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The Effect of The Lisbon Treaty on The European Union

Abstract

In 1960’s the European integration was stated and after around five decades, the Treaty of Lisbon or Lisbon Treaty (initially known as the Reform Treaty) is an international agreement that amends the two treaties which form the constitutional basis of the European Union (EU). The Lisbon Treaty was signed by the European Union member states on 13 December 2007, and entered into force on 1 December 2009. It amends the Maastricht Treaty (also known as the Treaty on European Union) and the Treaty establishing the European Community (TEC; also known as the Treaty of Rome). In this process, the Rome Treaty was renamed to the Treaty on the Functioning of the European Union (TFEU). The Lisbon Treaty is a new step ahead but also a deeply contested concept.

This article starts with an introduction of how the new Treaty came into force comparing with the old treaties which is replace and why it was seen as an essential part of European union, with an analytical analysis of its new developments structured which is divided into five parts in this article as followings

I.      In Part I of this article the author consider how the Treaty of Lisbon is believed to raise the European Union’s effectiveness by increase in qualified majority voting (QMV) technique, the co-decision method and through institutional changes including the creation of new and most important positions.

II.      Further more in the Part II, democratic principles are more clearly defined and roles of the European and national parliaments are reinforced.

III.      In Part III, the Treaty of Lisbon has tried to develop citizen’s rights, for example by the new citizens’ proposals, as well as by making the Charter of Fundamental Rights legally binding on member countries.

IV.      Moreover in Part IV, the Treaty of Lisbon has begins several political changes, which includes more cooperation on the common foreign and security policies and how to fight with external terrorization and threats as a international actor with a unity.

V.      Furthermore in the last part, this article considers how the Treaty of Lisbon stands apart from the Constitutional Treaty of Europe, in contention that although there is no longer a formal constitution, as it does maintain basic constitutional elements. It then looks at some particular issues such as whether legitimacy, transparency and accountability have been enhanced, and takes the view that while this is the case to some extent, there still remains much scope to further development.

In conclusion, I also focus on the European Union’s upcoming position in the light of the Lisbon Treaty’s amendments, arguing from an intergovernmental viewpoint, as Member States look for European Union co-operation in their domestic national welfares.

Introduction – An Overview of Lisbon Treaty.

After the Nice Declaration in 2000 the Treaty of Nice was criticized, in March 2001 which tends to be the Convention on the “Future of Europe” and most importantly the Declaration of Laeken in 2001 marked the foundation of the huge discussion on European constitutionalism (Church, Phinnemore, 2010: 49). Throughout each of these Declarations the importance of the role of the institutions, particularly that of the European Parliament and the increased and certified role of the national parliaments is reinforced. The Laeken Declaration stresses that the European Union derives its legitimacy from democratic, transparent and efficient institutions. The national parliaments also contribute towards the legitimacy of the European project”

In a similar vein to previous points made the introduction of the European Parliament as being a new institution in the process of treaty change ensures clarification of a more democratic Europe but again makes limitations upon the sovereign power of national governments. However, due to this unrest of Member States, the ordinary legislative procedure whilst not favoured allows room for the use of specific and procedural revision procedures, these specific and partial methods of treaty reform will leave the Member States as the ‘masters of the treaties.’ The process of treaty amendment had often caused political intricacies and many enthusiastic European politicians believed that change was required in order to improve the European Union’s effectiveness and its political associations in the face of the development process, while at the same time making the European Union’s role easier to comprehend for its citizens (see speeches of Fischer, Chirac, Blair, Lipponen, 2003: 70-88).

The Convention created a “Draft treaty establishing a Constitution for Europe” which was to replace all prior treaties (Bale, 2008: 65). It was further amended by an inter- governmental conference (IGC) and signed on October 2004 in Rome (Kesselman, Krieger,2009: 28). Eurosceptics disparaged this progress as an elitist lust for power in order to create a centralized, probably neo-liberal, superstate, replacing popular and national independence (Church, Phinnemore, 2010: 49).

The deliberative style during the drafting process, the unprecedented level of openness and transparency, and the heightened degree of inclusivity all contributed to the belief (by political elites, the press, and scholars alike) that the ratification would be successful, even if marginally. It is, however, often unnoticed that these modifications were more democratically devised than previous treaty improvement (ibid.). Possibly, on the other hand, the European Union’s decision-makers wanted to reach too much in too little time. While transparency had been enhanced slightly through the Convention process (Risse, Kleine: 2007: 70), there was still too little thereof and many were afraid of new progress and argued that the Treaty method, though complex, still seemed to work reasonably fine.

The rejection of the Constitutional Treaty by the French and Dutch voters in the mid-2005 sent shockwaves throughout Europe; European elites were utterly unprepared for such results. To avoid making any more wrong moves before figuring out where the Constitution- making went wrong, European leaders agreed to a “period of reflection.” The German government strongly pushed for a plan that would preserve many of the Constitutional Treaty’s improvements in the form of a conventional Treaty seeming less “constitutional” and so less disturbing. Given what happened later (i.e., the way the Lisbon Treaty was constructed), one cannot but wonder whether the main thing leaders learned during this period of reflection was that transparency and public participation are counter-productive to Constitution-making or treaty reform.

The period of reflection was supposed to end by the conclusion of the Austrian presidency in the mid-2006. As was expected, the British, Austrian, and Finish Presidencies did nothing to re-initiate discussions concerning the constitutional future of the EU during the period of reflection. The sequence of the ensuing rotating presidencies, however, provided strong incentives for the European leaders to quickly wrap up the period of reflection. The timeframe envisioned for finishing the new treaty—kick start of talks in June, IGC held between July and October, signing of the Treaty by 2008, and ratification completed by early 2009—leaves no room for the input of non-elites or non-insiders. Nor does the form of treaty reform provide any opportunities for citizen participation: The old way of Treaty reform, i.e., the IGC, has triumphed over public participation. The IGC started on 23 July 2007, with the final treaty text agreed upon on 19 October. On 13 December, the Lisbon Treaty drafted by the IGC was signed by all 27 member states.
In December 2007 the new Treaty was signed in Lisbon. The Irish negative response of the Lisbon Treaty in June 2008 pushed the European Union into a new crisis, but there was no reflection period this time and as an alternative Ireland was asked to hold a subsequent referendum. Although many assumed this would happen (The Economist [online], 2008, 19
June), the Lisbon Treaty was in the end approved by all Member States of European Union and came into force 1st of December, 2009. Intergovernmentalism is a useful line of thought in order to help know why the European Union in the end returned to its traditional treaty system (Dinan, 2007: 84). In short, it perceives European integration as an outcome of global bargaining, in which the main actors are national governments motivated to realize their national preferences through collaboration (Cini, 2010: 87).

Part I – What’s New in Lisbon Treaty?

In this part we will have a look at what are the new improvements that the Lisbon Treaty aims to increase the Union’s effectiveness in a world characterized by constant change?

At the first place, in order to enhance its ability to act, especially in the view of improvement, and make decisions more justifiable, the decision-making procedure is simplified and democratized (Europaforum.lu [online]: 10f.). The provisions in the Lisbon Treaty aim to increase the effectiveness of the Council of the European Union. The qualified majority voting system increases legal bases in which the Council may enact greater, simpler, more democratically legitimate legislation. Until the enactment of the Lisbon Treaty the qualified majority has been defined according to a complex weighting system of votes whereby each Member State enjoys a certain number of votes, mostly depending on their demographic weight, so for example, one may draw a comparison between Malta and Germany to illustrate the somewhat unjust pre-Lisbon system. Malta, thus having 3 votes but only 413,000 EU citizens in comparison to the 82 million EU citizens of Germany with only 29 votes.

The pre-Lisbon system was therefore extremely over-representative in certain areas when considering the balance between the larger and smaller EU states. The Lisbon Treaty will replace this with a more transparent, more democratic system based on the double majority of States and population alike; this means legislation will be adopted in the Council if it wins the approval of 55% of Member States of the Union, whilst representing at the same time 65% of the citizens of the European Union. This system is undoubtedly more democratic and effective in comparison with the system applied before the Lisbon Treaty that will remain until 2014. Whilst, in a number of extremely limited areas QMV was the required system of voting the scope post-Lisbon has been hugely extended. (Articles 9c(4) TEU & 205 TFEU).

Part II – The roles of the European and national parliaments.

In this part the author describe the roles of Member states in European Union through there parliaments. A blocking minority must consist of at least four states. Certain decisions will still be made unanimously (Europaforum.lu [online]: 10f.). The co-decision procedure allegedly puts the European Parliament on an equal footing with the Council, based on double legitimacy between European Union citizens and Member States (Article 251 TFEU). Secondly, the European Union is given a single legal status (Article 47, TEU). Article 1 amends the Treaty on European Union (TEU) and Article 2 deals with the Treaty establishing the European Community (TEC), which it renames the Treaty on the Functioning of the European Union (TFEU) (Church, Phinnemore, 2010: 56) .

The European Community and its pillar system vanish and so does the Lisbon Treaty itself, leaving behind an European Union with a strengthened potential for efficient, credible and coherent external activity (Reh, 2009: 635). Thirdly, the Lisbon Treaty defines the European Union’s exclusive competences such as the customs union; its shared competences like the area of freedom, justice and security; as well as the capability to take supporting, coordinating or complementary action, as for example, in education and tourism (Europaforum.lu [online]: 12). A certain degree of flexibility of the Union is thus preserved (ibid.). Fourthly, enhanced assistance within a group of at least nine Member States in a specific field is enabled, with regard to the interests of various Member States (Articles 10 TEU & 280a-280i TFEU). Other Members may join later or choose to remain outside (ibid.). Fifthly, the Lisbon Treaty requires several institutional changes. Now headed by a President elected every two and a half years (currently Herman Van Rompuy), the European Council becomes a separate body, which should increase its consistency and transparency (Article 9b TEU; Declaration 6, 28 Article 230 TFEU).

With this effect from 2014, the number of Commissioners will be reduced to two- thirds of the number of Member States, based on an equal rota system every 5 years (Article 9d(5) TEU; Declaration 10), which is supposed to make it more successful. The newly- appointed High Representative of the Union for Foreign and Security Policy, Catherine Ashton, is the Vice-President of the Commission (Article 9e TEU), who is responsible for the European Union’s common foreign, security and defence policy, giving the Union one voice.

Part III – Citizen’s Rights under Lisbon Treaty.

A part in the Lisbon Treaty is devoted to the replenishment of the self-governing principles of the European Union, to making its association more open and to increasing the influence of European citizens’ voices (Title II &III, TEU). The general values upon which the Union was founded are clearly defined and visibly explained. All Member States must respect these principles, conditio sine qua, and if they do not, they can be sanctioned by the European Court of Justice (ECJ) (Europaforum.lu [online]: 18). Moreover, the egalitarianism of Member States is appreciated and their national and regional identities are guaranteed sovereignty (ibid.). Member States now have the official right to secession (Article 49a TEU), which indicates a significant change and give us an idea about that the European Union has not, as sceptics argue, turned into a power-hungry super-state.

A direct link between European Parliament voting results and the European Council’s contender for the President of the Commission is established (Article 9d(7) TEU; Declaration 6 & 11). The responsibilities of the European and national parliaments are reinforced in the light of intensification of the democratic system and authenticity of the Union (Europaforum.lu [online]: 19). The European Parliament’s legislative and budgetary obligations, as well as its purpose to monitor the Commission, are strengthened (ibid.). The co-decision procedure has been extended and uniformed, supporting the European Parliament’s legislative influence (ibid.).

National parliaments’ rights and commitments have been clearly laid out and they are to be directly involved in the administrative procedures (Europaforum.lu [online]: 19). European Union legislative suggestions must be in line with the principle of subsidiarity, which states that European Union decision must be taken at the next possible level to its general public (ibid: 21).

The Lisbon Treaty also look up for Citizens’ Rights by recalling rights that already existed and by initiating new ones, as well as mechanisms to guarantee that they are appreciated (Europaforum.lu [online]: 21). Citizens have the right to democratic equal opportunity and participatory democracy, which enables an open, crystal clear dialogue with groups of civil society, churches and other organizations and associations (ibid.).

From recent past 2011, if more than a million citizens establish a proposal, they can send a formally request to the Commission to submit a legislative proposal to the European Parliament and the Council for consideration concerning the execution of Treaty objectives (Economist [online], 14 January 2010). The Council now assembles in public for votes on draft legislation or for consideration, and thus citizens are granted more transparency as they can in reality see what resolutions their government is taking (Europaforum.lu [online]: 21). The Lisbon Treaty also makes the Charter of Fundamental Rights legally obligatory, so it enjoys the same importance as the treaties (Churche, Phinnemore, 2010: 58). These rights are enforced by the European Court of Justice (ECJ) but its application is restricted in United Kingdom and Poland (ibid.). Additionally, the Lisbon Treaty states that the European Union will sign up to the self-regulating European Convention on Human Rights (ibid.).

Part IV – The change in political scenario due to Lisbon Treaty.

Some tangible improvement within foreign policy coordination was brought forward. Amongst these the success in ensuring the EU-Serbia joint UN resolution on Kosovo which proved that a united European approach and good coordination effort was possible. On the flipside the EU response to the Arab Spring and Libya was mentioned. Here different positions and different initiatives formed an un-unified response – also with regards to representation on the world stage and at UN level.

This thus pointed at the need for clarification of the High Representative’s role. For instance, it was questioned, should the presidency trio step in when the High Representative is unable to represent? The need of clear rules and ‘how to get about it’ if coherent foreign policy is to be achieved was emphasised. It was underlined that the predominant issue with respect of the High Representative was a personality issue. This, together with institutional issues, means that the High Representative is being undermined from within. Furthermore, the resistance in enhancing the budget of the European External Action Service, which, in terms of staff and resources, is the size of the Dutch Foreign Office, was viewed as difficult when at the same time high expectations, as to what should be delivered, prevail. However, the participants agreed that no matter what level of resources is spent they have to be justified. More importantly, the participants agreed that without political will and leadership positive outcome is difficult even when the right instruments and resources are at hand.

The Lisbon Treaty’s political changes strive to create a Union of freedom, justice and security based on the freedoms and fundamental rights of its citizens (Europaforum.lu [online]: 24). A high level of security needs to be sustained in order to ensure the free movement of general public, combat crime and terrorism (ibid.). More or less all issues of great magnitude in this field are now decided by qualified majority voting (QMV) and co- decision between the European Parliament and the Council (ibid.).

The High Representative of the Union for Foreign and Security Policy is supposed to improve the organization and global visibility of the European Union’s outside action (ibid.) The Lisbon Treaty confirms a joint immigration procedure, a common asylum system, as well as a system to manage the Union’s external borders (ibid.).. In addition, he or she has an external action service assisting with national diplomatic services at their disposal (Article 27.3 TEU, Duff, 2007: 4).

The competences of the Union’s common foreign and security policy are more clearly defined in the Lisbon Treaty (Title V, TEU) and eventually the guiding principle might lead to a system of common defence. Defence issues are still subject to the principle of unanimity (Article 42.4 TEU); however, Member States have an duty to aid and help out another Member in the event of an armed aggression on its province (Article 42.7).
Moreover, the Lisbon Treaty also addresses the issue of Global Warming and includes a new section on the European Union’s energy policy with a harmony clause in case a Member State should suffer from tribulations of energy provision (Europaforum.lu [online]:
26-27). Furthermore, Member States should show unity when a terrorist attack or a man- made disaster occurs within the Union occurs (Part V Title VII, article 222 TFEU). In addition, it enhances the European Union’s social policy in many different areas and focuses on European Union citizenship, clarifying that the latter respects rather than replaces national citizenship (ibid: 27-29).

Part V – Constitutionalization of European Union till now and road ahead.

The rather uncertain manner in which the European Union went from constitutionalization to re-de-constitutionalization throws up several issues, in particular whether the Lisbon Treaty is really a de facto constitution and its differences from the Constitutional Treaty. Raz (1998) identify “thin” and “thick” constitutions. A “thin” constitution is any law “that establishes and regulates the main organs of government, their constitution and their powers” (Raz, 1998: 153). Thus, European main law qualifies as a “thin” constitution; as the Treaties make the regulations for the institutions of government, explain their competences and decision-making rules and relationships (Reh, 2009: 628).

According to Andenas, there has been a “constitution ever since it [the European Union] was constituted” (2002: 102). Raz suggests seven criteria to identify a “thick” constitution, namely whether it is: constitutive, stable, written, superior, justiciable, entrenched, and whether there exists a common ideology (1998: 153f.), which Reh bunches into three functional categories: formal (includes codification, constitution and continuity), material (entails the definitions and institutionalization of the principles of government), and symbolic (public recognition and acceptance) (Reh, 2009: 629f.). Looking at a formation regarding these functions de-couples it from the national level (ibid: 630).

Taking into consideration all the suggestions of the Lisbon Treaty, it does not fundamentally change the status quo and a lot of the original Constitutional Treaty’s content was conserved; nevertheless, the Lisbon Treaty comprises some vital new aspects. The symbolic category talk about above that existed in the Constitutional Treaty, containing constitutional language, a European anthem and flag, was removed. Moreover, the Lisbon Treaty’s function is to amend rather than replace the previous Treaties.

The Lisbon Treaty itself actually vanish, leaving behind the amended Treaty on European Union (TEU) or the Treaty on the Functioning of the European Union (TFEU) now forming one legal personality, as well as thirteen legally-binding Protocols (5 of which were originally in the Constitutional Treaty), an Annex, a Final Act, and 65 Declarations (Church, Phinnemore, 2010: 56). As a result, the Lisbon Treaty adds to rather than reduces the difficulty of the European Union. While there is a “constitutional feel” to many parts of the

Lisbon Treaty, it is not a formal Constitution.
More accurately, the Lisbon Treaty is part of an evolving, underlying, informal or “thin”, small-c European constitution, similar to that of Britain but based on a different structure (Weiler, 2002: 567). There is little point in labelling the Lisbon Treaty either as “Europe’s Constitution in all but name” or as the Constitution’s failure (Reh, 2009: 327). A recognized Constitution alone is not a guarantor for a more well-organized democracy; instead, democratic patterns are rooted in the real underlying constitution (Erk, 2007: 634). In other words, had the Constitutional Treaty been enforced, it would not of necessarily have brought radical change either, as democracy is a developing process and cannot be predictable to happen from one day to the other.

How much success have the Lisbon Treaty’s new improvements shown so far and is it really the Treaty of Treaties? While the Lisbon Treaty has definitely taken a step forward in fighting the democratic deficit, increasing qualified majority voting (QMV) and Citizens’ Rights on paper does not really make citizens feel more included in European Union consultation and policy-making. For the vast majority of people, the European Union is still, if not even more so, a indistinguishable set of institutions based in far-away Brussels, consisting of unidentified and overpaid spokespeople taking decisions to their own benefit.

The Lisbon Treaty, though it is supposed to make things easier, is so complex in itself that it does not make the Union easier to understand for someone without a law degree, and it has hardly changed awareness of the European Union (The Economist [online], 25 June
2007; Carr, 2009). Not many European Union people are really aware of their rights as such, which, for example, enable them to submit a petition to the European Parliament or write a letter to an European Union organization.

As long as this is the case, there will be a continuing debate on the issue of authenticity as well as the democratic shortfall. By creating more popular European media, including newspapers and TV channels that actually have more to offer than Euro News, for example, European Union citizens might be made more aware of what it means to be a European Union citizen and of European Union policies. Relating to the prospect of a more equal footing between bigger and smaller Member States, recent past events have shown that it is mostly countries like Germany and France that actually manipulate policies (i.e. Irish budgetary crisis, BBC News [online], 22 November 2010). Due to the consequence of the German economy, it is likely to keep and increase its dominant status within the Union.

With regard to the European Union as a global actor with a common security and foreign policy, the capability-expectation gap (Hill, 1993) of the European Union is still extensive, though to some extent strengthened by the creation of a High Representative and the President of the Council. Recalling the different European opinions on recent conflicts, such as Kosovo and Iraq in 2003, a strong common security and foreign policy in lieu of the whole Europe is not easy to imagine and thus additional improvements in this area will be an exhilarating issue. Furthermore, while the Lisbon Treaty was supposed to be the last of its kind for a while, less than a year since its came into force there has already been talk of a new necessary Treaty revision (The Economist [online], 21 October 2010; 4 November 2010). Largely inspired by the Germans and Angela Merkel in particular, the Commission has anticipated increasing the monitoring of national financial budgets and economic unevenness and a system of warnings and sanctions (ibid.).

Conclusion

In the conclusion part, this article has studied how within inside the Lisbon Treaty aims to create more efficiency, predominantly by escalating qualified majority voting (QMV) and the co-decision procedure of the European Parliament, how it struggles to improve democratic principles and provide political transformations to improve the Union’s policies in fields such as social welfare, economics and environment issues, while on the outside its goal is to reinforce the European Union as a global actor with one voice.

Subsequent to the failure of the Constitutional Treaty, the Lisbon Treaty can be seen as part of the European Union’s evolving constitution. The rapid process from euphoric constitutionalism to de-constitutionalization, can be explained by European national parliaments’ preference for intergovernmentalism, which includes a state-centric approach and sees international haggling in the form of treaty negotiations as central to the European integration development. The Lisbon Treaty has not brought a world-shattering reform.

The democratic shortfall though slightly enhanced, still has a long way to go, in terms of transparency, openness and public awareness of European Union politics. It can be criticized for the terrific complexity in itself, which doesn’t really do well in bringing the idea of a united Europe and what it requires closer to the citizens.

Moreover, the Lisbon Treaty includes the right to secession, hassles the role of national parliaments as well as subsidiarity and proportionality, and first and foremost European Union citizens are citizens of their respective countries. The domestic- supranational gap has been extended rather than lessened (Reh, 2009: 637). At the present situation, the Union is thus still far from becoming a “United States of Europe”. It is also unlikely that the Lisbon Treaty will remain the “Treaty of Treaties”, as there is already talk of further modifications. In a nutshell, the Union is still far from reaching finalite politique.
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