Friday, 4 January 2008

EU Treaty of Lisbon: High Representative

Is the European Union entering the Facebook era? Perhaps not, but the Lisbon Treaty would go some way towards giving the EU recognisable leading personalities. The new President of the European Council is the clearest example, since this is a new post. If the candidate of the largest political party emerging from the European Parliament elections becomes Commission President, he or she will at the outset be much more of a European figure than the Presidents who until now have been sifted out by the European leaders behind closed doors. The High Representative already exists (presently Javier Solana), but the new High Representative of the Union for Foreign Affairs and Security Policy is going to take over the external action of the European Commission, as Vice-President, and lead the External action service of the EU.

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Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:

“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”

The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.

In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.

The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:

“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”

Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.

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A few comments from your glossator:

The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.

With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.

Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.

The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.

The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.

Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.

Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).

Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.

Article 9e

1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.

2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.

3. The High Representative shall preside over the Foreign Affairs Council.

4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He 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. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.

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The renamed Court of Justice of the European Union is going to be next.


Ralf Grahn