Treaty of Lisbon and Its Implications - Dissertation Example

? The treaty of Lisbon and its implications Introduction In past five decades, from being a mere six-member body, the European Union (EU) has substantially expanded to represent its current form, which constitutes a 27-member organisation. This rapid increase in number of states joining the Union is attributed to various reasons that range from economic to security reasons, while some experts have presented varying standardised reports that try to account for the fast increase in number of EU member states.1 In order to increase the level of trust, cooperation and mutual understanding, within member-states, various treaties have been framed over the years for acquiring benefits within existing policies pertaining to immigration, socio-economic, and defence policies of the member-states. Some of these treaties were Treaty of Rome (1957), Treaty of Maastricht (1992), Treaties of Nice (2001), the treaty of European Constitution of 2004 (that failed to take form), and the Treaty of Lisbon in 2007 (which became effective in December 2009). The 2004 and 2007 treaties led to a great deal of debates where many experts contended that they were created to form a joint European superpower, however, exponents of the treaties argued that they were aimed at merely creating a better scope for a larger EU in the 21st century.2 The Lisbon Treaty is considered as one the most significant moves towards achieving European integration in the past five to six decades, after the Treaty of Paris created the European Coal and Steel Community or ECSC (1951). Some of the other landmark moves towards achieving European integration includes joining of Ireland, UK and Denmark as member states of the European Council (1973), formation of the Single Market (1985), removal of internal borders as per the Maastricht Treaty (1992), monetary union and the establishment of euro (1999-2002) and further enlargement of European Council in 2004-2007 (more new member-states). The Lisbon Treaty is considered to be at a similar rank as the aforementioned landmarks in the history of EU, and is likely to be the last important modification as regards changes within the constitution of the EU for the next few decades.3 The 2004 Constitutional Treaty, which was ineffective, was criticised on the ground it was presumably a constitution, which was complex and unreadable and despite the changes in the Lisbon Treaty, some critics contend that it also constitutional in nature and even more difficult to read and understand than the Constitutional Treaty.4 A look at the Treaty of Lisbon shows that it is indeed a lengthy piece of document where the official published version comprising of Protocols and Declarations amount to 271 pages. The treaty claims to bring about many modifications to the EU, like improving it to make the Union more effective, conferring it with legal legitimacy and democracy, and making it more transparent and accountable. In this context, the paper will analyse the main reforms as brought in by the Lisbon treaty in order to comprehend its implications on the EU and the member states. The Lisbon treaty A look at the history of EU shows that it laden with sporadic incidents revealing a serious lack of unity between the members, diplomatic problems, persistent issue of missing deadlines and fixed targets.5 The critics have especially remarked on these negative aspects and EU’s failure to yield power within the arena of global or regional politics, and owing to this, the body is often referred to as a ‘soft power.’6 Even in the context of security issues, EU as a body is often perceived as being unstable, indecisive and in general highly ineffective.7 While a war between the EU member-states is unlikely, the organisation’s responses during war-like situations or civil crises in the neighbouring states, as regards ‘crisis management,’ has been largely unsuccessful, owing to which the EU is still viewed as a weak body, in the context of unity and integration between its member-states.8 The representatives from the 27 EU member states ratified the Treaty of Lisbon on 18th December 2007, which also established the European Community or the TEC and the Treaty on European Union or the TEU. The Lisbon treaty has seven articles, where changes to the TEC and TEU have been made under Articles 1 and 2.9 Articles 3-7, make provisions for the duration of the treaty, ratification procedures, and renumbering of articles (ibid). This is in contrast to the 2004 Treaty, which tried creating a European Constitution, but failed largely due to the anti- referendum votes by Netherlands and France. On the other hand, it is observed that the Lisbon Treaty does not attempt to reconstitute any other treaties (TEC and TEU) and simply aims to modify them.10 Once the treaty became effective from 1st December 2009 onward, the combined TEU and TEC versions were referred to as the Treaty on the Function of the European Union (TFEU). The primary objective of the Lisbon Treaty is stated in the preamble, “to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action.” 11 A study of the preamble to the LT makes it quite evident that chief aim of the treaty was to establish stronger integration and a sense of unity amongst the Union state-members, and to turn EU into a powerful organisation in the arena of global power play. Amendments made by the Lisbon treaty The Lisbon Treaty has contained majority of the institutional modifications affected by the Constitutional Treaty, Treaty Establishing the European Community or TEC and the Treaty on European Union (TEU).12 However, all implications establishing notions of constitutionalism, like creating a motto, an anthem or a flag, have been abolished. Legislative acts in the treaty are referred to as directives and regulations and are not presented under the new names of laws and framework laws, the new treaty does not clearly state say that Union law holds supreme authority, even though it will automatically occupy such a stature, under the increased jurisdiction of European Court of Justice (ECJ). The is confirmed in the Treaty under Declaration no. 17 that stated, “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.”13 In the Lisbon treaty, the name of the new post established by the failed Constitutional Treaty (2004) for Union Minister of Foreign Affairs has been modified, and is now known as the High Representative of the Union for Foreign Affairs and Security Policy or HR. Even though the Charter of Individual Rights does not belong to the Lisbon Treaty (unlike the Constitutional Treaty), however the 2007 Treaty categorically stated that the Charter “shall have the same legal value as the Treaties.” 14 Besides the aforementioned modifications to the institutional changes as suggested in the Constitutional Treaty (2004), there are four major modifications as affected to the final provisions within the Treaty on European Union by the treaty of Lisbon. These are, providing a legal status to the European Union; modifying the procedures that are necessary for making future changes within the Treaties; making provisions allowing the member states to secede or access the Union in future,15 and increasing jurisdiction power of the European Court of Justice. However, the most important modification made by the Treaty of Lisbon to the Treaty on the Functioning of the European Union (also known as the General and Final Provisions of the EC Treaty) is the change in the ‘flexibility’ clause.16 Providing a legal status to the European Union: prior to the Treaty of Lisbon coming into effect, the EU operated on three main legal pillars, which were: The  European Communities, comprising of European Community or EC, the European Atomic Energy Community or EURATOM and the European Coal and Steel Community or ECSC (which is non-functional from 2002). These bodies were involved with issues pertaining to socio-economic and environmental policies) and was the only pillar that had a legal status; Police and Judicial Co-operation in Criminal Matters or PJCC for collaboration in fight against lawlessness and crime; and The Common Foreign and Security Policy or CFSP pillar that handled defence and foreign policies. Under the Treaty of Lisbon, the three legal bases were removed, and only one single legal entity was allowed to function, where the European Union took over European Community’s legal identity. This allows the EU to ratify various treaties using its own name. As for example, The European Union entered the World Trade Organization as separate entity after the Treaty of Lisbon came into effect, since European Communities was already a part of the trade organisation. The legal status of the EU, conferred under Article 47 of the Treaty on European Union (TEU), under Lisbon treaty clearly states, “The Union shall have legal personality” (under Art. 1(55) of the Treaty of Lisbon).17 This is an important measure though not a landmark one, since it is evident that EU had already been given a legal personality by the Treaty. Any international body can ratify international treaties only if conferred with a legal personality of its own, and Art. 24 of the current Treaty on European Union allows the EU to sign international treaties in matters of common defence and security policies or CDSP (involving law enforcement agency cooperation in issues pertaining to crime), and in common foreign and security policy or CFSP related matters (as under Art. 38 of TEU).18 However, the chief advantage in clearly conferring a ‘legal personality’ to the EU by the Lisbon treaty, is of a procedural kind, which helps the union to arrive at a conclusion in cases related to various international agreements pertaining to areas where it possesses the required competence. Besides this, it also provides the Union with a distinct delineation, as regards the third states and the Union’s citizens. Procedures for making revisions within Treaties: Under the Lisbon Treaty, there are provisions for two different ways for making future revisions to the EU treaties. The first process comprises of the ordinary revision procedure that is more or less same as the current process, which involves assembling inter-state meeting. The second process is the simplified revision procedure (through Part three in the Treaty on the Functioning of the European Union) that handles various internal activities and policies of the Union and is amendable by consensus amongst the members of European Council, which as usual is subject to signing by all member states. Through the Passerelle Clause, the treaty also allows European Council to take a decision on changing over to qualified majority voting from unanimous voting and shift to the ordinary legislative procedure from a special legislative procedure. The ordinary revision procedure is larger version of the current Article 48 Procedure. As per this new version, the revision process of Treaties would take place in four phases. First, any member-state or the Commission is allowed to submit proposals to the Council for revisions to the Treaties (as already existing under Art. 48). However here there is a modification, which allows European Parliament to do the same (under Art. 48(2) to be interpolated into Art. 1(56) of the Lisbon Treaty). This signified an upgrade in the role of the Parliament and the institution, where in the past it had affected and even motivated treaty reforms to take place, but lacked the capacity to start the official procedure for making amendments. The proposals must then be submitted to the European Council while national Parliaments of all member states must necessarily be notified of the proposed revisions (as under Art. 48(2) to be interpolated into Art. 1(56) of the Lisbon Treaty). This represents further modifications brought about by the treaty. The governments at the national level or the European Council did not have any clearly defined roles under the previous format of Art. 48, even though there were no doubts that State rulers who were members of the European Council (as per Art. 4 in the Treaty on European Union) monitored the entire procedure of Treaty amendments, even though they could not directly initiate it. The direct involvement of national parliaments, not at a later phase during ratification, but right at the time when proposals for reforms were being made, is a move towards transparency and democracy (even though the actual level of involvement remains restricted).19 In the second step, the European Council, after discussing with the European Commission and European Parliament, through the process of simple majority decides for or against the study of the proposed revisions, after which a Convention is formed for this purpose. The Convention comprises of members from national Parliaments, Heads of States, members of the Commission and European Parliament. The third step will comprise of convening a conference of all governmental representatives of member states headed by the Council President for determining through consensus the revisions to be made. The fourth step, which is the last phase, comprise of adopting certain measures that would allow the revisions to become effective after the member states ratify it as per their constitutional demands. Both steps three and four are a continual of the original provisions as found within Art. 48 in the Treaty on European Union.20 In the Simplified revision procedure, the European Parliament, a Member State, the European Commission or the European Parliament submits their proposal for the amendment of Part three of Treaty on the Functioning of the European Union to the Council of Ministers.21 The Council in turn refers the proposals to the European Council while sending notifications to all member states for the revision proposals (proposed revisions are not allowed to elevate Union competences). Once the proposals are submitted The European Council then discusses it with the European Commission and Parliament and on reaching a consensus, decides to revise or not revise Part Three, based on unanimity amongst members regarding the proposals that are necessarily based on constitutional requirements of the member states.22 Using the Passerelle Clause, the Lisbon treaty makes provisions for revision of voting processes without changing the EU treaties. As per this clause after receiving the European Parliament’s consent, the European Council can unanimously vote in order to make provisions for the Council of Ministers to take steps based on simple qualified majority, unlike the previous provision where they had to take steps based on unanimity (not applicable for decisions pertaining to military or defence issues). It also allows adoption of legislations through the ordinary legislative procedure, in contrast to the previous provision where it was necessary to be based on special legislative procedure. Potentiality of seceding from EU: One of the most important changes made by Lisbon treaty is the insertion of Art. 50 into the Treaty on European (inserted by Art. 1(58) of the Lisbon Treaty). The provision in Article 50(1) is short and states, “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”23 This provision for withdrawal is significant, as this right to secede is normally seen amongst a confederation of states and not amongst federal states, and as one author points out “this provision on withdrawal could be seen as clarifying a basic issue, i.e., that the Union is actually a voluntary association between states which remain sovereign as to the question of whether or not they remain in that association.”24 The other five sections within Art 50 (sections 2- 6) deal with the procedural guidelines necessary to make such a withdrawal.25 Under the modalities, the Union must negotiate with the member state and come to an agreement that chalks out a procedure for the member state to start its withdrawal, while also taking into account nature of the Union and state’s future relationship. The negotiations between state and Union cannot go on for a long time and a member state’s desire to secede cannot be blocked by a failure (intentional or otherwise) to come to an agreement, by the Union and the state. therefore under Art 50, finality to the request for secession is guaranteed through a provision made where the Treaties have ineffective on the concerned State from the time the withdrawal agreement is signed or even failing that, after two years since the member-state’s withdrawal notification to the European Council.26 Modifications in the flexibility clause: Of new changes made effective by the Lisbon treaty, the most significant is the granting of universality, at the Union level, of the flexibility clause. The European Community’s legal system has been based on the notions of conferral for many years.27 According to this system, the Community along with its various institutions lacked any basic powers, and enjoyed only powers, which were conferred upon them. Under the Treaty of Lisbon, the use of this conferral principle has been expanded, along with which the limits of competencies of the Union (instead of the Community) that are normally governed by conferral theories.28 Implications of the Lisbon treaty A detailed study of the Treaty of Lisbon shows us that it consists of an array of reforms that presumably work towards achieving the objective of “enhancing the efficiency and democratic legitimacy of the EU Union and to improving the coherence of its action.”29 The reforms in many instances are almost same to the ones seen within the Constitutional Treaty (2004), which according to some scholars was an intentional move.30 When the mandates for the Lisbon treaty were initiated in 2007, the ‘reformers’ were focused on containing a great deal of the Constitutional Treaty in its original form, excluding only parts that were unwanted, doing away with any implications of constitutionalism and taking into cognizance only the changes that addressed national needs to bypass referenda and guarantee easier ratification procedure.31 With these objectives in mind, the Treaty of Lisbon was created, which was a traditional modifying treaty, however, unlike the previous treaties (like the Maastricht treaty), contained practical and functional amendments. Some critics contended that the creation of this treaty would result in the formation of a super-state, a new basic EU, which would dominate the member states, overruling their domestic values, legal provisions and policies on issues like, immigration, taxation amongst many others.32 The protagonists of the treaty of Lisbon claimed that the treaty aimed at making a successful and strong integration of the EU member states.33 Here the protagonists further contended that after the Lisbon treaty, EU integration would more feasible as there would be no European Community and the three pillars. However, one of the basic flaws of Lisbon treaty is that it does not provide an integral definition of the European Union. Thus, here one can simply derive that the Union would take the shape of a body founded on history, values, notions, treaties and functional powers that are conferred on it by the member states. Owing to this, the Lisbon treaty is based primarily on objectives than any other constitutions, while the functional powers and treaties within it delineate EU.34 The treaties that define EU reveal that the body is based on legal systems, is subject to guidelines and regulations on relationships, operation, and principles, and is far from being an authoritative super-state. After the Treaty of Lisbon came into effect, under its new provisions EU is now more of a voluntary body, where member states can join and secede at their own will. Both TFEU and TEU have many references that make provisions for adhering to and sustaining the Union’s member states, along with the notions of maintaining relationships and contributory activities.35 As per the new guidelines set in the Lisbon treaty, EU can amend its rules under the new Simplified Revision procedure only if there is a consensus amongst the member states. The use of Article 308 under TEC is restricted to narrow limits (specified in Declaration 42). Therefore, it is quite evident that the Lisbon treaty does not bring about the end of member states’ power of sovereignty. The so-called ‘new’ EU, as defined by the Lisbon treaty, actually lacks any single power core, and is even without any executive President.36 Indeed, by involving European Parliament to act as a co-legislator in many instances, Lisbon treaty elevates the range to which EU is an issue of constant lobbying and negotiation amongst the European Council, European Parliament and European Commission.37 Member states must necessarily find partners and compensations in order to take part in the decision-making processes where resolutions are reached through consensus and is likely to remain as such, despite the new voting procedures, which is scheduled to start from the year 2014. Even though the treaty does not drive EU towards receiving involvement and popularity in all the European states, it however does aim to achieve democratization. It emphasises on following the principles set in the Charter, which is viewed as safeguarding the citizens and more oriented towards providing democracy for the common people (with the exception of Poland, the UK and Czech Republic).38 However, despite these positive developments introduced by the Lisbon treaty, it is yet to be seen whether the new processes established via the treaty, that seek to involve national parliaments in monitoring EU’s activities and other processes of communication help to elevate the Union’s democratic status. While some problems within the current functioning of EU have been acknowledged, the success and acceptability of the reforms introduced by the Treaty of Lisbon depends on how the new directives are used and nature of responses from public. In this context, a study of the review by Laffan and Sudbery (2007) showed that EU’s constructive obscurity remains, while the organisation is a mixture of techniques associated with diversity management, problem-solving, and quasi-political measures.39 Thus, by acknowledging the flaws within status quo, the treaty of Lisbon tries to counter all arguments that contend EU, via the Lisbon treaty, is aimed at politicizing the whole of Europe and establishing limits within it. Instead, the treaty attempts to develop realistic and feasible procedures that are different from the complex entanglement of intergovernmental, supranational, national and functional governance that makes up the current structure of EU. However, despite the reforms introduced by the Lisbon Treaty where the states still maintain their external sovereignty and the treaty’s attempts at making EU more simple and logical, the Union with its disorganised framework and impenetrable nature tends to remain as a complication. The general obscure nature of EU along with a lack of understanding amongst the proponents (along with the supporters from various governmental levels) and adversaries, means that interpretative differences will remain even after the treaty starts showing its complete effect. Therefore, to summarise, despite various opposing views, the EU, post-Lisbon, does not turn into a new form or body, and is merely a reframing of the old one, with a potential of making the Union more democratic and more transparent, thus making its organisational framework and functions easier to understand. Conclusion From the above discussion, it can be suggested that the Lisbon Treaty through some of its reforms have the potential of improving the Union’s effectiveness, transparency and democracy, while also elevating the level of comprehensiveness of its external functions. As some scholars suggest, the reforms introduced (especially those pertaining to institutional ones), make it highly unlikely for further revisions in EU in the near future. Broin (2009) reaffirmed this notion and claimed, “With the entry into force of the Lisbon Treaty on 1 December 2009, the European Union can finally close the lengthy saga of institutional reform, at least for the foreseeable future.”40 This implies that Lisbon Treaty might now become be the core point from where integration and collaboration between the Union’s member states may shift towards relationship that is more informal, thus allowing various projects and agreements to advance with relative ease.41A critical analysis of the reforms brought in by the Lisbon treaty and their implications clearly show that if properly implemented the treaty can provide improved chances for obtaining democratic rights for citizens of Europe (member states of EU), improved unity amongst Union members, and a powerful Union with a strong legal status amongst the global power players. References Amendments to the Treaty on European Union and to the Treaty Establishing the European Community, 2007. Official Journal of the European Union, C 306, [online] Available at, http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2007:306:0010:0041:EN:PDF [Accessed 5th May 2012] Barrett, G., (ed.), 2008. National Parliaments and the European Union: The Constitutional Challenge for the Oireachtas and Other Member State Legislatures, Clarus Press, Dublin. Besselink, L., 2007. A Composite European Constitution. Europa Law Publishing. Groningen. Blockmans, S., and Wessel, R., 2011. “The European Union and Peaceful Settlement of Disputes in its Neighbourhood: The Emergence of a New Regional Security Actor?” In, A. Antoniadis, R. Schutze, E. Spaventa (Eds.), The European Union and Global Emergencies: A Law and Policy Analysis. Hart Publishing, Oxford, 73-103. Broin, P., 2009. Lisbon Treaty enters into force: a brave new Europe is born? [online] available at, http://www.iiea.com/blogosphere/lisbon-treaty-enters-into-force-a-brave-new-europe-is-born?gclid=CPvv79PGzqwCFYZ66wodmUE_WA [Accessed 8th May 2012] Chalmers, D., 2007. The death of European constitutionalism and the renaissance of European liberal democracy. European Law Review, 32 (4), 441-2. Church, C., and Phinnemore, D., 2010. “From the Constitutional Treaty to the Treaty of Lisbon.” In, Michelle Cini and Nieves Perez-Solorzano Borragan, (eds.), European Union Politics. (3rd ed). OUP, Oxford. Church, C., and Phinnemore, D., 2006. Understanding the European Constitution: An Introduction to the EU Constitutional Treaty. Routledge, London. Coughlan, A., 2007. The EU “treaty” explained – a birth of a State? National Platform EU Research and Information Centre, Dublin [Online] available at http://www.freeeurope.info/article.php?mode=news&view=186 [accessed 7th May 2012 Consolidated Version Of The Treaty On European Union, Art. 50(1) Official Journal of the European Union, [2008] C 115/43 [online] available at http://eurlex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2008:115:0013:0045:EN:PDF. [accessed 6th may 2o12] Craig, P., 2008. The Treaty of Lisbon: Process, Architecture and Substance. European Law Review, 33 (2), 137-66. Crotty v An Taoiseach [1987] IR 713, [1987] ILRM 400 Donnelly, B., 2007. The Reform Treaty: Small Step or Giant Leap? Federal Trust Policy Commentary, London. Fioramonti, L., and S. Lucarelli, S., 2008. “How Do the Others See Us? European Political Identity and the External Image of the EU.” In, F. Cerutti and S. Lucarelli (eds.), The Search for a European Identity: Values, Policies and Legitimacy of the European Union. Routledge, London, 193-210. Gilbert, M., 2008. Narrating the Process: Questioning the Progressive Story of European Integration. Journal of Common Market Studies, 46 (3), pp. 641-662. Griller, S., and Ziller, J., eds., 2008. The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? Springer Verlag, Vienna. Hartley, T., 2007. The Foundations of European Community Law (sixth edition), Oxford University Press, Oxford. Kurpas, S., 2007. The Treaty of Lisbon – How much ‘Constitution’ is left? An Overview of the Main Changes. Centre for European Policy Studies, Brussels, 1- 9. Kurpas, S., Crum, B., de Schoutheete de Tervarent, P., Keller, J., Dehousse, F., Andoura, S., et al. (Eds.), 2007. The Treaty of Lisbon: Implementing Institutional Innovations. Centre for European Policy Studies, Brussels. Laffan, B., and Sudbery, I., 2007. Three readings of the CT ratification failure and a critique from a system building perspective, EU Consent Deliverable, D8. [online] available at, www.eu-consent.net/library/Deliverables/D8.pdf [accessed 7th May 2012] Law observer, nd. The law of the European Union. [Online] available at, http://www.lawobserver.co.uk/europe_2_22.html [accessed 6th May 2012] Mahony, H., 2007. EU treaty blueprint sets stage for bitter negotiations, euobserver.com [online] available at, http://euobserver.com/18/24317 [accessed 5th May 2012] McAllister, R., 2010. European Union: An Historical and Political Survey, 2nd ed. Routledge, London. Piris, JC., 2006. The Constitution for Europe – A Legal Analysis. Cambridge University Press, Cambridge. Reh, C., 2009. The Lisbon Treaty: De-Constitutionalizing the European Union? Journal of Common Market Studies, 47 (3), 625-650. Sari, A., 2008. The conclusion of international agreements by the European Union in the context of the esdp. ICLQ, 53-86. Stone Sweet, A., and Sandholtz, W., 1997. European Integration and supranational Governance. Journal of European Public Policy 4 (3), 297-317. Treaty of Lisbon, 2007. Amending the Treaty on European Union and the Treaty Establishing the European Community. [online] available at http://eur-lex.europa.eu/en/treaties/dat/12007L/htm/C2007306EN.01000101.htm [Accessed 5th May 2012] The Treaty on European Union, nd., [online] available at,  http://www.eurotreaties.com/lisbontext.pdf. [Accessed 6th May 2012] Wouters, J., Coppens, D., and Meester, B., 2008. “The European Union’s External Relations after the Lisbon Treaty.” In, Stefan Griller and Jacques Ziller, eds., The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? Springer- Verlag, Vienna, 143-203. Read More