JURIST Guest Columnist Dr. Laurent Pech, Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway, says that the controversy over ratification of the European Union's Lisbon Treaty is somewhat strange as the Treaty represents no radical alteration of the current "constitutional" relationship between the EU and its member states…

With a view to devising a new set of rules for the enlarged European Union (EU), 25 governments signed the Treaty establishing a Constitution for Europe in October 2004 (and generally referred to as the EU “Constitutional Treaty”). Following two negative referenda in France and the Netherlands in 2005, the European Council — the EU institution which gathers together the Heads of State or Government of the Member States — reluctantly agreed in 2007 to abandon the “constitutional concept” and to draw up a new Treaty which will amend rather than supersede the two existing Treaties: the 1957 Treaty establishing the European Community and the 1992 Treaty on European Union. If this were not confusing enough, the new Treaty, signed in December 2007 in Lisbon (Portugal), initially branded as the “Reform Treaty” or “Simplified Treaty”, is now generally known as the “Lisbon Treaty”.

One controversial question has animated public debate ever since: does the Lisbon Treaty differ fundamentally from the defunct Constitutional Treaty?

National governments keen to avoid popular ratification of the new text by means of a referendum have constantly stressed that the “constitutional concept” has now been abandoned.

The meaning of this expression, however, is far from clear. As a preliminary matter, it is important to note that the constitutional nature of the 2004 text can be disputed. Indeed, unanimous ratification was required before it could enter into force. Had the Constitutional Treaty been ratified, the Member States would have continued to retain the entirety of the pouvoir constituant, the supreme power to decide one’s own constitutional arrangements. To put it concisely, the so-called “Constitutional Treaty” was formally speaking another Treaty rather than a constitution. It would not have given life to a new sovereign power in the absence of a European-wide referendum of self-determination.

Yet, from the point of view of its contents, one may legitimately retort that the 2004 text was “materially” constitutional. In other words, although the Treaty Establishing a Constitution for Europe did not obviously pursue the objective of giving birth to a new and sovereign state entity, it included some characteristic and decisive components of any constitution. For instance, it clearly organised the government of the entity to which it applies and it also included a Bill of Rights. As far as substance is concerned, the comparison with the constitution of a state hence appeared reasonable. But if one agrees with this line of reasoning, it is then plausible to argue that the EU already possesses a “constitution” as both the EC Treaty and EU Treaty offer a set of justiciable written rules that define the main organs of government and powers, which are viewed as superior law and can only be amended by special procedures.

To bring to a close this rather theoretical discussion, my main point is that the abandonment of the Constitutional Treaty — if one agrees to view it as a constitution — does not deprive the EU of a constitution because it has had one since 1957. Therefore it makes little sense to give any weight to the fact that the term “constitution” has disappeared, although one can understand the political motivations for removing it. The two key questions must instead be as follows: Does the new text differ in form and substance from the previous abandoned text? Does it radically alter the current relationship between the EU and Member States?

In form: the drafters of the 2004 text sought to simplify the EU’s institutional and legal architecture by repealing the EC Treaty and EU Treaty and replacing them with a new text. The decision to abandon the Constitutional Treaty unfortunately means that the present and not easily readable Treaties will continue to remain in force.

In substance: the decision to abandon the Constitutional Treaty was a difficult one to make considering the fact that 18 countries ― representing a majority of the Member States and of the EU population ― had already ratified it. This explains why, to the palpable satisfaction of those countries reluctant to completely discard the Constitutional Treaty, the Lisbon Treaty retains most of its key provisions. In the much-quoted words of Irish Prime Minister Bertie Ahern, “90 percent of it is still there.” The 10 percent "lost" includes the provisions that were said — inaccurately — to impinge on statehood: the term “constitution”, the definition of the EU as a Union of citizens and states, the reference to an EU flag and hymn, the title “foreign minister” and the provision which stated that EU law must have primacy over national law. This diagnosis was later further confirmed by the UK House of Commons European Scrutiny Committee, which expressed the view that “[T]aken as a whole, the Reform Treaty produces a general framework which is substantially equivalent to the Constitutional Treaty”. It seems, therefore, fair to oppose ratification of the Lisbon Treaty on the ground that it is the Constitutional Treaty in all but name. Yet, as pointed out by Richard Corbett MEP, although mice and men are 90 percent identical, the 10 per cent difference is rather important. Furthermore, I would argue that the Constitutional Treaty was more than the sum of its parts. Despite its formal treaty format, its constitution-like structure and the first official use of the term constitution would have considerably strengthened the EU’s symbolic authority.

To some extent, however, this quarrel is irrelevant as most critics preferred to rely on the tired argument that the Constitutional Treaty was the first step on the path towards an undemocratic European Leviathan. But with the exception of the unprecedented official use of the term “constitution”, the Constitutional Treaty clearly confirmed that the EU was no federal “superstate” in the making. It only contained a set of modest reforms aimed at improving the effectiveness and accountability of EU institutions. These reforms can be said to be “modest” as they did not — and will not as far as they are reproduced in the Lisbon Treaty — substantially alter national sovereignty. Among those modest reforms, one may mention the creation of the posts of president of the European Council and of high representative for foreign affairs (but both actors will remain the servants of the leaders of the Member States), the change to a double-majority voting system in the Council of Ministers (55 per cent of Member States representing 65 per cent of the EU’s Population) and the inclusion of a Charter of Fundamental Rights (whose legal impact should not be overestimated because its provisions do not extend the powers of the EU).

While the Lisbon Treaty safeguards much of the substance of the Constitutional Treaty and contains limited yet positive institutional changes, one should not expect radical changes from its ratification. As no
radical alteration of the current “constitutional” relationship between the EU and the Member States is to be expected, it’s strange that the Lisbon Treaty inspires so much passion and deceptive analysis from its critics.

Laurent Pech is Jean Monnet Lecturer in European Union Law at the National University of Ireland, Galway and the author of The European Union and its Constitution. From Rome to Lisbon (Dublin: Clarus Press, 2008)
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