Adapting the institutions to an enlarged EU

Among the most visible changes brought about by the Lisbon Treaty are the reforms of the institutions: these reforms concern the number of the institutions and their respective powers, composition and internal functioning. The institutions will now have to cope with the increased rights given to other political actors, such as the national parliaments, the Committee of the Regions and the citizens themselves.

The Lisbon Treaty increases the number of the EU institutions from five to seven, by giving the European Council and the European Central Bank the status of institution. The respective powers of the institutions are somewhat reshuffled, most notably through a widening of the scope of the codecision procedure, an increase in the number of cases where a (redefined) QMV in the Council will apply, a reform of the budget decision-making procedure, the creation of the new offices of a full-time European Council President, elected for up to five years, and of a Union High Representative for Foreign Affairs and Security Policy, appointed for five years, who is the president of the Foreign Affairs Council as well as one of the vice-presidents of the Commission, a reference to the Eurogroup which is chaired by a president elected by his/her peers and an extension of the jurisdiction of the Court of Justice.

May and June 2005: the peoples of two of the six founding members of the European Union, France and the Netherlands, consulted by referendum, refuse to ratify the Constitutional Treaty for Europe.

June 2008: the people of Ireland, one of the countries which has benefited most from the European Union, rejects the ratification of the Lisbon Treaty.

What is happening?

Does this mean that the dreams of a reconciled and more united Europe are dying? What exactly are those dreams? And, to begin with, which countries and peoples are concerned?

It is not easy to give a definition of Europe, whether geographically, historically or culturally.

Geographically, Europe is not a precise concept. It is not a continent, but rather a peninsula at the western edge of the Eurasian continent. Its eastern borders are far from being precise. It presents a vast variety of landscapes and climates, from the driest places of its Mediterranean coasts to the polar regions of Lapland.

It has always been populated by many diverse peoples, mainly but not only Christians, using dozens of languages and even different alphabets.

Historically, these peoples have organised themselves into national entities, according to their religions, languages or geographical situation. Over the centuries, Europeans have developed and strengthened the concept of the nation state. The European nation states have nurtured their differences, thus favouring nationalism, something which often led to wars with their neighbours. Nationalism explains why European nations have been fighting each other over the centuries.

Both in the 2002–3 Convention and in the 2003–4 IGC, the ambition was to take a major qualitative step forward in the field of external affairs. The aim was to make the Union more ‘present in the world’, as the European Council had requested in the 2001 Laeken Declaration. This was to be achieved by improving the functioning of the CFSP, as well as the consistency between the different areas of EU external policy: CFSP, trade, development, humanitarian aid and other sectoral external policies in environment, transport and so on, essentially through the establishment of new institutional tools.

External affairs before the Lisbon Treaty

The origins and scope of the external competence of the Community

In the 1957 Rome Treaty, the EC competence in external affairs was purely economic, and in particular linked to the fact that the EC was first created as a customs union, with a common customs tariff. As international trade developed, and the EC progressively liberalised its internal trade and made use of its internal competences to create its internal market, with free movement of goods, services, capital and persons and harmonised internal rules, the corresponding external competences also developed. This was necessary to avoid the possibility that, by concluding international agreements on matters covered by internal EC rules, Member States would affect these rules or impede their development.

The origins of the EU Charter of Fundamental Rights

The original EC Treaty did not make any reference to fundamental rights. It was the 1992 Maastricht Treaty which inserted Article 6(2) in the EU Treaty, providing that ‘the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms … and as they result from the constitutional traditions common to the Member States, as general principles of Community law’. Before that, the EU Court of Justice had, as early as in 1969, stated that fundamental human rights are ‘enshrined in the general principles of Community law and protected by the Court’. Thereafter, the Court continued strengthening this protection so that ‘respect for human rights is … a condition of the lawfulness of Community acts’.

Such a guarantee was a prerequisite for the acceptance by Member States of the principle that EU law has primacy over national law, a principle which the Court of Justice had already enunciated in 1964. Without a guarantee that fundamental rights were properly protected at EU level, the conferral by Member States of competences on the EU might have entailed a lowering of the level of protection of human rights. This link with primacy was made very clearly by the German Constitutional Court in its case law which became known as Solange (meaning ‘as long as’ in German).

In its judgment of 26 November 2008 (71 pages, 218 paragraphs), the Czech Constitutional Court concluded that the Lisbon Treaty and the EU Charter of Fundamental Rights are not in conflict with the Czech constitutional order.

It stressed that the Court had concentrated its review only on those provisions of the Treaty whose consistency with the Czech Constitutional order were expressly contested. Therefore it remained legally possible that a group of deputies or senators might submit a new petition on the constitutionality of other provisions of the Lisbon Treaty.

The Court stressed that the transfer of powers from State organs of the Czech Republic to an international organisation cannot go as far as to violate the very essence of the Republic as a democratic State governed by the rule of law, founded on respect for the rights and freedoms of human beings and of citizens. A transfer to the EU of the competence to define its own competences (Kompetenz-Kompetenz) would also be inconsistent with the Czech Constitution. However, the Court noted that the Lisbon Treaty does not have such consequences and it concluded that the Lisbon Treaty, together with the EU Charter of Fundamental Rights, is consistent with the Czech constitutional order. The Court stressed that the transfer of certain competences of the State to the EU, which arises from the free will of the State and which will be exercised with its participation, is not a weakening of the sovereignty of the State.

Mit dem Vertrag von Lissabon wurde ein neues Kapitel der europäischen Geschichte aufgeschlagen. Einen entscheidenden Impuls für diesen neuen Vertrag gaben die Feierlichkeiten zum 50. Jahrestag der Unterzeichnung der Römischen Verträge am 25. März 2007. Denn hier bekannten sich die europäischen Staats- und Regierungschefs in der “Berliner Erklärung” zu den gemeinsamen Werten, Aufgaben und Strukturen der Europäischen Union – und dazu, die Europäische Union auf eine erneuerte gemeinsame Grundlage zu stellen.

Diesen Willen in ein Mandat für eine Regierungskonferenz umzusetzen, war sicherlich nicht einfach. Dass dieses Ziel schließlich noch während der deutschen Ratspräsidentschaft auf dem Europäischen Rat vom 21. bis 23. Juni 2007 erreicht wurde, ist auch ein Verdienst von Jean-Claude Piris als Generaldirektor des Juristischen Dienstes des Rates. Die Mühen haben sich gelohnt. Denn der Vertrag von Lissabon macht die Europäische Union nach außen stärker und selbständiger und nach innen demokratischer. Die Union ist damit für die neuen Herausforderungen der zunehmend globalisierten Welt besser gerüstet.

Mit Inkrafttreten des Vertrags von Lissabon am 1. Dezember 2009 wurde ein vielschichtiger Reformzyklus erfolgreich abgeschlossen, der bereits mit den Verhandlungen zum Vertrag von Maastricht begann. Das vorliegende Buch zeichnet die historischen Linien nach. Dadurch werden die Wurzeln und Bezüge der zentralen Regelungen klar herausgearbeitet. Daneben stellt das Werk auch die wichtigsten Urteile zum Vertrag von Lissabon dar – beispielsweise das Urteil des deutschen Bundesverfassungsgerichts. Das Buch leistet somit eine umfassende Einordnung des geltenden Primärrechts der Europäischen Union aus einer berufenen Hand.

A short history of Justice and Home Affairs in the EU

The 1957 Rome Treaty did not contain provisions conferring powers on the Community in the area of Justice and Home Affairs. Co-operation among Member States in this field was being developed in the larger framework of the Council of Europe. The only provision dealing with a judicial issue was Article 220 of the EC Treaty (later renumbered 293 and now repealed by the Lisbon Treaty), which requested the Member States to conclude conventions between themselves on, inter alia, ‘the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards’. The 1968 Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters was concluded on this basis.

Co-operation between Member States in the field of Justice and Home Affairs began in the 1970s. It took place in the framework of European Political Co-operation, as well as in the margins of the Council, involving ministers for home affairs on issues such as terrorism and police co-operation, drugs or border controls. The so-called ‘TREVI Group’ was established informally in June 1976, following a request from the European Council meeting in Rome in December 1975. Discussions in the margins also began to involve justice ministers concerning judicial co-operation, although most developments in judicial matters continued to take place within the larger framework of the Council of Europe and the Hague Conference on private international law.

The process that led to the establishment of the European Union

The point of departure was the 1951 Paris Treaty, by which the six founding Member States established the European Coal and Steel Community (ECSC). They then adopted the Rome Treaty establishing the European Economic Community (EEC) and the Treaty establishing the European Atomic Energy Community (EAEC or Euratom), in 1957.

That was the beginning of the process which led to the establishment of the European Union (EU). Since then, and before the Lisbon Treaty, the original Rome Treaty has been modified by a number of successive amending treaties: the most important ones came into effect in 1987 (the Single European Act), in 1993 (the Maastricht Treaty), in 1999 (the Amsterdam Treaty) and in 2003 (the Nice Treaty).

The 1957 Rome Treaty (signed on 25 March 1957), which entered into force on 1 January 1958, established the EEC. The aim was to create a customs union, flanked by a common agricultural policy and by co-operation in other areas, in order to try and build a ‘common market’. The Council, composed of ministers representing the government of each Member State, took all the important decisions on the basis of proposals from the Commission, mostly on the basis of unanimity, sometimes consulting a Parliamentary Assembly composed of members delegated by the national parliaments of the Member States. It was decided later on (in 1976) that the members of this assembly would be elected by direct universal suffrage.

The EU budget

A brief history of the EU budget

The rules governing the adoption of the EU budget have been modified a number of times. Originally, the 1957 Rome Treaty gave budgetary power exclusively to the Council (Article 203 of the original EEC Treaty). The European Parliament progressively obtained more powers.

For nearly thirty-five years, the procedure for the adoption of the annual budget has always respected the following lines: the European Parliament and the Council are seized by a draft budget tabled by the Commission. The procedure is subject to a timetable fixed by the Treaty. The budget is to be approved by the Council and to be finally decided by the European Parliament. The Council votes by a QMV specific to cases where the Council does not act on the basis of a proposal from the Commission, but on the basis of another act (a draft, a recommendation, etc.). In such situations, unanimity is not required in the Council to change the proposal of the Commission (Article 250(1) TEC). Since the early 1970s, the European Parliament had obtained a right of codecision, and even the last word on so-called ‘non-compulsory’ expenditure. For its part, the Council kept the last word on the so-called ‘compulsory’ expenditure (mainly for the common agriculture policy).

On this basis, in the early years of the EC the negotiations between the European Parliament and the Council, or rather the fights about powers more than about figures, were taking place annually in lengthy sessions which frequently lasted overnight.

Knowing the history and the context of the negotiation and of the birth of a treaty is useful. Having a clear legal interpretation of its provisions is necessary. However, the real story of a treaty begins with its implementation. For the Lisbon Treaty, even more than for other treaties, this story is impossible to foresee.

This is more the case for the Lisbon Treaty than for any preceding European Treaty, because it was not negotiated in the same way. Its substance was negotiated mostly by politicians within the European Convention, and not by diplomats within an IGC. This partly explains why some of its provisions leave room for flexibility in the way they will be implemented in practice. This is the case for the way in which the High Representative, Catherine Ashton, will play her complex role as well being also, at the same time, President of the Foreign Affairs Council and Vice-President of the Commission. This is also the case for the way in which the President of the European Council, Herman Van Rompuy, the President of the Commission, José Manuel Barroso, and the six-monthly rotating Presidency of the Council will organise their relations, or for the role that the General Affairs Council and Coreper could play in those relations. Therefore the fate of the Lisbon Treaty will not only depend on its text.