The EU treaty reform process, which (re)started in December 2000 in Nice, and the ratification marathons expose the brittle structure of the European Union, still mired in the world of international treaties.
The Lisbon Treaty incrementally improves the functioning and the democratic legitimacy of the European Union, to the extent that the governments of 27 member states have been able to agree unanimously.
To date 26 national parliaments have approved the amending Lisbon Treaty, but there are still some loose ends and some loose cannons around at this critical juncture, when a new Commission should be able to take over from 1 November 2009.
The Irish government has secured a “better deal”, which guarantees a Commissioner from every member state and clarifies a number of sensitive issues. This is the new basis for the second Lisbon Treaty referendum, which takes place on 2 October 2009.
If the Irish vote Yes, the democratic legitimacy of the Lisbon Treaty is secured in the only remaining member state, and the Swedish Council Presidency has no more excuses for keeping the lid on open preparation for the implementation of the Lisbon Treaty.
If the No vote wins, the immediate consequence is that the European Union reverts to the Treaty of Nice, with a smaller Commission, but long term the debate about a smaller and more effective EU gains momentum, given the inherent weaknesses of the existing EU structures.
After the judgment of the German Federal Constitutional Court, the Bundestag (directly elected German Parliament) and the Bundesrat (chamber of the Länder) have adopted new accompanying legislation, which has cleared the way for the Federal President Horst Köhler to formally ratify the Treaty of Lisbon.
President Köhler will probably sign the German ratification instrument without delay, which will tie up one loose end.
The Polish Parliament has approved the Treaty of Lisbon, but the Polish President Lech Kaczynski is situated somewhere between a loose end and a loose cannon.
He supervised the treaty negotiations, led by his twin brother Jaroslaw Kaczynski (Prime Minister still in November 2007), but he has been politicking by refusing to sign the ratification instrument.
President Kaczynski has made his signature dependent on the ruling of the German Federal Constitutional Court (cleared) and the Irish referendum, so if the outcome in Ireland on 2 October 2009 is positive, he will have run out of excuses for procrastination.
President Vaclav Klaus’ vitriolic opposition to European integration is well known, and he has a certain following in his former party, the Civic Democrats (ODS).
The Czech Constitutional Court ruled that the Lisbon Treaty was compatible with the Constitution, before both chambers of the Czech Parliament approved the treaty after an unedifying process of parliamentary manoeuvring.
Defeated Czech parliamentarians have now decided to launch a new legal challenge, in order to offer President Klaus an excuse to withhold his signature and to keep the European Union in limbo, despite the need for a new Commission and clarity concerning the implementation measures.
We do not know when the new Commission will be appointed, or under which treaty, but if the Czech Republic is the cause of the problem, the rest of the European Union needs to act firmly. The Council, the nominee for Commission President and the European Parliament can start by awarding the Commissioner for multilingualism to the Czech Republic (if it gets a Commissioner under the rules in force at the time).
Because the other member states cannot solve the Czech constitutional mess, the Czech Republic should be treated in accordance with the harm it causes the European Union.
Finland has formally ratified the Lisbon Treaty, but its autonomous province Åland keeps playing for further concessions from the Finnish government. The Legal Committee of the Åland Parliament (Ålands lagting) has still not produced a report on the approval of the Lisbon Treaty, regarding its application in the province.
As long as the Lisbon Treaty has not entered into force, the Åland politicians can continue their quest, but if the last deposition instrument is deposited in Rome, time will run short for a definitive answer. (The Lisbon Treaty enters 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 the Lisbon Treaty supersedes the Nice Treaty, without being applicable in the Åland Islands, the legal situation becomes interesting. Finland would have to notify the restricted geographical application, but for Åland it would mean having no legal relationship with the European Union. Åland would become a “Greenland” by default, less than a third country, because it is not a state in its own right.