What happens if the Lisbon Treaty enters into force, when the European Parliament has been elected under the modified Nice Treaty rules? Here are some suggestion for discussion.
On 4 to 7 June 2009 the citizens of the European Union elect the members of the European Parliament for the term from 2009 to 2014 according to the Treaty of Nice as amended by the 2003 Act of Accession. The total number of MEPs will be 736 and yesterday’s blog post “European Parliament: Number of MEPs 2009” presented how many members will be elected from each member state.
The uncertain fate of the Treaty of Lisbon complicates the life of the EU institutions. In case the amending treaty enters into force, a number of questions have to be decided for the treaty to take full effect. This means that implementing decisions have to be prepared.
This uncertain state of affairs is disturbing with regard to the appointment of the Commission President and the rest of the new Commission. It also affects the composition of the European Parliament.
Consolidated Lisbon Treaty
The basic provision of the Treaty of Lisbon on the European Parliament is Article 14 of the Treaty on European Union (TEC). The provision was published in the consolidated (readable) version of the treaties in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/22─23:
Article 14 TEU
1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.
2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.
The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.
3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.
4. The European Parliament shall elect its President and its officers from among its members.
European Parliament composition
Paragraph 2 of Article 14 TEU lays down the main parameters for the composition of the European Parliament.
The maximum number of representatives is 751, although the member states chose to ‘respect’ the maximum number of 750 by expressing it as ‘seven hundred and fifty in number, plus the President’. (Declaration No 4 attributes the additional seat to Italy.)
In June 2009 the citizens elect 736 MEPs, but if the Lisbon Treaty enters into force during the legislature, their number jumps to 751, an addition of 15.
European Council decision
The more exact distribution of seats would not remain in the treaty. Article 14(2) TEU mentions the total maximum, the minimum and maximum per country and the “principle” of degressive proportionality.
The Lisbon Treaty fails to present an objective formula, but it manages to avoid the need for a treaty revision and ratifications by entrusting the decision to the European Council.
A unanimous decision by the European Council is required. The decision is taken on the initiative of the European Parliament, and it needs the consent of the EP.
European Parliament resolution
Originally the Lisbon Treaty was meant to enter into force on 1 January 2009, ahead of the European Parliament elections.
On this basis the European Council requested and received an ‘initiative’ from the European Parliament.
The European Parliament adopted a resolution on 11 October 2007 on the composition of the European Parliament,), P6_TA(2007)0429, available here:
The resolution was based on a report by Alain Lamassoure and Adrian Severin, A6-0351/2007. The report set out the number of seats to be allocated for the 2009─2014 parliamentary term in the form of a draft decision by the European Council, based on the coming Article 9a TEU in the coming Treaty of Lisbon (Article 14 TEU in the consolidated treaty).
In practice, the European Parliament distributed the additional seats to achieve an improved balance with regard to population numbers. Here is the text of Article 2 of the adopted resolution:
Pursuant to Article 1, the number of representatives in the European Parliament elected in each Member State is hereby set as follows, with effect from the beginning of the 2009-2014 parliamentary term:
Czech Republic 22
United Kingdom 73
Winners and losers
We compare with the numbers actually in force for the 2009 European elections. Germany was the only loser because of the maximum allocation of 96 seats (now 99 representatives). Bulgaria, Latvia, Malta (because of the raised minimum), the Netherlands, Poland, Slovenia and the United Kingdom stood to gain one seat each, France, Austria and Sweden two seats each and Spain would receive four additional seats.
The Lisbon Treaty Declaration (No 5) on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament promised that the European Council will give its political agreement on the revised draft Decision of the composition of the European Parliament for the legislative period 2009─2014, based on the proposal from the European Parliament.
The European Council gave its political blessing to the proposal of the European Parliament, with the addition that Italy was allocated the extra seat as agreed during the intergovernmental conference (Presidency Conclusions 14 December 2007; Council document 16616/1/07, point 5):
5. In accordance with Declaration No 5 annexed to the Final Act of the Intergovernmental Conference, the European Council gives its political agreement on the draft Decision establishing the composition of the European Parliament which the European Parliament politically approved on 11 October 2007, as revised in accordance with Declaration No 4 annexed to the Final Act. Accordingly, the wording of whereas clauses Nos 2 and 3 of the draft Decision will be adapted to reflect the wording in Article 9 A(2) of the EU Treaty as amended by the Lisbon Treaty and, in the table contained in Article 2, the figure relating to Italy will be "73". This Decision will be adopted as soon as possible after the entry into force of the Lisbon Treaty, in accordance with the procedure laid down in the second subparagraph of Article 9 A(2) of the EU Treaty as amended by the Lisbon Treaty. The European Council invites the Member States to adopt the necessary domestic measures as soon as possible so that, when this Decision comes into force, the national legislation necessary for its implementation is in place in time for the European Parliament elections for the 2009-2014 parliamentary term.
Nothing in the political agreement of the European Council changed the draft presented by the European Parliament, with the exception of the additional seat allocated to Italy.
This means that the United Kingdom would have 73 seats under the Treaty of Lisbon (one more than in the June 2009 elections).
Still Priollaud and Siritzky, in Le traité de Lisbonne (page 64) present the number as 74 (plus 2).
If someone has better information either way, I am grateful for comments.
Because of the embarrassing situation concerning the Lisbon Treaty, the European Council agreed on some principles to be followed in case the treaty enters into force. One of them was the attached Declaration on transitional measures concerning the composition of the European Parliament (Presidency Conclusions 11 and 12 December 2008; Council document 17271/08, page 14):
Declaration of the European Council
Treaty of Lisbon – Transitional measures concerning the composition of the European Parliament
In the event that the Treaty of Lisbon enters into force after the European elections of June 2009, transitional measures will be adopted as soon as possible, in accordance with the necessary legal procedures, in order to increase, until the end of the 2009-2014 legislative period, in conformity with the numbers provided for in the framework of the IGC which approved the Treaty of Lisbon, the number of MEPs of the twelve Member States for which the number of MEPs was set to increase. Therefore, the total number of MEPs will rise from 736 to 754 until the end of the 2009-2014 legislative period. The objective is that this modification should enter into force, if possible, during the year 2010.
Necessary legal procedures
In June 2009 Europeans elect 736 MEPs. If the Lisbon Treaty enters into force during the legislative term, the eleven countries gaining seats according to the EP resolution plus Italy would be entitled to additional seats for the rest of the term.
Since the European Council has only been able to give its political blessing, the legally binding decision would be made as soon as possible, when the European Council can make one under the new treaty rules.
Internally the situation is complicated. These countries have to devise national rules to elect potential representatives in June or plan later extraordinary elections (by-elections) to fill the extra seats, taking into account the electoral districts.
The German situation is interesting, too. Under the existing rules, three more MEPs are going to be elected than provided for under the Lisbon Treaty. The European Council points to this by obliquely mentioning to the provisional rise in the number of MEPs, above the maximum allowed by the Lisbon Treaty.
The European Council is up against the maximum number 751. It does not specify how to achieve this objective, but it hopes that this modification can enter into force during 2010.
This is but one of the many implementing issues, where the Council (Secretariat) should enter into open dialogue on alternative solutions. Lacking that, here are my tentative views on the options:
Germany is the least favoured nation in relation to population size as it is, and one can symphatise with the European Council’s wish to facilitate the election procedures there and to avoid sending home three elected representatives.
The European Union has a tradition of exceeding the maximum numbers in enlargement cases, where the accession treaties have modified the numbers temporarily. The accession treaties have been concluded unanimously and ratified by all member states.
In principle, the European Union could latch on to an accession agreement, which has to be ratified anyway. This would be expedient, since the substance requires one short sentence, but the timing may prove to be problematic.
When does the Lisbon Treaty enter into force (if it does)? When is the following accession agreement ready to be signed and when does it enter into force?
I am inclined to think that the most elegant way would be a separate agreement between the member states amending the Lisbon Treaty for the rest of the legislature.
The amendment procedure (Article 48 TEU) would have to be followed, but I am not aware of any legal obstacles to a conditional amendment right away. This would save time.
If the member states wait until it is known that the Lisbon Treaty enters into force, there will be little time to complete the procedures.
If the European Union waits even longer, until the Lisbon Treaty has entered into force, they need to follow the treaty revision procedures of the amended Article 48 TEU.
There are clear references to entry into force of treaty amendments after ratification by all member states according to their constitutional provisions. I doubt if provisional application before entry into force could be used by analogy with Article 300 TEC or .Article 218(5) TFEU.
My suggestion for discussion is that the member states start the procedures to convene an intergovernmental (mini)conference without undue delay in order to have the provisional amendment enter into force on the same day as the Lisbon Treaty (if it does).