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The Entry into Force of the Lisbon Treaty: The European Union in Retrospect and Prospect

Published online by Cambridge University Press:  09 March 2016

Avinash Sharma
Avinash Sharma*
Affiliation:
Visiting Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg, Germany
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Summary

The history of European integration unmistakably shows that it has progressed step by step and is indeed an ongoing and irreversible process. One such step is the conclusion of the Lisbon Treaty, which came into force on 1 December 2009, following negotiations spanning nearly a decade. The treaty aims, inter alia, at improving the functioning of the European Union (EU) and significantly amends the treaty basis of the EU as a supranational organization. It formally establishes the EU as a legal entity under public international law, strengthens the role of the European Parliament, and significantly reforms the role of the high representative of the union for foreign affairs and security policy. Moreover, the treaty has made the EU Charter on Fundamental Rights a legally binding and enforceable instrument and has expanded the competences of the EU in the fields of trade and other external commercial relations by providing it with exclusive competence to conduct the EU’s Common Commercial Policy. The author reviews these and other innovations of the Lisbon Treaty and briefly evaluates the treaty and its implications for the EU.

Type
Notes and Comments / Notes et commentaires
Information
Canadian Yearbook of International Law/Annuaire canadien de droit international , Volume 49 , 2012 , pp. 265 - 290
Copyright
Copyright © The Canadian Council on International Law / Conseil Canadien de Droit International, representing the Board of Editors, Canadian Yearbook of International Law / Comité de Rédaction, Annuaire Canadien de Droit International 2012

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Footnotes

The author wishes to thank Trevor C Hartley (London School of Economics and Political Science), Joseph HH Weiler (New York University), Damian Chalmers (London School of Economics and Political Science), Neil Walker (European University Institute), Jose M de Areliza (Instituto de Empresa, Madrid), Kieran St C Bradley (European Parliament), Imola Streho (Sciences Po, Paris), and Marie-Pierre Granger (Central European University) from whose lectures the author has derived a great deal. The views expressed herein are personal.

References

1 Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community, 13 December 2007, [2007] OJ C 306/1, online: <http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2007:306:SOM:en:HTML> [Lisbon Treaty].

2 Charter of Fundamental Rights of the European Union, [2010] OJ C 83/389, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010: 083:0389:0403:EN:PDF> [EU Charter].

3 For excellent discussions of the Lisbon Treaty, see Devuyst, Y, “The European Union’s Institutional Balance after the Treaty of Lisbon: ’Community Method’ and ’Democratic Deficit’ Reassessed” (2008) 39 Geo J Int’l L 247;Google Scholar Craig, P, “The Treaty of Lisbon: Process, Architecture and Substance” (2008) 33 Eur L Rev 137;Google Scholar Dougan, M, “The Treaty of Lisbon 2007: Winning Minds Not Hearts” (2008) 45 CML Rev 617.Google Scholar For a more succinct overview of the Lisbon Treaty, see Lavranos, Nikolaos, “The Entering into Force of the Lisbon Treaty: A European Odyssey” (14 December 2009) 13:26 ASIL Insights, online: <http://www.asil.org/insights091214.cfm> AMBIGUOUS (7600 citations)Google Scholar; Hermann, Christoph, “The Treaty of Lisbon Expands the EU’s External Trade and Investment Powers” (21 September 2010) 14:28 ASIL Insights, online: <http://www.asil.org/insights 100921pdf.cfm> AMBIGUOUS (8314 citations)Google Scholar.

4 Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 2 October 1997, [1997] OJ C 340/1 (entered into force 1 May 1999), online: <http://eur-lex.europa.eu/en/treaties/dat/11997D/tif/JOC_1997_340_1_EN_0005.pdf> [Treaty of Amsterdam]; Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, 11 December 2000, [2001] OJ C 80/1 (entered into force 2 February 2003), online: <http://eur-lex.europa.eu/en/treaties/dat/12001C/pdf/12001C_EN.pdf>; [Treaty of Nice]; Declaration on the Future of the Union, Declaration no. 23 to the Treaty of Nice, Final Act of the Conference of the Representatives of the Governments of the Member States, Annex, [2001] OJ C 80/77 at 85-86.

5 Ibid at 85, para 3. The Treaty of Nice failed to address several contentious issues, in particular, the delimitation of powers between the European Union (EU) and member states; the status of the EU Charter, supra note 2; simplification of the various treaties constituting the EU; and expanding the role of national parliaments in the European architecture. See generally Gray, M and Stubb, A, “The Treaty of Nice: Negotiating a Poisoned Chalice?” (2001) 39 J Common Market Studies 5;10.1111/1468-5965.39.s1.2CrossRefGoogle Scholar Wessels, W, “The Millennium IGC in the EU’s Evolution” (2001) 39 J Common Market Studies 197;CrossRefGoogle Scholar Fischer, Joschka, “From Confederacy to Federation: Thoughts on the Finality of European Integration” (Speech delivered at Humboldt University, Berlin, 12 May 2000)Google Scholar, reprinted in Joerges, Christian, Mény, Yves, and Weiler, HH, eds, What Kind of Constitution for What Kind of Polity? Responses to Joschka Fischer (Florence: European University Institute, 2000) 19, online: <http://www.cvce.eu/viewer/-/content/4cd02fa7-d9d0-4cd2-91c9-2746a3297773/en>.Google Scholar Fischer argued: “These three reforms — the solution of the democracy problem and the need for fundamental reordering of competences both horizontally, i.e. among the European institutions, and vertically, i.e. between Europe, the nation state and the regions — will only be able to succeed if Europe is established anew with a constitution. In other words, through the realization of the project of a European constitution centred around basic, human, and civil rights, an equal division of powers between the European institutions and a precise delineation between European and nation state level. The main axis for such a European constitution will be the relationship between the Federation and the nation state.” For a series of detailed responses, see Mény, Joerges, and Weiler, (ibid). See also Walker, N, “Europe’s Constitutional Passion Play” (2003) 28 Eur L Rev 905;Google Scholar Walker, N, “Big ’C’ or Small ’c’?” (2006) 12 Eur LJ 12 Google Scholar; Eleftheria-dis, Pavlos, “The Idea of a European Constitution” (2007) 27 Oxford J Legal Studies 1.10.1111/j.1748-121X.2006.00038.xCrossRefGoogle Scholar

6 Laeken Declaration on the Future of the European Union, European Council, 15 December 2001, reprinted in Laeken European Council, Presidency Conclusions, Annex I, EU Doc SN 300/1/01 REV 1 (14-15 December 2001) 19 at 24, online: <http://ec.europa.eu/governance/impact/background/docs/laeken_concl_en.pdf> [Laeken Declaration]. For an excellent overview, see Magnette, P, “In the Name of Simplification: Coping with Constitutional Conflicts in the Convention on the Future of Europe” (2005) 11 Eur LJ 432;Google Scholar Skach, C, “We the Peoples? Constitutionalising the European Union” (2005) 43 J Common Market Studies 149.10.1111/j.0021-9886.2005.00550.xCrossRefGoogle Scholar Ever since the Laeken Declaration used the word “constitution” in a subsection entitled “Towards a Constitution for European Citizens,” the adoption of a “constitutional text in the Union” was regarded as imminent by the EU (Laeken Declaration, at 23–24).

7 The main task of the Convention on the Future of Europe was to consider the key issues arising for the EU’s future development and to try to identify the pos-sible responses to them by conducting a wide public consultation. In addition to its chair (Valéry Giscard D’Estaing) and two vice-chairs (Giuliano Amato and Jean Luc Dehaene), the Convention on the Future of Europe comprised 102 delegates from national governments and parliaments (including from the then accession candidate states), the European Parliament, and the European Commission. Civil society representatives were invited to attend as observers. The convention met in plenary session, with all members present, once a month. It was the final decision-making body, responsible for adopting any agreed text. Its decisions were taken in public by consensus rather than by vote. See generally the archived website of the convention, online: <http://european-convention.eu.int/EN/bienvenue/bienvenue2352.html?lang=EN>.

8 “Introductory Speech by President V. Giscard D’Estaing to the Convention on the Future of Europe,” reprinted in European Convention Secretariat, Speeches Delivered at the Inaugural Meeting of the Convention on 28 February 2002, EU Doc CONV 4/02 (2002), Annex 4, 12 at 20. (It is to be noted that at that time there were still three communities (the European Community, the European Atomic Energy Community, and the European Coal and Steel Community). The Coal and Steel Community Treaty expired in 2002, after fifty years. The Treaty on European Union was concluded in Maastricht in 1992. Treaty on European Union, 7 February 1992, [1992] OJ C 191/1 (in force 1993), online: <http://eur-lex.europa.eu/en/treaties/dat/11992M/tif/JOC_1992_191__1_EN_0001.pdf> (TEU). See also Walker, N, “Europe’s Constitutional Momentum and the Search for Polity Legitimacy” (2005) 4 Int’l J Constitutional L 211;CrossRefGoogle Scholar and Maduro, M, “The Importance of Being Called a Constitution” (2005) 4 Int’l J Constitutional L 332.CrossRefGoogle Scholar

9 Draft Treaty Establishing a Constitution for Europe, 18 July 2003, EU Doc CONV 850/03 (2003), online: <http://european-convention.eu.int/docs/Treaty/cv00850.en03.pdf>.

10 Treaty Establishing a Constitution for Europe, 29 October 2004, [2004] OJ C 310/1, online: <http://eur-lex.europa.eu/JOHtml.do?uri=OJ:C:2004:310:SOM:EN:HTML> [Constitutional Treaty].

11 Ibid, Article IV-447.

12 It is noteworthy, however, that soon after the signing of the Constitutional Treaty in Rome in October 2004 ten member states decided to hold referenda to determine whether or not they should ratify it. The first such referendum was held in Spain, where the treaty was approved with an overwhelming majority of 76.72 percent in a 42.32 percent voter turnout. See EOS Europe, Gallup, The European Constitution: Post Referendum Survey in Spain (Brussels: European Commission, 2005) at 2, online: <http://ec.europa.eu/public_opinion/flash/fl_168_en.pdf> Google Scholar.

13 In the referenda held in France (on 29 May 2005) and in the Netherlands (on 1 June 2005), the Constitutional Treaty was rejected by 55 percent and 62 percent of voters respectively. See Bonde, Jens-Peter, From EU Constitution to the Irish Referendums on the Lisbon Treaty, 2nd edition (Brussels: Foundation for EU Democracy, 2009) at 58, online: <http://en.euabc.com/upload/from_eu_constitution.pdf>.Google Scholar Arguably, the reasons for such rejections were protests against globalization, the consequences of the 2004 EU enlargement, fear of eventual Turkish membership in the EU, and (in the Netherlands) anger over the perceived power of the larger EU member states.

14 See Luxembourg Presidency of the Council of the European Union, “Jean-Claude Juncker states that there will be a period for reflection and discussion but the process to ratify the Constitutional Treaty will continue with no renegotiation,” Press Release (17 June 2005), online: <http://www.eu2005.lu/en/actualites/communiques/2005/06/16jclj-ratif/index.html>.

15 Declaration on the Occasion of the Fiftieth Anniversary of the Signature of the Treaties of Rome,” 25 March 2007, Part III, online: <http://europa.eu/50/docs/berlin_declaration_en.pdf>. Treaty Establishing the European Community, 25 March 1957, [2002] OJ C 325/33, online: <http://eur-lex.europa.eu/en/treaties/dat/12002E/pdf/12002E_EN.pdf> [Treaty of Rome].

16 In terms of substance, the strategy involved using the Constitutional Treaty as a starting point while addressing the question of what had to be altered to make the treaty acceptable to all. The heads of government met on 21-23 June 2007 to consider the process and produced a sixteen-page mandate that was to provide the basis for an inter-governmental conference (IGC) to be completed by December 2007. The mandate indicated that the new treaty was to follow the text of the Constitutional Treaty except as specified in the mandate. Accordingly, the scope of the subsequent IGC was highly limited. See Council of the European Union, “IGC 2007 Mandate,” EU Doc 11218/07 (26 June 2007), Annex, online: <http://register.consilium.europa.eu/pdf/en/07/st11/st11218.en07.pdf>.

17 Lisbon Treaty, supra note 1.

18 In the first referendum held on 12 June 2008, 53.4 percent of Irish voters rejected the Lisbon Treaty. See Bonde, supra note 13 at 11, 17.

19 For a detailed analysis of the Irish “no” vote commissioned by the Irish Department of Foreign Affairs, see Millward Brown IMS, “Post Lisbon Treaty Referendum Research Findings,” September 2008, online: <http://www.dfa.ie/uploads/documents/Publications/Post%20Lisbon%20Treaty%20Referendum%20Research%20Findings/final%20-%20post%20lisbon%20treaty%20referendum%20research%20findings.pdf>.

20 Ibid at 14.

21 Presidency Conclusions, Brussels European Council, EU Doc 17271/1/08 REV 1 (11-12 December 2008) at 2, online: <http://consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/104692.pdf>.

22 Presidency Conclusions, Brussels European Council, EU Doc 11225/2/09 REV 2 (18-19 June 2009), online: <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/108622.pdf>. The member states set out three sets of guarantees — that is, that nothing in the Lisbon Treaty would (1) affect the scope or applicability of the rights to life, protection of the family, or in respect of education as set out in the Irish Constitution; (2) change in any way, for any member state, the extent or operation of EU competence in respect of taxation; and (3) prejudice the security and defence policy of any member state, provide for the creation of a European army or conscription or affect a state’s right to decide whether or not to participate in a military operation: Annex I (at 17-19).

23 Iceland submitted its EU membership application on 23 July 2009. See Swedish Presidency of the European Union, Iceland and EU Set Out Together, Press Release (23 July 2009), online: <http://www.se2009.eu/en/meetings_news/2009/7/23/iceland_and_the_eu_set_out_together_23_july.html>.

24 See Bonde, supra note 13 at 17.

25 Treaty on European Union, 7 February 1992, [1992] OJ C 191/1 [Maastricht Treaty].

26 The court gave only conditional approval to the Maastricht Treaty in 1993. See Maastricht Decision, (1993) BverfGE 89, 155 (Federal Constitutional Court of Germany).

27 Lisbon Decision, 2 BvE 2/08 (30 June 2009) (Federal Constitutional Court of Germany), online: <http://www.bverfg.de/entscheidungen/es20090630_2bve000208en.html>.

28 The court was particularly critical of the fiction fostered in past decades that the European decision-making process was essentially comparable to that of member states in terms of democratic representation. See ibid at paras. 271–72.

29 For a detail account on the Benes Decrees, see <http://www.americanhungarian federation.org/news_benesdecrees.htm>.

30 Brussels European Council, Presidency Conclusions, EU Doc 15265/1/09 REV 1 (29-30 October 2009) at 2 and Annex I, online: <http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/110889.pdf>; Protocol no. 30 on the Application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom, [2010] OJ C 83/313, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0201:0328:EN:PDF> [Protocol no. 30].

31 See NS v Secretary of State for the Home Department, C-411/10; ME v Refugee Applications Commissioner, Case C-93/10 (21 December 2011), online: <http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=1900719>. The European Court ofJustice (ECJ) observed that an asylum seeker may not be transferred to a member state where he risks being subjected to inhuman treatment and ruled that EU law does not permit a conclusive presumption that member states observe the fundamental rights conferred on asylum seekers. The court stated that its answers did not have to be qualified in any respect so as to take account of Protocol no. 30, supra note 30 at para 122.

32 Treaty of Lisbon II, Doc Pl Ús 29/09 (3 November 2009), online: <http://www.usoud.cz/view/pl-29-09> (Czech Republic Constitutional Court).

33 See Treaty on European Union, [2010] OJ C 83/13, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF> [TEU]; Treaty on the Functioning of the European Union, [2010] OJ C 83/47, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0047:0200:EN:PDF> [TFEU].

34 Maastricht Treaty, supra note 25.

35 Treaty of Rome, supra note 15.

36 The Lisbon Treaty involved amendments to all of the articles of the Maastricht Treaty and to 216 provisions of the Treaty of Rome.

  • 37

    37 The TEU, supra note 33, deals with the following matters, inter alia:

  • •

    • the mission and values of the EU: respect for the rule of law, the principle of limited powers, respect for national identities, and upholding democracy and fundamental rights;

  • •

    • the democratic principles of the EU and providing for the active contribution of national parliaments to the functioning of the EU;

  • •

    • a neighbourhood policy, whereby the EU is to develop a special relationship with neighbouring countries;

  • •

    • the composition and central functions of EU institutions;

  • •

    • detailed provisions on the EU’s external action, in particular, its common foreign and security policy and its common security and defence policy;

  • •

    • procedures for its own amendment as well as amendment of the TFEU;

  • •

    • the legal personality of the EU;

  • •

    • provisions governing asymmetric integration, including circumstances in which a member state may leave or be expelled from the EU and, when states engage in enhanced co-operation, the procedure whereby some member states may develop EU legislation among themselves where there is no sufficient will for such legislation by all member states.

38 TEU, supra note 33, Article 47.

39 Ibid, Article 1.

40 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, [1949] ICJ 174, online: <http://www.ICJ-cij.org/docket/files/4/1835.pdf>.

41 See, eg, Agreement between the European Union and the Federal Republic of Yugoslavia on the Activities of the European Union Monitoring Mission (EUMM) in the Federal Republic of Yugoslavia, 25 April 2001, [2001] OJ L 125/2, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:22001A0505(01):EN:HTML>; Agreement between the European Union and the Republic of Croatia on the Participation of the Republic of Croatia in the European Union Military Operation to Contribute to the Deterrence, Prevention and Repression of Acts of Piracy and Armed Robbery off the Somali Coast (Operation Atlanta), 27 July 2009, [2009] OJ L 202/84, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:202:0084:0089:EN:PDF>.

42 On the other hand, just hours before the Lisbon Treaty entered into force, the EU signed a treaty with the United States on access by US law enforcement agencies to the SWIFT database. Agreement between the European Union and the United States of America on the Processing and Transfer of Financial Messaging Data from the European Union to the United States for Purposes of the Terrorist Finance Tracking Program, 30 November 2009, [2009] OJ L 008/11. The timing was criticized in that it avoided greater participation by the European Parliament in the treaty-making process that would have been required had the Lisbon Treaty already been in force. See Valentina Pop, “Bank Data Transfer Deal with US Reached,” EU Observer (30 November 2009), online: <http://euobserver.com/22/29072>.

43 See, eg, Verbal Note from the Council of the European Union and the Commission of the European Communities, WTO Doc WT/L/779 (30 November 2009), online: <http://trade.ec.europa.eu/doclib/docs/2009/december/tradoc_145573.pdf>.

  • 44

    44 See TFEU, supra note 33, Articles 2-6. Article 3 enumerates the exclusive competences as follows:

  • 1.

    1. The Union shall have exclusive competence in the following areas:

  • (a)

    (a) customs union;

  • (b)

    (b) the establishing of the competition rules necessary for the functioning of the internal market;

  • (c)

    (c) monetary policy for the member states whose currency is the euro;

  • (d)

    (d) the conservation of marine biological resources under the common fisheries policy;

  • (3)

    (3) common commercial policy.

  • 2.

    2. The Union shall also have exclusive competence for the conclusion of an international agreement when its conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.

  • Article 4 enumerates the shared competences:

  • 1.

    1. The Union shall share competence with the member states where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

  • 2.

    2. Shared competence between the Union and the member states applies in the following principal areas:

  • (a)

    (a) internal market;

  • (b)

    (b) social policy, for the aspects defined in this Treaty;

  • (c)

    (c) economic, social and territorial cohesion;

  • (d)

    (d) agriculture and fisheries, excluding the conservation of marine biological resources;

  • (e)

    (e) environment;

  • (f)

    (f) consumer protection;

  • (g)

    (g) transport;

  • (h)

    (h) trans-European networks;

  • (i)

    (i) energy;

  • (j)

    (j) area of freedom, security and justice;

  • (k)

    (k) common safety concerns in public health matters, for the aspects defined in this Treaty.

  • 3.

    3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in member states being prevented from exercising theirs.

  • 4.

    4. In the areas of development co-operation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in member states being prevented from exercising theirs.

45 Ibid, Articles 5–6.

46 In this context, see the ECJ’s opinion on the distribution of powers between the EC and the member states regarding the modification of General Agreement on Trade in Services (GATS) commitments. Opinion 1/08 – Opinion Pursuant to Article 300(6) EC – General Agreement on Trade in Services (GATS), [2009] ECR I-11129, online: <http://curia.europa.eu/juris/document/document.jsf?text=&docid=72655&pageIndex=0&doclang=EN&mode=doc&dir=&occ=first&part=1&cid=1907583> [Opinion 1/08].

47 TFEU, supra note 33, Article 216.

48 Ibid, Article 15(6).

49 Ibid, Article 18.

50 Ibid, Article 15(5)-(6).

51 Ibid, Article 18.

52 TFEU, supra note 33, Article 3(1)(e).

53 Ibid, Article 2(1).

54 Opinion 1/94, Competence of the Community to Conclude International Agreements Concerning Services and the Protection of Intellectual Property – Article 228 (6) of the EC Treaty, [1994] ECR I-5267 (ECJ).

55 TFEU, supra note 33, Article 207(4). For a detailed assessment of this, see Chaisse, Julien, “Promises and Pitfalls of the European Union Policy on Foreign Investment: How Will the New EU Competence on FDI Affect the Emerging Global Regime?” (2012) 15 J Int’l Econ L 51.CrossRefGoogle Scholar

56 Opinion 1/08, supra note 46. General Agreement on Trade in Services, See Annexe 1B of the Agreement Establishing the World Trade Organization, online: <http://www.wto.org/english/docs_e/legal_e/26-gats.pdf>.

57 TFEU, supra note 33, Article 207(5).

58 See Hermann, supra note 3.

59 TFEU, supra note 33, Articles 205, 207(1).

60 TEU, supra note 33, Article 21(2).

61 See Hermann, supra note 3.

62 See Willis, Andrew, “EU Treaty Implications for Trade Unclear,” EU Observer (8 December 2009)Google Scholar, online: <http://euobserver.com/9/29119>. The author argues that the role of the European Parliament has been stepped up considerably in many areas, including trade policy, since the Lisbon rules came into force on 1 December 2009.

63 TFEU, supra note 33, Articles 207(2), 218(6)(a)(v), 288. For a different view, see Krajewski, Markus, “External Trade Law and the Constitution Treaty: Towards a Federal and More Democratic Common Commercial Policy?” (2005) 42 CML Rev 91 at 122.Google Scholar

64 TEU, supra note 33, Article 18(4).

65 See Council Decision of 1 December 2009 Adopting the Council’s Rules of Procedure, [2009] OJ L 325/35, Article 2(5) at 38, n 1, Annex, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:325:0035:0061:EN:PDF>.

66 TFEU, supra note 33, Articles 206, 207(1).

67 For excellent insights, see Karl, Joachim, “The Competence for Foreign Direct Investment: New Powers for the European Union?” (2004) 5 J World Investment & Trade 413;Google Scholar Ceyssens, Jan, “Towards a Common Foreign Investment Policy? Foreign Investment in the European Constitution” (2005) LIEI 259;Google Scholar Bungenberg, Marc, “Going Global? The EU Common Commercial Policy after Lisbon” (2010) Eur YB Int’l Econ L 123.Google Scholar

68 Karl, supra note 67 at 433; Bungenberg, supra note 67 at 144.

69 Ibid at 142.

70 TFEU, supra note 33, Article 2(1).

71 European Commission, Proposal for a Regulation of the European Parliament and of the Council Establishing Transitional Arrangements for Bilateral Investment Agreements Between Member States and Third Countries, EU Doc COM(2010)344 (7 July 2010), online: <http://trade.ec.europa.eu/doclib/docs/2010/july/tradoc_146308.pdf> [Commission Proposal]. See also European Commission, Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: Towards a Comprehensive European International Investment Policy, EU Doc COM(2010)343 (7 July 2010), online: <http://trade.ec.europa.eu/doclib/docs/2010/july/tradoc_146307.pdf> [Commission Communication].

72 Maydell, Niklas, “The European Community’s Minimum Platform on Investment or the Trojan Horse of Investment Competence,” in Reinisch, August and Knahr, Christina, eds, International Investment Law in Context (The Hague: Eleven International Publishing, 2007) 73.Google Scholar

73 Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, Article 26.

74 TFEU, supra note 33, Article 351.

75 Ibid. See also Commission Proposal, supra note 71; and Commission Communication, supra note 71.

76 Commission v Austria, Case C-205/06, [2009] ECR I-1301; Commission v Sweden, Case C-249/06, [2009] ECR I-1335; Commission v Finland, Case C-118/07, [2009] ECR I-0000.

77 See, eg, Parr, N and Cuninghame, N, “Treaty of Lisbon Enters into Force,” Ashurst Competition Newsletter (December 2009), online: <http://www.ashurst.com/publication-item.aspx?id_Content=4901>;;>Google Scholar Sproul, G, “The Coming into Force of the Lisbon Treaty and Its Impact on Competition Law,” Mayer Brown Newsletter (2 December 2009)Google Scholar, online: <http://www.mayerbrown.com/publications/The-coming-into-force-of-the-Lisbon-Treaty-and-its-impact-on-competition-law-12-02-2009/>; Linklaters, LLP, “The Lisbon Treaty Comes into Force,” Stop Press (14 December 2009)AMBIGUOUS (874179 citations)Google Scholar; Petit, Nicolas and Neyrinck, Norman, “A Review of the Competition Law Implications of the Treaty on the Functioning of the European Union,” CPI Antitrust Chronicle (17 February 2010)Google Scholar, online: <https://www.competitionpolicyinternational.com/a-review-of-the-competition-law-implications-of-the-treaty-on-the-functioning-of-the-european-union/>.

78 Concerns were raised during the negotiations with respect to repeal of Article 3 of the Treaty of Rome, supra note 15,which listed the EU’s objectives. Article 3(1)(g) mandated the EU to implement “a system ensuring that competition in the internal market is not distorted.” Thus, its repeal may affect the future ap-plication of the main provisions of competition law.

79 TEU, supra note 33, Article 3 states that one of the EU’s objectives will be to “establish an internal market. It shall work for sustainable development of Europe based on balanced growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.”

80 Europemballage Corporation and Continental Can Company v Commission, Case 6/72, [1973] ECR 215.

81 Such removal of the reference “competition” could be considered a political attempt by some member states (such as France) to undermine the European Commission’s battle against protectionist policies and anti-competitive state aid. For example, it might be argued that the absence of free competition as a central EU objective could be used as an argument before the ECJ by a member state in defence of actions to bolster national firms.

82 TEU, supra note 33, Article 6. The EU Charter, supra note 2, is not an integral part of the treaty. It was originally adopted as a non-binding declaration in 2000 during negotiation of the Treaty of Nice, supra note 4. However, the EU Charter is incorporated by reference, and made binding, by the TEU, Article 6.

83 European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols nos. 11 and 14, 4 November 1950, ETS 5, online: <http://www.unhcr.org/refworld/docid/3ae6b3b04.html>.

84 TEU, supra note 33, Article 6(2).

85 TFEU, supra note 33, Articles 289(1), 291.

86 Protocol no. 1 on the Role of National Parliaments in the European Union, [2010] OJ C 83/203, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0201:0328:EN:PDF>; Protocol no. 2 on the Application of the Principles of Subsidiarity and Proportionality, [2010] OJ C 83/206, online: <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0201:0328:EN:PDF> [Protocol no. 2].

87 Protocol no. 2, supra note 86, Article 8.

88 TEU, supra note 33, Article 16(4).

89 Astengo, Francesca and Neuwahl, Nanette, “Adoption of the Treaty on the Constitution for Europe,” ASIL Insights (June 2004)Google Scholar, online: <http://www.asil.org/insigh137.cfm>.