The “Article 48 Report”: How the European Parliament wants to reform the EU treaties

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By Manuel Müller

How can the EU become more democratic, more capable, and fit for enlargement? The European Parliament has a few suggestions.

On 18 March 2021, the European Parliament, the Council and the Commission published a Joint Declaration in which they agreed on the structure of the Conference on the Future of Europe and “jointly commit[ted] to listen to Europeans and to follow up on the recommendations made by Conference”. In May 2022, the Conference adopted its “Report on the Final Outcome”, recommending some far-reaching treaty reforms – including the introduction of European referendums (proposal 38.2) and the almost complete abolition of national vetoes (proposal 39.1). In June 2002, the European Parliament consequently adopted a resolution calling for the start of a treaty reform procedure under Art. 48 (2) TEU.

So far, so straightforward. The next step, according to Art. 48 (3) TEU, would then have been for the European Council to launch a convention. But the member states’ follow-up failed to materialise, partly because 13 national governments had published a non-paper rejecting “unconsidered and premature attempts to launch process towards Treaty change”. As a result, the European Parliament went back to the drawing board and launched an own-initiative procedure in order to draft its own comprehensive treaty reform proposal.

Struggling for compromise for more than a year

This draft, colloquially known as the “Article 48 Report”, is officially presented in the Parliament’s Committee on Constitutional Affairs (AFCO) today. The fact that it took more than a year to write shows how hard its authors fought for compromises. Five MEPs from different political groups were jointly responsible for the draft: Sven Simon (CDU/EPP), Gabriele Bischoff (SPD/PES), Guy Verhofstadt (Open-VLD/ALDE), Daniel Freund (Grüne/EGP) and Helmut Scholz (Linke/EL). A sixth co-rapporteur, Jacek Saryusz-Wolski (PiS/ECR), withdrew from the task at the final stage because he did not agree with the results. Eleven other parliamentary committees delivered opinions.

The next step will now be the formal adoption of the report in the AFCO Committee, followed by a plenary vote expected on 8 November. Changes to the text are still possible. However, given the intensive preliminary negotiations and the basic support of all pro-European parliamentary groups, it is very improbable for it to fail completely.

267 proposed amendments

Apart from the results of the Conference on the Future of Europe, the co-rapporteurs were able to draw on other preparatory work – such as the 2017 Verhofstadt Report, in which the Parliament had already adopted a list of “possible evolutions of and adjustments to the current institutional set-up of the EU”. The Article 48 Report continues along these lines, and in some cases goes beyond them. But above all, it is much more detailed, since it doesn’t just make general demands, but presents a completely spelled out new treaty.

The report leaves hardly any area untouched: In total, it proposes to amend no less than 267 passages in the EU treaties. Some of these changes are minor corrections, others would have a profound impact on the political system. The main issues are the parliamentarisation of electoral and decision-making procedures as well as the transfer of new legislative powers to the EU, especially in policy areas such as health and defence, which have been at the centre of public attention in recent years. Here is a brief overview.

A (more) parliamentary Commission

One important reform proposal concerns the election of the European Commission. For the appointment of the President, the Article 48 Report proposes only a minor change to the Treaty: Whereas at present, according to Art. 17 (7) TEU, the President is first “proposed” by the European Council and then “elected” by the Parliament, in future the Parliament would first “nominate” the President and then the European Council would “give its consent”. Both institutions would still have to agree – but the Parliament would be the first to act and thus have more control over the process.

For the appointment of the rest of the Commission, the Parliament proposes more far-reaching changes. First, there should no longer be one Commissioner per country, but only a maximum of 15. Secondly, they should no longer be proposed by the national governments, but nominated by the Commission President-designate and then approved by both the Council and the Parliament. Such a reform would strengthen the President and make the Commission more politically homogeneous. At the same time, preserving the EU’s model of “perfect bicameralism”, the Commission would still need a majority in both legislative bodies.

More legislative co-decision power of the Parliament

Beyond the election of the Commission, the Article 48 Report also proposes a stronger role for the European Parliament in the legislative process. On the one hand, the Parliament’s right of initiative under Art. 225 TFEU would be strengthened – a long-discussed but rather symbolic reform.

On the other hand, the Parliament would get a say in many areas where it was previously only consulted or excluded altogether, such as the European semester (Art. 121 TFEU), security and defence policy (Art. 42 TEU) or emergency measures in the event of disasters (Art. 222 TFEU) and economic crises (Art. 122 TFEU). Also the national seat quotas in the European elections (Art. 14 (2) TEU) would no longer be decided by the European Council but by the Parliament alone.

Lowering the majority requirements in the Council

But strengthening the European Parliament is only one part of the MEPs’ institutional agenda. They also want to abolish national vetoes and lower the majority requirements in the Council – a reform that would not only improve the EU’s ability to act, but also European democracy.

At present, most substantive decisions in the Council require a qualified majority (55% of governments representing 65% of the population). The Article 48 Report proposes to replace this by a “simple majority” (50% of governments representing 50% of the population) in most cases. Even some substantive decisions that currently require unanimity – for example regarding tax harmonisation (Art. 113, 115 TFEU) or social policy (Art. 153 TFEU) – would be taken by a simple majority.

A graduated system of qualified majorities

Only a few areas of particular importance would still require a qualified majority (redefined as 67% of governments representing 50% of the population). These include foreign policy (Art. 24, 31 TEU) and quasi-constitutional issues such as changes to the European electoral law (Art. 223 TFEU), which currently require unanimity. Also the passerelle clause (Art. 48 (7) TEU) could be activated by qualified majority instead of unanimity.

For some particularly sensitive issues, in particular the introduction of new European criminal offences (Art. 83 (1) TFEU), there would be a further level of super-qualified majority (80% of governments representing 50% of the population).

Real national veto rights, by contrast, would only exist in very few areas. This specially protected category includes, for example, the admission of new member states (Art. 49 TEU) and, somewhat curiously, the determination of the official languages of the EU (Art. 342 TFEU).

Treaty reforms without vetoes

Most interestingly, the Article 48 Report does not envisage any national veto rights for future EU treaty reforms. Amendments to the EU Treaties (Art. 48 TEU) would enter into force if they are supported by both 80% of governments and a majority in the European Parliament, and subsequently ratified by 80% of member states. If two years after the agreement on a treaty reform less than 80% of the member states have ratified it, the fate of the new treaty is to be decided by a Europe-wide referendum.

Such a reform of the treaty change procedure is likely to pose constitutional challenges for several member states, but it would be a major breakthrough for European integration. In fact, the debate on treaty reforms without vetoes has been going on for a long time, and in recent years the “petrification” of its barely reformable treaty bases has become an increasingly obvious problem for the EU. Therefore, the fact that the Parliament is now putting the issue back on the political agenda deserves full support.

Involving the ECJ in the Article 7 procedure

Another reform proposal concerns how the EU can react when member states don’t respect the common EU values, such as democracy and the rule of law. So far, Art. 7 (2) TEU provides that the European Council can determine that a breach of the values is taking place and authorise sanctions – but only by unanimous decision, which has made the article unworkable in practice.

In future, the European Court of Justice, acting at the request of the Council, the Parliament or the Commission, would be tasked with determining if a member state is in breach of EU values. Following the ECJ’s decision, the Council could then impose sanctions by qualified majority. This (partial) judicialisation of the procedure would not only help to overcome current deadlocks, but in the best case could also increase the legitimacy of EU measures against authoritarian member state governments.

New EU competences

While some of these institutional reforms have been pursued by the Parliament for a long time – many of them are also included in the Verhofstadt Report, and some ideas even date back to the Constitutional Convention of 2002/03 –, in others the influence of the crises of recent years is evident.

For example, the Article 48 Report also proposes giving the EU additional legislative powers in the area of pandemic management as well as the protection of external borders. Climate protection would also play a more prominent role in the EU treaties, for example as an objective of foreign trade policy (Art. 207 (1) TFEU) or as a justification for energy policy harmonisation (Art. 194 (1) TFEU). All these reforms are obviously aimed at providing the EU with a more secure legal basis for effective action in areas that have recently gained political importance.

European Defence Union

Finally, the Article 48 Report proposes particularly far-reaching new EU competences for the area of foreign and defence policy – clearly another lesson learned from recent experience.

For example, many foreign, security and defence policy decisions previously taken unanimously by the Council would now only require a qualified majority (and in some cases the consent of the European Parliament). At the same time, the European Court of Justice would be given new jurisdiction over foreign policy matters.

Even more importantly, the report also envisages the creation of a “European Defence Union”, which would even include permanently stationed joint military units under a European operational command. The missions of this EU army, as well as its budget, would be decided jointly by the Council and the Parliament. In addition, the mutual assistance clause (Art. 42 (7) TEU) would be strengthened so that an “armed attack on one Member State shall be considered an attack on all Member States”.

What’s lacking?

Of course, there are also some elements in the Article 48 Report that seem less than convincing. For example, apparently in order to comply with the Conference on the Future of Europe’s recommendation 39.3 to “consider changing the names of EU institutions to clarify their functions”, the report suggests that the European Commission should be renamed the “European Executive”. It is doubtful whether this would be particularly effective or rather create even more confusion.

Another proposal that overshoots its mark is the idea of giving the EU exclusive competence over the environment and biodiversity (Art. 3 TFEU). Measures in these areas would then only be possible at the European, not the national level. But prohibiting member states from pursuing their own environmental policies is neither justifiable in terms of subsidiarity (not all problems are cross-border!), nor does it help the environment itself.

When it comes to the voting rights of EU citizens, by contrast, the Article 48 Report falls short of the line taken in the 2017 Verhofstadt Report. At that time, the Parliament called for “the electoral rights of citizens residing in a Member State of which they are not nationals, as set out in Art. 22 TFEU, to be extended to include all remaining elections”. This proposal has now been dropped, although the democratic arguments for such a reform remain as valid as ever.

The ball is in the European Council’s court

All in all, however, there can be no doubt that the draft Article 48 Report is an impressive start to the negotiations on institutional reform of the EU. After the Spinelli Draft of 1984 and the Herman Report of 1994, it is the third fully formulated draft treaty that the European Parliament has presented in its history. The co-rapporteurs have taken up many of the key issues of the recent reform debates and have provided answers that are both bold and smart, ambitious and practicable. This could be a much-needed step forward for European integration – if only the member state governments are ready to go along with it.

That, of course, is a very big if. It would be naïve to expect that the European Council, which has so far stubbornly ignored the growing pressure for reform, will now welcome the Parliament’s proposals with enthusiasm. On the other hand, history shows that national governments have also tended in the past to ignore MEPs’ institutional reform proposals for a long time, only to eventually implement them, driven by external events, at some later point.

With the EU in permanent crisis and a new enlargement round on the horizon, it would be desirable if this time they didn’t take too long. After the 2024 elections, the time has come for a new European Convention!

Picture: © European Union 2013 – European Parliament [CC BY-NC-ND 2.0], via Flickr.