Sunday, 10 February 2008

EU Treaty of Lisbon: Unlimited duration

The European Coal and Steel Community (ECSC) was established for a period of 50 years, by the Treaty of Paris in 1951. The ECSC Treaty entered into force the following year and expired in 2002.

All the other communities have been intended to be permanent. The European Economic Community (EEC), the European Atomic Energy Community (EAEC or Euratom) and the European Union (EU), as well as the amending Treaties, have been concluded for an unlimited period.

***

The current provisions on unlimited duration are found in the Treaty on European Union (TEU) Article 51 and the Treaty establishing the European Community (TEC), to become the Treaty on the Functioning of the European Union (TFEU), Article 312. (For the latest consolidated version of the TEU and the TEC, go to OJ 29.12.2006 C 321/35 and 180 respectively.)

Since the European Convention proposed a unified Treaty for the European Union, it had only one corresponding provision, Article IV-9 Duration, of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/92).

The same applied to the Treaty establishing a Constitution for Europe, where the corresponding provision was Article IV-446 Duration (OJ 16.12.2004 C 310/191).

***

The intergovernmental conference (IGC 2007) in its Article 1, the TEU amendments, jumps from Article 49c on territorial application (point 60) to Article 53 on languages (point 61) without mentioning – or altering – Article 51 TEU (OJ 17.12.2007 C 306/40).

Likewise, after inserting an Article 311a TFEU (point 293) the IGC went on to delete the heading Final provisions before Article 313 (point 313), leaving Article 312 TEC untouched (OJ 17.12.2007 C 306/132).

Article 3 of the IGC 2007 itself states (OJ 17.12.2007 C 306/133) under Final Provisions the unlimited duration of the Treaty of Lisbon:

Article 3

This Treaty is concluded for an unlimited period.

***

The conclusion seems to be that we have returned to two separate provisions with the same wording, Article 51 TEU and Article 312 TFEU (before the renumbering to come).

Even if we are back in a situation of two treaties, they are now so interdependent and entwined (including even the main exception CFSP and CSDP) as to make the renouncement of only one of them seem a preposterous idea. Therefore it looks unnecessary to have separate clauses to the contrary, i.e. the unlimited duration of each treaty.

***

If the governments (and the parliaments) of the member states are resolved to continue the process of an ever closer union among the peoples of Europe, it would highly consistent to interpret the European Union as unbreakable and eternal.

In spite of that, when discussing the new provision on withdrawal from the EU, Article 49a TEU, I concluded that, even without the new provision, the Union’s democratic values and principles were enough to make legitimate a constitutionally valid decision to secede by a member state.

If we take matters to their logical extreme, I am confident that the present European Union would not and could not go to war to prevent secession. Failing this ‘ultima ratio’, membership is, in the end, voluntary.

With the Lisbon Treaty offering the new express provision on secession, there is not even room for speculation. Any member state may choose to secede.

For the rest of the members, the objective of ever closer union would continue to guide their action. Perhaps the movement forward would even gather speed and force once the most recalcitrant member or members had set out on their own.

Possibly more clearly than before, we can distinguish between the intended permanence of the European Union and the potentially fluctuating nature of its membership. Until this day, the traffic has been in one direction only, increasing the membership from six to 27, with a few more applicants in line.

But the message of the reform treaty is that the number of members could just as well decrease, if one or more countries decided to withdraw.


Ralf Grahn