The Convention Method Revisited: Does It Have a Future and Does It Matter?

• Published date: 01 November 2010
• Date: 01 November 2010
• Author: Christer Karlsson
• DOI: http://doi.org/10.1111/j.1468-0386.2010.00530.x

eulj_530717..735

The Convention Method Revisited: Does It

Have a Future and Does It Matter?

Christer Karlsson*

Abstract: Scholars have argued that the convention method has democratised the

process of treaty reform and increased the legitimacy of EU constitutionalisation. This

article finds that the convention method has contributed to a slightly more democratic

process, but has not, in any fundamental way, improved the democratic status of

the EU’s treaty reform process. We should accordingly not be too concerned over

the future fate of the convention method. From a democratic perspective, we should be

more worried over the possible scenario that future changes to the EU’s institutional

structure will come about through implicit constitutional change without any formal

changes being made to the treaties. The often cumbersome ratification process

could thereby be bypassed, but this would also deprive EU citizens of the only real

opportunity they have of influencing decisions on the overall design of the integration

project.

I Introduction

The Declaration on the Future of the Union appended to the Treaty of Nice in

December 2000 stated that a new intergovernmental conference (IGC) should be

convened in 2004 to address those issues left unresolved at Nice. The challenges facing

the upcoming IGC were then further specified in the Laeken Declaration. The decla-

rations at Nice and Laeken mirrored a conviction that the EU needed a more demo-

cratic process of treaty reform. In order to have the deeds match the rhetoric, the

Laeken European Council decided on a new method for preparing IGCs. Rather than

having a group of government representatives negotiate behind closed doors, the work

of preparation would this time around be entrusted to a convention in order to

democratise the EU’s treaty reform process.

The calls at Nice and Laeken for a ‘deeper and wider debate about the future of the

European Union’,1one that would ‘be broadly based and involve all citizens’,2reflected

a firm commitment to tackle the problem of declining public support for the EU. The

convention method has also, by many scholars, been seen as an important reform that

* Associate Professor, Department of Political Science, Uppsala University. The author would like to thank

Sverker Gustavsson, Thomas Göransson, Johannes Jarlebring and Nils Pettersson.

1Treaty of Nice, [2001] OJ C80/1.

2European Council, ‘The Future of the European Union—Laeken Declaration’ (2001).

European Law Journal, Vol. 16, No. 6, November 2010, pp. 717–735.

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has improved the democratic status of the treaty revision procedure and been instru-

mental in closing the legitimacy gap.3

The advocates of the convention method may take comfort in the new Article 48 of

the Lisbon treaty, which replaces Article 48 of the Treaty on European Union (TEU)

and defines the terms of future revision of the treaties. According to this Article, if the

European Council decides to examine a proposal for amendment of the treaties, ‘the

President of the European Council shall convene a Convention’. However, this Article

goes on to state that ‘[t]he European Council may decide by a simple majority, after

obtaining the consent of the European Parliament, not to convene a Convention should

this not be justified by the extent of the proposed amendments’. Furthermore, Article

48 of the Lisbon Treaty specifies two simplified revision procedures none of which

include involvement of a convention. So, the Lisbon treaty does not guarantee that

future revision of the treaties will be prepared by the convention method.

Why should we bother about how the treaties are revised and whether the convention

method has a future? The general importance of the matter is, I believe, beyond dispute.

The treaties of the EU are important since they lay down the rules of the game, ie they

define the competencies of the Union, the powers afforded to different actors and

institutions, and the various procedures for making decisions. Since treaty reform is

ultimately about power and changes to the design of the integration project, it is

important that this procedure is perceived as legitimate by the European citizenry.

Now, if the convention method contributes, as many scholars have argued, to a more

democratic procedure for treaty reform, then it follows that we should also be con-

cerned over its future fate. But is the convention method really a step on the road to a

democratic process of treaty reform?

This article will examine the convention process and the democratic improvements

that many believe it has brought to the treaty reform process. It will be argued that the

democratic status of the convention method and its impact on the legitimacy of EU

constitutionalisation has been overstated because scholars have tended to focus too

much on the formal arrangements of the convention rather than how the proceedings

worked in practice. This examination will show that the convention method contributes

to a slightly more democratic process, but does not change in any fundamental way the

practice of EU treaty reform. We should accordingly not be too concerned over

the future fate of the convention method. We should rather be more concerned with the

possible scenario that future changes to the EU’s institutional structure and its com-

petencies will be achieved by decisions taken by the European Council without any

formal changes made to the treaties, thereby bypassing the ratification process which,

to date, is the best chance EU citizens have of influencing decisions about the future

direction of the integration project.

3See J. Shaw, ‘What’s in a Convention? Process and Substance in the Project of European Constitution-

Building’, in J. Shaw et al,The Convention on the Future of Europe (The Federal Trust for Education and

Research, 2003), 43; A. Maurer, ‘Less Bargaining—More Deliberation. The Convention Method for

Enhancing EU Democracy’, (2003) 8(1) International Politics and Society 167; J. Pollak. and P. Slominski,

‘The Representative Quality of EU Treaty Reform: A Comparison between the IGC and the Convention’,

(2004) 26(3) Journal of European Integration 201; J. E. Fossum and A. Menéndez, ‘The Constitution’s

Gift? A Deliberative Democratic Analysis of Constitution Making in the European Union’, (2005) 11(4)

European Law Journal 380; P. Magnette, ‘In the Name of Simplification: Coping with Constitutional

Conflicts in the Convention on the Future of Europe’, (2005) 11(4) European Law Journal 432; T. Risse

and M. Kleine, ‘Assessing the Legitimacy of the EU’s Treaty Revision Methods’, (2007) 45(1) Journal of

Common Market Studies 69.

European Law Journal Volume 16

718 © 2010 Blackwell Publishing Ltd.