If the Lisbon treaty enters into force as intended in January 2010, it will mark the end of a particularly arduous episode of EU treaty change. Ever since the governments agreed on the Nice treaty in 2000, they have wanted to make further changes to rule book in order to make the EU’s institutions more efficient and accountable, to keep up with several rounds of enlargement, and to address new political priorities.
Although EU countries spent years negotiating a so-called constitutional treaty, the text was rejected in referendums in France and the Netherlands in mid-2005. Most member-states conceded that calling the treaty a ‘constitution’ was over-ambitious and misleading, but agreed that its central reforms were uncontroversial and worth keeping. After further diplomatic tinkering most of the institutional provisions of the constitutional treaty were redrafted as amendments to the EU’s founding treaties, the Treaty of Rome (1958) and the Treaty of Maastricht (1992), and called the Treaty of Lisbon (2007).
Most national parliaments in the EU have now approved the treaty, but ratification is still pending in Germany, Poland and the Czech Republic. Ireland has been the only member-state to hold a referendum on the text.
The treaty’s key provisions are:
�� A full-time European Council president
The European Council, the forum in which EU leaders meet every three months, will have a full-time chairperson or ‘president’. Now that the EU has 27 member-states, the current system of the
presidency shifting from one country to another every six months has become unworkable. Some
smaller countries struggle with the huge task of running the EU’s complex agenda, while bigger ones sometimes mix up national priorities with the European interest. Moreover, rotation results in too little follow-up on summit decisions.
Under the new system, the EU governments will choose a full-time president who will chair their meetings for a term of two and a half years, renewable once. It will not be easy to find the right person for the job. He or she will need to be a consensual figure but also weighty enough to set the agenda and cajole EU governments into implementing their political promises. The council president will not chair the sectoral councils, where the EU ministers for transport, finance, agriculture and so on decide on more specific measures. For these, a modified system of the rotating presidency will remain, with a team of three countries working together to chair the various meetings.
�� A clearer, fairer voting system
The Council of Ministers currently takes decisions under the complex ‘triple majority’ voting system of the Nice treaty. The Lisbon treaty’s ‘double majority’ voting system is both fairer – it gives countries with larger populations like Britain more weight – and more transparent. Under the new system, a measure will pass if it is supported by 55 per cent of the member-states (currently 15 out of 27), provided they represent at least 65 per cent of the EU’s population. Formal votes are rare in the EU. Poland, which did particularly well from a quirk of the Nice treaty’s voting rules, signed the Lisbon treaty under the condition that a new voting system should be phased in only between 2014 and 2017.
Even in areas of policy where decisions are supposed to be taken by majority voting, the member-states usually prefer to seek a consensus. But the new voting rules matter because the mere possibility of a vote often persuades a country that is blocking a decision to compromise. Another factor that is at least as important in determining how the Council takes decisions is the ability of particular governments to make friends and build coalitions in favour of a particular line.
�� A Commissioner for each EU member-state
Currently, each EU country nominates one national to serve as a member of the European Commission, the body which prepares and enforces EU legislation. As the EU has grown, this has made the Commission unwieldy and less effective. Each commissioner has to be given his or her own portfolio – which means that some commissioners currently have non-jobs like the promotion of multilingualism.
The president of the Commission struggles to make his 26 colleagues behave like a coherent cabinet. The Nice treaty specifies that when the number of member-states reaches 27 – which happened with the accession of Bulgaria and Romania in 2007 – the number of commissioners must be brought down to 6 less than the number of countries in the Union. The Lisbon treaty goes further, with a provision that the number of commissioners should be capped at two-thirds of the number of member-states after 2014.
However, after Ireland’s 2008 rejection of the treaty – partly because of fears that Ireland would lose ‘its’ commissioner – EU governments rethought their views on cutting the number of commissioners.
Although commissioners are not supposed to act in the interest of the country that appoints them,
Europeans usually feel represented by ‘their’ national envoy in Brussels. Each commissioner also plays an important role in helping to explain EU business to people in their home country. Furthermore, if at a particular time few big countries had commissioners, some leading member-states might be tempted not to respect Commission decisions. Fears that cutting the number of commissioners could undermine the EU’s legitimacy seemed to be confirmed by the Irish No. Therefore, EU governments agreed to abandon the plan to slim the Commission down. Luckily for the Irish government, the provision in the Lisbon treaty that would shrink the Commission is vague enough to allow the reform to be delayed indefinitely, and for Ireland to veto any proposed change to this understanding.
�� A more useful European Parliament
Over the last 30 years, the member-states have gradually extended the powers of the European
Parliament, the EU’s only directly elected institution, in the hope of increasing the Union’s democratic legitimacy. Though the Parliament has some significant powers – it can vet nominees to the European Commission, approve the EU’s overall budget, and amend many EU laws – few would argue that the institution is either particularly popular or politically mature. The Lisbon treaty gives the Parliament new and real powers over policies where the EU has often been criticised as being either too spendthrift or not accountable enough. These include agriculture, fisheries, transport and structural funds – as well as the highly sensitive areas of policing and justice. The Parliament’s MEPs will have new opportunities to drive reform and ensure accountability on behalf of ordinary citizens, as well as tighter control over expenditure. That could make it more visible and popular amongst voters.
�� A stronger foreign policy representative
Increasingly, the EU’s big challenges lie outside its borders rather than within. The need for a global agreement on climate change, the prospect of a nuclear-armed Iran, a resurgent Russia and a renewed Middle East peace process are just some examples. However, the EU’s machinery for co-ordinating foreign policy is ineffective. The Council’s High Representative (currently Javier Solana, who will shortly retire) has the political clout that comes from speaking on the EU’s behalf – provided the 27 member-states agree on what he should say. But he has few resources. The commissioner for external relations (currently Benita Ferrero-Waldner) has a substantial annual budget and a big team of specialists. But she has little diplomatic weight, partly because it is the Council of Ministers, rather than the Commission, that deals with many of the big questions of foreign and security policy. Co-operation between these two foreign policy figureheads and their respective bureaucracies is often difficult, and sometimes negligible. The Lisbon treaty therefore proposes the only sensible solution: a merger of the two posts. The combined post – originally styled as an ‘EU foreign minister’ – will be called the High Representative for Foreign Policy and Security.
The High Representative, rather than the rotating presidency, will chair the meetings of EU foreign
ministers, and this will allow him or her to steer the Union’s foreign policy agenda. Like Benita Ferrero-Waldner now, the High Representative will be in charge of the EU’s external relations budget. And he or she will preside over the EU’s new ‘external action service’, designed to provide administrative support and advice. The service will consist of the foreign affairs departments (including the overseas missions) of the Council and the Commission, as well as officials seconded by the member-states. So the new High Representative will have more clout and more resources than Solana does today. However, like Solana, he or she will only have a role to play if there is an agreed EU position to represent – and decisionmaking, as today, will remain subject to unanimity. A skilled High Representative would hopefully play a role in fostering the emergence of common EU positions.
�� Majority voting on internal security and migration
The new treaty scraps national vetoes in about 50 areas. Many of these are minor, and some are needed to allow the EU to implement its declared priorities, such as the swift disbursement of overseas aid. The most radical shift concerns decisions on EU action against terrorism, crime and illegal immigration, or what officials refer to as ‘justice and home affairs’ (JHA). In most policy areas, such as the single market or transport, the Commission drafts laws, the Council of Ministers and European Parliament decide on them, and the European Court of Justice has the right to review whether the member-states comply with them. Decisions on JHA, on the other hand, currently require unanimity, and they are beyond jurisdiction of the ECJ. The need for painstaking consensus has resulted in frequent delays and watered-down compromises in this hugely important policy area. And the lack of ECJ involvement has raised concerns that EU legislation on, say, the extradition of suspected criminals, could infringe human rights. Under the
Lisbon treaty most JHA issues will be dealt with like normal EU business. Since many of the issues at stake are sensitive, the EU has added an ‘emergency brake’ that allows each government to halt discussions on a JHA measure that could threaten its national legal system. If the country in question cannot reach a compromise with its EU partners, it is free to opt out of the measure. Despite the availability of this safeguard, the British government negotiated an opt-out from all JHA policies. Ireland, with which the UK has a common travel area, will also follow this arrangement.
�� Human rights apply to EU laws
The Lisbon treaty will make the EU’s charter of fundamental rights legally binding, but only on European legislation. The charter consists mainly of rights and freedoms that EU countries have signed up to in various other documents, such as the European Convention on Human Rights. It adds some aspirational ‘principles’, such as the right to job training and to health care, but specifies that these will only have meaning insofar as they are already applied and practised in the individual member-states. For example, the ‘right to strike’ will not create new worker entitlements beyond existing national labour laws.
Nevertheless, some in the UK worried that such principles might serve as a loophole to undermine its liberal job market. So the treaty now includes a legally binding protocol (not, strictly speaking, an optout) which underlines that the charter does not create new social or labour rights and cannot be used to strike down British laws. The Polish government also signed up to this protocol but for different reasons: it worried that the charter’s individual freedoms could clash with the conservative and religious values upheld by many Poles.
�� Member-states can leave if they want to
For the first time, the EU treaties will contain a clear procedure for a member-state to leave the Union if it chooses. A country that wants to withdraw will negotiate a new treaty to cover its relations with the other member-states and will then no longer be subject to EU laws.
�� A stronger say for national parliaments
Under the principle of ‘subsidiarity’, the EU is only supposed to legislate if action cannot be taken more effectively at the national or local level. To enforce this principle, the Lisbon treaty will, for the first time, give national parliaments the right to challenge a piece of European legislation that they consider unnecessary. The Commission will in future send draft laws directly to national parliaments. If a third of them consider that the law would breach subsidiarity, the Commission is obliged to explain why the legislation is needed, or to submit a redrafted version. If half of the national parliaments remain unhappy, a majority of member-states or MEPs can then insist that the draft be dropped altogether. However, as in the past, the role that each national parliament plays in EU law-making will depend on how actively it wishes to be involved. For example, the Danish parliament has been extremely active in scrutinising EU laws and holding the government to account during negotiations in the Council of Ministers; other national parliaments much less so.
Hugo Brady is a senior research fellow at the Centre for European Reform.
September 2009
For further information, visit our website
www.cer.org.uk