Professor Gavin Barrett:

I thought I would begin with a dramatic flourish by saying a spectre is haunting European capitals, the spectre of treaty reform. Once more, for the ninth time, if I have calculated correctly, right across Europe debate is now being quietly conducted as to whether, when and how the European Union's basic treaties need to be revised, with the emphasis gradually changing from whether to when and how.

That debate has broken through to the surface on a few occasions, for example, in many of the 2022 proposals of the Conference on the Future of Europe, while an alleged 95% of those did not involve treaty change, others did; in a September expert report that was advanced, even if not technically endorsed, by France and Germany in September; and in the 25 October report of the European Parliament’s Constitutional Affairs Committee, which Dr. Colfer has gone through so expertly.

The question that arises is why this debate is happening now. One driving factor is that change is overdue. Despite a rapidly changing world and the deepening and widening of the European Union and its activities, the foundational treaties have not been overhauled since the entry into force of the 2007 Lisbon treaty, which, itself, largely reflected compromises arrived at in the failed 2004 constitutional treaty. Remarkably, the treaty provisions on economic and monetary union, EMU, remain for the most part unchanged since the Maastricht treaty was agreed over three decades ago, in 1992. That is a glaring omission that has necessitated the relevant treaty provisions being supplemented by a mishmash of non-EU treaties, secondary legislation and soft law. That is one driving factor - the fact that change is probably overdue at this stage.

Second, since Lisbon, the European Union has been struck by a wave of challenging crises that have shown up the deficiencies in the legal structure. We are talking about events such as the banking and sovereign debt crisis, of which we do not need any reminder in this country, the migration crisis, the rule of law crisis affecting, in particular, Hungary and Poland, Brexit, Covid-19, and, most recently, the Ukraine war, which exposed the EU's inadequacies in the foreign and defence policy and energy policy fields. The shock instilled by that last crisis, perhaps more than any other crisis, has added a sense of urgency to the drive for reform of the EU and making it more fit for purpose in today's world.

Last, but very much far from least and linked to the situation in the Ukraine, is the need, once more, for the EU to enlarge. As Brexit recedes in the rear-view mirror, eight countries on the eastern borders have been granted candidate status.

They are: Türkiye in 1999; North Macedonia in 2005; Montenegro in 2010; Serbia in 2012; Albania in 2014; and, most recently, Ukraine and Moldova, in June 2022, and Bosnia and Herzegovina in December of last year. Two more countries, Georgia and Kosovo, are knocking on the door. Admittedly, some of these candidatures lack reality. With these countries, as Alberto Alemanno has observed, the EU is pretending to negotiate accession and the countries in question are pretending to carry out the needed reforms. Türkiye's relapse into autocracy and its foreign policy choices have meant its admission process has been frozen indefinitely. Similarly, Serbia's approach to Kosovo and, latterly, its ambiguous stance towards Ukraine, as well as its own rule of law issues, have caused problems. Political turmoil in Montenegro has led to its admission process stalling. Nonetheless, enlargement is coming and it is accelerated by fears of an aggressive Russian state on the eastern side of the Union. Whenever enlargement happens, reform must come with it. If reform does not happen, the danger is that enlargement could lead the EU to expand without an adequate strategy to ensure its continued efficient functioning.

It is clear that preparations for enlargement will require elements other than treaty reform. Enlargement will require major financial preparations and sacrifices. An internal paper by the Council secretariat leaked to the press in October noted that if current budgetary arrangements are maintained, the potential accession of nine new states, leaving Türkiye out of the picture, would add an extra €250 billion to the cost of the multi-annual financial framework. Cuts to Common Agricultural Policy, CAP, subsidies to existing member states of approximately one fifth would be required. Countries like Czechia, Estonia, Lithuania, Slovenia, Cyprus and Malta would all lose entitlement to cohesion funding. Ukraine would be entitled to €96.5 billion of CAP funds and €61 billion in cohesion funding. All member states will end up having to pay more to, and receiving less from, the EU budget. Many states that are currently net receivers will become net contributors. Of course, il ne faut pas exagérer. Nine states are not going to join the EU any time soon. If and when enlargement takes place, the current budgetary model will not be adhered to because it would be politically impossible, but there will be a need for adjustments, safeguarding measures and increased contributions. The budgetary implications of enlargement will need to be agreed by 2027. It is a truck coming down the road at us.

The other truck coming down the road is treaty change, which also must be part of the enlargement dynamic. We have been here before. It is exactly the same dynamic that drove agreement on the 1997 Amsterdam treaty and the 2001 Nice treaty, both of which were ex anteattempts to prepare for the massive enlargement of the EU by ten states in 2004 and a further two in 2007. That enlargement, too, was driven in large part by fears of Russia on the eastern border. In her September state of the union speech to the European Parliament, the Commission President, Ursula von der Leyen explicitly anticipated the possibility of a European convention and treaty change in the context of enlargement. There tends to be a certain coyness about treaty change. President von der Leyen carefully hedged her bets with the observation that the EU should not wait for treaty change to move ahead with enlargement. Moreover, if we look at the recent Granada declaration made after the October European Council summit, it merely declared that in parallel to the reforms demanded of aspiring EU members, the EU needed to lay the "necessary internal groundwork and reforms". The German minister for Europe, Anna Lührmann, is correct in saying, while advancing a research paper advocating treaty changes, that enlargement and reform must go hand in hand. It is clear that treaty reform is on the agenda.

What treaty reforms should we anticipate? There have been three prominent generators of ideas so far. The first was the May 2022 report of the Convention on the Future of Europe, which issued 49 recommendations and more than 200 individual proposals. They ranged across the spectrum of activities of the EU, including the economy, social justice, education, sport, European democracy, values and rights, migration and Europe in the world. Only some of them require treaty change but the idea that it might be required inspired an immediate reaction, with 13 member states signing up to a so-called non-paper that attempted to strangle at birth any idea that the Convention's ideas should lead to treaty reform. They stated: "We already have a Europe that works. We do not need to rush into institutional reforms in order to deliver results." Nonetheless, the Convention's proposals live on as ideas and have influenced the European Parliament in its calls for treaty change. The Convention on the Future of Europe, then, is driver or generator of ideas number one.

The second source of ideas was the September 2023 report of the Franco-German working group on EU institutional reform. The report was put forward by France and Germany but was written by independent experts, which enabled the two countries to say it did not necessarily represent the official French or German position. It advanced a range of ideas, including a widespread end to unanimity in favour of qualified majority voting. That comes up in every proposal. The idea in the Franco-German proposals is that it would be balanced by increased voting power for small member states in the qualified majority voting system. Other proposals put forward in the Franco-German paper include strengthening the ineffective rule of law requirements, facilitating the issuance of common debt and a shortening of the budget cycle to coincide with the five-year electoral cycle. Most eye-catchingly, the report also revived the idea of a multispeed Europe, or more exactly, a system of concentric circles of integration composed on the outside of the European political community and, inside that, associate members, that is, EEA members, and inside that again, existing European members. Interestingly, at the core would be members that would integrate further without other member states being able to stop them doing so. The second source of ideas, then, has produced a proposal for a concentric Europe.

I will not say too much about the third source of ideas because Dr. Colfer has already dealt with it in great detail. I refer to the October report of the European Parliament's Committee on Constitutional Affairs. It included various proposals, as outlined by Dr. Colfer. I note in particular the perhaps not overly inspiring calls for an increase in its own powers at the European Parliament. I do not know how far they will go. There was also a call for more qualified majority voting and various other changes, including on citizenship requirements.

It is important to stress that ideas like these represent only the first shots fired in a debate that will no doubt see a large number of proposals being made. Other member states are working on their own proposals. Experts from Denmark, Sweden, Finland, Poland and the Baltic states published their ideas in July. Ideas like enhancing EU-level democracy, adjusting the EU's crisis response framework under the Common Foreign and Security Policy and updating provisions in areas such as economic and monetary union will undoubtedly find their way onto the agenda. In particular, a Common Foreign and Security Policy dominated by unanimity voting has proved really problematic. Not to put too fine a point on it, it has been used by Hungary to blackmail the EU in order to get more funds.

No discussion of treaty reform can avoid discussion of the stone in the midst of all, which is the Article 48 Treaty on European Union amendment process. It requires not alone the unanimous agreement of member states but subsequent ratification by all member states in accordance with the respective constitutional requirements. The implications of this for the prospects of treaty reform should not be underestimated. We have already had referendums over the years in Ireland, Denmark, France and the Netherlands that have thrown a spanner in the works of treaty reform, even in the days before Internet disinformation campaigns. Referendums have appeared to be a sufficiently unpredictable prospect for some member states to disincline them to agree up to now to treaty revisions. I am interested in the Franco-German paper in this regard. It advocates that in the case of a negotiation deadlock, the fallback option of a supplementary reform treaty, such as the European Stability Mechanism, ESM, treaty, between the member states that are willing to move forward. The reference to the ESM treaty is interesting because that particular treaty was enabled to come into force when instruments of ratification had been deposited by signatories whose initial subscriptions represented only 90% of the total. Similarly, the fiscal stability treaty, on which we had a referendum in Ireland, could enter into force when a mere 12 contracting parties whose currency was the euro had deposited their instrument of ratification. The point I am making is that I am not sure a situation where each individual state can veto change for the entire EU will be acceptable. Of course, every member state can, should and always will be able to veto change for itself but as regards being able to veto change for the entire Union, I am not sure that is sustainable.

It is interesting to see that there is a kind of plan B built into the Franco-German paper in that regard. We will have to see where that goes, but there is, of course, a long process ahead of us in respect of treaty change. This is just giving the committee some ideas of the context and where we are now in this regard.