impact of the Treaty of Lisbon

Title I of the TEU contains the general provisions.  It would appear, prima facie, that the issue of most concern in this title is the fact that the ToL makes no reference to the primacy of EU law.  It seems, however, to rely on a neighbouring declaration concerning primacy to reaffirm the fact that the case law of the European Court of Justice, for example Costa/ENEL, has not and shall not be challenged by Member States.  Other amendments include provisions providing for a stronger relationship between the EU and Member States and also neighbouring countries.  The former recognises the sovereignty of each member state while the latter, in conformity with the CT, desires a “special relationship” with the neighbouring countries.  Moreover, the Charter of Fundamental Rights, by virtue of Article 6 of the TEU, is to become legally binding although it is worth noting that certain opt-outs have allowed some countries to avoid the application of the Charter where it would conflict the national law or practice.  

Title II of the TEU, a new introduction by the ToL, contains the democratic principles on which the Union is founded.  Central to this title is the provision governing the role of national parliaments in the EU’s policy making process.  This provision allows Member States to question a piece of legislation that has been proposed by the Commission.  This procedure is in accordance with the Protocol on the Application of the Principles of Subsidiarity and Proportionality, which, when initiated by a Member State, obliges the Commission to review the proposed legislation making sure it conforms to said principles.  This “subsidiarity check” must be supported, in the first instance, by one third of the Member States and they must subsequently convey their concerns within eight weeks of their first notice.  If the Commission decides to proceed with the proposal, it will then receive further scrutiny from the European Council and European Parliament.  Moreover, under Title II, the ToL includes a provision allowing for one million citizens – that make up a sufficient proportion of the EU – to request that the Commission submit a proposal relating to a matter that falls within its competence.

Title III of the TEU contains arguably the most substantive and important provisions.  Although it is an altogether new title, it provides for changes to the current institutions of the European Union as well as awarding other bodies of the EU the status of an institution.  First, the European Council is to be chaired by a permanent President.  This replaces the current process of rotating presidency and will see the new President hold his chair for a term of two years which may be renewed once.  This President is to be elected by the European Council by a qualified majority vote as per Article 15(5) of the TEU.  The Council must still make decisions by consensus, except where stated.  Second, the European Council and the European Central Bank (ECB) are to become institutions of the Union.  Third, the European Commission, after 31st October 2014, will be made up of a number of members equal to one third the number of Member States.  Moreover, the President of the Commission shall be nominated by the Council under a qualified majority of vote and then elected by the European Parliament.  Third, the ToL will provide for a unification of the roles of the High Representative for the Common Foreign and Security Policy (CFSP) and the Commissioner for External Relations.  This role will be undertaken with the title of High Representative.  The holder of the role will also, at the same time as fulfilling the original duties under the High Representative for the CFSP, chair the Foreign Affairs Council and become the Vice-President of the Commission.  Fourth, the Treaty will introduce a double majority voting system.  This specifies that a matter that is to receive national votes must find a majority under two criteria: first, a majority is reached by 55% of Member States; and second, the majority Member States make up 65% of the population of the European Union.  This is therefore a type of qualified majority voting.  It has been further decided that this feature will not apply until 2014 and for a period of three years, if a member state is of an opinion that the proposal could have been blocked, the old rules may still be applied.  Furthermore, the Ioannina Compromise, abandoned under the Treaty of Nice, has been re-introduced which provides that the Council must delay voting if members of the Council representing 75 % of the population or 75 % of the number of Member States required for a blocking minority indicate opposition to voting by qualified majority.  Finally, under Title III, the European Parliament will be reduced in numbers to 750 members.

Under Title IV of the TEU, enhanced cooperation allows Member States to work more closely together within the institutional framework of the Union; it therefore allows the countries to move along at different speeds and to different goals.  Under the ToL, the minimum number of Member States required for enhanced cooperation is increased from eight to nine.

In addition to the TEU, which contains core constitutional principles, the TFEU has also received amendments chiefly “organising the functioning of the Union and determining the areas, delimitation of, and arrangements for exercising its competences”.  Arguably, the principle amendment to the TFEU is the introduction of qualified majority voting (QMV) and co-decision in the legislative procedure.  This advancement of co-decision in the legislative procedure will place the European Parliament on a “level playing field” with the Council, taking into account the Council may reach decisions by QMV.  

While the ToL does not “repeal and replace” like the CT, it is seen that the pillar structure is effectively removed in form but not substance.  This is true to some extent with first and second pillars, but the amendments to the TFEU see a complete removal, both in form and substance, of the third pillar – relating to police and judicial cooperation on criminal matters.  

So have these vast and substantial changes and insertions improved the transparency, efficiency and democracy of the union?  On the issue of more transparency, it can be argued that this has been achieved in the new operation of the legislative procedures.  For example, the new protocols on subsidiarity and proportionality will allow Member States to play a much more vocal and influential role in the legislative procedures.  It allows that the Member States have control over their competence to resolve a matter before it is handled at an EU level.  Moreover, where the Commission initiates a piece of legislation, the ToL offers an “early warning system” whereby the Commission must carry out broad consultations with Member States concerned prior to finalisation of the legislation.  In contrast, however, Hӧreth & Sonnicksen note that, by virtue of the ToL, the Council meetings relating to legislative procedures must now take place in public, yet non-legislative debates will still take place “behind closed doors” and, as such, many of the “package deals” and ”side payments” will still take place.  As a result of this, the myriad of emergency warnings and open and closed meetings coupled with the numerous opt-outs and protocols mean that one must argue that the ToL has failed in its attempt at a more transparent Union.

As seen above, the commission is to be reduced in size by the year 2014 to two thirds of the number of member states.  This alleviates the threat that appeared to grip a Commission made up of one member per Member State by appearing to make it easier to manage and coordinate when coupled with the upgrading of the Commission Presidents’ role.  Hӧreth & Sonnicksen go on to further note that the introduction of the permanent Council President sees the intergovernmental executive win out over the supranational European Commission thus aiding the effectiveness of the Union by making European leadership more identifiable.  The limits to the powers of the Council President, however, suggest that the lean to the intergovernmental preference is not quite as strong as might be perceived.  The introduction of the High Representative and the External Action Service will aid the efficiency of both the Council and the Commission due to his dual role – on the one hand chairing the Council of Ministers’ Foreign Affairs Council and on the other hand being the Vice President of the Commission- and furthermore may even add to the transparency of the union and its external actions.  The “dual hat” role, however, has come under some scrutiny from writers including Hӧreth and Sonnicksen, Kurpas and Crum, who have voiced reservations that the roles in both the Council and Commission may see attempts by one to encroach on the competences of the other.  Whilst the writer of this paper believes that the integrity of the role would outweigh the desire of the holder to get caught up in such actions, one must concede that the treaty could provide greater detail as to the limits of the High Representative.  Furthermore, the enhanced co-decision and increased use of qualified majority voting would appear to increase the efficacy.  It offers the use of qualified majority voting to more areas of the institutions than prior to the ToL and the double majority voting sees a reduction in the majority of votes required.  Thus, for the reasons highlighted, one is compelled to agree with the notion that the ToL offers a more efficient Union.

Finally, the notion of a more democratic EU.  The ToL has afforded Member State parliaments a greater level of control over legislative procedures.  Moreover it increases the powers of the European Parliament in the area of co-legislation.  This means that it will be placed on equal footing with the European Council within the legislative procedures.  This is heralded by Hӧreth and Sonnicksen as “one of the most significant achievements of the Lisbon Treaty as far as enhancing democracy in the Union is concerned”  Lastly the citizens initiative mentioned under Title II of the TEU as introduced by the ToL is evidence of a further shift towards a more democratic European Union.

In Conclusion this paper has explored the amendments and new introductions of the Treaty of Lisbon under the existing Treaty on the European Union and the Treaty on the Functioning of the European Union, formerly the Treaty establishing the European Community.  Discussion then turned to the question as to whether or not the ToL has succeeded in making a more transparent, efficient and democratic European Union.  It has been opined that, although it could not be described as aiding the transparency, it has succeeded in providing a considerable shift towards greater efficiency and democracy.  It is on the basis of these evaluations that one must conclude that, even though there is definite room for further positive shifts, the current shifts have served to strengthen the constitution of the European Union without imposing the negative constraints of the strict wording of the Constitutional Treaty.

Word Count: 2397 (Excluding Footnotes)

                2571 (Including Footnotes)

Bibliography

Books

Barnett, H, (2004) Constitutional and Administrative Law, 5th Ed., London: Cavendish Publishing

Craig, P, & De Burca, G, (2008) EU Law Text Cases and Materials, 4th Ed., Oxford: Oxford University Press

Tomkins, A, (2003) Public Law, 1st Ed., Oxford: Oxford University Press

Articles

Craig, P, “The Treaty of Lisbon, process, architecture and substance” (2008) European Law Review 33(2)  137-166

Dougan, M, “The Treaty of Lisbon 2007: Winning Minds not Hearts” (2008) Common Market Law Review (45) 617-703

Hӧreth, M. & Sonnicksen, J. “Making and Breaking Promises: The European Union under the Treaty of Lisbon” (2008) Centre for European Integration Studies C181 accessed via  (17/11/2008)

Hӧreth, M, & Sonnicksen, J, “The Treaty of Lisbon – How much ‘Constitution’ is left?” (2007) Centre for European Policy Studies (No 147)

Syrpis, P, “The Treaty of Lisbon: much ado… but about what?” (2008) Industrial Law Journal 37(3), 219-235

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