The EU's Lisbon Treaty

Institutional Choices and Implementation

Finn Laursen

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781138271524
• eBook ISBN:
  9781317032618
• Topic: Politics & International Relations
• Subtopic: European Politics
• Index: Politics & International Relations

The Lisbon Treaty, which came into force in December 2009, aims to make the European Union both more efficient and legitimate. Two new important posts were created; an elected President of the European Council and a High Representative (HR) of the Union for Foreign and Security Policy who will also be a Vice-President of the Commission. Leading international scholars have been gathered together to examine the institutional choices and innovations of the Lisbon Treaty and discuss the likely effects of these changes. Will the changes meet the declared goals of a more efficient and democratic Union which will allow the EU to act internationally with greater coherence and efficiency? If institutions matter, how much do they matter? How significant is the Lisbon Treaty? What kind of leadership will be available in the post-Lisbon EU?

Part I
Introduction

Chapter 1
The Lisbon Treaty: Overview of Institutional Choices and Beginning Implementation

Finn Laursen

Introduction

The Lisbon Treaty followed the ill-fated Constitutional Treaty, which was rejected in referendums in France and the Netherlands in May and June 2005. After a reflection period, it was decided to negotiate another treaty, first referred to as a Reform Treaty. A rather detailed mandate for a new Intergovernmental Conference (IGC) was adopted by the European Council in June 2007. Although the German presidency played a decisive role during the first part of 2007 in establishing the basis for the mandate, it fell to the Portuguese presidency to conclude the negotiations. Thus the treaty became known as the Lisbon Treaty, because it was signed in Lisbon on 13 December 2007. It entered into force on 1 December 2009, with some delay because of ratification problems, especially in Ireland, which needed a second referendum in October 2009 after a first referendum in June 2008 had rejected the treaty. It was then further delayed in the Czech Republic, where euro-sceptical President Vaclav Klaus postponed his signature as much as possible.1

Institutional Choices

The Lisbon Treaty is largely about institutional changes. It has retained most of the changes of the Constitutional Treaty (see, for instance, de Poncins 2008; Duff 2009; Griller and Ziller 2008; Piris 2010; Roy and Domínguez 2009; Sauron 2008; Weidenfeld 2008). This chapter will give an overview of the most important of these changes, leaving it to the subsequent chapters to go into greater detail.

The treaty amends the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC), the latter being renamed the Treaty on the Functioning of the European Union (TFEU). All references to symbols of constitutionalism, including flag, anthem and motto, have been removed. Legislative acts will not be called laws and framework laws but will retain the old names of regulations and directives. The new post in the Constitutional Treaty of Union Minister for Foreign Affairs has been renamed High Representative of the Union for Foreign Affairs and Security Policy (HR). Moreover, the new treaty does not explicitly say that Union law has primacy, although it will have such primacy based on case law of the European Court of Justice (ECJ), going back to the early years of European integration. The IGC confirmed this in Declaration No. 17 attached 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’ (European Union 2008: 344; see also Wouters et al. 2008: 190).

The text of the Charter of Individual Rights is no longer a part of the treaty as such, but the Lisbon Treaty says that it ‘shall have the same legal value as the Treaties’ (Art. 6(1) TEU).

The Main Institutions

The Treaty of Nice limited the number of Members of the European Parliament (MEPs) to 732. The Treaty of Lisbon increases the number to 751 (Art. 14 TEU). The exact distribution will be decided by the European Council. The number of seats will vary between six and 96. In an interim period, the EP had 785 members because of transitional measures in connection with the 2004 and 2007 enlargements (de Poncins 2008: 145; Sauron 2008: 43).

The Lisbon Treaty retains the provision proposed by the Constitutional Treaty for electing the President of the European Council ‘by a qualified majority, for a term of two and a half years, renewable once’ (Art. 15(5) TEU). At the same time, the European Council officially becomes an institution.

The European Council will, among other things, determine ‘the strategic interests and objectives of the Union’ for all its external action (Art. 22(1) TEU), thus bringing external relations and Common Foreign and Security Policy CFSP together. The President of the European Council will also be involved with external representation of the Union. The job description of the new post is not very detailed.

The use of qualified majority voting (QMV) in the Council of Ministers becomes the norm: ‘The Council shall act by a qualified majority except where the Treaties provide otherwise’ (Art. 16(3) TEU). This should increase the efficiency of decision-making. According to Jean-Claude Piris, 31 new articles will be based on QMV, and 18 existing legal bases are switched to QMV (Piris 2010: 212 and appendices 5 and 7). A number of these fall in the Area of Freedom, Security and Justice (AFSJ).

From 2014, the QMV will be defined as ‘at least 55% of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65% of the population of the Union’ (Art. 16(3) TEU). It is also stipulated that a blocking minority must include at least four members. To secure Polish acceptance of the new treaty, a new version of the so-called Ioannina Compromise is included. It allows a minority of a certain size, with different thresholds in an interim period until 2017 and then afterwards, to call for the matter to be discussed further (Piris 2010: 224).

The so-called co-decision procedure, whereby the Council and EP act on par in the legislative process, each having a veto, becomes ‘the ordinary legislative procedure’ (Art. 294 TFEU). This empowers the EP further and should in theory increase the democratic legitimacy of the Union. Co-decision will be extended to 14 new legal bases, and about 30 existing legal bases will be switched to co-decision (Piris 2010: 118 and appendices 4 and 5). It has been suggested that co-decision will apply to 95 per cent of decisions against 75 per cent previously (de Poncins 2008: 148).

The procedure for designating the President of the Commission changes slightly. According to the Treaty of Nice, the European Council nominates the President, who is then approved by the European Parliament. According to the Treaty of Lisbon, the European Council shall propose a candidate, ‘taking into account the elections to the European Parliament’. This candidate shall then be elected by the European Parliament (EP) (Art. 17(7) TEU). This is a slight step towards a more parliamentary system. But even if the treaty uses the term ‘election’, the choice will be determined by the European Council, i.e., the governments of the Member States.

Further, from 2014, ‘the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two-thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number’. In this reduced Commission, strict equal rotation among the Member States was foreseen (Art. 17(5) TEU), but the possibility of retaining a commissioner per Member State was included in the treaty. It required a unanimous vote in the European Council. This possibility was used to help find a solution to the problem created by the first Irish ‘no’ in the referendum in June 2008, since the Irish did not want to lose an Irish commissioner. So the Commission will retain one commissioner per Member State.

The jurisdiction of the ECJ will be enlarged because of the abolition of the pillar structure, with some limitations remaining especially for CFSP. The Court of First Instance becomes the General Court, and there will also be specialized courts (Art. 19 TEU).

The national parliaments will have an increased role in the future. According to Article 12 TEU and Protocol No. 1 on the Role of National Parliaments and Protocol No. 2 on the Application of the Principles of Subsidiarity and Proportionality, they will supervise the application of the Principle of Subsidiarity. If a third of them so requests, a draft legislative act must be reviewed. This is known as a ‘yellow card’. In case of proposed legislation concerning the Area of Freedom, Security and Justice (AFSJ), a quarter of the national parliaments will be sufficient. In countries having bicameral parliaments, each chamber will count as one. Unicameral parliaments will count as two. During the German Presidency in 2007, the Netherlands wanted a strengthening of this mechanism. An addition now requires a reasoned opinion from the Commission if a simple majority of national parliaments intervenes.

In that case, a majority of 55 per cent of the members of the Council or a majority of the members of the European Parliament can stop the legislative proposal. This is known as an ‘orange card’ (Piris 2010: 128–9).

Division of Competences

The call for a catalogue of competences from especially the German Länder at the time of the Treaty of Nice negotiations led to the inclusion of the issue in the post-Nice agenda, and the European Convention produced a list of different kinds of competences. The Lisbon Treaty includes such listing of different kinds of competences. Some competences are exclusive, including the customs union and common commercial policy (Art. 3 TFEU). But most common policies, including the internal market, the Common Agricultural Policy, social policy and environment policy are shared competences (Art. 4 TFEU). Coordination of economic policies constitutes a separate category (Art. 5 TFEU) and so do supporting actions for some policies that basically remain national, such as health, industry, culture and education (Art. 6 TFEU). All this may constitute a clarification, but it does not really change matters.

Area of Freedom, Security and Justice

The Maastricht Treaty included a third pillar that dealt with Justice and Home Affairs (JHA) cooperation. Like the second pillar, Common Foreign and Security Policy (CFSP), it was based on intergovernmental cooperation. Decisions normally required unanimity. The role of the Commission was very limited, and the European Court of Justice (ECJ) was largely excluded. The Amsterdam Treaty started moving some of JHA matters to the first pillar, thus introducing the Community method for these policy areas, with majority voting and increased roles for the Commission and the ECJ. The treaty introduced the concept of an Area of Freedom, Security and Justice (AFSJ). The Treaty of Nice reinforced this trend towards using the Community method for JHA, but Criminal Justice and Police cooperation stayed in a slimmer third pillar. The Lisbon Treaty formally abolishes the pillar structure, and the Community method will, to a large extent, also be used for Criminal Justice and Police cooperation in the future. The Lisbon Treaty includes the following under AFSJ: border checks, asylum and migration (Art. 77–88 TFEU), judicial cooperation in civil matters (Art. 81 TFEU), judicial cooperation in criminal matters (Art. 82–6 TFEU) and police cooperation (Art. 87–9 TFEU).

External Action

As mentioned earlier, the Lisbon Treaty formally abolishes the pillar structure. CFSP, the old second pillar, however, will largely remain intergovernmental even if the pillar structure is formally abolished.

The old pillar structure created problems for coherence among external relations of the Community (first pillar) and CFSP (second pillar). In the past, only the Community had legal personality. The Lisbon Treaty attributes legal personality to the Union as a whole (Art. 47 TEU). Thus, in the future, the Union will also be able to enter into international agreements under CFSP. The new High Representative will deal with both external economic relations of the Union, in his/her capacity of Vice-President of the Commission, as well as CFSP, in his/her capacity of High Representative and as Chair of the Foreign Affairs Council (Art. 27(1) TEU). This should be seen as an effort to increase coherence in external action in general.

The new TEU has a longer list of external action objectives than the previous treaties. They are listed in the section on external action, so they include external economic relations, comprising trade, development and humanitarian aid, as well as CFSP. The inclusion of this list in the new external action section of the treaty implies that the EU will have to work for the consolidation of human rights in its commercial policy.

Common Commercial Policy

Common Commercial Policy (CCP) remains a central part of the Union’s external action. It has been an exclusive competence since the Treaty of Rome (Art. 113). The Commission negotiates trade deals multilaterally within the GATT – and now WTO – as well as bilaterally with third countries. Decisions can be made in the Council by a QMV. The ECJ has jurisdiction. In other words, the Community method is applied for commercial policy. Interestingly enough, the original Article 113 did not mention the European Parliament.

The original Treaty of Rome basically covered trade in goods. But some international treaties included matters where the Member States remained competent. They were so-called mixed agreements. For such agreements, procedural rules were and remain more complicated. Such agreements, for instance, also require national ratification.

The Uruguay Round extended the international trade agenda to include services and trade related aspects of intellectual property (TRIPS). The ECJ in 1994 decided that these new areas were partly national competence.

In the treaty reforms that followed the Uruguay Round, there were efforts to extend the definition of trade to include services and intellectual property. They were included by the Treaty of Amsterdam, but decisions had to be by unanimity. The Treaty of Nice introduced QMV for services and intellectual property. But the sensitive areas of ‘cultural and audiovisual services, educational services, and social and human health services’ would still require unanimity (Art. 133 TEC).

The Treaty of Lisbon retains QMV for services and intellectual property and extends it to the new category of foreign direct investment. However, it retains unanimity for cultural and audiovisual services (‘where these agreements risk prejudicing the Union’s cultural and linguistic diversity’) as well as social, education and health services (‘where these agreements risk seriously disturbing the national organization of such services and prejudicing the responsibility of Member States to deliver them’). Finally, the Lisbon Treaty introduces the ordinary legislative procedure for commercial policy, thus giving the EP a strong role in commercial policy (Art. 207 TFEU). Making the EP a co-legislator in trade policy is one of the more important innovations of the Lisbon Treaty.

Common Foreign and Security Policy (CFSP)

The Union’s CFSP competence remains limited in various ways in the Treaty of Lisbon. According to Article 24 TEU, there are ‘specific rules and procedures’ for CFSP. Unanimity will remain the normal decision rule. Adoption of legislative acts is excluded. And the ECJ normally has no jurisdiction. There are two exceptions: the ECJ will ‘be empowered to referee disputes over the interface of the Union’s general authority and its specific authority relating to the CFSP’ (Sieberson 2008: 180). The other exception concerns restrictive measures involving individuals. The Maastricht Treaty had introduced procedures for adopting sanctions involving both CFSP (the political decision) and the Community (the actual sanctions, often involving trade measures). These sanctions were aimed against states. This created a problem for sanctions against individuals, so-called ‘smart sanctions’, which the EU may want to use against terrorists (see Wouters et al. 2008: 193). The Lisbon Treaty has a new article that allows restrictive measures ‘against natural or legal persons and groups or non-State entities’ (Art. 215(2) TFEU). Article 275 TFEU gives the ECJ jurisdiction to review the legality of such restrictive measures against natural or legal persons.

CFSP is not designated in the treaty’s lists of either exclusive or shared competences, which, for instance, mention common commercial policy as an exclusive competence of the Union (Art. 3(1) TFEU). Development cooperation and humanitarian aid are mentioned among shared competences (Art. 4(4) TFEU). CFSP is mentioned separately as a competence without giving this competence a specific name (Art. 2(4) TFEU).

These various provisions of the new treaty show that despite the formal abolishment of the pillar structure, there is still an important difference between external (economic) relations, falling under the old first pillar, and CFSP, the old second pillar. The Member States were not ready to extend the ‘Community method’ to the latter. So a de facto separate CFSP pillar remains.

Although the basic decision rule for CFSP is unanimity, there is the possibility of some decisions being made by a QMV. Of the four possibilities for QMV mentioned, three already existed before Lisbon. The new possibility mentioned by the treaty is the one where the HR proposes a decision following a ‘specific request’ from the European Council (see Art. 31 TEU).

The treaty also includes so-called ‘constructive abstention’, which goes back to the Amsterdam Treaty. Only those voting in favour of a decision are committed. Those abstaining, and explaining why, in a declaration, are not committed but accept that the decision commits the Union (Art. 31(1) TEU).

The idea that the Council can make implementing decisions by a QMV is not new, but the Member States have so far hesitated to use this possibility. In Article 31 TEU, the possibility is linked with a ...

Table of contents

• Cover Page
• Half Title page
• Title Page
• Copyright Page
• Contents
• List of Figures
• List of Tables
• List of Boxed Text
• Notes on Contributors
• Preface
• Acknowledgements
• List of Abbreviations
• Part I Introduction
• Part II Basic Institutional Choices
• Part III Institutional Actors
• Part IV External Action
• Part V Conclusions
• Index