Presentation of the Treaty of Lisbon
igned on 13 December 2007, the Treaty of Lisbon entered into force on 1 December 2009, following the completion of the ratification procedure by the 27 EU member states.
The entry into force of the treaty ends a review exercise started in 2000, with the “Declaration on the future of the Union”, annexed to the Treaty of Nice. On this occasion, the Intergovernmental Conference had called for a debate on the future of the European Union, concerning, specifically, the issues of delimitations of competence, the status of the Charter of Fundamental Rights, the simplification of treaties, the role of national parliaments, the improvement of democratic legitimacy as well as the transparency of EU work.
This exercise was marked in particular by:
the development of the draft treaty establishing a Constitution for Europe, within the framework of the Convention for the future of the Union (February 2002 - July 2003), then the intergovernmental conference (October 2003 - October 2004);
the failure of the ratification process of the treaty establishing a Constitution for Europe, following the negative referendums in France (29 May 2005) and the Netherlands (1 June 2005);
the abandonment of the constitutional initiative and the negotiation of a “simplified” treaty based on the term approved by the heads of state and government in June 2007. On 18 October 2007, an agreement was reached at the level of the heads of state and government on the draft treaty.
a ratification process that spread out from October 2007 to November 2009.
On 14 February 2008, France submitted its instruments of ratification to the Italian government, which is keeping the original version of the treaties.
A first negative referendum, on 13 June 2008 in Ireland, led to the establishment of legal guarantees meant to taken into consideration certain concerns expressed by the citizens of Ireland. The European Council approved these guarantees on 11 and 12 December 2008. On this basis, at the end of a new referendum organized on 2 October 2009, the citizens of Ireland voted for the ratification of the treaty.
Finally, the European Council of 29 and 30 October 2009 granted the Czech Republic a dispensation concerning the application of the European Charter of Fundamental Rights. The Czech Republic was the last State to submit its instruments of ratification on 13 November, enabling the Treaty of Lisbon to enter into force on 1 December 2009.
1-General observations The Treaty of Lisbon does not repeal the current treaties, but amends them, in accordance with the method chosen for the Treaties of Amsterdam and Nice.
The new legal framework is now based on two treaties of identical value:
- the Treaty on European Union (TEU), which incorporates the bulk of the modifications introduced by the IGC into the existing TEU;
- the Treaty on the Functioning of the European Union (TFEU), which reworks the old Treaty establishing the European Community and the amendments made thereto.
The institutional structure in three “pillars” introduced by the Maastricht Treaty is eliminated and the European Union replaces and succeeds the European Community (art. 1 TEU). Accordingly, the coexistence of several legal frameworks is eliminated, clarifying the organization of the Union. However, specific decision-making procedures are maintained in certain areas, in particular the Common and Foreign Security Policy (CFSP) and the Common Security and Defence Policy (CSDP).
The European Union has the status of a legal personality.
2- The principles, values and objectives that found the European Union are clarified
2.1- The values that found the European Union are stated
The preamble to the Treaty on European Union now states that the Union draws inspiration “from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”.
2.2- The objectives of the European Union are developed
The objectives of the European Union are developed (art. 3 TEU): in addition to “peace, its values and the well-being of its peoples”, the Union “offers its citizens an area of freedom, security and justice”, “works for the sustainable development of Europe”, “combats social exclusion and discrimination and promotes social justice and protection”, respects “cultural and linguistic diversity” and, in its relations with the rest of the world, “affirms and promotes its values”.
2.3- The rights and freedoms guaranteed by the Charter of Fundamental Rights acquire a binding force
Without being formally included in the body of the treaty, the Charter of Fundamental Rights, as adopted on 12 December 2007, acquires a legally binding force (art. 6 TEU). The provisions of the Charter are aimed at the institutions, bodies and organisms of the Union in compliance with the principle of subsidiarity, and at the Member States only when they implement Union law.
Provision is also made for accession of the Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms (art. 6 TEU and art. 218§8 TFEU). A Council decision on the conclusion of the agreement of the Union’s accession to this Convention must be made for this. It will enter into force after it has been approved by the Member States in accordance with their respective constitutional requirements. The work intended to implement this provision is under way.
3- The relations between the European Union and the Member States as well as the division of powers are stated
It is now explicitly affirmed that any competence not allocated to the Union in the treaties belongs to the Member States (art. 5 TEU). In addition, it is reminded that the Union respects the national identities of the Member States, inherent in their fundamental political and constitutional structures (art. 4 TEU).
The division of powers between the Union and the Member States is clarified : distinction is now made between the exclusive competences of the European Union, the competences shared between the Union and the Member States, as well as the areas in which the Union supports, coordinates or supplements the actions of the Member States (art. 2-6 TFEU).
In addition, any Member State now has the right to withdraw from the Union (art. 50 TEU).
4- The strengthening of European democracy
In order to strengthen democratic control in the European Union’s decision-making process and the participation of citizens, several amendments are introduced.
4.1- The creation of a European citizens’ initiative
A European “right of initiative” is introduced, which enables the Union’s citizens, numbering not less than one million, who are nationals of a significant number of Member States, to take the initiative of inviting the Commission to submit a legislative proposal (art. 11§4 TEU). The work intended to implement this provision is under way.
4.2- The strengthening of the role of the European Parliament and the extension of the scope of the ordinary legislative procedure (new name of the codecision procedure)
The role of the European Parliament is strengthened. It is responsible for electing the President of the European Commission (art. 17§7 TEU). In addition, it becomes co-legislator on equal footing with the Council in budgetary matters (art. 14 TEU and 314 TFEU) and in most internal policies. Many areas are now subject to the ordinary legislative procedure, such as: the Union’s energy policy, the objectives of the common agricultural policy, the internal market, common policies on asylum and immigration, judicial cooperation in criminal matters (with a brake-accelerator mechanism), Eurojust and Europol, the structural and cohesion funds, the framework of the common commercial policy, the creation of specialized courts, the general rules and principles for controlling the exercise of implementing powers, the status of European officials.
4.3- The increased powers of national parliaments
The Treaty of Lisbon strengthens the power of national parliaments and gives them the possibility of taking part in the European decision-making process for the first time (art. 12 TEU). It calls for an improved association of the national parliaments in the control of the principle of subsidiarity in two forms:
Information for national parliaments is enhanced (protocol on the role of national parliaments in the European Union): all European institution documents must now be forwarded and the time limit for national parliaments to review texts is set at eight weeks;
An “early warning mechanism” is established (protocol on the application of the principles of subsidiarity and proportionality, art. 7§2): if one third of the national parliaments feels that a proposal does not comply with the principle of subsidiarity, the Commission will be required to review its proposal. Moreover, a reinforced subsidiarity control mechanism is instituted (art. 7§3 of the protocol): if a majority of the national parliaments presents a reasoned opinion to the European legislature, which obtains the support of 55% of the members of the Council or a majority of the members of the European Parliament, the legislative procedure ends and the bill is not adopted. In addition, the national parliaments can bring an action before the Court of Justice of the European Union for violation of the principle of subsidiarity (art. 7§8).
Moreover, the national parliaments have the right to oppose the implementation of the simplified revision procedure making it possible to adopt simplified decision-making procedures in a given field (art. 48§7 TEU): qualified majority decision-making within the Council and in accordance with the ordinary legislative procedure (new name of the “codecision” procedure).
5- Reformed institutions for a more efficient European Union
The Treaty of Lisbon adapts the institutions to the enlarged European Union.
5.1- The role of the European Parliament is reinforced
The “codecision” procedure, in which the Council and the European Parliament share the decision-making power at parity, becomes the EU’s “ordinary legislative procedure”. The number of fields subject thereto has increased considerably, paving the way to a deepening of the European area of freedom, security and justice, for example (cf. above).
In addition, the make-up of the European Parliament is adapting: under the new treaty, it will have 754 members. The citizens of the Union are represented in a “degressively proportional” manner, which means that the more populated a Member State is, the higher the number of inhabitants represented by an MP, with a minimum threshold of six members per Member State and a maximum of ninety-six (art. 14 TEU). In this framework, France will have two more MPs, or 74 MPs.
5.2- The European Council has a stable president
The European Council becomes an institution of the European Union (art. 13 TEU). A President of the European Council, appointed by the European Council by qualified majority for a term of two and a half years that is renewable once, replaces the European Council’s current six-month rotating presidency. It guarantees greater continuity in the EU’s activities. The president of the European Council shall chair and drive forward the work of the European Council, ensure the preparation and continuity thereof, and endeavour to facilitate cohesion and consensus within the Council. At his/her level and capacity, he/she also ensures the external representation of the European Union on issues concerning the common foreign and security policy (art. 15 TEU).
Mr.Herman Van Rompuy, appointed by the twenty-seven heads of state and government on 19 November 2009, has held this position since 1 December 2009.
5.3- The Council
While the functions of the EU Council have not changed (performance of legislative and budgetary functions, function of definition of policies and coordination), the performance of its presidency is adapted. The treaty explicitly identifies two Council configurations: the General Affairs Council (GAC), which ensures the consistency of the work and prepares the European Council, and the Foreign Affairs Council (FAC), which is responsible for the EU’s external actions.
Except for the FAC, which is chaired in a stable manner by the High Representative of the Union for Foreign Affairs and Security Policy, representatives of the Member States still hold the presidency of the Council configurations in accordance with a six-monthly rotation system.
a) The “double majority” rule is expected to simplify decision making in the Council
The main innovation concerning the functioning of the Council lies in the reform of the calculation of qualified majority (art. 16 TEU). The system of weighting of votes by Member State from the Treaty of Nice will continue to apply through 1 November 2014. On this date, a double majority system will enter into force: accordingly, a proposal will be adopted if 55% of the Member States, including at least 15 of them and representing at least 65% of the population, vote for it. A blocking minority will have to include at least four Council members, failing which the qualified majority shall be deemed to be attained.
However, between 1 November 2014 and 31 March 2017, when a decision must be adopted by qualified majority, a member of the Council may request that the decision be made on the basis of provisions currently in force (protocol on transitional provisions appended to the treaties).
b) Qualified majority voting replaces unanimity in a large number of fields
At the same time as the general implementation of the ordinary legislative procedure, the treaty extends qualified majority voting within the Council. Accordingly, unanimity is abandoned in a large number of areas, such as: procedural issues in the field of the CFSP, organization of the Council, measures evaluating implementation of the area of freedom, security and justice, provisional emergency measures in the event of an influx of refugees, start-up fund for the CFSP, review of rules on the nature and composition of the Committee of the Regions and the European Economic and Social Committee, implementing measures for the system of own resources.
5.4- The European Commission
The Commission’s role is consolidated from a political standpoint, as its president will have the ability to relieve a member of his/her duties (art. 17 TEU), as well as from a procedural standpoint, through the extension of its right of initiative because of the increase in the number of codecision areas (art. 294 TFEU). Its powers of executing legislative acts of the Union are specified (art. 290 and 291 TFEU)
6- More consistent external actions of the Union and Common Security and Defence Policy
6.1- More readable and more efficient institutional organization
As a supplement to the role played by the president of the European Council, the creation of the position of High Representative of the Union for Foreign Affairs and Security Policy (art. 18 TEU) aims to provide the Union with unified representation on the world stage and to reinforce the consistency of its external policy.
The High Representative of the Union for Foreign Affairs and Security Policy is responsible for conducting the Union’s foreign policy (art. 18§1 TEU). Also Vice-President of the European Commission responsible for external relations, he/she is tasked with ensuring the consistency of the Union’s external actions (art. 18§4 TEU). Finally, he/she chairs the Foreign Affairs Council (cf. above). Accordingly, he/she has the chance to coordinate all of the EU’s external intervention methods.
The High Representative for Foreign Affairs will have access to a European External Action Service (art. 27 TEU). Composed of officials from the Commission, the Council and the Member States, this European diplomatic service will steer all the components of the Union’s external actions.
On 19 November 2009, the twenty-seven heads of state and government appointed Ms. Catherine Ashton to hold this position of High Representative of the Union for Foreign Affairs and Security Policy, starting on 1 December 2009.
Delegations of the Commission abroad become delegations of the Union. Their purpose is to represent the Union in third countries and international organizations in lieu of the Member State taking on the six-month presidency of the Council. They are coordinated by the European External Action Service and are placed under the authority of the High Representative for Foreign Affairs (art. 221 TFEU).
Fortified by the legal personality that it has been granted, the European Union can sign treaties within the scope of its competences (art. 47 TEU).
6.2- Towards a common security and defence policy
a) The Union may draw on civilian and military means implemented in the framework of its common security and defence policy in missions outside the Union for peace-keeping, conflict prevention and strengthening of international security (art. 42 TEU).
In addition to humanitarian and rescue missions and combat missions for crisis management, (so-called “Petersberg” missions), the new treaty now includes joint disarmament actions, missions to provide advice and assistance in military matters, conflict prevention and peacekeeping missions and stabilization operations at the end of conflicts. All of these missions can also contribute to the fight against terrorism (art. 43 TEU).
b) The common security and defence policy is still based on the civilian and military capabilities made available by the Member States, to contribute to the objectives defined by the Council (art. 42 TEU). This common security and defence policy will lead to a common defence when the European Council, acting unanimously, so decides.
c) A significant innovation in the Treaty of Lisbon lies in the definition of the operational means that the Member States make available to the Union:
The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union’s values and serve its interests (art. 42 TEU);
Those Member States that fulfil enhanced criteria in terms of military capabilities and that have made more binding commitments in the matter with a view to the most demanding missions shall establish “permanent structured cooperation” within the Union framework (art. 42§6 and 46 TEU and protocol on permanent structured cooperation). This framework must make it possible to strengthen the military capabilities and means made available to the European Union and its operations.
d) A mutual assistance clause stipulates that if a Member State is the victim of an armed aggression on its territory, the other Member States have towards it an obligation of aid and assistance by all the means in their power (art. 42§7 TEU).
e) In addition, a solidarity clause stipulates that in the cases of a terrorist attack, natural or man-made disaster affecting a Member State, the Union must mobilize all of the instruments at its disposal, including the military resources made available by the Member States, to assist the Member State in question or to prevent the terrorist threat and protect the institutions and population of the threatened Member State (art. 222 TFEU and annexed declaration no.37).
7- Strengthening the role of the Union in the area of freedom, security and justice
Treaties as modified by the Treaty of Lisbon establish the principle of the creation of an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States (art. 67 TFEU). To this end, they give the Union more efficient and more democratic decision-making procedures in this field by extending the scope of the qualified majority in the Council and that of the ordinary legislative procedure.
7.1- Towards a common policy on border control, asylum and immigration
The Treaty of Lisbon enables the Union to develop a common policy to manage its external borders, in particular through the establishment of an integrated border management system (art. 77 TFEU). The common policy on visas and long-stay residence permits is now subject to the qualified majority rule and the ordinary legislative procedure (with the exception of provisions concerning passports, identity cards, residence permits or other such documents, which remain subject to unanimity).
The ordinary legislative procedure and the qualified majority rule within the Council will apply to measures concerning the granting of asylum and the establishment of a common system for processing applications for asylum (art. 78 TFEU). In the event one or more Member States is confronted with a sudden inflow of nationals of third countries, the Council may adopt provisional measures with a qualified majority (art. 78§3 TFEU).
Moreover, the Union may define, with a qualified majority in the Council and in accordance with the ordinary legislative procedure, a common policy on immigration and integration of third-country nationals as well as a common dialogue with the countries of origin (art. 79 TFEU).
7.2- Towards European justice
The Treaty of Lisbon establishes the principle of enhanced cooperation in civil and criminal matters through the principle of mutual recognition of judicial and extrajudicial decisions (art. 81 and 82 TFEU). The measures taken to this end are subject to qualified majority rule and the ordinary legislative procedure (except measures relating to family law that have cross-border effects, which remain subject to unanimity).
In criminal matters, minimal rules defining cross-border criminal offenses and sanctions may be adopted in accordance with the ordinary legislative procedure (art. 83 TFEU).
Eurojust’s missions are expanded and may include the initiation of criminal investigations, as well as proposing the initiation of prosecution conducted by competent national authorities (art. 85 TFEU). A European public prosecutor’s office may be established from Eurojust, with the Council voting unanimously (art. 86 TFEU), in order to prosecute the perpetrators of offences against the Union’s financial interests, and, if necessary, at the same time or subsequently, through unanimous decision of the European Council, to fight “particularly serious crime having a cross-border dimension”.
The Treaty of Lisbon also makes guarantees to Member States that might feel that measures would undermine their criminal justice system in the area of harmonization of criminal procedure (art. 82§3 TFEU), such as “rules relating to the definition of criminal offences and sanctions in areas of particularly serious crime having a cross-border dimension” (art. 83§3 TFEU) and creation of a European public prosecutor’s office (art. 86§1 TFEU). In this scenario, a so-called “brake-accelerator” clause may be invoked (a Member State may block the decision (brake) and enhanced cooperation may be initiated by the Member States that would like to move forward in these matters (accelerator).
7.3- Improved police cooperation
The Treaty of Lisbon opens the possibility of strengthening police cooperation between the Member States, while maintaining the rule of unanimity with regard to the sensitivity of the matter and by applying a “brake-accelerator” procedure (art. 87 TFEU).
Europol’s missions are recognized and may include investigations carried out jointly with the Member States’ authorities (art. 88 TFEU). These missions are not prejudicial to the Member States’ competences, as the Union respects the essential functions of the State, in particular those intended to ensure its territorial integrity, maintain law and order and safeguard national security (art. 4 TEU).
Moreover, enhanced cooperation may be set up in an accelerated manner in the area of police cooperation (art. 87§3 TFEU).
7.4- Maintaining exemptions for certain Member States
The progress made in terms of the area of freedom, security and justice is accompanied by the maintenance and development of exemptions benefiting the United Kingdom, Ireland and Denmark, without this undermining the reinforcement of this policy. Indeed, these States cannot block decisions agreed to by the other Member States.
8- Expanded resources for common policies for the expectations of European citizens
The Treaty of Lisbon gives the European Union new tools in areas corresponding to expectations expressed by the citizens.
In addition to the provisions contained in the Charter of Fundamental Rights, a new horizontal social clause makes the European Union to take social requirements (high level of employment, education and vocational training, guarantee of social protection, fight against social exclusion, protection of human health) into consideration in the implementation of all of its policies (art. 9 TEU).
In addition, the specificity of services of general economic interest is guaranteed: the shared values of the Union concerning these services include, in particular, “the essential role and broad discretionary power of national, regional and local authorities to provide, enforce and organize services of general economic interest” (art. 14 TFEU and protocol no. 9 annexed to the treaties).
In addition to the inclusion of sustainable development appearing among the general objectives of the Union (art. 3 TEU), the fight against climate change becomes an objective of Union policy in the area of the environment (art. 191 TFEU). The preservation and improvement of the environment also need to be taken into account within the framework of the energy policy (art. 194 TEU).
The Treaty of Lisbon enshrines the energy policy, a competence shared between the Union and the Member States (art. 4§2 TEU). It makes provision for European solidarity in the matter if a Member State encounters supply difficulties (art. 122 TFEU) and opens the possibility of implementing a genuine European policy (promotion of energy efficiency and renewable energy, network interconnection, even tax measures, unanimously).
The Treaty of Lisbon reinforces economic governance in the euro area: the existence of the Eurogroup is enshrined and its stable presidency is institutionalized (protocol annexed to the treaties); its international representation is simplified (art. 138 TFEU) and the Member States in the euro area will be able to make decisions among themselves on budgetary and economic policy issues that concern them (art. 136 TFEU), in particular the development of broad economic policy guidelines.
9- Transversal provisions
9.1- The simplification of the procedure initiating enhanced cooperation
The Treaty of Lisbon stipulates that at least nine Member States may establish enhanced cooperation within the framework of the Union’s non-exclusive competences (art. 20 TEU), including in the scope of the area of freedom, security and justice. The common foreign and security policy follows specific rules in the matter (unanimity in the Council, after opinion from the High Representative for Foreign Affairs and Security Policy and the Commission and forwarding to the European Parliament for information, art. 329 TFEU).
9.2- The “passerelle clauses” making it possible to facilitate decision making in certain areas
The Treaty of Lisbon stipulates a “general passerelle clause” pursuant to which, in the areas in which it is stipulated that the Council decides unanimously, the European Council, acting unanimously, may authorize the move to qualified majority voting. This procedure may not apply to decisions with military implications or in the area of defence and any initiative in the matter must be forwarded to the national parliaments, each of which may make its objection known within six months. In this case, the decision is not adopted (art. 48§7 TEU). The implementation of this clause is also subject to control of the national parliaments.
The Treaty of Lisbon also stipulates specific passerelle clauses towards qualified majority voting in the Council with regard to the common foreign and security policy, except decisions with military implications or in the area of defence (art. 31 TEU); certain measures on family law that have cross-border effects (art. 81 TFEU), each national parliament has a right of opposition within six months; the multiannual financial framework (art. 312 TFEU).
The European Council may also decide unanimously that the ordinary legislative procedure (codecision) will apply to a matter governed until now by a special legislative procedure (case in which the European Parliament does not have the power of codecision) for the following matters: protection of employees in the event of termination of employment, collective defence and representation of interests, including co-determination, of workers and employers, employment conditions of third-country nationals who are authorized to be on Union territory (art. 137§2 TFEU); certain measures in the field of the environment, such as tax measures, land-use planning, etc. (art. 175§2 TFEU).
9.3- Revision procedures
The Treaty of Lisbon may be amended at the request of any Member State, the European Parliament or the Commission, after a favourable decision made by the European Council by a simple majority. In this case, the treaty introduces a significant innovation, as the President of the European Council convenes a Convention composed of representatives of the national parliaments, heads of state and government of the Member States, the European Parliament and the Commission, which adopts by consensus a recommendation transmitted to an intergovernmental conference (art. 48§2 à 5 TEU).
In addition, the Treaty of Lisbon introduces a simplified revision procedure (art. 48§6 TEU): the provisions of the treaty concerning the internal policies of the Union may be amended by the European Council acting unanimously and after approval by the Member States, in accordance with their constitutional rules.
9.4- Outermost regions
It should be noted that the Treaty of Lisbon recognizes the status of outermost regions in Saint Barthélemy and Saint Martin, in the same capacity as Guadeloupe, French Guyana, Martinique, Reunion, the Canary Islands, the Azores and Madeira. The purpose of this addition is to take into consideration the change in the status of these islands that were part of the département of Guadeloupe and have become overseas collectivities.
A mechanism makes it possible to adapt the list of outermost regions through a unanimous Council decision after consultation with the Commission (art. 355§6 TFEU).