The Treaty of Lisbon:

Does it has Constitutional character or not?

Alfred Kellermann

Introduction

The Treaty of Lisbon was signed by the EU Member States in December 2007and concludes a long process which started after the process of EU Enlargement with 10 new Member States. In fact the Lisbon Treaty is a follow-up of the Laeken Declaration of the European Council of December 2001, the text of the Constitutional Treaty and the process of Treaty revision that had been re-started, after a period of Reflection in June 2007, after the negative referenda in France and the Netherlands. The Laeken Declaration proclaimed that there is a need for improvements in the areas of democratic legitimacy and transparency of the EU institutions, the role of the national parliaments, the efficiency of decision-making and the coherence in European foreign policy.

If the Treaty of Lisbon will be ratified in accordance with the constitutional requirements of each MemberState, it will enter into force on January 1, 2009.

On 12 June 2008 only one EU country i.e. Ireland will have, according to its Constitution, to approve the Lisbon Treaty by referendum.

This article begins by referring to the IGC process between June–December 2007.

We will compare the principal differences with the Treaty establishing a Constitution for Europe, which due to the negative referenda in France and the Netherlands did not enter into force.

The Treaty reform process, which followed, produced in the IGC a text for a Reform Treaty, which document was signed on 13 December 2007, whereby the name was changed to the Treaty of Lisbon, as this was the place of signature.

IGC

At 5.00 in the morning on Saturday 23 June Angela Merkel, Chairman of the European Council of Brussels, stated that “negotiations had taken a lot of time but we obtained what we wanted: a very detailed precise mandate for arranging an inter-governmental conference (IGC) before the end of July 2007 and which will finalize and adopt a “Treaty of reform”. This draft Treaty text has been drawn up in line with the terms of the mandate and has finally been submitted to the European Council which has been held in December 2007 in Lisbon.

The changes and innovations

The changeswill be compared with the text of the Treaty text of Nice.

Many of the innovations in the Treaty of Lisbon have also been taken over from the draft Constitutional Treaty text which was agreed at the IGC 2004 and which Draft Constitutional Treaty had not been accepted in the referenda in France and the Netherlands.

1) The constitutional concept,which consisted in repealing all existing Treaties and replacing them by a single text called “Constitution”, is abandoned. The Lisbon Treaty will introduce in the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC where the draft Constitutional Treaty was submitted, as set out in the following. Hereafter I will shortly enumerate the changes compared to the text of the Nice Treaty as well as the innovations due to the amendments to the text of draft Constitutional text as accepted at IGC 2004.

2) The Lisbon Treaty contains two substantive clauses amending respectively the Treaty on the European Union (TEU) and the Treaty establishing the European Community (TEC). The Treaty of Lisbon itself has 7 Articles, of which Articles 1 and 2 are the most important, plus numerous Protocols and Declarations.

Article 1 contains the amendments to the TEU. Article 2 amends the EC Treaty, which is renamed the Treaty on the Functioning of the European Union.

The TEU will keep its present name and the TEC, called Treaty on the Functioning of the Union, having a single legal personality.

The word “Community” will throughout be replaced by the word “Union”; it will be stated that the two Treaties constitute the Treaties on which the Union is founded and that the Union replaces and succeeds the Community. Technical amendments to the Euratom Treaty and to the existing Protocols, as agreed in the 2004 IGC, will be done via Protocols attached to the Lisbon Treaty.

3) The text of the Lisbon Treaty has been renumbered, given the number of changes and the fact that new articles have been included and others deleted.

4) The importance of the following three innovations should also explicitly be mentioned:

a) the primacy of Community Law: the legal interpretation of this principle as affirmed by the Court of Justice, has been annexed in Declaration nr 17 to the Treaty:

“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):…..It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law….”

b) The removal of the “three pillars” with different legal status and which confer unequal competences of the European institutions.

The approach to the CFSP in the Treaty of Lisbon largely replicates that in the EU Constitution, subject to the change of nomenclature. The PJCC is moved from the TEU and merged with the provisions of what was Title IV EC, dealing with immigration, asylum and civil law. This forms a new Title V TFEU ,”Area of Freedom, Security and Justice”, which has five chapters dealing with: general provisions; policies on border checks, asylum and immigration; judicial cooperation in criminal matters; and police cooperation.

c) The clarification of who does what in Europe: exclusive competencies of the EU,competencies shared with the Member States, national competencies. Art. 2 (1) TEU establishes the category of exclusive competence. The provisions on competence repeat with some minor modifications those that existed in the EU Constitution. The operative provisions are contained in part in the revised TEU: Art. 4 TEU states that competences not conferred on the European Union remain with the Member States. Article 5 TEU stipulates that the limits of EU competences are governed by the principle of conferral, under which the Union shall act only within the limits of competence conferred by the Member States, and repeats once again that competences not conferred on the European Union remain with the Member States. The use of EU competences is governed by the principles of subsidiarity and proportionality, which are dealt with in the remainder of Art. 5 TEU.

5) The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.

6) As far as the content of the amendments to the existing Treaties is concerned, innovations resulting from the 2004 IGC on the text of the Constitutional Treatyhave been integrated in the Lisbon Treaty.

Modifications to these innovations concern the following issues. The respective competences of the EU and the Member States and their delimitation, the specific nature of the Common Foreign and Security Policy, the enhanced role of national parliaments, the treatment of the Charter of Fundamental Rights and a mechanism in the area of police and judicial cooperation in criminal matters, for enhanced cooperation.

7). There is a considerable progress for example in the defence policy. Permanent structured cooperation in the field of defence is explicitly referred to and clarified in the mandate for the IGC. It will be created by those Member States which would like to take part in it. The list of participating countries will be drawn by the Council by qualified majority. The second innovation in the defence policy is the “solidarity clause”. This means that an obligation will be brought in for the Member States to provide aid and assistance by all means in their power to a MemberState which is the target of armed aggression.

8). An Article on fundamental rights will contain a cross reference to the Charter on fundamental rights giving it legally binding value and setting out the scope of its application. Although the integral text of the Charter does not figure in the Treaty, the Charter will be binding.

9) Control of subsidiarity by national parliaments. The period given to parliaments to examine draft legislative texts and to give a reasoned opinion on subsidiarity and proportionality will be extended from 6 to 8 weeks . There will be introduced a reinforced control mechanism of subsidiarity.

10) The institutional changes agreed in the draft Constitutional Treaty text at the 2004 IGC will be integrated partly into the TEU and partly into the Treaty on the Functioning of the Union.

Majority qualified voting will become the rule for 51 additional domains, including police and legal cooperation, education and economic policy. Unanimity will remain the rule for foreign policy, social security, taxation and culture.

The introduction of the double majority voting system. The double majority system as agreed in the 2004 IGC will take effect on 1 November 2014, until which date the present qualified majority system will continue to apply. Until 2017 and as from 2017 different blocking minorities will apply. Till 31 March 2007 75% of EU population and 75% of the number of Member States, after 1 April 2017 55% of the number of the Member States representing 65% of the EU population respectively.

11) There will be a new composition of the European Parliament. Extension of the codecision procedure with the right of veto at the European Parliament in other areas such as justice and home affairs.

12) Permanent Presidency. Designation of a President of the European Council, who will chair the Union with a mandate of two and a half years., which can once be renewed. This new institution will end the rotating presidency system. The role of the President will be incompatible with any other national responsibility. The European Council will be created as an institution with an office of President and changes in the six-monthly Council presidency system, the new composition and strengthening of the role of the President of the European Commission, creation of an office for the High Representative for Foreign Affairs and the Court of Justice of the European Union.

13) There will be not only an Article on the Legal personality of the Union but also one on voluntary withdrawal from the Union. Article 48 on revision of the Treaties will further be amended and it will be made clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union.

14) In Article 49 on conditions for eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Unionand a reference to take into account the conditions of eligibility agreed upon by the European Council. This is for candidate and potential candidate countries of special interest!

15) The innovations as agreed in the 2004 IGC concerning the Draft Constitutional Treaty text will be inserted into the Treaty by way of modifications in the usual manner. They concern the categories and areas of competences, the scope of qualified majority voting and of codecision, the distinction between legislative and non legislative acts, provisions inter alia on the Area of freedom, security and justice, the solidarity clause, the improvements to the governance of the Euro, horizontal provisions such as the social clause, specific provisions such as public services, space, energy, civil protection, humanitarian aid, public health, sport, tourism, outermost regions, administrative cooperation, and financial provisions.

16) Approximately 25 modifications will be introduced compared with the innovations and results of the 2004 IGC Constitutional Treaty text.

Some examples

A new Article 1 will be included, stating that the purpose of the two new Treaties, is that they will have identical legal value.

In the Article on competences, it will be clearly specified that the Member States will exercise again their competence to the extent that the Union has decided to cease exercising its competence.

Further adopting measures on the adoption of measures on passports, identity cards, residence permits, diplomatic protection, personal data protection and other areas which include public health, European space policy, environment, energy, freezing of assets to combat terrorism, aggregation of insurance periods.

Many issues concerning the Chapters on judicial cooperation in civil matters and judicial cooperation in criminal matters and on police cooperation, mutual recognition on judgments, minimum rules on definition of criminal offences and sanction, the European Public Prosecutor.

Finally, since the denominations “law” and “framework law” as proposed by the text of the Constitutional Treaty has been dropped (which in my opinion is an improvement!), after Article 249 three Articles will be introduced on respectively acts which are adopted in accordance with a legislative procedure, delegated acts and implementing acts.

CONCLUDING REMARKS

Compared to the draft Constitutional Treaty,the new proposed Treaty is in our opinion a little step backwards, however compared to the treaties currently in force (Nice Treaties) there is a progress in all sectors. Majority voting will become the rule. The Lisbon Treaty will have not only a simplified but also a complicated Treaty text.

Roughly 90% of the innovations of the Draft Constitutional Treaty text have in my opinion been included in the content of the Lisbon Treaty! Only some concepts have been renamed. Like the Minister for Foreign Affairs who will be indicated as High Representative of the Union for Foreign Affairs and the word “constitution” has everywhere been deleted etc.

It looks like the European leaders in Brussels were trying to mislead the European citizens and show the citizensthe new drafted Lisbon Treaty is a Treaty and totally different from the Draft Constitutional Treaty from IGC 2004.

Constitutional character or no constitutional character? That is the question! Opinions of Politicians.

The message that the Treaty will have no constitutional character is in my opinion a political compromise and follows the opinion inter alia of Jan Peter Balkenende, the Dutch Prime Minister, who explained at the end of the negotiations that this is an amended treaty and the chapter on constitution is now closed. I believe that he mentioned this because he hopes that the Dutch voters who rejected the constitutional treaty in 2005, will have not another opportunity to express their view in a referendum! However as reported in on the front page of “De Telegraaf” of 26 June there is already a majority in the Dutch second Chamber that is in favour of a referendum!

The message that the Treaty will have no constitutional character, is further also in contradiction with Decisions of the Court of Justice of the EC which characterized already the EC Treaty as having a “constitutional character”. It is also in conflict with the opinion expressed by Frank-Walter Steinmeier, Angela’s Merkel Foreign Minister who said that the mandate approved by the 27 Member States will “preserve the substance of the constitutional treaty”. Merkel also affirmed that the agreement on the mandate and entry into force of the treaty in 2009 “paves the way to new Union enlargements”.

According to Valery Giscard d’Estaing , the European Council has agreed only cosmetic changes to the rejected Constitution to avoid further referenda on ratification.The former President of the Convention on the future of Europe gave this assessment to the Constitutional Affairs’ Committee during a discussion which also included the Portuguese Minister of Foreign Affairs, Luis Amado for the Council Presidency.

Most MEPs taking part in the debate with Mr. Giscard d’Estaing agreed that the agreement on EU reforms reached by the Member States in June salvages the substances of the draft constitution. Giscard said that: “In terms of content, the proposals remain largely unchanged, they are simply presented in a different way”. “The reason is that the new text could not look too much like the constitutional treaty”, so EU governments agreed on “cosmetic changes to the constitution to make it easier to swallow”. That is also the opinion of Jo Leinen, chairman of the constitutional committee of the European Parliament. Timothy Kirkhope said:” The UK government stated the new treaty does not contain any constitutional element.

Finally Giscard criticized the fact that the European Council did not want the EU flag and anthem mentioned in the new treaty.

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