Monday, 11 February 2008

EU Treaty of Lisbon: Ratification and entry into force

Reforming the European Union has become a ‘mission impossible’. First 27 governments with veto powers have to reach unanimous agreement. Then the Treaty signed has to run the gauntlet of just as many ratifications. Even one failure, and the process returns to square one.

How could such a house of cards become a Superstate in anybody’s mind?

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The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):

Article 52

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.

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In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):

Final provisions

Article 313

This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.

This Treaty shall enter into force on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step. If, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.

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In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).

In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.

They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.

The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.

The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.

In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.

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The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).

This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.

The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.

As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.

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Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):

Article 6

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.

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The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.

Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.

The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.

In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.

Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.

Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.

With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.


Ralf Grahn