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The future of legal Europe – will we trust in it?
The Conference on the Future of Europe:
The future of legal Europe – will we trust in it?
Online Event, Tuesday 11 May 2021, 17:30-19:30 (CEST)
Katarina Barley, Vice-President of the European Parliament
Wolfgang Heusel, former Director of ERA (Chair)
Vĕra Jourová, Vice-President of the European Commission
Peter-Christian Müller-Graff, Senior Professor at Heidelberg University
The Conference on the Future of Europe was formally launched on Sunday 9 May 2021 at a ceremony in the European Parliament in Strasbourg.
The Conference, chaired by the three presidents of Parliament, Council and Commission, aims to involve citizens in a wide public debate on the mid- and long-term perspectives for the EU.
This evening’s event marks the launch of ERA’s contribution to the Conference. ERA will closely monitor and enrich the unfolding debate through a series of its own conferences and discussion fora with a particular focus on the legal aspects of the ongoing analysis and emerging proposals.
A panel of two key politicians with a legal background – Vice Presidents Vĕra Jourová of the Commission and Katarina Barley of the Parliament – will discuss aims and procedure of the Conference with an academic, Professor Peter-Christian Müller-Graff (Heidelberg), and with ERA’s former director Wolfgang Heusel.
More than 200 invited guests from the legal community in 29 countries will be gathering online for this special event.
ERA event report – Tuesday 11 May 2021, 17h30 – 19h30
The Conference on the Future of Europe: The future of legal Europe – will we trust in it?
As the EU’s leading provider of continuous training for EU law practitioners and a regular organiser of legal policy debates since 1993, the Academy of European Law (ERA) is resolved to contribute to the unfolding debate on the Future of Europe through a series of conferences and discussion fora. In these events, ERA will place a particular focus on the legal aspects of the ongoing analysis of the challenges the EU is facing, and any emerging proposals for legislative action or institutional reform. ERA’s series of Conference events was launched on 11 May 2021 with a webinar discussing aims and procedure of the Conference on the Future of Europe, which was inaugurated by the Presidents of Parliament, Council and Commission on 9th May 2021 in Strasbourg.
Due to ongoing covid restrictions, the event was organised in a hybrid format: two out of the four panellists and some ten participants were present face-to-face at ERA’s premises in Trier, while the other two panellists and over 200 further attendees participated via videolink. The event took the form of a panel discussion chaired by ERA’s former director Wolfgang Heusel . Speakers were the Vice President of the European Parliament, Katarina Barley , and Vice President of the European Commission, Vĕra Jourová , both leading European politicians with a legal background, and Professor Peter-Christian Müller-Graff , senior professor of the University of Heidelberg. The audience, which contributed to the discussion via a chat moderated by ERA’s Programme Director and former Judge of the European Court of Human Rights Julia Laffranque, consisted of around 50 members and staff of the European institutions (including the Court of Justice and General Court, Parliament, Commission, Court of Auditors and EU agencies such as FRA, as well as members of the ECtHR Registry), 75 judicial staff of the Member States, 35 representatives of the European bars, and 50 participants from academia, national governments and NGOs.
In his introduction, Wolfgang Heusel referred to the 25 years of permanent treaty reforms stretching from the Single European Act 1986 to the Lisbon Treaty which came into force in 2009, with a new Treaty emerging on average every five years. Would the Conference on the Future of Europe, despite Member States’ reluctance, again call for substantial institutional reforms and hence lead to another Convention? Heusel highlighted the background of the Conference initiative – the 2017 “White Paper on the Future of Europe” of the Juncker Commission. The Paper detailed its five possible scenarios, President Macron’s subsequent Sorbonne speech calling for the first time for transnational election lists, and President von der Leyen’s candidate speech to the European Parliament 2019 in which she pledged to set up a conference to examine the mid- and long-term perspectives of the EU.
The first speaker Professor Müller-Graff gave a tour d’horizon of the most pertinent areas of EU policy set out in the list of topics on the Conference platform launched on 19 April 2021. He emphasised that these topics largely correspond to the priorities of the Commission’s current strategic agenda which also focuses on climate change and the Green Deal, the digital transformation, migration and the role of the EU in the world. Müller-Graff concluded that, while trusting in the Commission’s legislative ambitions, it was less certain whether we should also trust in the political and legal feasibility of primary and secondary law, or in the implementation, compliance and enforcement capacities of Member States. Moreover, he wondered whether differing concepts and cultures of “law” might affect the consistent application of EU law in the Member States. Will national judiciaries, perhaps with the help of legal doctrine, be in a position to mobilise sufficient dispute-settling capacity to do justice to their responsibility as Union courts? In this context, Müller-Graff criticised the position of certain constitutional courts with regard to the primacy of Union law and described the German Bundesverfassungsgericht’s 2020 PSPP judgment as a “clear violation of EU law”.
Vice President Jourová, the Commission’s official representative on the Conference Executive Board was given a special mandate to look at ways to improving the lead candidate system and at the issue of transnational lists. She argued that Europe is going through a phase of transition triggered by three major challenges – climate change, the digital revolution and the ongoing pandemic. She emphasised the importance of giving citizens, in particular the younger generations, a greater say on the future of Europe and the need to demonstrate the EU’s readiness and capacity to listen and to follow up on citizens’ proposals, which the Commission does not wish to pre-empt in any way. Vice President Jourová presented the recently launched platform as major tool to ensure that the debate does not stay within the Brussels “bubble” which she said was gaining momentum and visibility every day, with “her” topic “European democracy” currently raising the most comments and ideas from citizens. However, she complained of an insufficient geographical and gender balance among contributors of whom she counted only 15% were women so far.
In her presentation of the ambitions and expectations of the European Parliament, Vice President Barley joined Ms Jourová in emphasising the importance of a meaningful participation of citizens in the debate but also highlighted the role of national parliaments in the process. In her view, the Conference is meant to be a serious listening exercise, rather than an alibi event. She explained that the Conference plenary will include as many representatives of national parliaments as members of the European Parliament (108) in order to ensure a broad variety of positions and opinions, emphasising that there are no pre-defined results or achievements to be met. Vice President Barley also stressed the importance of the decentralised citizens’ panels even if not every proposal submitted could be expected to become European law. In regard to the more concrete expectations for the “Future of legal Europe” Vice President Barley expressed confidence in the making of European law as an “art in itself” but criticised a perceived reluctance of the Commission to consequently implement the Rule of Law principle (e.g. by enforcing the Regulation on the conditionality regime for the protection of the Union budget). She also called the positions of certain constitutional courts a problem for the enforcement of Union law and warned against making narratives from Poland or Hungary an item for the Conference claiming that the Rule of law principle should be defined by Member States as a matter of their constitutional identity.
Chairman Wolfgang Heusel then presented some preliminary findings from the Conference platform on which by 10 May 2021 2,303 ideas had been submitted by 10,266 contributors. These represented just 0.0023 % of EU citizens but figures were strongly increasing. The most popular of the suggested topics was indeed European democracy for which 392 ideas had been submitted, followed by Climate change (348 ideas) and “Other ideas” (281). Values and rights, the Rule of law and security ranked sixth with 188 ideas. Among the ideas for strengthening European democracy, the most endorsed proposals were the call for EU-wide transnational electoral lists and for a European Federation (both collected more than 200 endorsements). The ten most endorsed proposals included the direct election of the presidents of the Commission or of “the Union”, the adoption of a (single?) “common European language” (for which English but also Dutch were proposed), the elimination of unanimity in Council decisions and even the “abolition” of the Council. Among the ideas for Values and rights, the Rule of law and security, by far the most endorsed proposals were based around establishing an effective mechanism to enforce the respect of the Rule of law (more than 100 supporters). The creation of a European army was the sixth most popular proposal under this heading. “Other ideas”, the heading inviting suggestions for any possibly relevant topic, was dominated by the request for a federal Europe and for the creation of a “United States of Europe” (more than 100 supporters), a plea which was also the frontrunner under the topic Democracy and which, Heusel said, was a certain indication that contributions so far were coming from within the usual bubble suspects.
The subsequent panel discussion started with the question about the selection criteria for EU citizens to participate in the later stages of the Conference deliberations. Vice President Jourová explained the composition of the Conference plenary agreed after long and controversial discussions between Parliament, Council and Commission; it will include 80 envoys from European citizens’ panels (of which at least 27 will be under 25 years of age), the president of the European Youth Forum and 27 envoys from national citizens’ panels. Vice President Barley referred to the model of the Irish citizens’ panels preparing the ground for constitutional changes with regard to abortion law or gay marriage reform in Ireland and said that relevant criteria were age, gender, socio-economic background or the equal representation of cities and rural areas. A member of the audience asked how more young people could be motivated to contribute to the debate and where “the visionaries” would be. In response, Ms Jourová announced her plan to organise a road-show across the EU, first through digital channels because of Covid-19, establishing direct contacts at schools, universities and youth organisations and with the ambition to reach out to those who so far have not been involved – those not “in the bubble”. She remembered a recent meeting on Holocaust Remembrance Day with young Roma people who expressed critical but clear visions of how Europe should look - in her view, these are the kind of visionaries whose expectations must not be frustrated. Vice President Barley recalled the regular visits of school classes and the Parliament’s European Youth Event which biannually gathers more than 3,000 young people from all over Europe; she sees all these young people strongly motivated to contribute their ideas and visions and their input should indeed be taken seriously.
Another question raised was how to explain the importance of the rule of law, perceived as an abstract concept, to non-lawyers. Professor Müller-Graff suggested to always refer to concrete examples of conflicts the respective audience will be familiar with, and to stress the importance of impartiality and independence of those calling to decide such conflicts where a peaceful settlement is impossible.
Comments from the video chat enquired about how more women could be encouraged to contribute to the Conference and whether prevention would not be a better strategy to safeguard the rule of law. With regard to the latter, Vice President Barley acknowledged the importance of prevention but said that this stage had long been passed with regard to Hungary and Poland and that this “antidemocratic virus” had to be stopped urgently. She felt that the malfunctioning of the rule of law on the basis of a lack of judicial independence had become obvious to everyone through the Polish constitutional court’s recent decision to further restrict the already restrictive Polish abortion law. Vice President Jourová agreed but added that the Commission could not do everything, much will also depend on the electorates of the Member States. Hence an eye should also be kept on the protection of elections. With regard to the former, VP Barley referred to Parliament’s practice to ensure a proper gender balance in its work and suggested to cooperate more with women’s associations to strengthen the participation of women in the Conference.
The last item discussed focused on a possible amendment of the electoral rules for which the time frame is tight for the 2024 European Parliament elections. Wolfgang Heusel asked in particular about panelists’ views on the introduction of transnational lists, replacing the traditional national lists either partly or completely, which would fundamentally change the current representation concept and with the existing principle of digressive proportionality voting. Vice President Jourová explained that the Commission had assembled a group of experts combining mathematicians and lawyers to analyse the options for strengthening the lead candidates’ system and the introduction of transnational lists. She thought that a sufficient number of seats should be reserved for candidates from national lists to guarantee a fair distribution between Member States. She was however sceptical whether transnational lists would have any chance of success given that twelve Member States were expressly refusing this idea, but rather optimistic about strengthening the Spitzenkandidaten concept for the next elections. Vice President Barley said she was divided about the concept of transnational lists and the need to limit the principle of digressive proportionality, as on the one hand she supports a transnational opening of the elections but is aware of the need to avoid too strong a representation of big Member States. However, if seats remain reserved for certain countries we will end up with little or no changes so an option could be to allow votes for individual persons on the lists.
The evening concluded with the presentation of a Liber Amicorum – entitled “The Future of Legal Europe – Will We Trust in It?” to Wolfgang Heusel in recognition of his contribution as Director of ERA from 2000 to 2020.
The webinar speeches and ensuing discussion can be found here.
The presentation of the book, including tributes from the co-editors Gavin Barrett, Jean-Philippe Rageade, Diana Wallis and Heinz Weil, can be found here.
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