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Max Planck Encyclopedia of Public International Law [MPEPIL]

Lisbon Treaty

Christian Tomuschat

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 15 July 2019

Treaties, binding force — Treaties, application — Treaties, interpretation — Specific treaties

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  Origins

The Treaty of Lisbon of 13 December 2007 is currently the capstone of a continual process of carrying the European integration process forward. Since its inception, the legal foundations of that process have been regularly adjusted to changing circumstances. The first concrete realization of the grand design to establish supranational institutions in (Western) Europe was the European Coal and Steel Community (ECSC), which came into being on 23 July 1952 on the basis of the corresponding Treaty of 18 April 1951 (261 UNTS 140). In consonance with the then prevailing concept of sectoral integration, the next great step forward was the conclusion, on 25 March 1957, of the two Treaties establishing the European (Economic) Community and the European Atomic Energy Community (Euratom), both of which came into force on 1 January 1958 (294 UNTS 17; 294 UNTS 260). For many ensuing decades, the integration process remained essentially an economic undertaking. Although the treaties also granted many rights to private persons, in particular the freedom of movement of workers and freedom of establishment for self-employed persons, these rights were mainly conceived as economic entitlements only. Accurately capturing this philosophy, German lawyer Hans-Peter Ipsen spoke of the beneficiaries of being ‘market citizens’. Still the Single European Act ([signed 17 February 1986, entered into force 1 July 1987] 1754 UNTS 3), a reform treaty, confined itself to laying more efficient foundations for the internal market of the European Economic Community.

In the long run, such a restricted view of the integration process proved unsatisfactorily narrow. Accordingly, shortly afterwards a new effort was undertaken to provide the new system of governance with larger bases of political legitimacy. These efforts culminated in the Maastricht Treaty of 7 February 1992, in force since 1 November 1993 ([1992] OJ C191/1), which introduced the European Union as the overall political framework for the integration process. The European Community, continuing the European Economic Community but enriched by specific political elements, became the first pillar of the European Union, together with the ECSC and Euratom. These political elements, in particular the Union citizenship and, derived from it, the right for Union citizens to take part in elections to the European Parliament and also in local elections at their place of residence, fully justified the dropping of the qualification ‘economic’ in the title of the entity. A European Common Security and Defence Policy became the second pillar of the Union. Lastly, the new architecture was completed by a field of activity designed as Co-operation in the Fields of Justice and Home Affairs.

The legal configuration established by the Maastricht Treaty was rather cumbersome. While the ‘Community wing’ enjoyed international legal personality, the two other pillars, regulated by the Treaty on European Union, as well as the overarching structure, the European Union, had been denied such characterization. While in the Community the specific Community method obtained, namely majority decision in many fields and enactment of legal instruments with direct effect vis-à-vis private persons, the Union acted almost exclusively on the basis of unanimity in the two additional pillars. The acts taken there had the nature of political guidelines, not creating any binding obligations for individuals.

In spite of its many innovative features, the new entity did not live up to the expectations attached to it. The relevant treaties were amended twice by the Treaty of Amsterdam ([1997] OJ C340/308) and the Treaty of Nice ([2001] OJ C80/1). In particular, it had emerged that the decision-making structures of the European Union were not appropriate for the planned enlargement through the admission of new members from Eastern Europe. But neither of the two amending treaties resolved all the open issues, among them, the widely complained of democratic deficit of the integration process. In a Declaration to the Treaty of Nice (No 23), it was acknowledged that a deeper reform was necessary. The aims of that reform were particularized in the Declaration of Laeken of 15 December 2001, which emphasized as guidelines for the future development more democracy, transparency, and efficiency. Thus, in a quantum leap forward, European governments attempted to establish secure foundations for many decades to come by drawing up a Constitution for Europe. The drafting of this constitution did not take place according to the usual method of intergovernmental negotiations, but was committed to a convention composed not only of governmental representatives, but also of delegates from national parliaments and the European Parliament. A right of participation was also granted to the candidates for accession from Eastern Europe. The final outcome of this process, the Treaty establishing a Constitution for Europe, was signed on 29 October 2004. It was planned that the new constitution should come into force on 1 November 2006. However, the ratification process met with unforeseen—but feared—difficulties. In two countries—France and the Netherlands—referenda ended with a negative vote. The French people rejected the constitution on 29 May 2005, the Dutch people on 1 June 2005. Thus, the constitution foundered.

For quite a while after this failure, those desiring closer integration felt helpless. It was the German presidency, during the first six months of 2007, that took decisive steps to launch a new initiative. Its strategy was simple. In order to appease the electorates that had opposed the constitution, it sought agreement among the European partners to delete those provisions from the draft text that had caused irritations because symbolically they brought the European Union close to the status of a sovereign State (in particular a flag and an anthem), on the one hand, but to conserve to the greatest extent possible the substantial components of the constitution, on the other. In the Declaration of Berlin of 25 March 2007 this strategy was officially confirmed. On the basis of a 16-page framework text for the new Reform Treaty agreed upon on 23 June 2007 under the German Presidency, negotiations started on 23 July 2007. Amazingly fast, the negotiations conducted within an intergovernmental conference came to their end on 13 December 2007 with the signing of the new text, called the Treaty of Lisbon.

Again, the ratification process was marred by resistance from voters in some Member States. In Ireland, a first referendum (12 June 2008) rejected the draft text, one of the main reasons being that the original version provided for a Commission made up of a number of members corresponding to two-thirds of the number of Member States, a formula according to which Ireland risked losing ‘its’ national commissioner. After a compromise had been reached on that issue, a second referendum went ahead on 2 October 2009 without any major problems. In two countries, the Lisbon Treaty was challenged before the constitutional court. In the Czech Republic, the senate had referred the Treaty for judicial review, but the constitutional court held that it did not infringe the Czech constitutional order (judgment of 26 November 2008). In Germany, the Lisbon Treaty was challenged through constitutional complaints mainly by members of the German Bundestag, but also by members of the general public. In its judgment of 30 June 2009, the Federal Constitutional Court declared the Lisbon Treaty to be in conformity with the requirements of German Basic Law, although objecting to the distribution of seats in the European Parliament according to the principle of degressive proportionality, which is clearly to the detriment of the larger Member States. But it required that the participation of the German Bundestag in certain decisions at Union level—eg simplified amendment of the Treaty, Art. 48 (6) Treaty on European Union (‘TEU’), as well as operation of the flexibility clause of Art. 352 Treaty on the Functioning of the European Union (‘TFEU’)—be formally enacted as legal requirements in the domestic act of implementation. Eventually, after the positive outcome of the second Irish referendum, the Lisbon Treaty could enter into force on 1 December 2009.

B.  Main Features: The Institutional Setup

Unlike the Constitution Treaty, the Lisbon Treaty has kept the division of the legal basis of the European system of governance in two treaties, the TEU, which generally speaking sets forth the fundamental principles, and the TFEU, which essentially regulates the operative details. Euratom continues to exist as a separate entity. There is no qualitative difference between the two main treaties. Art. 1 TEU specifies that they ‘shall have the same legal value’. For the purposes of interpretation, therefore, the TEU and the TFEU must be seen as an integrated whole, although it cannot be ignored that the guiding orientations are mainly to be found in the TEU.

One may call it perhaps the greatest achievement of the negotiation process leading to the adoption of the Lisbon Treaty that the distinction between the European Union and the European Community has been overcome. There is only one European Union; it shall have legal personality both in the field of private law and on the level of international law, Art. 47 TEU. In international relations, it was generally extremely difficult to explain the raison d’être of that distinction and to specify which areas were covered by the TEU and which other areas came within the scope of the Treaty Establishing the European Community. A first success obtained under the new regime is the recognition of the European Union as an observer at the UN General Assembly, with a privileged position encompassing the right to make interventions, including the right to reply, and the right to make proposals and to submit amendments (UNGA Res 65/276 ‘Participation of the European Union in the Work of the United Nations’ [10 May 2011]). The European Union has thus become an actor in international relations that enjoys more confidence than beforehand under its double status.

The Lisbon Treaty has made clear once again that the European Union is not a State. Although the TFEU continues the citizenship of the Union, which was introduced by the Maastricht Treaty, the nationals of the different Member States of the European Union do not form together a ‘European people’ that could constitute the main component of a State. In the preamble to the TEU, reference is made several times to ‘their peoples’, ie to the peoples of the Member States. Great care is taken to avoid the notion of a ‘European people’. In the provision on elections to the European Parliament, the formula appears that the Parliament ‘shall be composed of representatives of the Union’s citizens’, Art. 14 (2), a phrase that was read by critics as an indication of the intention of the contracting parties to elevate the Union to the rank of a quasi-State. However, that intention was never explicitly manifested. It also emerges from a great number of other provisions that the European Union remains subordinated to the sovereignty of its Member States.

10  It is highly significant that the Union is required to respect the national identity of the Member States, Art. 4 (2) TEU. In the same vein, it is striking to note how many times the principle of conferral of powers (compétences d’attribution) is emphasized in the TEU. The European Union is vested only with those powers which the Member States have conferred on it; it is debarred from establishing for itself new powers in an autonomous fashion, Arts 3 (6), 4 (1), 5 (1), and (2) TEU. This also means that the flexibility clause of Art. 352 TFEU, which provides for situations where the European Union is required to attain certain objectives but has not been entrusted with the requisite powers for taking appropriate action, must be handled with great care. Given the particular danger of Art. 352 TFEU being employed abusively, the procedure is surrounded by exceptional guarantees: the Council must decide unanimously; the European Parliament must give its approval; and the individual national parliaments must be informed so that the conformity of the relevant proposal with the principle of subsidiarity can be reviewed. In Germany, the consent to be expressed in the Council must beforehand be approved by the Bundestag. In sum, appropriate checks and balances have been put into place to prevent the European Union from surreptitiously sliding from its present status to that of a quasi-State entity.

11  Another one of the issues discussed in all Member States before the final approval of the Treaty of Lisbon was the primacy of Union law. It is a matter of common knowledge that this concept was ‘invented’ by the Court of Justice of the European Communities in Case 6/64 Costa v ENEL ([1964] ECR 585) as constituting a logical inference from the overall structure of the European Community. No specific rule could be found in the text of the different treaties at that time to support the hierarchic superiority of Community law. Against all odds, however, the jurisprudence of the Court of Justice was progressively recognized in the following years by all Member States. The Constitution Treaty ventured to formally confirm the primacy of Union law, Art. I–6. Critics in sovereignty-minded States saw this provision as a deadly blow to national sovereignty, despite the fact that the primacy rule had been in operation for more than four decades and had never been understood as such an onslaught. After the defeat of the Constitution Treaty, it was felt wise to renounce such a provocative clause. The issue was settled in Declaration No 17 concerning primacy which provides:

The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.

12  Attached to this text was the Opinion of the Council Legal Service of 22 June 2007 which, in very few words, said that nothing will be changed by the new treaty. In this soft form, the well-established primacy rule was eventually accepted without any objections. Lastly, the main argument militating against any interpretation of the Treaty of Lisbon in the sense of Union sovereignty is the withdrawal clause established under Art. 50 TEU. Every Member State of the Union is free to leave the Union in accordance with its constitutional rules. The only requirement States must comply with is to follow a specific procedure. Any State wishing to avail itself of the opportunity granted by Art. 50 TEU must communicate its intention to the Council. An agreement shall then regulate the details of the intended withdrawal. It is true that withdrawal can be effected only at a considerable cost. In law, however, the sovereign right of all Member States to decide freely on their external relations is fully safeguarded. As the Greek financial crisis has shown, the prospect that a State might leave the Union is not a far-fetched and absolutely unrealistic hypothesis.

13  Institutional changes, in their majority inherited from the abortive Constitution Treaty, have also changed the picture of a strictly trilateral relationship between the Commission, the Council, and the European Parliament. In the first place, national parliaments have been assigned a role in the development of the European Union, Art. 12 TEU. It was indeed one of the main goals in the drafting process to strengthen the democratic foundations of the Union. Whereas under the earlier treaties the national parliaments had exhausted their function by giving their consent to the conclusion of the treaty concerned, it is now firmly established that they, too, bear specific responsibilities for the development of the Union. The list of these powers is not extensive; however, in particular the task assigned to them to see to it that the principle of subsidiarity be faithfully observed is of pivotal importance.

14  At the same time, the democratic legitimacy conveyed through the channels of the European Union itself was strengthened (International Organizations or Institutions, Democratic Legitimacy). The law-making procedure was subjected to a fundamental overhaul. According to Art. 289 (1) TFEU, legislative acts shall generally be jointly adopted by the European Parliament and the Council on a proposal from the Commission. Under this procedure, the European Parliament and the Council have equal rights. Both must give their consent for a proposal to become legally binding. In comparison with national parliaments the European Parliament is still at a disadvantage in that it lacks the right of initiative which is held exclusively by the Commission. However, there are good grounds to maintain the monopoly of the Commission in that regard. It is incumbent on the Commission, when preparing a proposal, to balance the interests at stake in a truly objective spirit. In institutional terms, this rule translates a high degree of confidence in the European Commission as the guardian of the integrity of the treaty system.

15  The increase of the powers of the European Parliament was accompanied by a considerable reduction of the number of instances where decisions of the Council are to be taken by a unanimous vote. As a rule, the ordinary legislative procedure under Art. 294 TFEU provides for a positive vote by the European Parliament and a vote by a qualified majority of the Council. Whereas under the Maastricht Treaty cooperation in the fields of justice and home affairs was still mainly placed under the unanimity principle, policies on border checks, asylum, and immigration policy can now be regulated according to the ordinary legislative procedure, Arts 7780 TFEU. This amounts to a considerable step forward in the integration process since control of the national territory effects national sovereignty in a highly tangible way. The same is true of judicial co-operation in civil, Art. 81 TFEU, and criminal matters, Arts 8286 TFEU. It is an open question whether all criminal judgments delivered in another Member State of the European Union indeed deserve unrestricted confidence as far as their compliance with the elementary precepts of the rule of law is concerned.

16  The Lisbon Treaty has maintained unanimity, though, in areas which crucially affect national interests. As far as the traditional community wing is concerned, tax matters, in particular, remain under determinative national influence. Furthermore, the European Common Foreign and Security Policy remains a field where unanimity remains the guiding principle. Here, the core of national sovereignty is inevitably touched upon. It cannot be expected that in this area any departure from the unanimity principle will occur in the near or even remote future.

17  Among the institutional innovations, mention must lastly be made of two institutions which will sharpen the profile of the European Union in its external relations and have indeed already done so. On the one hand, Art. 15 (5) TEU provides for the election of a President of the European Council who will discharge his office for a period of two and a half years, renewable once. On the other hand, the Treaty of Lisbon has also introduced the office of the High Representative of the Union for Foreign Affairs and Security Policy. The holder of this office chairs on the one hand the Foreign Affairs Council, but he/she is at the same time one of the Vice-Presidents of the Commission. Pursuant to the text of Art. 18 (4) TEU:

[He/she] shall ensure the consistency of the Union’s external action [and] shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union’s external action.

Thus, the High Representative constitutes a bridge between the Council and the Commission—a construction the suitability of which can only be assessed after many years of practical experience.

C.  Main Features: Substantive Innovations

18  The Treaty of Lisbon has extended the competence of the European Union to a number of new fields. One of the main innovations is the conferral of extensive powers in respect of energy policy, Art. 194. The chapters on economic and monetary policy were considerably expanded and particularized, Arts 119–144. In particular, the drafters sought to strengthen the common currency, the euro, by enacting strict rules for the financial policies of the Member States. Subsequent events have shown that the mechanisms devised for that purpose do not really live up to the expectations which they were intended to satisfy.

19  In accordance with the statement of principle in Art. 2 TEU, pursuant to which the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, Art. 6 recognizes the rights, freedoms, and principles set out in the Charter of Fundamental Rights of the European Union (2000), as adapted at Strasbourg, on 12 December 2007. However, the Charter is not binding on all Member States of the Union. Protocol No 30 to the Treaty of Lisbon provides that governmental measures taken in Poland and the United Kingdom cannot be declared inconsistent with the provisions of the Charter, neither at Union level nor at national level in those two countries. The practical effect of this disclaimer must be considered fairly weak since Art. 6 (3) TEU provides at the same time that fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) and as resulting from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law. Generally, the Charter does not go beyond those general principles but purports instead to render them more visible. Only in the field of social and economic rights may the scope of the Charter expand on certain issues slightly further into territory not covered by the standard guaranteed under the two relevant sources mentioned in Art. 6 (3) TEU.

20  The solidarity clause of Art. 222 also deserves attention. Although it may seem self-evident that the Member States assist one another in cases of a terrorist attack or a natural or man-made disaster, it would appear useful to emphasize this duty in unequivocal terms. It is fully in line with this determination that Art. 42 (7) TEU establishes that all Member States are obligated to assist, in accordance with Art. 51 United Nations Charter, a State that has become victim of an armed attack.

D.  Assessment

21  With the Treaty of Lisbon, the European Union has reached a level of powers that can hardly be pushed any further without endangering the sovereign statehood of its members. Although economic and financial pressures may from time to time seem to render it advisable to extend the jurisdiction of the Union institutions even beyond the limits as they are currently defined, prospects are slim that the 27 Member States might agree on such proposals. In international relations, nothing is definitive. However, the European Union should first consolidate itself before being subjected to additional reforms. Practice will show whether the sophisticated architecture of this unique supranational entity is able to stand the test of time.