The Treaty of Lisbon

Origins and Negotiation

D. Phinnemore

• Publisher: Palgrave Macmillan
• Year: 2013
• Print ISBN: 9780230242586
• eBook ISBN: 9781137367877
• Topic: Politics & International Relations
• Subtopic: Diplomacy & Treaties
• Index: Politics & International Relations

Detailed and comprehensive analysis of how the Treaty of Lisbon emerged in 2007 this book explores the role played by the German Council Presidency and the EU's institutional actors in securing agreement among the leaders of member states on an intergovernmental conference as well as a new treaty text to replace the rejected Constitutional Treaty.

1

The Treaty of Lisbon in Context

On 1 December 2009 the latest round of large-scale European Union (EU) treaty reform reached its culmination with the entry into force of the Treaty of Lisbon. The occasion was marked more by a sense of relief among the EU’s supporters than with the popping of champagne corks. The road down which the EU had travelled to introduce the reforms contained in this latest treaty had been the longest and most eventful in the history of the European integration process. Initially launched by the Laeken European Council in December 2001, the process had involved: the drafting in 2002–2003 of the Draft Treaty establishing a Constitution for Europe; the adoption in 2004 of the Treaty establishing a Constitution for Europe – the Constitutional Treaty; its rejection in referendums in France and the Netherlands in 2005; the negotiation of the Treaty of Lisbon in 2007; its initial rejection in a referendum in Ireland in 2008; and ultimately in 2009 its successful ratification. In among these developments the EU in 2004 underwent its largest ever enlargement from 15 to 25 member states and then a further enlargement to 27 member states in 2007 (see Box 1.1). And the period also saw the belated entry into force on 1 February 2003 of the Treaty of Nice following initial Irish rejection in 2001.

The evident relief was accompanied by palpable fatigue as well as a sense of ennui. For the Treaty of Lisbon was not simply any treaty, but the latest in a seemingly endless line of amending treaties that the EU’s member states had spent considerable time negotiating and ratifying for most of the previous 25 years. They had started with the Single European Act (SEA), which was concluded in 1986. This was followed by the Treaty on European Union (TEU) (1992), the Treaty of Amsterdam (1997), the Treaty of Nice (2001), the Treaty establishing a Constitution for Europe (2004) and finally the Treaty of Lisbon (2007). A pre-occupation with treaty reform and the associated institutional navel-gazing had been dominating the EU’s agenda for far too long now. Moreover, it was not as if the efforts of EU leaders and negotiators in reforming the EU appeared to be appreciated by the EU’s citizens. Only the SEA and the Treaty of Amsterdam had entered into force without popular rejection in at least one member state during the ratification process. Furthermore, following the French ‘non’ and Dutch ‘nee’ to the Constitutional Treaty in 2005 a variety of member states had gladly abandoned ratification, knowing that popular endorsement of the treaty was far from certain. The Treaty of Lisbon was not conceived against a backdrop of popular – or indeed governmental – enthusiasm for treaty reform. Its emergence in 2007 was very much unexpected.

Box 1.1 From Constitutional Treaty to Treaty of Lisbon

2001
15 December	Laeken Declaration
2002
27–28 February	European Convention launched
2003
9–10 July	European Convention closes
18 July	Draft Treaty establishing a Constitution for Europe forwarded to European Council
29 September	Intergovernmental Conference opens
2004
1 May	EU enlarges from 15 to 25 member states
18 June	European Council agrees Treaty establishing a Constitution for Europe
29 October	Treaty establishing a Constitution for Europe (Constitutional Treaty) signed (Rome)
2005
29 May	French Referendum rejects ratification of the Constitutional Treaty
1 June	Dutch Referendum rejects ratification of the Constitutional Treaty
16–17 June	European Council launches ‘reflection period’
2006
15–16 June	European Council extends ‘reflection period’
2007
1 January	German Council Presidency begins
1 January	EU enlarges from 25 to 27 member states
25 March	Berlin Declaration on the 50^th anniversary of the signing of the Treaties of Rome adopted at informal gathering of EU Heads of State and Government (Berlin)
14 June	German Council Presidency publishes its ‘Road Map’ on Pursuing the Treaty Reform Process
19 June	German Council Presidency circulates draft IGC mandate
21–23 June	European Council agrees IGC mandate
1 July	Portuguese Council Presidency begins
23 July	Intergovernmental Conference opens
18–19 October	Informal European Council agrees Treaty of Lisbon
13 December	Treaty of Lisbon signed (Lisbon)
2008
12 June	Irish Referendum rejects ratification of Treaty of Lisbon
2009
18–19 June	European Council adopts ‘Irish guarantees’
2 October	Irish Referendum approves ratification of Treaty of Lisbon
19 October	Informal European Council adopts ‘Czech Protocol’
1 December	Treaty of Lisbon enters into force

Any account of the negotiation of a treaty needs to be situated in its historical context if the motivations for its existence are to be understood. The Treaty of Lisbon is no exception. It was the latest in a seemingly endless succession of EU treaties, part of an ongoing process of treaty reform designed to enhance the capacities of the EU and promote further integration. Moreover, it followed the popular rejection in France and the Netherlands and subsequent wider abandonment of a text – the Constitutional Treaty – that had been concluded following the most open and transparent process of treaty reform in the history of the EU. The immediate pre-history of the Treaty of Lisbon was therefore one of crisis in the EU. On the one hand, there was a clear sense of constitutional crisis. The latest attempt to reform the EU had patently failed. Yet, the view among most member state governments and many observers was that the reforms contained in the rejected Constitutional Treaty were urgently needed if the enlarging EU were to continue to function. On the other hand, there was the evident crisis of legitimacy. A Constitutional Treaty ostensibly drawn up to address the needs and concerns of EU citizens had been rejected by its intended and purported beneficiaries. Popular enthusiasm for the further development of the EU was far from widespread, assuming it existed at all. Despite the sense of crisis, the Treaty of Lisbon did emerge in 2007 to join the seemingly ever-lengthening list of EU amending treaties.

1.1 EU Treaty reform – from the Single European Act to the Constitutional Treaty

There have been very few moments since mid-1980s when the EU has not been contemplating or negotiating its own reform either to improve its existing operation or to pursue further integration. Prior to the mid-1980s, there had been only three significant instances of treaty reform. In 1965, the ‘Merger Treaty’ establishing a Single Council and a Single Commission of the European Communities was agreed. Two ‘budgetary’ treaties followed in 1970 and 1975. Since the mid-1980s, however, six major treaties, noted above, have been negotiated. Each has introduced – or sought to introduce – institutional reforms of varying degrees. The Single European Act extended qualified majority voting (QMV) and increased the decision-making role of the European Parliament (EP). The TEU, the Treaty of Amsterdam and the Treaty of Nice did likewise. More significantly, the TEU created the EU and in so doing enhanced the formal roles of the European Council. Each round of treaty reform since the mid-1980s has also led to expansions – often significant – to the EU’s competences and activities. Through the SEA the EU gained policy competences in areas such as the environment, economic and social cohesion, and research and technological development and set a deadline of 31 December 1992 for the completion of the internal market. The TEU went further and set out a three-stage process for economic and monetary union and ultimately the adoption of a single currency. It also established a Common Foreign and Security Policy (CFSP) for the nascent EU and formalized mechanisms for intergovernmental cooperation in justice and home affairs (JHA). In terms of policy, the Treaty of Amsterdam extended the range of JHA activities and introduced EU action to promote employment. Had it entered into force the Constitutional Treaty would have re-cast the EU entirely, provided it with an anthem and motto and established among other posts a Union Minister for Foreign Affairs.

These rounds of treaty reform have been neither pre-ordained nor pre-programmed. A further round of treaty reform was not on the agenda when the Single European Act was agreed. And when government ministers of the 12 member states of the European Community gathered in February 1992 in Maastricht to sign the TEU, none would have predicted that over the next 16 years their successors would be penning their signatures to four more major treaties reforming the EU. The expectation then – and indeed always previously – was that treaty reform would be an occasional affair. However, the TEU did envisage a review in 1996 of provisions governing the CFSP. Nevertheless, the anticipated agenda of the planned intergovernmental conference (IGC) was narrowly defined. Similarly, further decision-making reforms were planned following the Treaty of Amsterdam, but the agenda was again limited, this time to the outstanding reforms – the ‘Amsterdam leftovers’ – necessary to prepare the EU institutionally for enlargement, namely: a reduction in the size of the Commission, a re-weighting of votes in the Council, and the extension of QMV.

Despite their narrow agendas, the IGCs called in 1996 and 2000 agreed a wide range of substantial reforms that the Treaty of Amsterdam and the Treaty of Nice respectively introduced. In part, this reflected widespread, albeit far from universal, support for integration among political elites in post-Cold War Europe. The new era posed a host of challenges that ‘Europe’ was keen to address. And further integration was deemed to be a key element of the response. The violent disintegration of Yugoslavia certainly increased the pressure on the EU to develop its foreign, security and defence policy capacities. The free movement of people, so it was argued, necessitated increased cooperation in managing the EU’s external borders, coordinating visa, immigration and asylum policies, and improving cross-border policing cooperation. There were also pressing environmental challenges. Equally, however, the EU’s supporters were intent on further integration. They were eager not only to address the inadequacies of previous reforms but also to pursue their own integrationist agendas and projects. Others prioritized the need to redress the EU’s democratic deficit, draw up a Charter of Fundamental Rights and generally engage citizens more. Added to this there was broad agreement on the need – both perceived and actual – to prepare the EU for enlargement. So, as the EU in the late 1990s moved closer towards delivering on its commitment to enlarge eastwards, the general consensus on reforming the EU further increased. For most advocates of reform the priority was to safeguard the existing level of integration and ensure the decision-making capacity of the EU. Institutional paralysis through enlargement had to be avoided.

While many of these challenges and priorities were addressed, at least in part, in the reforms agreed in the Treaty of Amsterdam and the Treaty of Nice, there were in the late 1990s and early 2000s prominent campaigns from advocates of European integration championing the further political development of the EU. This encouraged calls for a wide-ranging debate on what should be the end goal – or finalité politique – of the EU. For some, the priority was a re-founding of the EU on the basis of a new and ambitious ‘European Constitution’. For others a ‘Future of Europe’ debate offered an opportunity to establish more clearly the exact powers of the EU and the limits of integration. What was important was that the process be open and engage not just member state governments, but others too. And so, following the European Council’s adoption in December 2001 of a wide-ranging Laeken Declaration on the future of the European Union, a European Convention of representatives of national governments, national parliaments, the European Parliament (EP) and the Commission was launched in February 2002 to hold the debate. The Convention’s discussions soon shifted, however, to the more ambitious and controversial matter of what form a constitutional settlement for the EU might take. To this end, following 18 months of work, a Draft Treaty Establishing a Constitution for Europe was adopted and forwarded to the European Council for consideration.

Committed to a new IGC, the EU’s heads of government and state took the Convention’s draft and during the course of 2003–2004 produced their own Treaty establishing a Constitution for Europe – the Constitutional ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• List of Boxes
• List of Tables
• Acknowledgements
• List of Abbreviations
• 1 The Treaty of Lisbon in Context
• 2 The Constitutional Treaty: Rejection and Reflection
• 3 The German Council Presidency I: Focal Points and Reverse Engineering
• 4 The German Council Presidency II: From Berlin Declaration to Road Map
• 5 The German Council Presidency III: From Road Map to Mandate
• 6 The IGC Mandate and the Draft Reform Treaty
• 7 The 2007 Intergovernmental Conference
• 8 Ratification and Implementation
• 9 The Treaty of Lisbon and the Future of EU Treaty Reform
• Notes
• References
• Index