The Intergovernmental Conference as an Institutional Model of the Multilateral Diplomacy of the European Union (1950–2024)

Table Of Contents

• Cover
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• List of important abbreviations
• Introductory remarks
• Chapter 1 The legal-institutional framework and the typology of the Intergovernmental Conferences
• 1. The legal basis for the Treaty revision procedures, the specific passerelle clauses and the flexibility clause
• 1.1. The revision procedures of the Treaties
• 1.2. The specific passerelle clauses
• 1.3. The flexibility clause
• 1.4. Other procedures for amending primary law
• 2. The typology, structure, decision-making process and actors of the Intergovernmental Conference
• 2.1. The typology of the Intergovernmental Conferences
• 2.2. The structure of the Intergovernmental Conference
• 2.3. The decision-making process at the Intergovernmental Conference
• 2.4. Participants in the Intergovernmental Conference
• Chapter 2 The first Intergovernmental Conferences in 1950–1985
• 1. The Intergovernmental Conferences in 1950–1953
• 2. The 1956–1957 Intergovernmental Conference
• 3. The ad hoc Intergovernmental Conference of 1965. The Merger Treaty
• 4. The ad hoc Intergovernmental Conferences of 1970 and 1975. The Budgetary Treaties
• 5. The 1985 Intergovernmental Conference
• 5.1. The preparatory phase
• 5.2. Proceedings of the IGC
• Chapter 3 The Intergovernmental Conferences in 1990–1991
• 1. The preparatory phase
• 2. Proceedings of the Intergovernmental Conference on Political Union
• 3. Proceedings of the Intergovernmental Conference on Economic and Monetary Union
• Chapter 4 The 1996–1997 Intergovernmental Conference
• 1. The preparatory phase. The Westendorp Report
• 2. Proceedings of the IGC
• 2.1. The first phase of the IGC
• 2.2. The second phase of the IGC
• Chapter 5 The 2000 Intergovernmental Conference
• 1. The preparatory phase. The Report of the Group of Wise Men
• 2. Proceedings of the IGC
• 2.1. The first phase of the IGC
• 2.2. The second phase of the IGC
• Chapter 6 The 2003–2004 Intergovernmental Conference
• 1. The preparatory phase. The Convention on the Future of Europe (2002–2003)
• 1.1. The composition and structure of the Convention
• 1.2. Proceedings of the Convention
• 1.2.1. The international legal status of the European Union
• 1.2.2. The axiology and democratic principles of the European Union
• 1.2.3. The division of competences between the European Union and the Member States
• 1.2.4. Legislative acts and procedures
• 1.2.5. The institutional system of the European Union
• 1.2.5.1. Proposals from the Governments of the Member States
• 1.2.5.2. Proposals from the Community institutions
• 1.2.5.3. The Praesidium’s reports
• 1.2.5.4. The European Council
• 1.2.5.5. The Council of Ministers
• 1.2.5.6. The Union Minister of Foreign Affairs
• 1.2.5.7. The European Commission
• 1.2.5.8. The European Parliament
• 1.2.5.9. The Court of Justice
• 1.2.5.10. The Court of Auditors
• 1.2.5.11. The European Central Bank
• 1.2.5.12. The Union’s advisory bodies: the Committee of the Regions and the Economic and Social Committee
• 1.2.5.13. The Congress of the Peoples of Europe
• 1.2.6. The role of national parliaments in the legislative process in the European Union
• 1.2.7. Enhanced cooperation
• 1.2.8. The passerelle procedure
• 2. Proceedings of the IGC (2003–2004)
• 2.1. The integration objectives, axiology and democratic principles of the EU
• 2.2. The division of competences between the European Union and the Member States
• 2.3. The institutional system of the European Union
• 2.3.1. The Council of Ministers
• 2.3.1.1. The formations and Presidency of the Council of Ministers
• 2.3.1.2. The definition of qualified majority
• 2.3.1.3. The qualified majority voting procedure
• 2.3.2. The status of the Union Minister for Foreign Affairs
• 2.3.3. The European Commission
• 2.3.4. The European Parliament
• 2.3.5. The Court of Justice
• 2.4. The reform of the EU’s common security and defence policy
• 2.5. The two simplified treaty revision procedures. The specific passerelle clause in enhanced cooperation
• Chapter 7 The 2007 Intergovernmental Conference
• 1. The preparatory phase
• 1.1. The Berlin Declaration
• 1.2. Bilateral and multilateral consultations of the Sherpas
• 1.3. The IGC mandate
• 2. Proceedings of the IGC
• 2.1. The first meeting of the Ministers for Foreign Affairs
• 2.2. The Working Group of Legal Experts
• 2.2.1. The Preamble to the Reform Treaty
• 2.2.2. The Protocol on transitional provisions – the status of legislative acts in judicial cooperation in criminal matters and police cooperation
• 2.2.3. The Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
• 2.2.4. The institutional framework of the European Union
• 2.2.5. The clarification of provisions on legislative procedures and acts
• 2.2.6. The definition of citizenship of the Union
• 2.3. From the Gymnich meeting of Foreign Ministers to the signing of the Treaty of Lisbon
• Chapter 8 The ad hoc Intergovernmental Conferences in 2011–2012
• 1. The Intergovernmental Conference on the establishment of the European Stability Mechanism
• 2. The Intergovernmental Conference on the signing of the Irish Protocol
• Chapter 9 Prospects for Treaty reform in the European Union
• 1. The origins of the debate on Treaty reform
• 2. The draft system changes tabled by the European Parliament and by the Franco-German Working Group. Comparative analysis
• 2.1. The proposals by the European Parliament and by the Franco-German Working Group regarding the same components of the EU system
• 2.1.1. Axiology of the European Union
• 2.1.2. The institutional system of the EU
• 2.1.2.1. The European Council
• 2.1.2.2. The Council of the European Union
• 2.1.2.3. The European Commission
• 2.1.2.4. The European Parliament
• 2.1.2.5. The Court of Justice of the European Union
• 2.1.2.6. The Court of Auditors
• 2.1.3. The annual budget and the multiannual financial framework of the EU
• 2.1.4. Enhanced cooperation
• 2.1.5. The Treaty revision procedures
• 2.2. Proposals for systemic changes submitted exclusively by the European Parliament
• 2.2.1. The EU’s integration objectives
• 2.2.2. The democratic principles
• 2.2.3. The division of competences between the Union and the Member States
• 2.2.4. The role of national parliaments in the legislative process in the EU
• 2.2.5. The procedure for the accession of new states to the Union
• 2.2.6. External actions and policies
• 2.2.7. Internal actions and policies of the EU
• 3. Evaluation of the proposals by the European Parliament and by the Franco-German Working Group
• Conclusions
• List of Tables, Charts and Diagrams
• Tables
• Charts
• Diagrams
• Bibliography
• I. Archival and printed sources
• 1. Archive of the Intergovernmental Conference of 1996–1997
• 2. Archive of the Intergovernmental Conference of 2000
• 3. Archive of the Convention on the Future of Europe (2002–2003)
• 4. Archive of the Intergovernmental Conference of 2003–2004
• 5. Archive of the Intergovernmental Conference of 2007
• 6. Documents of the European Union Institutions
• 7. Treaties, international agreements and declarations
• 8. Legal acts and judgements
• 9. Other documents
• II. Monographs, handbooks and encyclopaedias
• III. Articles in scientific journals and volumens
• IV. Internet articles
• Name Index

CHAPTER 1 The legal-institutional framework and the typology of the Intergovernmental Conferences

1. The legal basis for the Treaty revision procedures, the specific passerelle clauses and the flexibility clause

1.1. The revision procedures of the Treaties

The general Treaty revision framework in the European Union is codified in Article 48(2) to (7) TEU. Since the entry into force of the Treaty of Lisbon of 13 December 2007, there have been three main procedures for amending the Treaties: one ordinary revision procedure, and two simplified revision procedures. An ordinary revision procedure can be carried out in two ways: either in an intergovernmental conference preceded by a Convention, or in a conference without convening a Convention. Each of these procedures consists of seven phases. In the case of an intergovernmental conference preceded by a Convention, the Government of any Member State, the European Parliament or the European Commission may submit to the Council of the European Union proposals for amending the Treaties, which may aim, inter alia, ‘to increase or to reduce the competences conferred on the Union in the Treaties’ (phase I). Next, the Council of the European Union submits these proposals to the European Council and the national parliaments are notified (Article 48(2) TEU) (phase II). After consulting the European Parliament, the European Commission and the European Central Bank (in the case of changes in monetary policy), the European Council adopts by a simple majority a decision in favour of examining the proposed amendments (phase III), and then its President convenes a Convention, that is, an assembly composed of representatives of the Heads of State or Government of the Member States, of the national parliaments, of the European Parliament and of the European Commission (Article 48(3) TEU) (phase IV). The Convention examines the proposed amendments and adopts, by consensus, recommendations to an Intergovernmental Conference (phase V). Following the adoption of the recommendations, the President of the Council of the European Union, or the Presidency, convenes an intergovernmental conference (phase VI). The amendments adopted by consensus at the conference ‘shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements’ (Article 48(3) TEU) (phase VII).¹

In the second option of the IGC, the different phases are identical with those of the first option, with the exception of phases IV and V. Thus, in phase IV, the European Council, acting by a simple majority, after obtaining the consent of the European Parliament, decides not to convene a Convention ‘should this not be justified by the extent of the proposed amendments’.² In phase V, the European Council, rather than a Convention, defines the terms of reference for an IGC (Article 48(3) TEU). Further, the Treaty of Lisbon introduced another new provision to the ordinary revision procedure of the Treaties, addressing both options of the IGC. If, two years after the signature of such an amending treaty, ‘four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council’ (Article 48(5) TEU).³ Examples of the application of the ordinary revision procedure preceded by a Convention – even before these provisions came into force under the Treaty of Lisbon of 13 December 2007 – were the Intergovernmental Conferences of 2000 and 2003–2004. The former developed the Treaty of Nice of 26 February 2001, whereas the latter worked on the Treaty establishing a Constitution for Europe of 29 October 2004. The two options for the ordinary revision procedure of the Treaties are presented in Charts I and II.

As regards the two simplified procedures for amending the Treaties, one refers to Part Three of the TFEU (Union policies and internal actions) and the other to the entire TFEU or to Title V of the TEU (the common foreign and security policy). The common feature of both procedures is the extension of the possibility for the European Union’s institutions to amend certain provisions of the Treaties by unanimity. This may result in a stronger position of the EU at the expense of the Member States. On the other hand, however, both simplified revision procedures of the Treaties also contain certain safeguards as described below.

The first procedure allows the European Council to revise all or part of the provisions on EU policies and internal actions. Proposals for amendments, addressed directly to the European Council rather than to the Council of the European Union – as is the case in the ordinary revision procedure of the Treaties – may be submitted by the Government of any Member State concerned, the European Parliament or the European Commission. The European Council examines these proposals and, after consulting the European Parliament, the European Commission and the European Central Bank (in the case of changes in monetary policy), decides by unanimity to revise the provisions of Part Three of the TFEU as indicated by the applicants. But the decision of the European Council does not enter into force until it has been approved by all the Member States in accordance with their respective constitutional requirements. However, it must not ‘increase the competences conferred on the Union in the Treaties’ (Article 48(6) TEU).⁴ The possibility of using option 1 of the simplified revision procedure is therefore limited by the requirement for all the Member States to ratify the Treaty amendments (cf. Chart III).