How should you approach the Treaty of Lisbon? Is it the rehashed Constitution, or should we rather look at how the Lisbon Treaty amends and improves the existing EU and EC Treaties?
In the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) decided to insert a new provision having general application into the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See OJ 17.12.2007 C 306/48:
17) The following Article 5a shall be inserted:
Article 5a TFEU (ToL), to be renumbered Article 9 TFEU
In defining and implementing its policies and activities, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
This provision did not appear out of the blue, so we take a look at what the IGC 2004 agreed on three years earlier. In the Treaty establishing a Constitution for Europe, Part III The policies and functioning of the Union, Title I Provisions of general application, we find the following Article III-117 (OJ 16.12.2004 C 310/55):
In defining and implementing the policies and actions referred to in this Part, the Union shall take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health.
The resemblance between the Constitution and the Lisbon Treaty is striking, but contrary to most instances we would look in vain for a corresponding Article proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
Here the IGC 2004 filled a void between the EU’s objectives on the one hand and its policies and actions on the other hand.
Thus, the IGC 2004 can be seen as the true originator of this provision, giving us an example of one of the few improvements authored by the intergovernmental conference when compared to the draft proposed by the European Convention.
We can now change tack, to offer another explanation of the new Article in the Lisbon Treaty. Given that the Lisbon Reform Treaty amends the existing Treaty on European Union (TEU) and the TEC, the origins of a provision can be sought in the current treaties.
This is what the UK Foreign and Commonwealth Office does in its Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon, concerning Article 9 (5a) TFEU (page 6):
“Draws on Article 2 TEU, and Articles 2, 127, 136, 137, 140, 149, 150 and 152 TEC.”
Earlier, the Explanatory Note has given us the following definition:
“Draws on – where a provision takes elements of existing provisions”
The diligent student may want to trace the elements from each of the Articles mentioned, but we are content to present the two main provisions for the sake of comparison, and as a convenient excuse to refresh our memory concerning the treaties in force.
First, we turn to the current Article 2 TEU on the Union’s objectives under Title I Common provisions (in the latest consolidated version, to be found in OJ 29.12.2006 C 321 E/11):
Article 2 TEU
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.
The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
Second, we rehearse the current Article 2 TEC, in Part One, Principles (OJ, page 44):
Article 2 TEC
The Community shall have as its task, by establishing a common market and an economic and monetary union and by implementing common policies or activities referred to in Articles 3 and 4, to promote throughout the Community a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection, equality between men and women, sustainable and non-inflationary growth, a high degree of competitiveness and convergence of economic performance, a high level of protection and improvement of the quality of the environment, the raising of the standard of living and quality of life, and economic and social cohesion and solidarity among Member States.
Without advancing further into the provisions mentioned by Cm 7311, we notice that the objectives of the EU, with the catch-all phrase of ‘economic and social progress’ and ‘a high level of employment’ as well as ‘economic and social cohesion’, and the tasks of the EC with ‘a harmonious, balanced and sustainable development of economic activities, a high level of employment and of social protection’ offer us enough to go on to believe that the rest of Article 5a TFEU (ToL) can plausibly be explained to draw on the provisions mentioned.
In conclusion, we can say that the comparison depends on your choice of angle.
There are undeniable similarities between the Constitution and the Lisbon Treaty, since the objective of the IGC 2007 was to preserve much of the advances made by the IGC 2004.
On the other hand, the readers of a book or the audience at a concert are usually more interested in the work published or performed than in the various drafts or the stages of rehearsal that preceded their experience. These are, more often than not, the domain of literary researchers or musicologists, not the public at large.
Regardless, I presume that ‘a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health’ would find favour with most citizens of the European Union.
Can we truly say of the institutions of the EU: They work for us?
Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;