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The Necessary Complexity of Consent: Rules and Norms in EU Treaty Making

Published online by Cambridge University Press:  14 January 2020

Dermot HODSON  and
Imelda MAHER
Dermot HODSON
Affiliation:
Birkbeck College
Imelda MAHER
Affiliation:
University College Dublin*
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Abstract

The idea that EU treaties have become too difficult to amend is a recurring one. This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in twenty-eight Member States between 1950 and 2016, asking how parliaments, people, and courts came to be much more significant for consent, what the consequences of this shift are, and offering some tentative proposals as to how the challenges this raises could be addressed. EU treaty making has become more complex, but we argue that treaties should be more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.

Keywords

EU treaty makingreferendumparliamentcomparative constitutionalismratificationlegitimacy

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Type
Articles
Information
Cambridge Yearbook of European Legal Studies , Volume 21 , December 2019 , pp. 297 - 317
Copyright
Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge

I. INTRODUCTION – THE CHALLENGE OF CONSENT

The European Union (EU) is founded on treaties to which Member States give their consent to be bound. Three actors have assumed a more prominent role in the process through which such consent is offered: parliaments, people, and courts. Parliaments were pivotal actors in the approval of the Treaty of Paris, which in 1951 founded the first of the three European Communities, but they now play a much more visible role. The involvement of five regional parliaments and the federal Parliament in Belgium is an extreme case.Footnote 1 The people are now routinely offered a say, with ten Member States promising referendums on the failed European Constitution.Footnote 2 National higher courts, especially Germany's Federal Constitutional Court, have also become familiar in EU treaty making.Footnote 3 The Treaty on the Functioning of the European Union (‘TFEU’) Article 136 amendment to establish a stability mechanism led to constitutional challenges in six Member States.Footnote 4

The idea that EU treaties have become too difficult to amend is a recurring one from European leaders. The fraught politics of approving the Lisbon Treaty, which emerged after the rejection of the Constitutional Treaty in referendums in France and The Netherlands and two referendums in Ireland, produced a plea of ‘no more treaties’ from the then UK Prime Minister Gordon Brown.Footnote 5 Treaty making was ‘taboo’ during the euro crisis, French President Emmanuel Macron later admitted, while remaining reluctant to be drawn on specific proposals for treaty amendment.Footnote 6 Given the low likelihood that EU treaties will remain unchanged—there have been more than 20 revisions since 1951—there is strong scholarly support for treaty making becoming more flexible. ‘In the light of comparative constitutional law and the practice of international organisations, the general procedure for amending the treaties is particularly rigid’, argued a high-level report on treaty amendment submitted by leading legal scholars to the European Commission in 2000.Footnote 7 Vivien Schmidt makes a similar point when she criticises current treaty making rules and norms for allowing some Member States ‘to hold the others hostage, delaying the entry into vigour of treaties approved by the others and often watering down measures desired by large majorities in futile attempts to engineer compromise’.Footnote 8 Critical too is Carlos Closa, who argues that treaty revision procedures ‘are too rigid and, hence, that national governments are increasingly tempted to channel reform via treaties outside the EU’.Footnote 9

This Article explores changing national constitutional rules and norms in the consent stage of EU treaty making in the twenty-eight Member States over the period 1950 and 2016.Footnote 10 It examines how parliaments, the people, and courts came to play a new role in this stage and what the consequences of changing consent practices were. Our findings confirm that EU treaty making became more complex but challenge the idea that treaty making was too rigid as a consequence. The increased role of parliaments, the people, and courts are associated with falling treaty amendment rates overall but treaty making by no means ground to a halt as a result of these changes, not least as governments were willing and able to circumvent such constraints. There is a neglected case for making treaties more rather than less difficult to amend where concerns over two-level legitimacy rather than two-level games predominate.

II. NATIONAL CONSTITUTIONAL RULES AND NORMS AND EU TREATY REVISION

Treaty making begins with the negotiation and conclusion stages, in which agreement on a final text is sought and secured.Footnote 11 Before a treaty can enter into force, it must pass through, what we call, the consent stage. Consent is sometimes equated with ratification, but ratification is just one of several means through which states can give their consent to be bound by a treaty.Footnote 12 Other means include signature, the exchange of instruments constituting a treaty, acceptance, approval or accession, or any other agreed means.Footnote 13 Although the primary focus of our discussion is how national constitutional rules and norms have shifted in the consent stage of EU treaty making, comparable changes have taken place at the negotiation stage too. From the Single European Act onwards, the European Parliament gradually gained entry to intergovernmental conferences. The convention process was codified in the Treaty of Lisbon so representatives of the European Parliament and national parliaments are offered a seat in the initial stages of treaty negotiation alongside the heads of state and government and the Commission.Footnote 14 The Treaty of Lisbon introduced ordinary and simplified revision procedures for amending EU treaties.Footnote 15 The ordinary revision procedure is aimed at amendments that increase or reduce the competences conferred on the EU by treaties, although not exclusively so.Footnote 16 The simplified revision procedure allows the European Council to draft treaty amendments without recourse to an intergovernmental conference or convention, but it cannot be used to increase the competences of the EU and it is limited to revisions concerning certain aspects of the Treaty on the Functioning of the European Union (TFEU).Footnote 17Pringle addressed the question of whether EU leaders, when they changed Article 136 TFEU to allow for the creation of a euro area stability mechanism, complied with the conditions laid down in the simplified revision procedure. The Court of Justice of the European Union was consequently drawn into the negotiation stage of treaty making for the first time.Footnote 18

National constitutions typically set out rules governing the consent stage of treaty making.Footnote 19 In the context of EU treaties, three rules are of particular relevance. First, there are those concerning international treaties in general. Second, many Member State constitutions contain provisions specific to the EU treaties and third, where the proposed EU treaty is such as to require an amendment of the constitution then regard also has to be had to the provisions governing constitutional amendment. A specific issue that shapes the consent stage is whether or not the state is monist or dualist, as the former does not require legislation for treaties to enter into force in domestic law with treaties viewed as directly applicable.Footnote 20

When it comes to approving EU treaties, Member States have regard for norms as well as rules. For example in Ireland, referendums are required to amend the constitution but the norm emerged that referendums would be sought for new EU treaties.Footnote 21 Constitutional norms, understandings, habits, and practices that drive constitutional lawFootnote 22 can be seen as precedents that are respected as deemed appropriate.Footnote 23 These norms, practised by the powerful in society, are more than just accepted, moral norms.Footnote 24 They may be articulated in constitutions—or not. They may be enforceable by the courts—or not. Their meaning may change over time reflecting their evolutionary nature—or they may be very stable, being seen as foundational to the constitution and the state. This section examines relevant constitutional rules and norms in all twenty-eight Member States over the period 1950–2016. It is necessary for the sake of comparability to make some simplifying assumptions about the role of parliaments, people and courts and these are explained in each sub-section below.

III. PARLIAMENTS

A. Constitutional amendment

One of the more difficult legal and political questions around consent for EU treaties by Member States is whether or not that treaty will necessitate a constitutional amendment.Footnote 25 Usually constitutional amendment rules are more stringent than treaty consent per se, although this is not always the case. For example, under the Czech Constitution, approval of a treaty that transfers certain powers to an international organisation or institution requires the same three-fifths majorities in the Houses of Parliament as for a constitutional amendment.Footnote 26

Four observations can be made around the question of whether or not constitutional amendment arises as a result of EU treaty revision. First, there are those Member States whose constitutional norms do not require constitutional amendments for EU treaty making, often because the constitution has been changed to introduce larger parliamentary majority requirements where powers are delegated under a treaty (Bulgaria,Footnote 27 Denmark,Footnote 28 Cyprus,Footnote 29 Italy,Footnote 30 Malta,Footnote 31 The Netherlands,Footnote 32 Portugal,Footnote 33 Romania,Footnote 34 Slovakia,Footnote 35 Slovenia,Footnote 36 Luxembourg,Footnote 37 and SwedenFootnote 38). Second, there are those for whom constitutional amendment in connection with the EU treaties is rare (Belgium,Footnote 39 Finland,Footnote 40 Greece,Footnote 41 and HungaryFootnote 42). Third, there are those where constitutional amendment is more likely (Austria,Footnote 43 Czech Republic,Footnote 44 France,Footnote 45 Ireland,Footnote 46 and SpainFootnote 47). There are those Member States where it is not clear when a constitutional amendment will be required as they have yet to be faced with or not yet found treaty changes to be of constitutional significance (Croatia,Footnote 48 Estonia,Footnote 49 Latvia,Footnote 50 and LithuaniaFootnote 51) or where the matter of approval remains contentious politically and legally (PolandFootnote 52). The UK, because of its partially written, wholly uncodified Constitution is a special case, which goes some way towards understanding why EU treaty making proved so contentious in this Member State.Footnote 53

Thus, for the majority of Member States (sixteen) constitutional amendment is not required or is rare. Yet for several of these states the majorities required in parliament are the same as those required for constitutional amendment (of which more below). For six Member States, constitutional amendment is more likely for Treaty changes. There are then several Member States who joined the EU more recently where it is not yet settled when constitutional amendment might be required. Hence it is necessary to look more closely at what is required even where constitutional amendment is not triggered by a proposed EU treaty in order to assess the challenge of consent.

B. Consent beyond constitutional amendment

Parliaments have increasingly had a role in consenting to international treaties and EU treaty making is part of this trend.Footnote 54 The prominence of the parliament can be determined by whether the legislature must: (1) be consulted; (2) approve by a simple or absolute majority; (3) approve by a three-fifths or two-thirds majority; or (4) whether a supermajority is required.Footnote 55 Our focus is on the rules and norms rather than the particular composition of any legislature at the time of treaty making—it may well be the case that for a minority government, even a simple majority may be a difficult if not insurmountable obstacle.Footnote 56

All constitutions in the Member States have rules and norms pertaining to treaty approval and all of them have a role for their national parliaments. There are three main themes in determining the challenge for the government of securing consent. These are first, whether the parliament is unicameral or not, with the challenge of securing consent increasing with the number of chambers involved. Second, whether unicameral or not, the size and nature of the vote required to secure consent is important. Finally, there may also be subnational parliaments and whether their consent is also required can pose a challenge.

There are fifteen unicameral parliaments in the EU-28, seven of which have constitutional norms and rules that require approval for an EU treaty by a simple majority.Footnote 57 Two Member States, Greece and Slovakia, require a three-fifths majority. Six Member States require a two-thirds majority,Footnote 58 and Sweden requires a three-quarters majority. The remaining thirteen Member States have bicameral legislatures. Of these, six Member States require only a simple majority in each House.Footnote 59 Austria and Germany require a two-thirds majority of both Houses of Parliament. Romania requires a similar majority but with both Houses sitting jointly, while Slovenia limits the two-thirds majority to the lower House. The Czech Republic requires a three-fifths majority in both Houses. Finally, two Member States have subnational parliaments that have a role to play. In Finland, the Åland Islands Parliament must consent to any EU treaty that falls within its competence in order for that treaty to take effect within the islands. However, once the Finnish Parliament approves the treaty, it does not have to wait for the Åland Islands Parliament.Footnote 60 Belgium has moved from being a unitary to a federal state and as a result of various constitutional reforms, treaty making powers have extended to the subnational parliaments where the treaty involves issues falling within their competence (which is the case for most treaties).

National parliaments have grown more prominent since the 1950s with a significant increase recorded in the late 1980s and early 1990s. Ten parliamentary chambers gave their consent to the Treaty of Paris setting up the European Coal and Steel Community among six Member States. By 2016, 44 parliamentary chambers are involved in approving EU treaties, reflecting the increased number of Member States but also the growing involvement of parliaments in agreeing to EU treaties. Hence, even among the six original Member States, only two have retained the requirement of a simple majority: Italy and the Netherlands. The practice of acceding states differ. For Greece (1981), Austria, Finland, and Sweden (1995), a three-fifths majority, a two-thirds majority in both Houses, a two-thirds majority, and a three-quarters majority were required, respectively. Post-2005, a range of majorities were required showing no particular pattern but parliaments all have a say.

IV. PEOPLE

Prospective or existing EU Member States account for more than one-third of foreign policy referendums in the world held since 1972.Footnote 61 In studying the evolution of the constitutional rules and norms that determine whether or not referendums can be called, it is important to note the possibility of a referendum, as this can act as a constraint on negotiation even if a referendum never actually takes place.Footnote 62 Portugal is the only Member State that prohibited a referendum until it changed its Constitution in 1997. Following this change, its Constitutional Court twice rejected calls for referendums on the Amsterdam Treaty and the European Constitution on the basis the question posed did not lend itself to the clarity required for a yes/no answer. A further constitutional amendment means such that a referendum is now possible but has never been called.Footnote 63

Referendums are improbable in six Member States, ie there are rules allowing for them but they are unlikely to be called.Footnote 64 Belgium seems to be the only Member State that is not moving towards greater use of referendums.Footnote 65 Under statute, a referendum can be called in Cyprus on any matter of public interest. There is no such provision in this Member State's Constitution and, given the unusual circumstances pertaining there, a referendum on an EU treaty would be improbable especially as Cyprus joined the EU without holding one.Footnote 66 Referendums on treaties are expressly prohibited in the Estonian Constitution but changes to the Constitution require a referendum. To date, no referendum has been sought for an EU treaty so it is improbable but not prohibited, given an EU treaty might be viewed as changing the constitution.Footnote 67 In Germany, a referendum is required for a constitution freely adopted by the people and a recurring issue of debate is when/whether an EU treaty will be proposed that will require a free decision of the people, given its impact on the existing Basic Law. This makes a referendum improbable but not impossible.Footnote 68 In Hungary, a referendum can be called by the National Assembly on any matter falling within its functions and powers. This constitutional provision has not yet been invoked in relation to an EU treaty rendering a referendum improbable.Footnote 69 Finally, the Italian Constitution prohibits a referendum being called on an international treaty. The President is also curtailed from calling one if the treaty has been approved by Parliament. A referendum on amending the Constitution could be held but this has not happened to date rendering such a referendum improbable.Footnote 70

By far the largest category is those Member States where a referendum is possible mainly because the EU treaty may be deemed to amend the constitution—usually by delegating authority. Twenty states fall within this category.Footnote 71 The trend has generally been towards allowing the possibility of a referendum.Footnote 72 A referendum can be binding and non-binding.Footnote 73 They can be called on the strength of a public petition, which can be constrained as one element of the process allowing for a referendum to be called or can be a recent constitutional development. There can be a threshold for the majority required, eg under the Croatian Constitution, the requirement went from 50 percent of the electorate to the less demanding 50 percent of those voting must support the question.Footnote 74 Some constitutions are vague as to the circumstances as to when a referendum might be invoked with no statute underpinning the empowering constitutional provision.Footnote 75 Different actors can trigger a referendumFootnote 76 and calls for referendums can be rejected.Footnote 77 Denmark has had the largest number of referendums (eight) since accession in 1972. Referendums can be called for international treaties or for any bill (including one requiring a referendum on a treaty) with the rules long pre-dating the EU.Footnote 78 However, it does not always have one and a referendum is not inevitable.

The smallest category is that where referendums are probable, and hence most likely, with only two Member States: Ireland and the UK. A referendum has never been held on an EU treaty per se in the UK, but only on whether or not to remain a member.Footnote 79 However, the 2011 European Union Act did allow for referendums on new EU treaties but was never invoked. For Ireland, the constitutional norm developed of having a referendum for EU treaties following a Supreme Court ruling that any treaty that altered the essential scope or objectives of the Communities would require a referendum.Footnote 80

For seventeen Member States, the question of referendum arises because it is required for constitutional amendment and an EU treaty may be deemed to constitute such an amendment.Footnote 81 This may be in addition to other provisions allowing for referendums.Footnote 82 Even if a referendum is prohibited for treaties, if the treaty constitutes an amendment of the constitution then a referendum may become necessary to agree to an EU treaty.Footnote 83 Sometimes the question of a referendum only arises where there is a total revision of the constitution but there is the possibility that an EU treaty may be deemed to necessitate such a revision.Footnote 84 On average, referendums have become possible in the EU, having previously been improbable, leading Qvortrup to note that referendums have become the bargaining chip of choice for EU treaty making.Footnote 85

V. COURTS

Constitutional review has grown with 83 percent of the world's constitutions permitting it in 2011, compared to only 38 percent doing so in 1950.Footnote 86 Similarly in the context of EU treaty making, constitutional review has also become more evident with seven challenges to the Lisbon Treaty.Footnote 87 We are concerned with the extent to which there is ex ante constitutional review of EU treaties as a means through which political actors can realise their political objectives via securing delay or derailment of the EU treaty under consideration.Footnote 88 Our focus is not on how the courts dealt with any challenges or which court, ie we are not concerned with the level of court where the case is initiated provided it can have an impact. Where review is to an advisory body but the constitutional norm is to follow that advice, we regard it as having impact.Footnote 89 Hence we explore what the potential is for court involvement. It is worth noting that this issue is of greater legal complexity than that of the role of parliaments and referendums because some of the law is judge made. Three broad categories can be identified.

First, some Member States do not have ex ante review at all.Footnote 90 Second, there are seven Member States that do not allow for review of the proposed EU treaty with the constitution.Footnote 91 Finally, in others, the Constitutional CourtFootnote 92 or a Constitutional Review Body, that may or may not be quasi-judicial in nature,Footnote 93 may be called on to determine the compatibility of the EU treaty with the constitution. Undoubtedly, the most prominent court in this regard is the German Constitutional Court, which has extended standing rules and the scope of review to allow for constitutional review of EU treaties.Footnote 94 One of the most significant issues is the scope of standing, as the range of potential litigants is one factor in rendering constitutional review more likely. Where review is allowed, typically heads of state, members of parliament, or governments can refer cases to the constitutional court. As of 2016, five states allow citizens to bring actions.Footnote 95 When the Treaty of Paris was being approved, ex ante constitutional review was only possible in one of the Member States. Now there is some scope for constitutional review in eighteen Member States, with a major change to be seen in Cyprus—the only Member State where constitutional review became impossible. For others—including France, Germany, Ireland, Latvia, and Slovakia—the prospect of constitutional review of EU treaties increased underlying the greater role for courts in treaty making in Europe.

VI. THE CONSEQUENCES OF COMPLEX CONSENT

The increased complexity of securing consent for EU treaties poses two questions. First, has it had an impact on the rate of treaty amendment?Footnote 96 Second, how have the Member States responded to instances where a treaty is not approved at the national level or was at risk of non-approval? To answer the first question, it is necessary to look at treaty amendments on an article-by-article basis. This does not pick up on the significance of a change in a particular article (eg the introduction of Article 50 of the Treaty on European Union (‘TEU’) allowing states to leave the EU), but it does give a sense of the increasing quantity of amendments. This is possible to do as each element of EU treaty amendments has its own CELEX number. Hence, the Maastricht Treaty has more than 1,000 articles. This shows comprehensive treaty amendment followed by more piecemeal amendments, with the overall rate of amendment declining after the Treaties of Rome and again after Maastricht. As the treaties grow longer, they become more difficult to amend. Further, regression analysis also shows that the rate of amendment slows as the people assume a more prominent role at consent stage, showing the long shadow of referendums on treaty making.Footnote 97 The greater involvement of parliaments is more subtle with greater selectivity as to what is amended rather than the number of treaties. It is also worth noting that the involvement of courts has not led to a reduction in the rate of treaty amendment. This may reflect the more dialogic nature of the courts as institutions and their tendency not to stop treaties but to delay.

Treaty Amendment Rate (Article-by-Article, 1952–2016)

Source: Hodson and Maher (2018), p 224.

Turning to the second question,Footnote 98 the European Defence Community Treaty is the best example of the Community abandoning a treaty after it had been rejected by domestic constituents, and, even so, it is not a clear-cut case. Signed in May 1952, this treaty had been approved by Germany and the Benelux countries by the time the French National Assembly rejected it in August 1954. In fact, the National Assembly did not vote down the treaty per se but a motion to debate it, although it was accepted by deputies on the basis that the treaty had been defeated. The foreign ministers of the Six made no serious attempt to save the treaty after this vote for two reasons. The first is that the question of how to re-arm Germany, a key motivation for the European Defence Community Treaty, was urgent. Rather than wait for the Six to find a solution, the five signatories of the Brussels Treaty (1948)—Belgium, France, Luxembourg, the Netherlands, and the United Kingdom—agreed to modify this agreement to allow for the creation of a new Western European Union, to which Germany and Italy would accede. The second reason is that Pierre Mendes France, President of the Council of Ministers, had sought unsuccessfully to reopen negotiations on the European Defence Community Treaty prior to its consideration by the French National Assembly. Neither the Assembly nor the foreign ministers of the Six endorsed Mendes France's proposed protocol. This left the government in an ambivalent position on the European Defence Community Treaty—which it put to Parliament without formally requesting its approval—and without a mandate to renegotiate it. The rejection of the treaty was a defeat for the French government in one sense but a victory in another.Footnote 99

National parliaments, in spite of their increased role in treaty making, tend to support treaty amendments. The troubled passage of the Maastricht Treaty before the British Parliament was the closest the Community came to the parliamentary defeat of a treaty since 1954. The European Communities (Amendment) Act 1993, through which former Prime Minister John Major's government sought to give legal effect to the Maastricht Treaty, won a large majority in the House of Commons at third reading, albeit after opponents of the treaty had tabled more than 600 amendments in an effort to derail the treaty. Member of Parliament continued to table amendments even after the Act received Royal Assent, with the government losing a vote concerning the treaty's Social Chapter. The day after its defeat, Major called a confidence vote on a revised resolution and won the support of Members of Parliament. This parliamentary siege of Maastricht, as David Baker, Andrew Gamble, and Steve Ludlam call it, was spectacular but short lived.Footnote 100 Although there was no shortage of parliamentary dissent over subsequent treaty amendments in the United Kingdom and elsewhere, no legislature has since come as close to vetoing a treaty amendment.

Higher courts have shown a willingness to scrutinise EU treaties but with little appetite for precipitating involuntary defection. A possible exception in this regard is Ireland's Supreme Court, which, in the Crotty case, ruled that Title III of the Single European Act required an amendment to Ireland's constitution.Footnote 101 In so doing, the Court upheld an appeal against the approval of the Single European Act via legislation alone, thus necessitating a referendum before the treaty could be ratified. In all probability, however, the Court neither sought nor expected to jeopardise the ratification of the treaty through this ruling. The Single European Act was predictably backed by a sizable majority of Irish voters, and it was only after the Irish government chose to run referendums on major treaty amendments rather than face similar challenges that ‘no’ votes in treaty-related referendums occurred.Footnote 102 France's Constitutional Court also left its mark on EU treaty making, albeit it with less dramatic effects. By ruling that the Maastricht Treaty required a constitutional amendment and concluding likewise in relation to the Amsterdam and Lisbon treaties, the Court raised the threshold for treaty amendments from a simple majority to a three-fifths majority requirement among the combined membership of the National Assembly and Senate.Footnote 103 The higher threshold did not endanger the approval of these treaties, however, with the more consequential ‘petit oui’ for Maastricht and the ‘grand non’ against the European Constitution arising from presidential decisions to hold referendums. The German constitutional court has arguably taken the lead in this regard in the Maastricht and Lisbon Treaty judgments setting down a marker that revisions might at some stage require total revision of the Basic Law.Footnote 104

The risk of treaty rejections is greatest in relation to referendums. The issue is what happens where there is a no vote. Denmark's initial ‘no’ to Maastricht was superseded by a ‘yes’ vote following an agreement to recognise certain exceptions for Denmark. All political parties had agreed to the proposal and, even though the legal status of the exceptions was uncertain, they were sufficient to secure a positive response from the electorate.Footnote 105 Similarly, in the Irish no votes on Nice and Lisbon, an analogous approach was adopted with the EU not reopening the treaty but exceptions being negotiated and ultimately accepted by the people.Footnote 106 The collapse of the European Constitution followed a no vote by France and the Netherlands, with several states cancelling proposed referendums after these votes.Footnote 107

Member States’ increased recourse to international treaties provides another example of how the increased complexity of EU treaty making does not go hand-in-hand with flexibility. There is some evidence to suggest that EU leaders see international treaties as easier to win consent for in their own domestic arenas. In January 2012, Herman Van Rompuy floated the idea that the Fiscal Compact could be drafted in a way to obviate the need for either a referendum or parliamentary approval.Footnote 108 In point of fact, this proposal sought to transform the Fiscal Compact from an exercise in treaty making to one of legislation by activating a provision in the TFEU that allows the Council to amend Protocol No 12, which concerns the excessive deficit procedure, by means of a special legislative procedure.Footnote 109 Although Van Rompuy's trial balloon quickly burst, the idea that the Fiscal Compact would not necessitate approval via the usual channels persisted. Cyprus broke from EU treaty making norms by approving this agreement by means of government decree rather than an Act of the House of Representatives.Footnote 110 Ireland's break from EU treaty making norms proved less successful. Having routinely put significant EU treaty amendments to a referendum since Maastricht, the Irish government initially refused to be drawn on whether the people would be offered a vote on the Fiscal Compact.Footnote 111 In the end, the government followed the Attorney General's advice that a referendum was required,Footnote 112 which was approved by a margin of 60.3 percent to 39.7 percent.

VII. TWO THEORETICAL PERSPECTIVES ON TREATY REFORM

Robert Putnam's seminal two-level game approach explores how domestic and international politics are entangled.Footnote 113 This approach allows for the possibility that governments in treaty negotiation may choose to tie their hands domestically in order to restrict the range of possible outcomes at the negotiations.Footnote 114 A government that ties its hands too tightly, Putnam warns, could produce deadlock in negotiations.Footnote 115 A corollary to this point is that governments that find their ability to make treaties encumbered by the consent stage have a strong incentive to find slack either by changing or circumventing domestic constraints.

From a two-level game perspective, concerns that Member States have tied their hands too tightly through more complex constitutional rules and norms is understandable. Calls to end the unanimity requirement for approving EU treaties and to limit the use of national referendums are consistent with this view. Among academic commentators, Fernando Mendez, Mario Mendez, and Vasiliki Triga offer the most thoughtful proposals. One, inspired by the 1984 Draft Treaty on European Union, would allow a supermajority at both the negotiation and consent stages of treaty making, which the authors suggest could overcome ‘the paralysis and stagnation’ of treaty making in an enlarged Union.Footnote 116 As regards referendums, Mendez, Mendez, and Triga see such votes as ‘extra territorial’, because of the significant consequences generated by voters in one Member State on the rest of the Union. Carlos Closa makes a similar point when he argues that the rejection of a treaty generates negative externalities for other Member States, as occurred in the Exchange Rate Mechanism crisis triggered by Denmark's ‘no’ vote against the Maastricht Treaty in 1992.Footnote 117

The two-level legitimacy approach sees the privileged position of national governments in international diplomacy as being contested.Footnote 118 The rise of parliaments, the people, and courts in the negotiation and consent stages of EU treaty making are a response to, and reflection of, this contestation. As such, attempts to reassert national governments’ privileged position by circumventing the role of other actors in the consent stage could trigger a backlash. A degree of inertia in constitutional amendment procedures can be necessary and desirable if it bolsters the legitimacy of constitutional law as a form of lex superior.Footnote 119 There is a similar case for building in further inertia to EU treaty making, for making it harder for Member States to circumvent parliaments, the people, and courts, for accepting that treaty making can and should occasionally fail to produce agreements in spite of the diplomatic sunk costs involved.

‘Is it right’, Hervé Bribosia asks, that the refusal of a few hundred thousand inhabitants should be allowed to block a reform desired by the representatives of five hundred million people?’Footnote 120 Where legitimacy is a primary consideration, the answer, is ‘yes’. The consent to be bound is a defining principle of treaty making between sovereign states. In practice, new treaties do not typically enter into force unless the parties to it have expressed their consent to be bound.Footnote 121 The question of consent for treaty amendments is more intricate. Under the Vienna Convention on the Law of Treaties, an amendment to a multilateral treaty cannot bind a state that is party to the original treaty without that state having become a party to the amending agreement.Footnote 122 In practice, multilateral treaties often include standard amendment procedures that allow a qualified majority of parties to amend the existing treaties, but states that oppose such amendments typically cannot be bound by such amendments against their will.Footnote 123 Multilateral treaties sometimes include simplified amendment procedures, which in some cases allow for a majority of states to approve amendments that apply to all parties to the original agreement, whether they have given their consent to be bound by such changes or not or by allowing or compelling non-consenting states to withdraw from the treaty.Footnote 124

Insofar as the regulation of referendums can be justified from a two-level legitimacy perspective, it would be to discourage the EU's tendency to overlook referendum results, as occurred in the re-run referendums over Maastricht, Nice, and Lisbon and the willingness to salvage much of the European Constitution in spite of referendum votes against it. There are arguments in favour of second referendums. Sinnott, for example, finds a marked increase in both communication and understanding in Ireland's re-run referendum on the Nice Treaty.Footnote 125 But this practice is all too easily criticised, as Gráinne de Búrca notes, for failing ‘to respect the outcome of legitimate constitutional processes and [undermining] the democratically expressed will of the people’.Footnote 126 Stephen Tierney goes further by seeing second referendums as sending a clear message ‘that national electorates will not be allowed to frustrate closer integration’.Footnote 127

Other ideas for making EU treaties harder to amend, include time-locks on treaty reform, citizen-led treaty making, and greater oversight of treaty making. The simplest form of time lock would be to limit the number of treaty amendments that can occur within a particular time period. The Treaty of Paris included such a provision by prohibiting amendments to itself until a five-year transition period had expired.Footnote 128 One way of giving citizens a say would be to hold periodic pan-European referendums on whether to amend EU treaties, for example, every five years. As regards greater oversight, there is a case for routinely inviting the Court of Justice to give an opinion on whether the use of the simplified revision procedure over the ordinary revision procedure is justified rather than waiting for a reference from a national higher court. There is a similar case for making the use of the simplified revision procedure subject to the consent of the European Parliament, as occurs when the European Council seeks to employ the ordinary revision procedure without convening a convention.

VIII. CONCLUSION

Who makes treaties and how such actors are held to account are recurring concerns in the study of international law.Footnote 129 Few instances of treaty making can match the EU for intensity and controversy. During the period 2010–2011 alone, EU Member States launched a combined 105 national consent procedures connected to treaty amendments.Footnote 130 Once thought of as epoch-making events, treaty amendments are now part of the ‘everyday politics’ of the EU, argues Thomas Christiansen.Footnote 131 And yet treaties are no less controversial for this. The approval of the Maastricht Treaty, which was rejected by Danish voters in a referendum and only narrowly endorsed by their French counterparts, intensified popular concerns over EU treaty change.Footnote 132 Thirteen years later, referendums on the European Constitution in France and the Netherlands produced a popular backlash against a treaty that was designed to bring the EU closer to its people.Footnote 133 The United Kingdom had planned to hold a referendum on this treaty, but its failure to do so on earlier or later agreements goes some way towards explaining why former Prime Minister David Cameron called and lost a referendum in 2016 on the United Kingdom's continued membership of the EU.

The EU is an important case not only because its treaties are in flux but because the process through which Member States give their consent to be bound to such agreements has changed. In 1951, ten parliamentary chambers participated in the approval of the Treaty of Paris. All Member States approved this agreement by means of a simple majority vote; there were no referendums or ex ante constitutional reviews. By 2016, the comparative constitutional analysis presented in this Article has shown, forty-four parliamentary chambers were involved in approving major EU treaties and most Member States required approval by a parliamentary majority of two-fifths or more. Referendums were either possible or probable in twenty-two Member States and there was scope for the ex ante constitutional review of EU treaties in eighteen Member States.

EU treaty making has become more complex but such complexity has not produced gridlock and does not necessarily argue for greater flexibility in the ways that Member States give their consent to be bound. Parliaments and national higher courts, though influential, tend to approve treaties. Member States, meanwhile, generally work around referendum votes against EU treaties rather than abandoning such agreements. As EU treaty making has become more complex, Member States have also turned increasingly to international law treaties, in part because they are perceived as being easier to approve.

Arguments in favour of EU treaty making becoming more flexible rest uneasily with these findings but chime with Robert Putnam's two-level game approach. Member states that tie their hands too tightly in the consent stage of treaty making, it follows, should seek more room for manoeuvre in the domestic arena or risk rejecting treaties. The two-level legitimacy approach, in contrast, warns against untying hands without understanding the reasons why they have been tied to begin with. It argues for less rather than more flexibility in the consent stage, with time locks on treaty reforms, citizen-led treaty making and greater oversight of treaty having the potential to incorporate further inertia into EU treaty making.

Footnotes

*

Earlier versions of this Article were presented at the European Union Studies Association conference, Denver 2019, the Society of Legal Scholars conference Queen Mary London 2018, the UCD Sutherland School of Law research seminar, and the DCU School of Law and Government research seminar 2019. Thanks to participants for comments and to Ronan Riordan for able research assistance. The usual disclaimer applies.

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58 Bulgaria (although if it were to be viewed as a constitutionally amending Treaty then a three quarters majority would be required), Croatia, Denmark, Finland, Hungary, and Luxembourg.

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69 Art 8(3) Fundamental Law of Hungary. There were two unsuccessful challenges to not having a referendum on the Lisbon treaty and the European Constitution. See Constitutional Court of Hungary, Decision No 61/2208 and Decision No 6/2005 (I.13). See also Mendez, Mendez, and Triga, note 2 above, p 82.

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82 See eg Hungary; Arts 75, 138 Constitution of Italy; Art 148 Constitution of Lithuania; Art 235(6) Constitution of Poland.

83 Art 163 Constitution of Estonia; Art 77 Constitution of Latvia.

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89 See the Council on Legislation in Sweden, whose advisory opinions are followed as a constitutional norm, and compare the position in Belgium, where the opinions of the Council of State are not necessarily followed by government.

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94 See eg German Federal Constitutional Court, BvE 2/08, Judgment of the Second Senate of 30 June 2009; Manfred Brunner and Others v The European Union Treaty, Cases 2 BvR 2134/92 and 2159/92; German Federal Constitutional Court, Case BVerfGE 89, 155, Treaty of Maastricht, Decision of 12 October 1993.

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