Javier Elorza
Ambassador of Spain (Retired)
* Photo widget Carmen Suárez / Courtesy of The Objective
The crisis in France of the yellow waistcoats led to the constitution of the Conference on the Future of Europe in December 2020 to listen to citizens’ ideas on the matter. In the final report adopted by the plenary in April 2022, 325 measures were proposed, 90% of which could be implemented by the European institutions without revising the treaties. However, there were 24 that required it. The Commission and Parliament accepted this demand and proposed that a Convention be convened, to be followed by an Intergovernmental Conference, under Article 48 of the Treaty on European Union. The Council was much more cautious and when the matter was put to a vote, more than half of the Member States opposed the convening of such a Convention and the Convention could not be set up.
There was another alternative. In the aforementioned article 48, the so-called “passerelle” possibility was envisaged, whereby the European Council could decide unanimously to pass by qualified majority almost all the articles for which unanimity is now required by the Treaty of Lisbon. The Czech presidency carried out a questionnaire asking Member States which bridges they would accept to pass to qualified majority. The result was totally negative as there were vetoes on each and every one of the possible passages.
In short, it was not possible to revise the Treaties today. Many feared a repetition of the experience of the Giscard Constitution, which did not see the light of day because of two negative referendums, one in France and the other in the Netherlands. Today there would be 3 or 4 more. Others because many regressive proposals would be put forward, especially by some countries in the East. Some because they feared that the big countries would once again turn the screw by further reducing the rights of small and medium-sized countries in the Council, the Commission and the European Parliament.
This issue intersected with the invasion of Ukraine, with the EU reacting viscerally by granting Ukraine candidate status for accession in 2022. It joined seven other countries that were in line to join the EU. The politicisation of the war brought this issue to the Council table as one of the important and urgent issues of the European Council. Once again the Germans demanded as a precondition to reform the Union and its Treaties before embarking on further enlargement. The German government is very much in favour of Ukraine’s accession (in contrast to ordinary Germans, who have much more reluctant and cold positions in the Eurobarometer, only 42% in favour of such enlargement in Germany, 52% in the EU average and more than 70% in Spain). The world upside down. This percentage can also be explained by the fact that the German foreign minister, Annalena Baerbock, and the minister for Europe and Climate, Anna Lührmann, belong to the traditionally pro-European Green Party. One need only recall Joshka Fisher, who was also foreign minister under Schroeder.
This is why the Germans defend the thesis that the Treaties must be reformed before any enlargement can take place. As an example, this spring they set up a “group of friends of the qualified majority for the common foreign and security policy (CFSP)” consisting of nine countries, the six founding members plus Slovenia, Finland and Spain. So far this group has not been successful in its proselytising. Can one imagine Greece renouncing unanimity in foreign policy with its serious problems of all kinds with Turkey, or the Visegrad countries, fearful of German power in Brussels? Or Portugal, always very Atlanticist? Minister Albares did not dare to include this question in his Gymnich meeting this summer.
However, the Franco-German directorate (Emmanuel Macron is very much in favour of Ukraine’s accession) did not let up and surreptitiously set up a group of 12 theoretically “independent” experts from France and Germany alone (Jacques Delors Institute, French and German universities, members of think tanks, but without any negotiating experience in Brussels (except for a former French MEP)). On 19 September they published their report, presented by German minister Lührmann and French minister Laurence Boone.
In this report they recognise that “enlargement is not technically, economically or politically possible at this stage”. This does not prevent them from calling for the immediate reform of the Treaties (in unequivocal support of the German thesis), advocating the rapid implementation of the passerelles, the introduction of new modalities for enlargement that would allow candidates to have access to and participate in certain policies or to approve “opting ins” in certain cases, in short, to allow gradual entry (a thesis defended a year ago by Sebastian Maillard, former director of the Jacques Delors Institute). This operation would be legally very complicated (could they be taken to the Court of Justice, could they be fined, what contribution would they pay for this partial access, etc.)? Moreover, the “12” propose that these opt-ins and sectoral accessions should be decided by qualified majority in the Council(!), which would require a revision of the Treaties. They conclude with another novelty, that of setting a date for enlargement by setting the year 2030 as the deadline for completion. Already Charles Michel President of the European Council stated this summer that “we will not see new EU partners until 2030”, which in Belgian Palladian language means that “yes there will be new partners in 2030.” Ursula Von der Leyen, President of the Commission, the only one competent in the matter, immediately jumped into the fray to reject this approach, making it clear that enlargements will only take place when the required conditions are met, and not before, nor artificially.
What is more, the “12” want to make it the Spanish presidency’s duty to ensure that at the December European Council in Brussels the Council “commits” itself to enlargement by 2030, asking for a similar commitment from the candidates. And since, according to the German thesis, which France seems to share, enlargement is only possible if the treaties are reformed beforehand (generalised application of the passerelles, reduction in the number of commissioners, etc.), we are going to get down to it without taking into account that there is not a sufficient majority of countries in the Council to trigger this reform process in accordance with the treaties. The board wants to force the will of the remaining Member States, again as they did in the Convention, bypassing the legislation in force. Unusual and unacceptable.
Spain has no interest whatsoever in the way we use the passerelles. By taking away our votes in the Treaty of Nice because of the cession made by Rodríguez Zapatero and Moratinos in the Treaty of Lisbon, we lost our capacity of influence and a lot of power in exchange for nothing. Prior to any revision of the Treaties, the percentage of blocking minorities should be reduced to 29%/30% of the population (historical percentages of blocking minorities since the accession of the United Kingdom in 1973), as a minimum, and change the current 35%.
Finally, why this rush to enlarge, when there is an article 42 paragraph 7 in the Treaty on European Union which reads “If a State commits armed aggression against the territory of a Member State, the other Member States shall give it aid and assistance by all the means in their power…”. This is the same as Article 5 of the NATO Treaty (immediate and unconditional military assistance), but without the US. As long as there is war in Ukraine it could never join the Union Treaty. President Biden and NATO Secretary General Stoltenberg declared months ago that Ukraine could not join NATO before the war was over because otherwise we would enter World War III by applying Article 5 of the NATO Treaty. In the EU, the same, without the Americans and Britain.
And why set a date that in no way guarantees that Ukraine and the 5 Balkan countries that are waiting will have done their homework? Enlargements cannot only be political, but must be based on facts that will enable the new candidates to meet their future membership obligations.
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