If the areas of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), including permanent structured cooperation, are intergovernmental, even more so is changing the primary legislation of the European Union at the present time.
Treaty amendments have seen the governments of the EU member states convening in intergovernmental conferences outside the institutions (but using Council infrastructure).
The Treaty of Lisbon would reform the process of treaty amendment, by making the Convention method the primary option. The Convention is more broadly based than an intergovernmental conference, and it bears some traits of a constituent assembly.
There have been two Convention experiments, leading to proposals to the member states’ governments.
The first Convention led to the EU Charter of Fundamental Rights, declared politically binding by the institutions in December 2000 in Nice and destined to become legally binding if the Lisbon Treaty enters into force.
The second, known as the European Convention, wrote the draft Treaty establishing a Constitution for Europe. The intergovernmental conference 2003 and 2004 pared down the proposals somewhat to agree on the Constitutional Treaty, but the ratification processes petered out after the French and Dutch referenda.
The IGC 2007 produced the ‘Constitution light’ initially prepared as the Reform Treaty, but now known as the Treaty of Lisbon, after the city where it was signed on 13 December 2007. (The consolidated version was published in the Official Journal of the European Union, OJEU 9.5.2008 C 115.)
Treaty revision procedures
In the Treaty of Lisbon, Article 48 of the amended Treaty on European Union offers two modes for treaty amendment:
1. the ordinary revision procedure
2. simplified revision procedures.
Proposals for the amendment of the treaties are addressed to the Council, and they can be made by any member state, the European Parliament of the Commission.
The Council submits the proposals to the European Council and notifies the national parliaments.
(The European Council can reject the proposal or it can vote for a Convention or an intergovernmental conference; but formally the latter take place outside the institutions. A Convention makes proposals only, but a subsequent IGC decides. )
Simplified revision procedures
TFEU internal policies and action
Interestingly, proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union (TFUE) relating to the internal policies and action of the Union are addressed directly to the European Council. They may lead to a unanimous decision to revise the treaty, but cannot increase the competences (powers) of the EU.
Some flexibility is built into the provisions enabling the European Council to facilitate decision making in the Council, by moving to qualified majority voting in an area or in a certain case. (In a similar way, the European Parliament can be involved by moving from a special legislative procedure to the ordinary legislative procedure.)
The formal provisions mentioning the Council do not offer a comprehensive view of the active participation of the governments (ministers) in the various stages of treaty reform. With or without a preparatory Convention, the ordinary revision procedure is concluded by an intergovernmental conference.