In July 2019, European Commission President Ursula von der Leyen presented the Conference on the Future of Europe in the upcoming European Commission agenda. The year-long Conference will enable citizens and institutions of the European Union (EU) to deliberate the future of the EU. Besides the election of the European Parliament (EP), European citizens can engage in EU politics, for instance, through opinion surveys or the European citizens’ initiative. However, the possibilities for exerting influence are limited, which is where the Conference aims come in. Von der Leyen emphasised the disposition for potentially resulting treaty changes. The EP promotes this multilevel push for the EU´s input legitimacy. The Council of the EU supports the general approach but lacks intention for treaty changes.

There was a clear desire from all sides to enable citizens engagement, but there were more important differences from the beginning regarding the possible outcomes of the Conference. Initially, the Conference should have been launched on 9 May 2020, what corresponds to the commemoration of the Schuman declaration. However, it was postponed to the same date in 2021. The delay is not only due to the Covid-19 pandemic, but also to disagreements between the EU institutions on the structure of the Conference and its objectives. Except for the disagreement over the leadership of the Conference, the institutions have deviating opinions concerning its scope. The Council of the EU is less ambitious in terms of the how binding the results of the Conference would be, and some member states are even sceptical about the added value of the Conference. The EP, on the other hand, is very ambitious regarding the general commitment that the institutions implement the Conference results. Moreover, it perceives the Conference as great opportunity to increase the democratic legitimacy of the EU. Although the Commission was the driving force by putting the Conference on the agenda, it relativised its ambitions during the mandate negotiations.

Two weeks after the Joint Declaration on the Conference was signed by the Presidents of the EP and the European Commission as well as the Council Presidency in March 2021, the Conference started officially with a constitutive meeting by its Executive Board. The Executive Board is being composed of members from the EP, the Council of the EU, and the European Commission. On April 19, 2021, the European institutions launched a digital platform in 24 EU languages, where all European citizens can share their ideas about the future of Europe. Although the Conference aims to make the discourse on the future of Europe more accessible, the possibility of extensive institutional change is questioned. The Conference results shall be published in a report, but it “[…] does not fall within the scope of Article 48 TEU”, which enshrines treaty amendments. This clarification presents the lack of common will of the EU institutions for extensive institutional change. The objective of giving citizens a more meaningful voice in the EU is thus more difficult to achieve. Moreover, the legitimacy of the Conference itself is weakened.

Resulting from the most current approach for evaluating the EU´s institutional, and thus constitutional conditions, this article analyses whether the mandate for the Conference can lead to institutional revision. To elaborate on the strategies, the article considers the interinstitutional mandate for the Conference, while examining official EU publications from July 2019 to June 2020. Due to possible power shifting and the inclusion of supranational and intergovernmental EU institutions, there is evidence for the joint-decision trap during the mandate negotiations. Exit options, such as the watering down of set objectives and the Covid-19 pandemic as external shock led to the adoption of the mandate, which provides only limited opportunities for imminent institutional change.

The joint-decision trap – Relevance for the Conference on the Future of Europe

Research shows that institutional changes in multilevel systems gravitate towards suboptimal outcomes, which is explained by the joint-decision trap. The trap results from a decision-making mode where the central level cannot decide unilaterally but depends on unanimous or nearly unanimous agreement from governments of lower levels. Thus, the framework reveals how outcomes are dependent on the institutional structures. In the EU, the supranational European Commission and EP cannot decide policies by themselves but are dependent on the member states in the Council of the EU. Even though not necessarily true in all legislating procedures, the Council of the EU promotes a consensus voting culture. Institutional changes are in general implemented by constitutional amendments. Due to the EU’s structural conditions, there is a particular risk that the amendment of constitutional setting can result in a joint-decision trap. Treaty amendments are enshrined in Article 48 of the Treaty of the EU. The ordinary revision procedure dictates a multilevel convention mode, including national parliaments, the EP, and the European Commission. The unanimous vote of the European Council is necessary, as well as the approval of all member states. In any case, the amendments cannot be decided unilaterally but need agreement on the national level, which is subject to strict approval rules.

The Conference on the Future of Europe is the most recent attempt to revise the EU´s institutional structure. Although it has not started yet, the interinstitutional mandate negotiations took place already. During the negotiations, the EP and the European Commission depended on the member states` agreement in terms of whether the Conference mandate provides opportunities for treaty change. The occurrence of the joint-decision-trap is problematic, as it makes institutional change more difficult. As self-interested member state governments have deviating preferences, negotiations likely end with an outcome on “[…] the lowest common denominator or even in a blockade”. The member states and EU institutions as utility-maximizing actors have limited interest in reducing their power. Treaty changes, however, lead to “[…] a reallocation of power and resources […]”. For instance, the 2007 Lisbon Treaty increased the EP´s legislative power at the expense of the European Commission’s power. In multilevel system such as the EU’s, the process of institutional reforms is predisposed to result in a joint-decision trap. Thus, this article follows the argument that institutional change, already while negotiating a mandate for such, can lead to suboptimal outcomes, which will be illustrated with the example of the Conference on the Future of Europe mandate negotiations.

The joint-decision trap observed

During the mandate negotiations for the Conference on the Future of Europe, the process fell into the joint-decision trap. After the European Commission´s agenda-setting, a responsible committee was established in October 2019, consisting of the EP´s president as well as party group´s and Committee on Constitutional Affairs’ (AFCO) representatives. In cooperation with AFCO, the committee developed a mandate for the EP, clarifying the institutional setting and organisational procedure of the Conference. This document formed the basis of the EP’s position. In January 2020, the EP was the first institution publishing its mandate. Accordingly, it stressed the importance of the bottom-up approach. Concerning the follow-up process after the end of the Conference and the possibility of institutional change, the EP committed itself to potential “[…] legislative proposals [or] initiating treaty change […]”. Following the EP, the European Commission published its position a few days later. It emphasises the citizen´s inclusion to strengthen European democracy. The position towards the follow-up after the end of Conference was restrained, only pointing out that the Conference´s outcome would be considered in the agenda-setting. Due to the multilevel process, the member state´s agreement on the mandate was necessary. A non-paper published by Germany and France in November 2019 supported the bottom-up approach. Accordingly, “[t]he Conference should commit itself already in the interinstitutional mandate to produce tangible and concrete results”. In December 2019, the European Council stressed the equal inclusion of all member states, its parliaments, and EU institutions, while asking the Croatian Presidency of the Council to work out the Council´s mandate. This  illustrates the interdependence of the different levels and the difficulty of reaching an agreement. Especially the positions within the Council were inconsistent in terms of the objectives of the Conferences and its urgency to start. Besides the challenge of finding a position between the Commission, the EP, and the Council, this was already challenging within the Council. During a Franco-German press conference in May 2020, Angela Merkel stated that the Conference should be viewed as an occasion for starting a broad democratic debate about the European project and reforms, making treaty changes potentially necessary. The pandemic would make the Conference even more needed. This position deviated from the position of other member states, who perceived the Conference as less urgent and not relevant for treaty changes. The Council´s mandate was finally agreed on at the Permanent Representative Committee in June 2020, after the EP stressed the Council to overcome internal differences as the pandemic increased the need for the Conference. The final mandate emphasises the importance of the civil society for the Conference but clarified that it “does not fall within the scope of Article 48 TEU”, enshrining treaty amendments. Thus, the member states agreed that outcomes of the Conference are not intended to change the treaties.

It can be summarized that in regard to the current Conference on the Future of Europe, the European Commission acted as a driving force in the general European integration process by putting the Conference on the agenda. Afterwards, the EP took the leading position by establishing a committee and urging the Council´s agreement, while committing itself to treaty changes. Conversely, the Council acted as a countervailing force. There is general scepticism towards constitutional change due to the deviating positions on European integration between member states. As it is unknown in which areas deeper or less European integration is desired by the participants, they could not agree on the support of treaty changes. As the consent of the member states on a mandate was necessary and even the positions between the members states deviated, the negotiation process on the mandate took very long. Moreover, the contrary positions between the EP and the Council concerning potential treaty amendments led to the joint-decision trap.

How to overcome the joint-decision trap: exit options

Although the deadlocked mandate process for the Conference presented the occurrence of the joint-decision trap, exit options were used during institutional decision-making and expedited the entrapped negotiations. Despite the EU´s impeding multilevel structure and strict voting rules, exit mechanisms have historically enable extensive institutional change in the EU. Exit mechanisms are possibilities to achieve a decision when negotiations are stuck. However, no general conclusions can be drawn about the quality of the decision based on the occurrence of these mechanisms. Exit mechanisms enable decisions in a broad range of EU policy fields, including constitutional change. For instance, package deals are possible solutions. As negotiations usually deal with many issues, several issues can be combined in a package. Member states that do not want to move on one issue are then persuaded to cooperate by making concessions on another issue. External effects such as crises can lead to an outcome of an entrapped process as well, as the interests of the negotiators can change, or a decision becomes more urgent. For constitutional discussions, a differentiation between day-to-day politics and institutional changes is a particularly beneficial exit option. By the so-called arena shifting, actors that are not part of intergovernmental policymaking are included which is favourable as new perspectives and interests decrease the risk of entrapment. During the process of institutional change, the differentiation between responsible actors for the negotiation and ratification is considered. The 2002 European Convention was one arena, that included diverse actors and separated constitutional issues from day-to-day politics. The convention was set up to identify the expectations of the European people towards the future of the EU and to develop recommendations for a European constitution. Even though responsibility fell again on the European Council due to a failed referendum on the draft for Constitution of the EU, the convention came up with ideas for constitutional change that have been picked up in the joint-decision mode between the EU institutions and were secured in the 2007 Lisbon Treaty. Thus, the 2002 European Convention triggered institutional change in the long-term.

With the current Conference on the Future of Europe, the presence of exit options can be identified. It can be assumed that the EP´s resolution and the external shock experienced through the Covid-19 pandemic encouraged the Council to finally agree. However, the mandate was watered down from the set objectives of the EP and the European Commission. It stated that a report shall summarize the outcomes, but “[t]he Conference does not fall into the scope of TEU 48”, which embeds EU´s treaty amendments. These exit options, the external shock and watering down by not committing itself to treaty changes, enabled the final agreement on the mandate of the Conference on the Future of Europe. In this case, exit mechanisms did not enable institutional change but an agreement on the mandate for the Conference. Even though it does not include that the results of the Conference will lead to constitutional amendments, the mandate can serve as starting point for potential institutional changes in the long-term. There is still the opportunity that the EU institutions discuss and consider the results of the Conference. Without a mandate for the Conference, any institutional changes would be even less likely.

Conclusion and recommendations

The analysis shows that the Conference will not directly lead to binding institutional changes. Due to the dependence on the member states’ agreement, the central European level was not able to set a mandate unilaterally. The combination of the EU’s multilevel decision-making process and lacking agreement in the Council led to a deadlock, as the Council agreed on the mandate five months later than the EP and European Commission. Thus, the joint-decision trap could be observed. However, present exit options enabled the final achievement of a decision on the mandate for the Conference. As the member states did not find a common agreement concerning treaty changes, they excluded the opportunity by watering down the objectives. It can be mentioned that the Covid-19 pandemic and the EP´s institutional pressure facilitated the agreement as external shocks.

For future agreements that are intended to trigger extensive institutional change in the EU where the European Commission and the EP depend on the member states in the Council, certain procedural aspects could be considered. To avoid the joint-decision trap during the decision-making procedure, exit mechanisms could be established right from the beginning. First, the shifting of decision-making arenas would be useful. In this regard, actors that negotiate institutional changes should not be part of the day-to-day policy making. These could be the civil society, researchers, consultants, or politicians who are not involved in the daily decision-making. The diverse interests of the day-to-day policymakers and those not being part of this policymaking would decrease the risk that negotiations end in the joint-decision-trap. During the negotiation process itself, package deals could be used. Negotiators, such as member states or the EP can be persuaded to agree on the contested issues by accommodating them on other issues. Moreover, different actors should be responsible for the negotiation and the final ratification of the results.

Even though the Conference on the Future of Europe might not directly lead to binding institutional changes, it is also important to note that it can contribute to a strengthening of European democracy and input-legitimacy and lead to changes in the future. As the 2002 European Convention shows, there are still chances that the Conference could trigger institutional change in the long-term. Even though not included in the mandate, the European Commission stated that it would consider the Conference outcomes in its agenda-setting. As diverse actors participate, the Conference provides an opportunity to analysing the EU´s current institutional structure, discussing further European integration, and finding appropriate solutions for the EU´s issues, what is even more urgent due to the pandemic and its consequences.