EU Lisbon Treaty into force 1 December 2009

The Lisbon Treaty enters into force Tuesday, 1 December 2009. The consolidated (readable and updated ) versions of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), were published in the Official Journal of the European Union 9 May 2008 (OJEU 9.5.2008 C 115), and they are available in 23 treaty languages.



The EU Charter was declared politically binding on the EU institutions in December 2000 in Nice, but it becomes legally binding when the Lisbon Treaty enters into force: The Charter of Fundamental Rights of the European Union, and the explanations relating to it, were published OJEU 14 December 2007 C 303.

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For EU citizens the world will look pretty much the same after tomorrow morning, but in the areas where the European Parliament gains more equal powers as a law-maker the procedures will become a bit more open for the public.



Ralf Grahn



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EU Lisbon Treaty implementation: Slowly into practice

By now, many Europeans know that the EU Treaty of Lisbon (OJEU 9.5.2008 C 115) enters into force on 1 December 2009. However, the flurry of activities to take the first decisions to get the treaty up and running obscures the fact that many adjustments take effect only after transitional periods and that a number of new procedures have to be put into place before they become living law.

(At the end of this blog post we look at some French books on the Lisbon Treaty.)

Jean-Luc-Sauron offers us an opportune reminder of the gradual coming into effect of the Lisbon Treaty, on Diploweb, the French web site for geopolitics:



Jean-Luc Sauron: Le traité de Lisbonne : un traité à effet retardé ? (Diploweb.com, La revue géopolitique, 22 November 2009).


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Sauron’s article is a detailed but short compilation of the Lisbon Treaty provisions with “delayed action”, a handy reference for serious students.


Books on the Lisbon Treaty (in French)


Since the literature on the Lisbon Treaty is still small and the standard books on EU law and politics have not yet fully integrated the amendments of the reform treaty, I take the opportunity to remind readers of the general introduction written by Jean-Luc Sauron: Comprendre le Traité de Lisbonne (Gualino éditeur, 2008). The book offers an overview of the changes as well as the preliminary consolidated texts of the provisions.

Another introduction for the (more) general reader is Étienne de Poncins: Le traité de Lisbonne en 27 clés (Éditions Lignes de Repères, 2008).

A more detailed book, for teachers and students, is François-Xavier Priollaud & David Siritzky : Le traité de Lisbonne (LaDocumentation française, 2008).





Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Read some or all of the 481 Euroblogs aggregated on multilingual Bloggingportal.eu. On most of the blogs you can comment and discuss our common European future.

Aland Islands & EU Lisbon Treaty

Finland is one of the 24 member states, which have completed formal ratification, but the EU’s Treaty of Lisbon still lies in the Legal Committee of the regional Åland Parliament, which either consents to or rejects the applicability of the amending treaty in the autonomous province (population 27,000).



The local politicians are still holding out for increased representation and influence in the European Union (including a member of the European Parliament) and in Finnish EU affairs, but I failed to find any updates less than a month old on the web pages of the Åland Parliament (Ålands lagting), the Åland Government (Ålands landskapsregering), or the local media Ålandstidningen, Nya Åland and Ålands Radio/TV AB.

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If the Lisbon Treaty is ratified by all member states (of which 24 have completed formal ratification), it enters into force at the beginning of the following month.

Without Åland’s consent, since the new treaty replaces the Treaty of Nice, the Åland Islands would have no legal relationship with the European Union.


Ralf Grahn

Irish EU Commissioner under the Lisbon Treaty

If the EU Treaty of Lisbon enters into force, the heads of state or government of the member states have promised Ireland (and their own countries) that each member retains a Commissioner.

The European Council on 18 to 19 June 2009 issued the following (re)statement about the size of the Commission (Presidency Conclusions, point 2; Council document 11225/2/09 REV 2):



“Having carefully noted the concerns of the Irish people as set out by the Taoiseach, the European Council, at its meeting of 11-12 December 2008, agreed that, provided the Treaty of Lisbon enters into force, a decision would be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State.”


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Lisbon II referendum

In principle, this means that there will continue to be an Irish member of the Commission 2009 and 2014, instead of a smaller Commission under the Treaty of Nice from 2009.

If the Treaty of Lisbon enters into force, there will be a national from each member state in 2009, but the appointment procedure will change. (In 2014 there would be a smaller Commission, without the promise to Ireland. Cf. amended Article 17(4) and (5) TEU.)

The European Council made the promise to Ireland in good faith in June: The parliaments of all the other member states had approved the Lisbon Treaty. Normally, the completion of formal ratification of international treaties causes no problems in constitutionally sound democracies.

After the 30 June ruling by the Federal Constitutional Court, the Bundestag and the Bundesrat have passed new enabling legislation, and on 22 September the Court has dismissed an appeal against the new legislation. Federal President Horst Köhler has signed the new enabling legislation, which will enter into force today. Tomorrow Köhler will sign the ratification instrument.

Polish President Lech Kaczynski has been politicking by refusing to sign the ratification instrument, but he has given the European leaders assurances that he will, if Germany ratifies and the Irish vote Yes in the Lisbon II referendum. Even Poland will not necessarily delay the entry into force of the Lisbon Treaty beyond the date for Irish ratification, if Kaczynski acts promptly.

If all the formal ratifications take place within October, the Treaty of Lisbon would enter into force on 1 November 2009.

The new Commission should start its work the same day, but even in the best case a short delay is foreseeable.

Although the next President of the Commission, José Manuel Barroso, has been approved by the European Parliament, shifting to the Lisbon Treaty, the list of members has to be adopted by the Council by common accord with the President-elect. The European Parliament will hear the proposed Commissioners, before it gives its vote of consent to the Commission as a body, including the “double-hatted” High Representative.

In practice this means that the European Council would have to appoint both the new High Representative/Vice-President and the new President of the European Council before the proposal to the European Parliament.

If the European leaders remember their and the Lisbon Treaty’s words about “an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen”, their nominations, proposals and decisions must leave ample time for the European Parliament and EU citizens, ahead of the final decisions.


After consent by the European Parliament, the Commission is then appointed by the European Council acting by a qualified majority (amended Article 17(7) TEU).

Naturally, the EU institutions and the member states want the new Commission in place as soon as possible, but time is running short.


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Czech sabotage

The European Union needs working institutions. A short “extra time” for the caretaker Commission, which has been hobbling on its last legs for quite a while, may be unavoidable. But a prolonged period of uncertainty is hardly acceptable.

The Czech Government, the Czech Parliament, the EU institutions and the member states are now held hostage by President Vaclav Klaus, who has refused to sign the ratification instrument and seems to thrive on damaging the reputation of his country, with the implicit support of David Cameron and William Hague.

If the Czech constitutional system (Government, Parliament, Constitutional Court) is unwilling or unable to sort out the deliberate sabotage of one state organ – the President – in short order, the Swedish Presidency of the EU Council seems to be heading for an unenviable task.

Are the Czech institutions unable to give any intelligent answers? Are they devoid of constructive solutions? Are Czech citizens content to see their President making a fool of their parliamentary democracy? Are the European leaders paralysed?

It is still possible that the Lisbon Treaty enters into force at a later date, which guarantees an Irish Commissioner, but there is a clear risk that the EU member states have to appoint a smaller Commission under the (amended) Treaty of Nice.

This gives rise to legal, political and practical problems. Are we going to have two Commissions before 31 October 2014, because of Vaclav Klaus?

The Swedish Council Presidency and the EU institutions have an obligation to keep the EU’s citizens informed about the options and their consequences, every step of the way.



Ralf Grahn

Lisbon Treaty ratification: Loose ends and cannons

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.

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Ireland

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.

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Germany

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.

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Poland

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.

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Czech Republic

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.

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Åland Islands

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.


Ralf Grahn

EU Lisbon Treaty: Rocky road to Rome

The delayed entry into force of the Treaty of Lisbon causes the European Union a number of problems.

José Manuel Barroso was nominated by the heads of state or government of the EU member states, and the nomination was approved by the European Parliament in accordance with the Treaty of Nice (Article 214(2) TEC), although it is possible that the new President of the Commission and his Commission are going to serve under the provisions of the Treaty of Lisbon.

The next step is to appoint the members of the Commission, which should take over on 1 November 2009 (2003 Accession Treaty), but we don’t even know the future size of the Commission: Nice or Lisbon?

Will the old and weary Commission be conscripted for an indefinite period of service, until the legal base for the new one is sorted out? Meaningful legislative activity ended last spring, well before the European Parliament elections…

Ahead of the Irish Lisbon Treaty referendum on 2 October 2009, the member states have kept the lid on public discussion about the decisions to take if the amending treaty enters into force.

The most obvious ones are the elections of the President of the European Council and the “double-hatted” High Representative for Foreign Affairs and Security Policy. Given the uncertain situation, the member states have not presented proposals concerning the rights and obligations of the new office-holders to the public.

The discussions about candidates are based on rumour and speculation, instead of open discussion about merits.

The lack of public discussion affects the launch of the European External Action Service as well, an important instrument for more coherent European diplomatic action.

The same goes for the shift from the current system of Council Presidencies to the Lisbon order with permanent chairs for the European Council and the Foreign Affairs Council. If, when and how?

The EU institutions need to revise their Rules of Procedure and to make a number of implementing decisions, if the Lisbon Treaty enters into force, but even the generally open Swedish Council Presidency has avoided public discussion on these matters. (Only the European Parliament has approved new provisions to its Rules of Procedure, contingent on the entry into force of the Lisbon Treaty, but new agreements are needed between the institutions.)

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Despite agreement by 27 national governments and approval by 26 national parliaments, until all the ratification instruments have been deposited in Rome, the European Union will continue to act as a zombie, and European citizens will be kept in the dark.

All eyes are on the Irish voters to break the deadlock on 2 October 2009.


Ralf Grahn

None-speed Europe

In a few days the Irish rejection has turned the dull Treaty of Lisbon into explosive stuff. The treaty, as it stands, can not enter into force without 27 ratifications.

On the other hand, an end to treaty reform is a fundamental change of circumstances, since it contravenes the founding principles on which the European Union is built.

France and Germany have declared that the Lisbon Treaty is necessary to make the European Union more democratic and effective. They expect the remaining states to proceed with ratification.

In practice this means that the Lisbon Treaty would have to be suitably amended to serve initially and a new European Union would have to be established, at least if the unwilling want to make things difficult on the inside rather than to seek alternative arrangements.

If Great Britain decides to pull the plug on ratification, the group of non-ratifiers grows to at least two. This is a clear strategic shift from obstructionism to petrification. If we believe foreign minister David Miliband, Great Britain will throw its weight but also its fate into the ring.

In that case the Franco-German will have a stark choice: to accept the UK’s age old quest for a none-speed Europe or be ready to embark on the 21st century road towards an evolving European Union with less participants.

While fudge and immobility have been the traditional answers to difficult questions, France and Germany just might be resolved enough to do what it takes.


Ralf Grahn

Lisbon Treaty: Entry into force

Is the EU Treaty of Lisbon dead after the Irish referendum and possible later drop-outs? This is what Article 6 of the Lisbon Treaty says (OJ 17.12.2007 C 306/134):

Article 6 Treaty of Lisbon

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.

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The words ‘all’ and ‘last’ speak for themselves. The original Lisbon Treaty is not going to enter into force, because the number of ratifying states (in practice 18 already) is going to be 26 or less.

In its present form, the Treaty of Lisbon is legally dead.

The automatic consequence is that the current treaties are in force, as amended by the Treaty of Nice and the Accession Treaties.

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Ireland has spoken. Since the referendum genie is out of the bottle, only the Irish voters can either approve a different arrangement or (improbably) relinquish the use of referendums by amending the Constitution.

The matter is complicated by the fact that there is scant evidence of Irish concerns, which are a factual part of the Lisbon Treaty or could be assuaged by palliative measures. There are few legal instruments available to dispel disenchantment, myths or various individual worries, especially when many of them are outside the scope of the treaty (or any conceivable replacement).

In these circumstances it would be futile to serve the Irish electorate a second helping of the same dish.

Stalemate on the Irish front.

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Is Europe paralysed, too, doomed to petrify within the constraints of the Treaty of Nice?



Ralf Grahn

EU Treaty of Lisbon: Ratification and entry into force

Reforming the European Union has become a ‘mission impossible’. First 27 governments with veto powers have to reach unanimous agreement. Then the Treaty signed has to run the gauntlet of just as many ratifications. Even one failure, and the process returns to square one.

How could such a house of cards become a Superstate in anybody’s mind?

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The current Treaty on European Union (TEU) Article 52 has the following to offer on the crucial question of entry into force (to be found in the latest consolidated version of the Treaties in OJ 29.12.2006 C 321 E/35):

Article 52

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 1993, provided that all the Instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the Instrument of ratification by the last signatory State to take this step.

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In the existing Treaty establishing the European Community (TEC), under the headline Final provisions, ratification and entry into force are presented like this in Article 313 (OJ 29.12.2006 C 321 E/180):

Final provisions

Article 313

This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The Instruments of ratification shall be deposited with the Government of the Italian Republic.

This Treaty shall enter 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, however, such deposit is made less than 15 days before the beginning of the following month, this Treaty shall not enter into force until the first day of the second month after the date of such deposit.

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In the new and unified draft Treaty establishing a Constitution for Europe, the European Convention needed only one clause, Article IV-8 Adoption, ratification and entry into force of the Treaty establishing the Constitution (OJ 18.7.2003 C 169/92).

In the Treaty establishing a Constitution for Europe the corresponding provision was Article IV-447 Ratification and entry into force. There the governments of the member states implied their intention to promote the ratification of the Treaty according to the internal constitutional requirements of each country, and to communicate the occurrence by depositing the instruments of ratification.

They agreed on a target date of 1 November 2006, two years after signing, for the entry into force of the Treaty. Failing that the Treaty would have entered into force on the first day of the second month following the deposit of the ratification instrument of the last signatory state.

The constitutional requirements and vagaries of politics being what they are, the intergovernmental conference 2004 understood that ratification by 25 member states is prone to accidents, and one mishap is enough to wreck the process. The heads of state or government agreed on a Declaration (number 30) on the ratification of the Treaty establishing a Constitution for Europe.

The IGC noted that “if, two years after the signature of the Treaty establishing a Constitution for Europe, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter will be referred to the European Council”.

In the end, 18 member states or two thirds gave the Constitutional Treaty their approval, but some governments did not even start the ratification processes after the negative referendums if France in May and the Netherlands in June 2005. Neither country had a constitutional requirement to arrange a referendum, and neither referendum seems to have been decided on the true merits of the Treaty.

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The IGC 2007 leaves Article 52 TEU untouched and is content to delete the heading Final provisions before Article 313 TEC, the Treaty renamed the Treaty on the Functioning of the European Union (TFEU).

This means that Article 52 TEU is left pointing at 1 January 1993 and Article 313 TFEU gives no exact date for the entry into force.

The reason for this is that these Articles are reproduced in their original form, Article 52 TEU as it was written into the Treaty of Maastricht. After the ratification difficulties encountered, the original Treaty on European Union did not enter into force on 1 January, but 1 November 1993.

As the above, Article 313 TEC and TFEU makes Italy the depository of the ratification instruments. This is an act of deference towards the original signing and depositing of the Treaties of Rome, on the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom), in 1957.

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Since the TEU and the TFEU do not tell us when the amendments introduced by the Treaty of Lisbon are supposed to enter into force, we have to look elsewhere for the answer, which is found under Article 6 of the IGC 2007 (OJ 17.12.2007 C 306/134):

Article 6

1. This Treaty shall be ratified by the High Contracting Parties in accordance with their respective constitutional requirements. The instruments of ratification shall be deposited with the Government of the Italian Republic.

2. This Treaty shall enter into force on 1 January 2009, provided that all the instruments of ratification have been deposited, or, failing that, on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.

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The Lisbon Treaty is still firmly in the realm of treaties, as understood by Article 2(1)(a) of the Vienna Convention on the Law of Treaties: ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’.

Each member state has its own requirements for the ratification of treaties. Usually approval by parliament is needed.

The challenge was first to find unanimous agreement between 27 member state governments, a daunting enough task. Now, every government needs to secure ratification if the reform treaty is to enter into force on the target date 1 January 2009 or failing that, later.

In a European Union with 27 and possibly more members, reforming the ground rules has become an almost insurmountable challenge. To survive the gauntlet of ratifications, a new or amending treaty needs not only the determination of each government of the day and parliamentary approval, but also a fair amount of sheer luck: the absence of a political crisis and often the support of a broad majority (in many cases with support from the opposition) without the treaty being taken hostage for internal, unconnected reasons.

Ultimately this problem can be solved only by progressing to a democratic real Constitution based on the citizens instead of the states.

Five out of 27 member states have ratified the Treaty of Lisbon: France, Hungary, Malta, Romania and Slovenia.

With 22 countries to go, the steeplechase continues. Until the ratification processes succeed, we are stuck with the Treaty of Nice.


Ralf Grahn