priorities set by the Commission, according to the strategy (2021-2030). The amount of the budget, including the NGEU, would have reached the sum of 1,850 billion euros. See the Multiannual Financial Framework 2021-2027 And Next Generation Eu (Commitments, in 2018 prices), Annex to the Press release, Multiannual financial framework for 2021-2027 adopted, 969/20, 17/12/2020.
[67] See Decision (EU, Euratom) 2020/2053 of the Council 14 December 2020 on the system of resources of the European Union and repealing Decision 2014/335 / EU, Euratom, which entered into force on 1 June 2021.
[68] Initially proposed by French President Emmanuel Macron, with a letter (Pour une Renaissance européenne, 4 Mars 2019) sent to all citizens of Europe, the Conference on the future of Europe was foreseen in the program presented to the European Parliament by Ursula von der Leyen, Candidate for the Presidency of the European Commission, “A Union that strives for more”. My agenda for Europe, Political Guidelines for the next European Commission 2019-2024, 4. Subsequently, the Commission prepared to formalize the commitment (Communication from the Commission to the European Parliament and the Council, Shaping the Conference on the future of Europe, 22.1.2020, COM (2020) 27 final), but due to the pandemic the settlement, initially scheduled for May 9, 2020, has been postponed. However, the three Institutions: EP, Commission, and Council of the EU (European Parliament, Resolution on the European Parliament's position on the Conference on the Future of Europe, 18 June 2020, P9TA (2020) 0153; European Commission, Communication “Europe's moment: repair and prepare for the next generation”, 27 May 2020, COM (2020) 456 final, 15; Council of the EU, 24 June 2020, Doc. 9102/20, para 2.) and some Member States: Germany and France (French-German Initiative for the European Recovery from the Coronavirus Crisis, 18 May 2020), have already re-launched their commitment to the Conference in 2020.
[69] The Joint Declaration of 10 March 2021 (Joint Declaration of the European Parliament, the Council and the European Commission on the Conference on the Future of Europe “Engaging with citizens for democracy – Building a more resilient Europe” - 2021/C 91 I/01), was published in the Official Journal of the EU 18.03.2021, and can be consulted at the following address: https://eur-lex.europa.eu/legal-content/IT/TXT/?uri=CELEX:32021C0318(01). The Declaration states that "the Conference is a joint initiative of the European Parliament, the Council, and the European Commission, which act as equal partners along with the Member States of the European Union. As signatories of this joint declaration, we commit ourselves to collaborate throughout the conference and to allocate the necessary resources to this initiative”.
[70] See Article 1, para. 3, of the Rules of Procedure of the Conference on the Future of Europe.
[71] Article 16 of the Rules of Procedure of the Conference on the Future of Europe.
[72] Article 16, para. 3 and 4, of the Rules of Procedure of the Conference on the Future of Europe.
[73] Article 6 of the Rules of Procedure of the Conference on the Future of Europe.
[74] Article 7 of the Rules of Procedure of the Conference on the Future of Europe.
[75] Article 8 of the Rules of Procedure of the Conference on the Future of Europe.
[76] The joint declaration states that “National and European events in the framework of the Conference will be organised along a set of principles and minimum criteria reflecting EU values to be defined by the Conference structures” and that “The European institutions will also reach out to citizens and promote broader, interactive and creative forms of participation”.
[77]Article 1, paragraph 8, of the Rules of Procedure of the Conference on the Future of Europe.
[78] The joint declaration continues by recalling the contents of “European policy”, which “must provide inclusive answers to our generation-defining tasks: achieving the green and digital transition, while strengthening Europe’s resilience, its social contract and European industry competitiveness. It must address inequalities and ensure that the European Union is a fair, sustainable, innovative, and competitive economy that leaves no one behind. To address geopolitical challenges in the post COVID-19 global environment, Europe needs to be more assertive, taking a leading global role in promoting its values and standards in a world increasingly in turmoil”.
[79] See Special Eurobarometer 500 Report, Future of Europe, Fieldwork: October-November 2020.
[80] In this sense, see formerly S. Mangiameli, Il sistema europeo: dal diritto internazionale al diritto costituzionale e ritorno?, in Diritto e società, 2016, 11-58.
[81] Consider that the co-presidency of the Executive Committee includes Deputy Guy Verhofstadt, former Belgian Prime Minister, representing the European Parliament, the Portuguese Minister for European Affairs Ana Paula Zacarias as representative of the Presidency (of the Council) and the Vice-President of the European Commission Dubravka Šuica on behalf of the latter.
[82] “These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified” (art. 48, para. 2 TUE).
[83] Indeed, as is well known, after “the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States” (art. 48, para. 3, TEU), the intervention of “a conference of representatives of the governments of the Member States … convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties” and the amendments, thus defined, “shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements” (Article 48, para. 4, TEU).
[84] S. MANGIAMELI, Il sistema europeo: dal diritto internazionale al diritto costituzionale e ritorno?, cit., 11 ff.
[85] See J. FISCHER, Scheitert Europa?, Köln 2014.
[86] “Democracia y Estado de derecho en la Unión Europea”, organized by the Fundación Manuel Giménez Abad and the Konrad Adenauer Stiftung.
