Trust and Treaty Revisions in the EU: Towards a Theory of Two-Level Legitimacy

This paper explores the evolution of treaty revision rules and processes in the European Union (EU) and its member states. Focusing on the experience of EU treaty revision since 1985, it advances a new theoretical perspective on four interrelated phenomena: (1) the rise of new actors, most notably supranational institutions and national parliaments, in negotiations over EU treaty changes; (2) the changing role of national parliaments in the ratification of EU treaties in individual member states; (3) the growth in litigation challenging treaty amendments; and (4) the rise in the number of member states opting for, or showing an openness to, referenda as ratification mechanisms. This two-level legitimacy approach offers a twist on Putnam’s celebrated theory of two-level games. Whereas Putnam assumes that the heads of state or government occupy a privileged position in both Level 1 and Level 2, the two-level legitimacy approach sees this privilege as being under threat because of increasing concern about popular support for revision and the perennial concern with the democratic credentials of a Union. Thought of in these terms, the increased involvement of parliaments, the people and courts in Level 2 is about trust as well as tactics when it comes to shaping the legal rules surrounding treaty negotiation and ratification. A similar logic is at play at Level 1 with national governments offering national and supranational actors a curtailed and contingent role in treaty revisions in response to concerns over the traditional role of Intergovernmental Conferences.