Why is the Lisbon Treaty necessary?
The current treaty base to the European Union (EU) has developed between 1958 when the European Economic Community (EEC) was formed and the 2003 Nice Treaty. The founding members of the European Coal and Steel Community (ECSC) comprised of six member states. The 15 member states that approved the Nice Treaty have since allowed accession to a further 17 member states, bringing the Union to a total of 27. The current framework is therefore considered unworkable for the size and diversity of the modern day Union. The Lisbon Treaty (the Treaty) took six years to draft (inclusive of the Constitutional Treaty proposal) and aims to make the Union more efficient, transparent and effective.
Under the current treaty base, the three pillar system provides different procedures for the proposal, scrutiny and adoption of law. The number of commissioners needs to shrink to less than the number of member states under the Nice provisions, which will have to be addressed if ratification of Lisbon fails. There is currently a commissioner for each member state following accession of the new states. The European Parliament has co-decision in Community law but not Union law (third Pillar law). The consultation procedure is barely given any recognition by the Council of Ministers who approve the legislative instruments. The presidency of the EU passes each six months, with each new member state taking presidency having only a six month period to rush through their priorities, even more difficult in the July to December period given summer recess.
Citizens of the EU overall agree that the major problem with the Union as it currently stands is the democratic deficit – the distance between law making in the EU institutions and the person on the street.
What changes will it make?
Lisbon grapples with a lot of the above and creates new policy areas in which it affirms action will be taken – such as climate change. More specifically it will do the following:
- The confusion between ‘Community’ and ‘Union’ is resolved with all reference to Community removed in favour of Union.
- Each member state will continue to have a commissioner.
- Title IV to the Treaty on the European Union (Justice and Home Affairs (JHA)) will be subsumed into one law making process with the rest of the current EC system and the pillar system will be abolished. This means co-decision (re-named ordinary legislative procedure) rather than consultation of Parliament (i.e. Parliament’s approval of a measure will be required as well as the Council of Ministers, and the measure will pass between the two as amended drafts are produced). Defence and taxation decisions will remain within the competence of the Council through unanimity only.
- Majority decision will also apply in the Council of Ministers rather than the current requirement of unanimity before a measure is passed. 55% of the member states will have to approve a measure (15 or more member states) accounting for 65% of the EU’s population before a measure can be passed. A blocking minority must be at least four member states. Where measures cannot be agreed, an enhanced co-operation system has been created for groups of member states to act in an area between themselves without binding the other member states.
- The EU will become a signatory to the European Convention on Human Rights and the Treaty incorporates the Charter of Fundamental Rights.
- Laws will now have to be deposited in national parliaments before consideration at EU level begins, with a two month period for the national parliaments to raise objections if they consider that the proposal does not accord with subsidiarity (action only where it is more effective at EU rather than national level). If one third of national parliaments object, then the proposal will be sent back for review by the Commission (the yellow card). If a majority of national parliaments oppose a Commission proposal, and national governments or MEPs agree, then it can be struck down (the orange card).
- A Citizen’s Initiative has also been created whereby one million people over a significant number of member states can invite the Commission to propose a legal initiative.
- New offices of President of the European Council and High Representative of the Union for Foreign Affairs and Security will be created. The first will be appointed for a once renewable term of two and a half years. The president will represent the EU in the way that the head of state of the member state holding the rotating presidency currently does. The aim of this position is to afford greater continuity between each six month rotating presidency of policy priorities and law making. The High Representative will also be the vice-president of the Commission and merges the current positions of High Representative for the Common Foreign and Security Policy and the External Relations Commissioner to bring greater coherence to the EU’s external action. They will chair the Council of Ministers on foreign affairs and represent the Union’s position in these areas at international organisations.
What stage has the ratification process reached?
Out of the 27 Member States, 26 have approved the Treaty. Ireland held its second referendum on 2 October, following the ‘No’ vote last June, and the Irish public have finally agreed to the Treaty. The German Constitutional Court approved the Treaty last month, Poland’s president has said he will sign the Treaty (a necessary process for ratification) if Ireland approves it. The Czech president has announced that he will not now sign the Treaty, until the New Year (with speculation tying this to his eurosceptism and hopes for a UK election; David Cameron has repeatedly stated that he will hold a referendum if the Conservative party comes to power and if the Treaty has not been ratified at that stage). Six members of the Czech senate have just brought a petition in the Czech Constitutional Court for a ruling on whether the provisions of the Lisbon Treaty accord with the Czech constitution. This process is likely to hold the ratification process up until the New Year, even with the issue having priority status. It may be that the focus then turns to the UK as the most eurosceptic member state, with a likely Conservative government following the next election, which will almost certainly be held to its manifesto on a referendum. This is unlikely to be looked on favourably by the other member states given that the UK has already signed the Treaty.
Why is it causing so much controversy?
The main reason given for non-approval by the Irish public last year was lack of knowledge about what the Treaty would actually do. The ‘No’ campaign this time round is still pitching the instrument as a constitutional document which will remove sovereignty from the member states and give more power to the EU institutions. Ireland has secured guarantees which will take the form of protocols to the Treaty upon ratification which affirm workers rights (there are concerns that the Irish minimum wage will be reduced), right to life, education and family (the anti-abortion issue) and retention of an Irish commissioner (which is seen as a political necessity to ensure Irish policies are represented in the College of Commissioners who approve proposals for legislation), and neutrality on defence. Ireland has also secured the same package of opt-outs as the UK to the new law making process to JHA policy. If a measure is not in line with national policy, Ireland and the UK can opt out of that instrument to the extent that they see fit. The main problem is explaining what the Treaty actually does, since really it is a set of bureaucratic simplification mechanisms. There has been much hype in the media about the fact that the Treaty will create a super state, particularly with the proposal for a president of the Council of Ministers.
What does JUSTICE think?
Overall, the Lisbon Treaty will afford greater democratic scrutiny of the EU institutions and not less. Accountability to Strasbourg and law making which accords with the Charter on Fundamental Rights should mean more responsible law making (though infringement of the Charter will not be enforceable in the UK or Poland). The greater scrutiny of legislation at both national and EU parliamentary levels will help to address the democratic deficit, so long as the proposed measures are afforded proper parliamentary time. The EU Scrutiny Committee already carries out this role for the House of Commons and the EU Sub-Committee for the House of Lords in the UK. Notwithstanding, public awareness in the UK of EU law making is minimal.
The move to the ordinary legislative procedure in JHA is perhaps a double edged sword. Unanimity was useful to block passage of instruments which did not accord with national policy, the rule of law and fundamental human rights principles, but also blocked measures which were essential (such as procedural safeguards). Majority voting will ensure that legislation is passed which is more representative of the member states. Some countries will lose votes in the adjusted weights (like Ireland) but others will gain votes (like the UK). Hopefully with the scrutiny of national and European parliaments this will favour the rule of law, but measures which may not be considered necessary or appropriate for one member state can no longer be easily blocked (unless you are the UK or Ireland, who can opt out). Once passed, the way JHA law is transposed in the UK will be open to petition to the European Court of Justice, a frustrating omission from the current framework.
The Citizen’s Initiative may simply pay lip service to the idea of greater say by the public, and in practice is likely to be rarely used. It may prove a helpful tool for interest groups, such as environmental and human rights campaigners however, though it is not clear how the proposed law will fit into the timetable of legislative proposals already progressing at EU level. The newly created offices of President and High Representative should not weald power but simply be spokespersons for policy initiatives agreed by the Council. If this is clearly adhered to there should be no confusion as to their standing in an international arena. The appointment to the position of president must be carefully considered to ensure that they do indeed fulfil this role without expanding their remit and trampling on national sovereignty. Hopefully ratification will prove to the sceptics that there will still remain 27 independent nations following ratification, but we have to get there first.
Where can I find more information?