January 2010 Archives

The Lisbon Treaty

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JURIST Guest Analyst Andreas R. Ziegler is the Vice Dean of the Faculty of Law and Criminal Sciences and a Professor of Law at the University of Lausanne in Switzerland. He was a Visiting Professor at University of Pittsburgh School of Law in 2009. His papers are available on SSRN.



On 1 December 2009, the Lisbon Treaty entered into force. It is the latest addition in a long line of treaties aimed at reforming the legal structure and function of the European Union. Among these other such treaties include the Amsterdam Treaty, the Maastricht Treaty, and the Nice Treaty. To state things clearly, the Lisbon Treaty is just a technical device that will amend the two existing treaties (one more institutional, the other more policy-oriented) which will remain the main legal foundations of the EU system.

What makes this treaty and its history of negotiations so interesting is more what it has not achieved than what it has achieved. It should not be forgotten that at the core of this project was the idea to provide the European Union with a "European Constitution" (Laeken Declaration of the European Council of 2001). Such a constitution was eventually drafted by a European Convention established thereafter and signed by all Member States in 2004. It would have constituted the proper legal foundation containing typical elements for a national constitution, such as a catalog of fundamental rights, a list of exclusive and shared competences, a President of the European Council as well as a European Minister of Foreign Affairs, an official anthem, and a flag.

In 2005 the rejection of such a European Constitution by Dutch and French voters led to the need for a "reflection pause" of almost two years, during which European leaders sought to find an alternative way to reform the EU without overwhelming voters with symbols like a "Constitution", a European flag, or an anthem.

On 13 December 2007 all Member States signed the so-called "Lisbon Treaty". Despite its much more modest approach, its ratification process was again a rather nerve-racking endeavor. This time, countries like France and the Netherlands, accompanied by most other Member States, decided against holding referenda. In Ireland, however, the people persisted in rejecting the treaty from 2008 until finally accepting it in a second referendum in 2009-a positive result of the financial crisis particularly felt in that country, some would say. Additionally, the supreme courts of several member states were asked to rule on the constitutionality of this new treaty (Germany, Czech Republic etc.), and some politicians (e.g. in Poland, the UK and the Czech Republic) used their (potential) right to ratify the treaty for internal politics before doing so.

Even if the Lisbon Treaty is much more modest in allure than the European Constitution would have been, it contains a number of important elements that should make it easier for the EU to face the challenges of an ever-expanding (physically) and increasingly-closer-knit union at the beginning of the 21st century aiming at soon uniting more than 30 Member States:

1. Two new high-caliber offices:
The first is the permanent President of the European Council. Before, this position was rotating between the heads of governments of the member state holding the presidency. The permanent character is meant to increase the visibility and the continuity of the European Council's policy. The first permanent President is the former Belgian Prime Minister Herman Van Rompuy. His mandate is for two and a half years and will be renewable only once.

The second new office is the post of the High Representative for Foreign Affairs. Catherine Ashton, the former external trade Commissioner of the EU, will be first in office. She will be responsible for the tasks that were previously taken care of by the High Representative for Common Foreign and Security Policy (Javier Solana) and the Member of the European Commission responsible for External Relations. Here again the main goal is to strengthen the visibility and coherence of the European Union's common foreign and security policy.

2. Legal personality for the European Union:
Institutionally, the Lisbon Treaty brings an end to the awkward legal situation that existed before its entry into force whereby the EU had no official legal personality, while its older sister the European Community (EC) had ever since 1957 been endowed with one. It was basically a birth defect from the origin of the EU in 1993 which was now cured.

3. Disappearance of the EC: With the EU officially obtaining its full legal personality, the EC as an institution will disappear so that the long-standing confusion as to whether one should use the term EU or EC in a specific situation will be a thing of the past. At the same time, the Lisbon Treaty did not allow for a complete merging of the treaties establishing the EU and the EC. The latter is now called the "Treaty on the Functioning of the EU" and will probably be merged with the "Treaty establishing the EU" at the next occasion (which may take some time).

4. Abolition of the three-pillars structure:
Another anomaly of the development of the EU and the EC is also buried on this occasion. The distinction between the EC pillar- the "Common Foreign and Security Policy" (CFSP) and the area of "Police and Judicial Co-operation in Criminal Matters" is abolished although, of course, different decision-making procedures continue to apply to different areas within the EU.

5. Increased external competence of the EU: Despite the lack of a clear legal basis, the EU had already concluded treaties with third parties before the entry into force of the Lisbon Treaty. This will now be the case even more often as its treaty-making power is now clearly regulated and the Lisbon Treaty modifies the existing competences in the external field of the European Union considerably, thereby making the procedure where Member States and the Union have to ratify treaties (mixed agreements) less common. What may become very important (e.g. in future WTO negotiations) is the fact that the European Parliament will enjoy much more power with regard to the formulation of the common commercial policy.

6. General strengthening of the European Parliament's position:
Apart from the area of external economic relations, the European Parliament's role is strengthened in a number of areas such as has constantly been the case since the creation of this institution.

7. Acknowledged role for the national parliaments of the Member States: An interesting development is the fact that the national parliaments of the Member States will be more closely involved in the European decision-making process by way of the receipt of specific information at an early stage and a right to complain to the Commission or even the European Court of Justice if they believe that the subsidiarity principle (holding that measures should be taken at the level of government at the most local level possible) has been infringed upon. This development must be understood as a reaction to the ongoing criticism of the EU for a lack of democratic legitimacy.

8. Catalog of EU areas of competence:
The Lisbon Treaty introduces a transparent list of exclusive and shared competences as distributed between the EU and the Member States, as is common to the constitutions of many federal states. The list does not create new competences for the EU, but it should make the distribution more transparent.

9. Strengthening of the European Council:
While the European Council had already existed as a politically important institution before, the Lisbon Treaty transforms it into a proper organ. In addition, its powers are relatively important (much to the detriment of the Commission and Parliament in certain fields).

10. Charter of Fundamental Rights becomes legally binding: Although it was not possible to include a catalog of fundamental rights in the EU Treaty (as had been a goal for the European Constitution), the Lisbon Treaty formally creates a binding instrument by providing that all EU measures must be in accordance with the Charter of Fundamental Rights 2000.

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Despite its challenging history of negotiations, the Lisbon Treaty is a logical continuation of prior treaty amendments. The EU is aiming to become more visible on the international scene by giving faces to some of its important offices. It's weight is strengthened in relation to the Member States and at the same time Parliament is strengthened within the EU to compensate for the felt loss of democratic control. This general tendency towards more "supranationalism" is slightly counter-balanced by providing the European Council with important powers and giving a role to national parliaments. From a US perspective, it is certainly important to note that the role of the two new officers and the European Parliament will change the way external relations are dealt with within the EU. This may have implications in particular in areas that continued, until now, to be dominated by the Member States or the Council. The conclusion of the WTO Doha Round in the near (or remote) future could already be an interesting test for this new constellation. --------

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