The Legal Foundations of EC Law - Term Paper Example

The Legal Foundations of EC Law The Lisbon Treaty bestows new competencies on the European Union. Moreover, it strengthens the position of the EU, ininstances where it is empowered to act. This enables the EU to play a more effective role, while dealing with the powers and responsibilities of the Member States. As such this Treaty expands the operational jurisdiction of the EU. The provisions of Article 1.6 of Lisbon Treaty stipulate that the EU’s actions shall be circumscribed by the powers and responsibilities conferred upon it by the Member States, via the different Treaties1. Moreover, the Member States are required to fulfil the aims of proposed actions. If they fail to do so, the EU will initiate action against the erring Member State. Some of the principal objectives of the Lisbon Treaty are the adoption of measures to deal with climate change and environment pollution. Moreover, the EU is seized with providing better security to the energy sector2. In addition, the Member States had ratified these objectives and had agreed to work towards their fulfilment. The EU has to address the external and internal challenges, which threaten the safety of Europe. This is possible, only if the Member States extend their unstinted cooperation to the EU. For this to materialise, it is incumbent upon the Member States and the EU to act in a concerted manner3. In the context of development policy, the Lisbon Treaty fortifies and promotes the endeavours of the EU. Under this development policy, the EU develops a system of cooperation with the third party countries of the world. Furthermore, the Lisbon Treaty aims to establish a political framework that will reinforce the role of Europe in development aid4. As such, the Lisbon Treaty differs from the EU Constitution to an appreciable extent. There are quite a few changes in the general approach adopted, between the Lisbon Treaty and the Constitutional Treaty, especially in respect of the Charter of Fundamental Rights. The Treaty of Lisbon does not incorporate the Charter of Fundamental Rights. The former refers to the latter as a distinct document of the constitution. This bestows an autonomous status upon the Charter of Fundamental Rights, and permits referral to it as a mandatory instrument. Article 6 of the Lisbon Treaty accords the legal status enjoyed by the Treaties to the Charter of Fundamental Rights. The independent nature of its existence permits its use as a comprehensive source of fundamental rights5. The basic structure of the European Union comprises of three areas or pillars. These are first, the Community pillar that correlates to the erstwhile European Coal and Steel Community, the European Atomic Energy Community and the European Community. The second pillar addresses common security and foreign policy; and the third pillar relates to judicial and police cooperation in criminal matters6. The Constitutional Treaty was aimed at bringing about a merger of the three pillars of the EU. However, it establishes some special procedures in respect of matters relating to defence, foreign policy and security. There are four major components of this treaty. The first part concerns itself with describing the objectives, procedures to be adopted while taking decisions, institutions and powers of the EU. The Charter of Fundamental Rights is addressed by the second part. The third part deals with the EU’s actions and policy matters that attempt to amalgamate the requirements stipulated by the existing Treaties. The last component consists of the final clauses, which also incorporate measures concerning the review and implementation of the Constitution. It is the objective of the Constitution to enforce just six instruments, instead of the extant fifteen; namely, laws and framework laws, decisions and regulations, and opinions and recommendations7. In addition, the Lisbon Treaty is aimed at abolishing the existing Three – Pillar system in the European Union. This feature of the Lisbon Treaty is analogous to the Constitution Treaty. The measures employed for achieving the second pillar, Common Foreign and Security Policy will be abolished by the Treaty of Lisbon. It also removes the instruments applied in the third pillar, or cooperation in law enforcement and judicial matters within the EU. Article 1 of the Maastricht Treaty states that there should be a common legal framework and that the European Union must supplant the European Community8. Furthermore, ratification of the Lisbon Treaty was subject to acceptance in the respective Member States. In Ireland, according to precedent, a referendum was conducted amongst the Irish voters, who were required to either accept or reject the enactment of the Lisbon Treaty by their government. The Irish decided to reject this treaty, without much ado. In this context, Ireland raised several objections. One of these related to the reduction of the number of commissioners in the EU’s executive body to one third of the existing number. This was vehemently opposed by the Irish, and in a conciliatory move, Barroso, the President of the European Commission agreed to extend his support for rejecting this measure. He was at pains to explain that the Lisbon Treaty was comprised of several provisions to accommodate such situations9. The entry of several countries into the European Union, created a genuine need to restructure the EU. To this end it was deemed to be imperative to reduce the number of policy commissioners. Hither to fore, each Member State had been permitted to select a commissioner. The change envisaged, recommended such selection, by only two thirds of the Member States. In conjunction with military neutrality and the right to ban abortion, this measure proved to be unpalatable for the Irish, who as a consequence rejected the Lisbon Treaty10. The text of the Lisbon Treaty comprises of 75,079 words, whilst the EU Constitution contained just 67,850 words. The former did not use the word ‘constitution’; and the principle of precedence of EU law over national law was absent in it. This constitutes significant change. The notion of a constitution was moved to Declaration 27 of the Lisbon Treaty, which is to be changes as Declaration 17 in the final edition of the Consolidated Treaties. Thus, the Treaty of Lisbon is legally the Constitution of the EU; and it will have precedence over the national Constitutions of the Member States11. This Treaty contains no specific articles that describe the flag, anthem and other symbols of the European Union. This is a major departure from the Constitution. However, all the European Union State’s symbols will continue to be in use. Albeit, there were no legal foundation for these symbols in the Treaty; they were employed during the ratification summit. Some Heads of State had announced in their countries that there would be no symbols of statehood in the EU. This was belied by the announcement made in the European Parliament that these symbols would be used on a regular basis. In addition, the European Parliament inserted them in its rules12. The Nice Treaty could not resolve several major issues; therefore, the Member States convened the Convention on the Future of Europe. This convention addressed several unresolved matters and discussed institutional reforms. There were several important policy matters that required an immediate solution. Some of these issues were the division of labour between the EU and the Member States; and the role of national parliaments within the EU. Other issues included simplification of the EU policy making process, transparency in the policy – making process, the rotating presidency, standing of the Chapter of Fundamental Rights and the representation of the EU on international platforms. The underlying motive behind these suggested reforms was to make the EU more democratic13. It had proposed certain institutional reforms to the EU. The major reforms proposed were reducing the magnitude and composition of the European Commission; enlarged Qualified Majority Voting; introduction of new weighting of votes in the European Council; and greater flexibility in cooperation arrangements. The Nice Treaty proposed the Declaration on the Future of the Union, in an appendix. This Declaration specifies measures to further improve the institutional architecture, and to ensure that the Nice Treaty works in this direction14. The draft Constitution is to be considered as a further extension of the process of institutional reform in the EU, which had been proposed by the Treaty of Nice. The Member States were required to ratify the Constitution Treaty, before it could be enforced. Consequently, they were required to obtain the necessary approval, either through a parliamentary authorisation or referendum. However, some Member States were unable to obtain such authorisation. In order to help such Member States, the Heads of State and Government convened a meeting of the European Council in June 2005; wherein they proposed to implement a period of reflection on the future of Europe15. Moreover, the Member States were insistent upon improving intergovernmental bargaining within the EU. They also demanded ratification of the results of the Convention, either through national referendums or parliamentary procedures. The Convention adopted the perspective of engendering institutional reforms within the EU and not the provision of an momentum to European integration16. Furthermore, the Treaty of Lisbon or the Reform Treaty differs from the Constitutional Treaty. Specifically, the former Treaty would not supplant the extant Treaties. It proposes amendments to the Treaty establishing European Communities and the TEU. The Reform Treaty recommends nearly twenty – five to sixty – two amendments to the TEU, and most of these amendments concern the CFSP and ESDP Provisions of the existing Treaty. Most of the reforms proposed by the Constitution Treaty to the CFSP were retained in the Lisbon Treaty17. As such, Article 11 (1) of the Lisbon Treaty declares that the CFSP or Common Foreign and Social Policy, will be exempted from adopting legislative acts. Hence, the CFSP will only include decisions. Under the provisions of the Lisbon Treaty, there will be specific rules and procedures that will govern matters relating to the Common Foreign and Security Policy18. In addition, the presidents of the European Parliament, the European Commission and the European Council of Ministers ratified the Charter of Fundamental Rights. This charter contains the rights and responsibilities of the European citizens. They had formally signed the text of the Charter of Fundamental Rights on 12 December 2007 at a meeting in the European Parliament. Considerable opposition was generated by this ratification, which was met with demands for a referendum by the other members of Parliament19. Elections for the European Union will be conducted under the aegis of the Nice Treaty, in June 2009. The number of seats in the European Parliament will reduced to 736 from the extant 785. The Lisbon Treaty intends to limit this number to 751. Even though new European Commission will be elected in October 2009, there will be no reduction in its magnitude till the year 201420. In the context of the qualified majority voting in the European Council, some expansion had already transpired. This was evident in engaging a new commission president and the High Representative for Common Foreign and Security Policy. The significance of Poland’s dissent over the relative value allocated to votes will postpone the reallocation of votes beyond the year 2014. According to conservative estimates, this process could take ten years for completion21. The Treaty of Lisbon had proposed various important innovative reforms in the areas of CFSP and ESDP. However, these reforms pertain to institutional changes and not decision – making. There should be a well planned permanent structured cooperation between the Member States; because such cooperation would improve their military capabilities. Nevertheless, the incentives for compelling redressal of insufficient defence budgetary allocations, and the extant measures in respect of collective planning and acquisition of military capabilities could prove to be inadequate. These practices will have to be buttressed with more inclusive political incentives that would actuate Member States and their parliaments to bring about reform in a speedier manner. In addition, these measures will engender the necessary determination for them to participate in the development of the future Common Security and Defence Policy22. This Treaty has been deemed to be the last among the series of institutional reforms to be implemented in the EU. This Treaty aimed to render decision making more transparent and bring about a closer union of the people in the EU. In addition, citizens would have a greater voice in decision making. It would be based on the Treaty founding the European Union and the Treaty on the Functioning of the European Union or TEFU. Furthermore, the European Union will supersede the European Community23. It adopts some portions of the Constitution Treaty, which are superficially muddled in their allusions that common defence could be achieved, only through the European Security and Defence Policy. All the same, the foreign policy of the EU’s new institutional arrangements, ensuing from the Lisbon Treaty, have the capacity to bring about a more effective and coherent foreign policy. However, the manner in which this will materialise in practice is obfuscating24. The heads of state of the Member States had come to a consensus, whereby they would not permit referenda, Vis – a – Vis the Renamed Constitutional Treaty. This decision was arrived at in order to circumvent universal rejection of the Treat. The only exception to this development was that of Ireland, where Raymond Crotty had successfully moved the Irish Supreme Court to prevent the State’s politicians from ratifying the Single European Act, in a manner that violated the Irish Constitution25. The Lisbon Treaty was a marked departure from its predecessors. Its objective was to bestow a State Constitution upon the EU and thereby implement a federation that would transcend the boundaries of its constituent Member States. A major transformation to the constitutional and political system of the EU and its Member States would have transpired, if the Lisbon Treaty had been ratified26. In order to bring about such momentous and far reaching change, the Lisbon Treaty would have modified the TEU or the Treaty on European Union and the TEC or the Treaty Establishing the European Community. In this endeavour, the name of the TEC was to be altered to the Treaty on the Functioning of the European Union or TFEU. The TEU and the TFEU were to effectively form the Constitution, once the Lisbon Treaty had been ratified. However, there would be no mention of the term Constitution. This would honour the original commitment made in the Treaty Establishing a Constitution for Europe, whereby only an indirect Constitution was to be bestowed upon the EU27. As such, the EU is on the threshold of emerging as the central contributor for world aid by the year 2010. However, it is the intention of the Lisbon Treaty to create a new post of foreign policy authority in the EU. The new authority could hinder the role of the EU in achieving its goal, Vis – a – Vis development aid. The apprehension of the majority is that this novel body might politicise development aid from the EU28. 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[online] available from [23 January 2009] Sophie M & McNamara KR, 2007, Making History: European Integration and Institutional Change at Fifty, Oxford University Press Stefan Griller, 2008, The Lisbon Treaty: EU Constitutionalism Without a Constitutional Treaty?, Published by Springer The National Platform EU Research & Information Centre, 2008, ‘The Constitutional Implications of the Treaty of Lisbon’ [online] available at < http://www.nationalplatform.org/wordpress/?page_id=94 > [25 January 2009] Treaty of Nice, [online] available at < http://europa.eu/scadplus/glossary/nice_treaty_en.htm> [24 January 2009] Treaty of Lisbon 2007: Consolidated Treaties, 2008, [online] available at [24 January 2009] Valery Giscard d’Estaing, 2007, The Treaty of Lisbon is the same as the rejected constitution. Only the format has been changed to avoid referendums, [online] available from [24 January 2009] Read More