A roadmap for enlarging and reforming the European Union: Taking the Report of the ‘Group of Twelve’ seriously

In ‘War and Peace’, Tolstoy asks what drives history. Is it the product of the decisions of a few individuals in key positions, or of an irresistible movement that sweeps everything along in its path? Over the course of the novel, he unfolds a fatalistic vision of humanity's destiny, in which free will has little place, and the players are merely the cogs of processes shaped by inescapable determinism. Today, academic debates continue to focus on the same question, between those who favour an individualistic approach to social, political and historical phenomena and those who prefer a more structuralist reading. Vladimir Putin's decision to invade Ukraine has changed the destiny of the European Union (EU), whether it was the act of a single man or the result of deep-rooted and long-standing logic. A few years ago, the prospect of enlargement and reform of the EU seemed remote, a matter of concern only to a handful of political leaders. Today, these issues are at the top of the European agenda. While national leaders may display varying degrees of enthusiasm about the prospect of welcoming new Member States and hold diverging views on the need to reform the treaties or the way to go about it, the discussion is now open. Donald Trump's second mandate has just consolidated the need for the EU to urgently rethink its place in the new world order. With Russia's war of aggression in Ukraine and the new US administration, fundamental questions are once again on the agenda in Europe: the EU is rethinking its geography, institutions, policies, decision-making processes and financing. The increase in regional and trans-regional tensions and the weakening of the structures of international order have shattered the certainties on which European integration was conceived. The debate about the EU's capacity to act and its sovereignty has intensified. Ukraine, Moldova and Georgia have joined the group of countries applying to join the Union—Albania, Bosnia-Herzegovina, Northern Macedonia, Montenegro, Serbia and Turkey (negotiations suspended)—to which Kosovo could be added. However, the EU is not ready to welcome new members. Its institutions and decision-making mechanisms were not designed for such a large number of countries. In addition, some Member States are openly questioning the rule of law, the primacy of EU law and the common values enshrined in the Treaty, and there are fears of contagion as shown by recent elections. Against this backdrop, the 2023 initiative of the French and German governments to appoint 12 independent experts1 to form a working group on EU institutional reforms seems of particular salience. The Group's mandate was to consider ways of improving the EU's capacity for action, protecting its fundamental values, strengthening its resilience and bringing it closer to the European citizens, with a view to enlargement and as a follow-up to the Conference on the Future of Europe. Over the course of 7 months, the ‘Group of Twelve’—as they call themselves—worked on a report. Submitted in mid-September 2023 to the French and German Secretaries of State for European Affairs, Laurence Boone and Anna Lührmann, it was presented by the rapporteurs—Daniela Schwarzer and Olivier Costa—to the General Affairs Council on 19 September 2023 and widely distributed throughout Europe. This work, carried out in complete independence, was enriched by exchanges behind closed doors with numerous experts, practitioners and political leaders from all the countries of the Union as well as candidate countries. The Group's primary objective was not to be original: most of the questions that guided its work are old ones, and many of the solutions it put forward have already been discussed elsewhere. The ambition, however, was to reconsider these issues and solutions in the light of the new situation created by the invasion of Ukraine on 24 February 2022. The report has tried to strike a balance between the scepticism of the editorialists—quick to point out the national and institutional divisions, and to assert the impossibility of any agreement on institutional issues—and the utopianism of certain federalists—promoters of ideas that cannot be considered by the competent bodies. The Group's reflection, which is intended to be concrete in the short and medium term, stems from the idea that there is an absolute urgency to launch the process of enlargement and reform of the Union. The current political situation is complex, and the task will not be easy. Since the early 1990s, however, European integration has progressed through four major treaty reforms (Maastricht, signed in 1992, Amsterdam, in 1997, Nice, in 2001 and Lisbon, in 2007) and four waves of accession (1995, 2004, 2007 and 2013), representing a total of 15 new Member States. These developments have not been easy, as they requested unanimity, but they have been made possible by global agreements that reconcile the different political and national interests involved. The situation is undoubtedly even more delicate today, but the Group believes that an agreement is still possible. This requires a flexible reform and enlargement process, so that no State is forced to belong to an EU that does not, or no longer, suit it, and so that the States most willing to cooperate are not prevented from doing so by the reluctance of others. Throughout the many crises of the 2000s, the EU has shown that its legal and institutional framework is capable of taking the decisions needed to safeguard the interests of European citizens and Member States. The Group of Twelve's report did not, therefore, set out to rethink European integration in extenso, but rather to propose adjustments to the existing structure in line with the new realities, in terms of both deepening and flexibility. It was also based on the principle that institutional reforms must be consistent with what the Union is today. While clarifications would be useful, it is important to recognise the ‘hybrid’ nature of this political system. It is based on the central role of the European Commission and the ‘Community method’ (for the management of the most integrated policies), tempered by an intergovernmental logic on the one hand (for fundamental decisions and the conduct of the most sensitive policies), and by a parliamentary logic on the other (for deciding on social debates and major policy orientations). This balance is the key to the Union's effectiveness and its ability to build consensus and must not be called into question. The Group believes that the EU must achieve three objectives. Firstly, to strengthen its capacity to take and implement decisions in its areas of competence. Second, to better protect the rule of law and fundamental values and increase its democratic legitimacy. Finally, to prepare its institutions for enlargement. It believes that these three objectives must be pursued simultaneously, and that only a coordinated approach can satisfy the various parties to the negotiations. The Report of the Group of Twelve contains some 50 recommendations on a wide range of subjects: the rule of law, institutional reform, decision-making, budgetary resources, arrangements for reforming the Treaties, the conduct of enlargement etc. In this paper, we will focus here on three fundamental issues: protecting the rule of law, moving beyond unanimity and formalising differentiated integration. The rule of law is not just one of the EU's fundamental values. It is a non-negotiable constitutional principle, essential to its functioning, for several reasons: most European policies are based on the principle of the independence of national courts; the use of European funds presupposes that national administrations are not corrupt; and respect for the rule of law is a sine qua non condition for the proper democratic functioning of the EU. European integration may have been primarily economic, but it is a fundamentally political project based above all on the rule of law. Applying its principles is therefore a requirement for EU Member States and a non-negotiable condition for countries wishing to join. The existing instruments have not, however, prevented a decline in the rule of law in several Member States. Article 7 of the TEU, which allows certain rights deriving from the application of the Treaties to be suspended in the event of a serious and persistent breach by a Member State of the Union's values, was drafted at a time when it was unthinkable that it would be used. It is therefore difficult to use. It did not prevent for example a Member State under the surveillance procedure of Article 7.1 TEU from chairing the Council Presidency in 2024. The other instruments available to the EU—such as the European Commission's Framework for the Rule of Law—have had little practical effect. Finally, the Treaties do not provide for the possibility of excluding a Member State, and therefore of putting pressure on it in this way. In recent years, the use of budgetary conditionality has proved more effective. In addition, the case law of the Court of Justice of the European Union (CJEU) has enabled Member States to protect themselves against breaches by other Member States. The CJEU also succeeded in condemning member states that had committed intolerable breaches of the rule of law, such as the independence of the judiciary. But it has to be recognised that once a country is a member of the EU, it is no longer possible to require it to comply with all the criteria applied to candidate countries. This poses a problem of credibility vis-à-vis both Member States and candidate countries and erodes the Union's ability to present itself to its citizens and to the rest of the world as a champion of respect for fundamental rights. The geopolitical situation may justify rapid enlargement, but the EU must be able to ensure that its current and future members respect the rule of law. Given the rise of the far right and populist movements throughout the EU, its survival depends on finding solutions to the current conundrums. Otherwise, it might collapse from within. To achieve this, the first step is to strengthen the regulation on a general system of budgetary conditionality and turn it into an instrument for sanctioning breaches of the rule of law and European values. Removing the need to prove a direct link with the budget would increase its impact tenfold. If this reform were impossible, due to a lack of unanimity, the scope of budgetary conditionality would at least have to be extended to other behaviours that are detrimental to the sound financial management of the European budget, such as money laundering. The report also recommends that all EU funds, whether or not they fall within the multiannual financial framework, should henceforth be subject to the conditionality regime. Secondly, Article 7 of the TEU needs to be reformed. Its ineffectiveness is due to the unnecessarily high threshold required to activate it (unanimity minus one vote) and the fact that the Council is under no obligation to act, even if the procedure is initiated by the European Parliament or the Commission. The Group believes it is necessary to replace the unanimity minus one vote with a four-fifths majority vote. The principle of an automatic response in the event of a serious and persistent breach, or risk of breach, of EU values by a Member State should also be strengthened: the Council of the EU and the European Council should be required to take a position within 6 months. Finally, Article 7 of the TEU should provide for automatic sanctions 5 years after the proposal to activate the procedure in the event of inaction on the part of the Council and if the violations persist. The Commission and the European Parliament are governed by a majority system that facilitates decision-making, but the Council remains in a hybrid situation. Although it usually votes by qualified majority, particularly when the European Parliament is involved in the legislative process, it still requires unanimity in areas deemed sensitive: enlargement, the rule of law, foreign and defence policy, budgetary and fiscal policy, etc. In these cases, its action becomes increasingly difficult, as certain decisions are blocked by vetoes of principle or linked to other negotiations (‘cross-issues vetoes’). With each new enlargement, unanimity becomes more difficult to achieve. However, the use of qualified majority voting has proved to be effective, not because Member States are constantly outvoted, but because this method of decision-making creates a negotiating dynamic that is conducive to reaching compromises. Indeed, more than 80% of decisions taken by the Council by qualified majority are taken by consensus, without a vote, and therefore without a loser. The Group of Twelve recommends that all areas of decision-making still subject to unanimity should move to qualified majority voting before the next enlargement. Furthermore, except for the Common Foreign and Security Policy, this process should be accompanied by full co-decision with the European Parliament. Only constitutional decisions—such as amending the Treaties, accepting new members or adapting the EU institutions—should continue to require unanimity. The extension of qualified majority voting could be subject to activation of the bridging clauses provided for in the Treaties. If a complete transition is not possible, the Group recommends creating three separate ‘packages’, covering different sets of policies (enlargement and the rule of law; foreign policy and defence; budgetary and fiscal policy), in order to strike a balance between the concessions that different Member States are prepared to make. However, qualified majority voting is an instrument that should be used sparingly, particularly for the Common Foreign and Security Policy. Account must also be taken of the desire of Member States to safeguard certain national interests that are deemed crucial. For example, if qualified majority voting is extended to new areas of intervention, a ‘sovereignty safety net’ should be introduced. This would enable a Member State to declare officially that it considers its national interests to be at risk and to request that the matter be referred to the European Council for political agreement. The referral decision would be taken by qualified majority by the Council. This would strike a balance between the possibility for a State to assert its vital national interests and the need to increase the EU's capacity to act. While the reform is part of a wider modification of the Treaties, the distribution of qualified majority voting rights also needs to be reviewed. The small and medium-sized Member States fear domination by the larger ones, which are better able to organise blocking minorities. The current system of 55% of Member States representing 65% of the EU population could, for example, be changed to 60% of Member States representing 60% of the population. For decisions on the issues most vital to sovereignty, a ‘super-majority’, such as unanimity minus one, could be introduced. Only decisions of a constitutional nature would remain governed by the current unanimity rule. Finally, Member States should be able to benefit from an exemption in areas newly subject to qualified majority voting. This would only be possible through a revision of the Treaty and not by using the passerelle clause. In addition, these new exemptions should concern an entire policy, not individual measures. In an EU of more than 30 Member States, instruments that allow a degree of flexibility will be essential to maintain and increase its capacity for action. Differentiated integration is already a reality that needs to be formalised and clarified to avoid an ‘à la carte’ Europe made up of a pile of ad hoc exemptions, special situations and isolated initiatives. On the other hand, differentiation cannot be used to settle disagreements over the primacy of EU law or issues relating to the rule of law: any country wishing to become a member of the EU must respect the principles and values enshrined in Article 2 of the TEU. Differentiated integration has two dimensions, internal and external. Internally, several instruments already enable volunteer Member States to implement joint projects, while respecting the fundamental principles and values of the EU, the acquis communautaire and the institutions. Externally, differentiation has enabled non-EU countries to participate in various policies—research, education, free movement of people, the euro, the internal market etc. As far as internal differentiation is concerned, Member States should be able to make easier use of existing flexibility instruments to overcome the blockages that a further enlargement of the Union will necessarily entail. However, this would require them to observe five principles: respect for the acquis communautaire and the integrity of EU policies and actions; use of the European institutions; opening up advanced aspects of European integration to all Member States; sharing decision-making powers, costs and benefits only between the countries involved; and the possibility of suspending a Member State from a group of precursors if it is no longer in agreement with its objectives. External differentiation could be a resource in the EU's enlargement strategy and neighbourhood policy if certain Member States block treaty reform. They could then negotiate new derogation provisions or even prefer a status that is less advanced in terms of European integration. In this case, it would be possible to envisage a special association status with the EU, or even simple participation in the European Political Community (EPC). The reform of the Treaties is also to require the State or States not wishing to participate in a new Treaty could be derogation However, this should only be the case the revision by creating new or by qualified majority voting. once there is no of from the existing acquis communautaire or the fundamental values of the EU in this way. 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