Sunday, 3 February 2008

EU Treaty of Lisbon: Treaty revision procedures

The Treaty of Lisbon marks a stage in the development of the European Union (EU). In spite of evolving internal decision making rules and democratic elements in EU law beyond the scope of ordinary international organisations, the EU remains an international organisation based on treaty law.

The member states are still the “masters of the Treaties”, holding on to the ultimate power of Treaty change (German: Kompetenz-Kompetenz).

Still, the Lisbon Treaty rules for amending the Treaties refine and develop the current Treaty provisions.

***

The Convention method, used twice before, is introduced as the ordinary revision procedure. As a procedural question, the European Council may decide by simple majority on a Convention to be convened, but the Convention’s proposals are decided on by a unanimous intergovernmental conference (IGC), and the resulting Treaty amendments have to be ratified by all member states.

The IGC may be called without a Convention if the extent of the proposed amendments does not justify convening one.

The Treaties can be revised to increase or to reduce the powers of the EU. The express mentioning of the possibility to decrease EU competences is a novelty.

***

The Reform Treaty introduces some elements of flexibility into less sensitive areas of the Treaties. Two simplified revision procedures are introduced:

1) Provisions of Part 3 of the Treaty on the Functioning of the European Union (TFEU), Union policies and internal actions, can be revised without increasing the competences conferred on the EU in the Treaties. Unanimous decision by the European Council and approval by the member states is required. The European Parliament, the Commission (and the European Central Bank) are consulted.

2) ‘Passerelle’ or enabling clauses opening up for more effective or democratic and transparent decision making:

2a) A move from unanimity to qualified majority voting (QMV) in the Council within the TFEU (except in questions excluded by Article 308a TFEU) or the common foreign and security policy (CFSP), except in decisions with military implications or in the area of defence. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.

2b) A move from special legislative procedure to the ordinary legislative procedure within the TFEU (except in questions excluded by Article 308a TFEU), thereby widening the scope for co-legislation and democratic accountability through the European Parliament. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.

***

The intergovernmental conference (IGC 2007) agreed on the following hefty Article 48 of the Treaty on European Union (TEU) on Treaty revision procedures (OJ 17.12.2007 C 306/37-39):

56) Article 48 shall be replaced by the following:


1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

Simplified revision procedures


6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.

The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

***

In order to compare the new Article 48 TEU with existing provisions, we turn to Article 48 TEU to be replaced, under Title VIII Final provisions (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E/34):

Article 48

The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.

If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

***

A glance at the old and the new Article 48 TEU is enough to tell us that there are differences between the two versions.

We proceed to what the Convention proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/ 92):

Article IV-7
Procedure for revising the Treaty establishing the Constitution

1. The government of any Member State, the European Parliament or the Commission may submit to the Council of Ministers proposals for the amendment of the Treaty establishing the Constitution. The national Parliaments of the Member States shall be notified of these proposals.

2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments of the Member States, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene the Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for the conference of representatives of the governments of the Member States.

The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to the conference of representatives of the governments of the Member States provided for in paragraph 3.

3. The conference of representatives of the governments of the Member States shall be convened by the President of the Council of Ministers for the purpose of determining by common accord the amendments to be made to the Treaty establishing the Constitution.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

4. If, two years after the signature of the treaty amending the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

***

The IGC 2004 made its mark on the proposed arrangements for Treaty revision by drafting three Articles on Treaty revision procedures in the Treaty establishing a Constitution for Europe, in Part IV General and final provisions (OJ 16.12.2004 C 310/189-191):

Article IV-443
Ordinary revision procedure

1. The government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of this Treaty. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 3.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

3. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

4. If, two years after the signature of the treaty amending this Treaty, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.


Article IV-444
Simplified revision procedure

1. Where Part III provides for the Council to act by unanimity in a given area or case, the European Council may adopt a European decision authorising the Council to act by a qualified majority in that area or in that case.
This paragraph shall not apply to decisions with military implications or those in the area of defence.

2. Where Part III provides for European laws and framework laws to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a European decision allowing for the adoption of such European laws or framework laws in accordance with the ordinary legislative procedure.

3. Any initiative taken by the European Council on the basis of paragraphs 1 or 2 shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the European decision referred to in paragraphs 1 or 2 shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the European decisions referred to in paragraphs 1 and 2, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.


Article IV-445
Simplified revision procedure concerning internal Union policies and action

1. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Title III of Part III on the internal policies and action of the Union.

2. The European Council may adopt a European decision amending all or part of the provisions of Title III of Part III. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area.

Such a European decision shall not come into force until it has been approved by the Member States in accordance with their respective constitutional requirements.

3. The European decision referred to in paragraph 2 shall not increase the competences conferred on the Union in this Treaty.

***

You can study the similarities and differences between the current TEU, the draft Constitution, the Constitution and the Treaty of Lisbon.

Personally, I find that the Constitution text with three separate Articles, was easiest to read and comprehend, but the IGC 2007 Mandate ordered: Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). (Council document 11218/07, point 16)

A readable overview of the Treaty revision procedures introduced by the Lisbon Treaty and some British positions are given in the relevant UK House of Commons Library Research Paper (page 74 to 76).

The “Green Paper” of the Swedish government, in addition to various presentations of the revision procedures, points out the new Article 308a of the Treaty on the Functioning of the European Union (TFEU), which limits the scope for possible simplified Treaty revisions (page 394 to 395).

Let us take a look at the new Article 308a TFEU (OJ 17.12.2007 C 306/131):

Article 308a TFEU

Article 48(7) of the Treaty on European Union shall not apply to the following Articles:
— Article 269, third and fourth paragraphs,
— Article 270a(2), first subparagraph,
— Article 308, and
— Article 309.’.

This means that the following areas are excluded from the simplified Treaty revision procedure concerning a move from unanimity to qualified majority voting (QMV) in policy areas covered by the TFEU or TEU Title V (external action and the common foreign and security policy; except decisions with military implications or those in the area of defence, which are already expressly excluded), as well as a move from a special legislative procedure to the ordinary legislative procedure, mentioned in Article 48(7) TEU:

- The system of the EU’s own resources and implementing measures for the Union’s system of own resources; Article 269 TFEU
- The Regulation on the multiannual financial framework; Article 270a(2) TFEU
- The flexibility clause; Article 308 TFEU
- The voting rules on suspension of membership rights (in case of a breach of the EU’s values); Article 309 TFEU

The six specific current ‘passerelle’ clauses (page 40) and the new ones (page 41) are explained in the Danish ratification bill, as well as the other provisions to modify the Treaties.



Ralf Grahn


Sources:

UK House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf

NB: My references are to the version above, but I just noticed that it has been replaced by a new one:

UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf


Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981

Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf