(18) EU Constitutional Law

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The Treaty of Lisbon (ToL): The Treaty on European Union (TEU)

and

The Treaty on the Functioning of the European Union (TFEU)

On 13 December 2007 the European Council held in Lisbon approved the Reform Treaty, which replaced the abandoned Constitutional Treaty.60

On that date the Reform Treaty became the Treaty of Lisbon (ToL), named as such because of its links with Lisbon. It was prepared under the presidency of Portugal, the relevant IGC was held in Lisbon, the informal meeting of the European Council held in Lisbon in mid-October 2007 gave its approval to the draft Reform Treaty, and the signing ceremony took place in Lisbon in December 2007. The ToL entered into force on 1 December 2009.

The History of the ToL

For the first time in the history of the EC/EU the IGC convened to prepare a draft of what was then referred to as the Reform Treaty (now the Treaty of Lisbon) was, in the first instance, provided with extremely detailed instructions. These included, in effect, a final draft of the intended Treaty and the IGC was merely asked to produce a full draft document based precisely and specifically upon detailed wording (including punctuation!) supplied by the European Council meeting of 21/22 June 2007.

The European Council gave the IGC a mandate that constituted “the exclusive basis and framework” for its activity and that “in the absence of indications to the contrary in this mandate” demanded that the text of the Treaties remain unchanged.61

It is clear that when considering the intended Reform Treaty the European Council did not wish the IGC to make any real contribution to the intended treaty but wished, in effect, (other than following the formal requirements in connection with the IGC) to deal with the matter all in one go in June 2007 and not to see any further debate as to the content of the intended treaty. It may be said that in this respect the European Council effected a very streamlined administrative process, avoiding delays and what could be regarded as unnecessary bureaucracy. On the other hand, one might be left wondering why the European Council did not adopt the same approach with the Reform Treaty as with the Constitutional Treaty, given that the greater the number of participants involved, the more democratic legitimacy and credibility is afforded to a new Treaty.

The explanation provided by the European Council was that enough time had been spent on the revision of the Treaties, including a reflection period of almost two years initiated by the European Council held in June 2005 and terminated by it in June 2007 with the announcement of the death of the Constitutional Treaty. During that time, according to the European Council, all important matters were subject to wide public debate, which prepared the ground for the Reform Treaty.62

In mid-October 2007 the draft Reform Treaty was submitted to the European Council, which, after making some concessions to Member States which were unhappy with some aspects of the new Treaty, ensured it’s signing as the Treaty of Lisbon on 13 December 2007 by the heads of state or government of the Member States.

The Ratification of the ToL

All Member States (including The Netherlands and France, the two Member States that torpedoed the Constitutional Treaty) but Ireland, decided to effect ratification via parliament rather than to expose the ToL to the uncertainty of national referenda. Ireland was the only MemberState that, by virtue of its Constitution, had to hold a referendum. On 12 July 2008, the Irish voters rejected the ToL. Subsequently, the Irish Government decided to hold a second referendum after obtaining the following assurances from the European Council held in June 2009.

-Each MemberState will be represented in the Commission of the European Union by one commissioner of its own nationality;

-Irish neutrality will not be affected by EU law;

-Sensitive ethical issues such as abortion will be within the exclusive competence of Ireland;

-The system of direct taxation will remain within the exclusive competence of Ireland;

-Workers’ rights and public services are and will remain valued and protected in Ireland and in the EU.

In the second referendum which took place in October 2009 Irish voters approved the ToL. In Germany, the ToL was challenged before the German Federal Constitutional Court. In July 2009, the Court ruled that the ToL was compatible with the German Constitution. In particular, the Court held that the ToL did not transform the EU into a federal State, that EU citizenship did not replace national citizenship and that a MemberState, under the ToL, was not required to provide troops for a European army. However, the Court held that a modification of domestic legislation ensuring greater participation of the German parliament in the control and supervision of EU affairs was required.

The necessary legislation was subsequently adopted. In this judgment the German Federal Constitutional Court confirmed its position on the supremacy of EU law, i.e. that supremacy of EU law derives from the German act conferring power to the EU and not from EU law itself and therefore has maintained its reservations on primacy of EU law over the German Constitution.63

The last hurdle to be jumped before ratification was that the President of the Czech Republic refused to sign the ToL, although the Treaty had been approved by the Czech Parliament, and declared to be in conformity with the Czech Constitution by the Czech Constitutional Court, 64 unless he obtained a guarantee that his country would not be exposed to massive property claims by Germans expelled from the then Czechoslovakia after World War II. In order to accommodate the Czech Republic, Protocol 30 “On the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom” was extended to the CzechRepublic.

The position of the United Kingdom

The United Kingdom obtained many opt-outs in key areas. It is allowed (as is Ireland and Denmark) to decide whether to opt in or to opt out of policies relating to the whole area of FSJ. The United Kingdom also negotiated for itself and Poland Protocol attached to the Treaties that provides that no “court can rule that laws, regulations or administrative practices or action” of the UK/Poland/the Czech Republic are inconsistent with the principles set out in the Charter of Fundamental Rights of the EU, and to avoid any doubts, the Protocol emphasizes that the Charter creates no new rights enforceable in the UK/Poland/the Czech Republic. Additionally, the UK’s previous opt-outs have been confirmed (for example, non-participation in the EMU and in the Schengen Agreement).

The above, combined with the fact that unanimity of voting in the Council was retained in the CFSP, in direct taxation and in social security matters, made the ToL acceptable to the United Kingdom Government. Prime Minister Gordon Brown of the UK said that the ToL had not crossed “red lines” on major concerns for the UK, and therefore there would be no need to call a referendum.

The structure of the ToL

The ToL has only seven articles. The first two contain amendments to the TEU and the EC Treaty (now TFEU), and therefore are very lengthy. Article 3 ToL states that the ToL is concluded for an unlimited time; Article 4 ToL refers to Protocols 1 and 2 to be attached to the ToL; Article 5 ToL deals with the renumbering of articles, sections and titles of both the TEU and the TFEU; Article 6 ToL concerns the procedure for ratification of the ToL; and Article 7 ToL confirms that each official language in which the ToL was drafted is authentic and that Italy will be the depository of the ToL. Two Protocols, one Annex, and the Final Act of the IGC are attached to the ToL. It is to be noted that 37 Protocols, two Annexes and 65 Declarations are attached to the TEU and TFEU and when appropriate to the EA Treaty.

Technically, the TEU and the TFEU are part of the ToL and therefore Protocols and Declarations attached to them are also attached to the ToL. However, the ToL specifically provides that the two following Protocols are annexed to it, i.e:

– Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the

Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community;

-Protocol No 2 amending the Treaty establishing the European Atomic Energy Community.

It can be seen from the above that the ToL is merely a “wrapping” or “introductory” Treaty. Its main purpose is to effect amendments of the TEU and the EC Treaty. The IGC was mandated to base the ToL on the Constitutional Treaty but with the modifications specified in the mandate. Consequently, elements of that Treaty are present in the ToL. However, unlike the Constitutional Treaty, which proposed the melting of the three existing Treaties into one, the ToL only amends the current Treaties. It does this in the following ways:

-Article 1(3) TEU provides that the EU should be based on two Treaties: the Treaty on European Union (as amended) (TEU) and the Treaty on the Functioning of the European

Union, which amends the EC Treaty and gives it a new name: the TFEU. Both Treaties are of equal legal value. The TFEU abolishes the Pillar structure which was introduced by the Treaty of Maastricht but special procedures are provided for the CFSP. The ToL finally gets rid of the confusing distinction between the EC and the EU. Article 1 TEU specifies that “The Union shall replace and succeed the European Community.”

As a result of the above changes, only the EU has legal personality and thus is the only entity able to enter into international agreements, including those relating to membership of international organizations.

-The Euratom exists outside the ToL. It is “hanging on the side.” Protocol 2 annexed to the ToL contains changes to the current EA Treaty and also provides that some provisions of both the TEU and the TFEU apply to the EA Treaty.

Brief assessment of the ToL

There has been much public debate on whether what was the proposed Constitution is really dead or whether the ToL has resurrected it by recycling and relabeling its provisions. In this respect it can be said that the ToL, instead of being an all-encompassing treaty as was the failed Constitutional Treaty, only amends the EU Treaty and the EC Treaty. The ToL avoids any reference suggesting ambition on the part of the EU to become a federation.

The ToL does not use the word “constitution”. Not only has terminology suggesting a state-like status for the EU been abandoned but also any reference to EU paraphernalia such as an anthem, a motto, and a flag, although they will continue to be used. 16 Member States declared their adherence to these symbols in Declaration 52 attached to the Treaties.

The significance to be given to the ToL depends upon whether it is assessed from the point of view of a Eurosceptic or from that of an advocate of European integration. Nevertheless, both are likely to be disappointed by the ToL. Each amendment can be criticized by both. For example, for a Eurosceptic the fact that the Member States have agreed that QMV will apply to 44 further policies confirms the increasing loss of national sovereignty.

An advocate of European integration, however, would criticize the ToL for extending QMV to many areas which have no impact on achieving a real union (for example, extension in respect of decisions on the methods used for gathering statistics in the euro zone, or concerning the composition of the CoR) while maintaining national vetoes in crucial areas such as direct taxation, defence and the CFSP.

If assessed in simple terms and dispassionately, the ToL effected the reforms necessary in the ever-enlarging EU, that is, it improves the efficiency of the decision-making process in the EU and makes the EU a very democratic entity.

Examples of the improvement of efficiency of the decision-making process in the EU are:

-The ordinary legislative procedure has become the main legislative procedure for the adoption of legislative acts and has been extended to a further 44 areas;

– Double majority voting in the Council, when it enters into force in 2014, will be more effective than the current weighted voting system;

– The reduction in number of the members of the EP makes it less unwieldy;

– The creation of the post of the High Representative of the Union for Foreign Affairs and Security Policy (HR) who combines the posts of Vice-President of the Commission and of High Representative for Foreign and Security Policy and has to ensure coherence and unity in respect of the EU’s external action, as does the establishment of the post of president of the European Council;

– The granting of legal personality to the EU.

Examples of the greater democratization of the EU are:

The EP has gained new powers:

– Legislative (as it has become a co-legislator);

– Budgetary (as it has powers equal to that of the Council over the EU budget); and

– Political (for example, it elects the President of the Commission);

– The involvement of national parliaments in the functioning of the EU adds a new dimension to the application of the principle of subsidiarity and reinforces democratic control of the EU activities;

The social rights of EU citizens are better protected:

-First through the Charter of Fundamental Human Rights in the EU, which contains provisions on social rights that must be guaranteed by national courts and by the Court of Justice of the European Union (The CJEU);65 and [1] Second through the inclusion of a “social clause” that specifies that social requirements are to be taken into account in all EU policies;

-The respect for fundamental human rights of EU citizens is enhanced through the conferment of binding legal status on the Charter of Fundamental Human Rights in the EU and the accession of the EU to the ECHR;

-Natural and legal persons have gained broader access to the CJEU under Article 263 TFEU;

-The application of the “EU method” to measures relating to the establishment of an area of FSJ ensures judicial (exercised by the CJEU) and political (exercised by the EP and national parliaments) control over the adoption and implementation of such measures;

-The ToL reinforces the principle of representative democracy, ensures transparency of the EU legislative process and the political participation of EU citizens in the process. Article 11 (4) TEU contains a new form of popular participation. Under this provision, one million or more of EU citizens, who are nationals of a significant number of Member States, may ask jointly the Commission to prepare a proposal for a legal act necessary to implement the objectives of the Treaties. This “citizens’ initiative” has the potential to make a great impact on EU legislation;

– The ToL clarifies the division of competences between the EU and the Member States so that under the ToL it is clearer in which areas a Member State has dominion, in which the EU is empowered to act alone and in which it shares competences with Member States;

– The ToL provides procedures for Member States wishing to leave the EU.

60. An incomplete version of the ToL was published in the OJ ([2007] OJ C306/1). For a consolidated version see: Peadar ó Broin (ed.), Treaty of Lisbon 2007: Consolidated Version of the Treaties Amended by the Treaty of Lisbon, 2008, IEA Publication, free download at www.iiea.com/documents/iiea-annotated (accessed April 30, 2013). This contains amended versions of each Treaty.

61. The Presidency Conclusion concerning the IGC Mandate, in particular point 5. Brussels European Council 21/22 June 2007. 29

62. On this point it is interesting to note the following comment in “The Treaty of Lisbon: Implementing the Institutional Innovations”, Joint Study, CEPS, EGMONT and EPC, p 145, November 2007, available at http://www.epc.eu (see publications) (accessed April 30, 2013): “. . . we are faced with complex, unreadable texts, negotiated in secrecy, far from public scrutiny.”

63. The full text of the judgment of the German Federal Constitutional Court in English is available at http://www.internationallawobserver.eu/wp-content/uploads/2013/03/300-1562-1-PB.pdf (accessed April 30, 2013)

64. The full judgment was published in the Irish Times on 11 November 2008.

65. This collective name covers three courts: the Court of Justice of the European Union colloquially known as the European Court of Justice (the ECJ); the General Court, which was previously known as the Court of First Instance (CFI) and specialised courts which were previously known as “judicial panels.”