Merkel denies eurozone remedies twice

In concrete terms the French president Nicolas Sarkozy and the German chancellor Angela Merkel accepted the invitations from the Italian prime minister Mario Monti to visit Rome in a near future.

At the mini-summit in Strasbourg (Elysée video) president Sarkozy repeated the promise of treaty modification proposals from France and Germany ahead of the European Council 9 December 2011. He did not offer any concrete information about the contents.

Merkel dug in her heels, by stressing the independence of the European Central Bank and by showing no greater willingness to adopt eurobonds than before. She welcomed the Commission proposals regarding fiscal discipline, but was negative towards eurobonds which could level the bond rates in Europe.

Essentially Merkel repeated what she had said in the Bundestag debate on the German federal budget for 2012 the previous day. A short quote from the press release shows one Yes and two times No:

Den Vorschlag der Europäischen Kommission zur Einführung von Euro-Bonds lehnte die Kanzlerin ab. Vielmehr müsse es begrenzte Änderungen der EU-Verträge und eine bessere Überwachung der Euro-Stabilitätsregeln geben. Es gebe bei Verstößen gegen den Stabilitäts- und Wachstumspakt bisher keine Möglichkeit einzugreifen.

Beim Euro-Rettungsfonds EFSF müssten Leitlinien festgelegt werden, die die Investoren überzeugten. Am Mandat für die Europäische Zentralbank dürfe nichts geändert werden, so Merkel.

Monti saw the need for a fiscal union which guarantees stability. In this context eurobonds are worth exploring.

Atlantico has interviewed the French EU expert Jean-Luc Sauron, who sees the need for growth as well as for repression in the eurozone.

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Our national leaders never have time sort out the unanswered questions about European level democracy and legitimacy.

But I wonder if there is going to be a eurozone to save by the time our national leaders get around to effective solutions, unanimously adopted and ratified within an intergovernmental framework adored by the French leadership.


Ralf Grahn

Merkel and Thorning-Schmidt on EU and euro

The German chancellor Angela Merkel met the leaders of Denmark and the United Kingdom, the two EU member states with opt-outs from introducing the euro currency.

First a look at the press conference with the new prime minister of Denmark.


Helle Thorning-Schmidt

Denmark takes on the presidency of the Council of the European Union from the beginning of 2012, after Poland. Merkel told the Danish prime minister Helle Thorning-Schmidt that even if the 17 countries of the eurozone need to solve certain problems on their own, Germany does not forget that the union of 27 belongs together and that the internal market is the foundation for the euro.

Limited treaty reform is necessary among the euro area countries, according to Merkel.

Thorning-Schmidt underlined the need for all 27 EU member states to face the crisis together, by using the community method and the EU institutions.

Merkel wanted to see the Council presidency of Denmark as a bridge between the eurozone and the rest of the member states. Denmark is committed to the stability and growth pact, as well as a competitive country.

Thorning-Schmidt said that the discussions about treaty reform continue in December, but seemed to prefer a strictly limited basis ahead of the European Council.



Ralf Grahn

Eurozone governance: Cameron nixes treaty change

According to the BBC, UK prime minister David Cameron has politely told chancellor Angela Merkel in Berlin that he wants to play a positive role in Europe and that a strong eurozone is in the UK’s own interest.

However, Cameron excludes any treaty change giving the European Union more powers to shore up the eurozone, and he referred to the unanimity rule and the British veto. Cameron also excluded British participation in “bolstering” the euro. (By this I understand financial stabilisation measures.)

These are essentially the same things Cameron said the previous day, when he met president Nicolas Sarkozy in Paris.



UK government programme



While adding non-participation in financial stabilisation, what Cameron said is contained in the agreement between the Conservatives and the Liberal Democrats: The Coalition: our programme for government.

Here are three relevant excerpts:

We will ensure that there is no further transfer of sovereignty or powers over the course of the next Parliament.


We will amend the 1972 European Communities Act so that any proposed future treaty that transferred areas of power, or competences, would be subject to a referendum on that treaty – a ‘referendum lock’. We will amend the 1972 European Communities Act so that the use of any passerelle would require primary legislation.


We will ensure that Britain does not join or prepare to join the Euro in this Parliament.

The inadequacy of the Lisbon Treaty rules on economic governance is in plain view. If monetary union without fiscal and political union is a structural weakness, there are two coherent responses for EU leaders:

1) Make necessary changes to the EU treaties, or
2) openly act to dismantle the eurozone.

Best wishes for the eurozone, while vetoing necessary treaty change, comes awfully close to the Leninist saying to give the Mensheviks support in the same way as the rope supports a hanged man.




Ralf Grahn

Britain and EU: How to deform a treaty (Part II)

This second post looks at the situation a year hence, if the Conservative Party is in power in the United Kingdom and the Treaty of Lisbon has entered into force.


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Lisbon Treaty


Ordinary revision procedure

The amended Article 48 of the Treaty on European Union (TEU) contains some new options and procedures, although its hard core remains fairly equal to its predecessor.

The government of any member state, the European Parliament and the Commission can make proposals to amend the treaties.

The proposals can serve to increase or to decrease the powers of the European Union.

The European Council consults the European Parliament and the Commission (and the national parliaments have been notified).

The European Council decides to examine the proposals by a simple majority.

In this case the primary option is to call a Convention, but with the consent of the European Parliament it can be dispensed with.

With or without a Convention, an intergovernmental conference decides by common accord (unanimity) the amendments to make to the treaties.

The amendments enter into force after being ratified by all member states.

***


Simplified revision procedure

If the proposals concern only internal policies and actions contained in Part Three of the Treaty on the Functioning of the European Union (TFEU), the European Council can decide, by unanimity, to amend the treaty, after consulting the European Parliament and the Commission. Such a decision cannot increase the powers of the European Union.

The amendments have to be approved by the member states in accordance with their constitutional requirements.


***

Political framework

We suppose that the Conservative UK government would want to repatriate the social and employment competences it wishes to take back under the Treaty of Nice.

Employment and social policy belong to TFEU Part Three. Granting the United Kingdom a fifth opt-out from the Lisbon Treaty would not increase the EU’s competences.

Under the simplified revision procedure a unanimous decision by the European Council and approval (ratification) by all member states would suffice.


If the Lisbon Treaty is already in force by the time the Tory government is formed, it will make clear that political integration in the EU has gone too far and it would not let matters rest there. [In his recent speech, David Cameron made an unqualified promise to arrange a referendum on the Lisbon Treaty, in other words regardless of its entry into force.]

With or without a preceding referendum, the rest depends on the additional powers the British government would propose to scrap, either universally or with regard to itself.

With regard to the Lisbon Treaty, the United Kingdom has already opted out of the Schengen agreement, economic and monetary union (the euro), the EU Charter of Fundamental Rights and police and judicial cooperation in criminal matters.

We lack information about the additional areas Britain would wish to exclude. Therefore it is too early to tell if they would fall under the ordinary or the simplified treaty revision procedure.

The Tories’ European Election Manifesto rejects the new role for the High Representative/Vice-President and the European External Action Service. If changes are proposed, they clearly fall outside TFEU Part Three, and they are core Lisbon Treaty reforms for the other member states. Institutional opt-outs of a horizontal nature are not practicable in general.


***

Conclusion

Under the Lisbon Treaty, limitations of EU powers or opt-outs from internal policy areas would be marginally easier from a legal point of view, but are they politically viable?

The UK’s record as an obstructionist member is solid and the Conservative Party promises even more contempt for its European partners and their common aims.

The EU member states would be foolish to cringe before a member state without loyalty and solidarity.

If even one member state stands up against Britian’s irresponsible behaviour, the plan to deform the treaty crashes.

David Cameron and William Hague would probably have to call a referendum on Britain’s EU membership.

The European Union could offer ex-member Britain a privileged partnership.



Ralf Grahn

Britain and EU: How to deform a treaty (Part I)

Let us imagine that a year from now the new Conservative government in Britain makes a proposal to the Spanish presidency of the Council to change the treaties on which the European Union is founded.

There are two scenarios, depending on if the Treaty of Lisbon is in force or not.


***


Current rules

First we have to look at the circumstances if the second Irish referendum turns in a negative answer or if complications in the Czech Republic, Poland or Germany (or unforeseen events) have prevented the entry into force of the Lisbon Treaty by the time the Conservative Party forms the government in the United Kingdom.

If the Treaty of Lisbon is not in force, the UK government would demand the repatriation of powers concerning social and employment policies, as the Conservatives have promised.

According to the existing Article 48 of the Treaty on European Union (TEU) the Council would decide to consult the European Parliament and the Commission, the latter because the proposal comes from a member state and because the limited powers are European Community competences (first pillar).

After these opinions the Council could call an intergovernmental conference (IGC). This decision is procedural, so it does not require unanimity, only a simple majority (14 out of 27 member states).

What we do know, is that the treaty reform process has been ongoing since December 2000, when political agreement was reached on the Treaty of Nice. At this point in time 27 EU member states have been able to agree unanimously on the compromise Treaty of Lisbon, and 26 national parliaments have approved the amending treaty.

The national political leaders are fed up with institutional reform, and forcing a new round of negotiations would hardly meet with enthusiasm.

Many in Great Britain seem to be unaware of how isolated their country is in the European Union. I doubt that the UK would be able to rally the support of even thirteen other member states.

Even if a simple majority decided to come out in favour of an intergovernmental conference, the treaty amendments would have to be agreed by common accord (unanimity).

Things would then advance to the third hurdle: The agreed amendments would have to be ratified by all member states to enter into force.

Politically, allowing the United Kingdom to opt out of new substantial swathes of Community legislation, in addition to its existing opt-outs, contrary to the voices n many member states calling for a more “social Europe”, would further distort competition on equal terms in the internal market.

Giving in to the British demands would also saddle the European Union with an obstructionist member, bent on using its veto powers to block progress for a long time to come.

In practice, it would translate into a stop for further EU enlargement, because the Lisbon Treaty is the minimum reform required by France and Germany (too little, in my humble opinon).

Could the UK find allies during this process? I imagine that some member states might try to avert British secession because of their market orientation and intergovernmentalist attitude.

Proponents of a European foreign and security policy as well as defence might see Britain as a necessary contributor, but this is a pipe-dream because of the UK’s traditional attitude and the Tories’ basic rejection of any obligations towards its European partners.



***

Conclusion


To fulfil its election promises, the Conservative UK government would have to make a public proposal to tear up the Treaty of Nice, although in a limited fashion.

The effort would probably fail at the first hurdle, but it would be almost guaranteed to hit a brick wall at agreement time, even if the member states’ governments are famous for pusillanimity and muddling through.

Given Britain’s obstructionist record and the Conservatives’ disdainful attitude to their European partners (including leaving the EPP-ED group in the European Parliament), it is hard to believe that none of the national parliament would revolt against a ratification proposal, in the unlikely case that the process was allowed to advance that far.

Sooner or later the UK government would have to admit that it has reached a dead end. For domestic reasons it could hardly shrug it off without a show of action. Unable to deform the treaty, David Cameron and William Hague would probably feel the need to call a referendum on British EU membership.



Ralf Grahn

EU Council tasks: Treaty reform

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.


***

Added flexibility

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.


Ralf Grahn

EU: Unanimity curse – The road ahead

Carlos Closa analyses the crucial unanimity rule concerning the ratification of EU treaties in an article called ‘Tras Irlanda: referendum y unanimidad’ (After Ireland: referendum and unanimity). The article (16 June 2008) is available on the web pages of the Real Instituto Elcano:

http://www.realinstitutoelcano.org/wps/portal/rielcano/contenido?WCM_GLOBAL_CONTEXT=/Elcano_es/Zonas_es/ARI62-2008

The Irish referendum result means the start of a new period of uncertainty with regard to European integration. Even more questionable than the referendum is the requirement of unanimous ratification by all member states of every treaty reform in a union as large and heterogeneous as the existing one.

Closa’s critique is founded on four reasons against unanimity:

1) It violates the equality of the parties.

2) The chances of any success diminish enormously.

3) The democratic principle is perverted.

4) The decision of one saddle the rest with the costs (externalisation).

Closa’s conclusion is that unanimity is an inadequate procedure for treaty reform. He acknowledges the taboo character of the subject, but he suggests an isolated reform of Article 48 of the Treaty on European Union.

***

Closa’s critique of the unanimity rule is well founded. Since the publication of the article, the Irish referendum has precipitated tendencies to unravel the Treaty of Lisbon, unanimously agreed by all member states’ governments as late as last December.

By now, revisionist voices have been heard in Austria, Cyprus, the Czech Republic and Poland, not to mention Ireland. The United Kingdom seems to have tied its ratification to ultimate approval by Ireland (and thus, all 27 member states). Further dismantling can not be excluded.

Even more than at the time of Closa’s writing, the European Union stands at a crossroads. Institutional and democratic reform is achievable only among some of the member states. A choice has to be made between the quality of integration and the quantity of participants.

A two union solution seems to be the only alternative to gridlock. The advanced, political union would be based on democratic ground rules and effective decision-making. The old union would have to be accommodated somewhere along the lines of the European Economic Area, the European Community or the EU mark Nice.

One-speed Europe is none-speed Europe.

It is time to move ahead to give “old Europe” and “new Europe” a new connotation.


Ralf Grahn

EU democracy

The European Union has rolled out a plethora of ’democratic’ measures towards its citizens, such as information, communication, listening, dialogue, debate, some voting rights, NGO financing and participatory exercises, with the citizens’ initiative promised as a Lisbon Treaty sweetener.

Only one thing seems to be missing: real democracy.

***

“It is not just a matter of communicating the content of European politics better. The basic problem with the EU is a lack of democracy. Citizens cannot see how they can influence European decisions”, said Rev. Thomas Wipf, the president of the Community of Protestant Churches in Europe.

See Ecumenical News International: Irish vote exposes EU democracy challenge says churches’ leader (16 June 2008):

http://www.eni.ch/featured/article.php?id=1997

***

There is a huge difference between ‘more democratic’ and plain democratic, which no amount of sweet-talking is going to erase.

The essential requirement is the ability to vote the responsible people into and out of office.

Only then do the electors carry the moral responsibility to live by their choices, good and bad.

***

I have started to doubt if the Lisbon Treaty is worth having with sham democracy at the European Union level.

I have begun to feel that further alienating about half of the EU citizens is too high a price to pay for institutional reform.

Institutional EU reform is necessary, and so is continuing progress, but if they come without democracy, accountability and legitimacy, they are not worth having.


Ralf Grahn

Achilles’ heels of Europe

The aftermath of the Irish referendum is potentially a fertile moment for Europe.

The Irish government seems to be clueless about how to proceed, reduced to pleading for extra time even beyond October 2008. But the referendum Catch 22 is set to remain, and nothing indicates that the ‘pro-European’ voters are going to become pro EU reform.

The vast majority of the EU member states is set to ratify the Treaty of Lisbon, which can be seen as a political statement on the necessity of reform.

But if the Irish want themselves and the rest of the EU stuck with the Treaty of Nice, as the crowning achievement of European integration, there is very little the other European leaders can do, presuming that they stick to the ‘liberum veto’.

We have an Irish Catch 22 and a European Catch 22.

What can be fertile about stalemate?

***

If political leaders have let their rules paint them into a corner with no or only limited room for manoeuvre, there are still people free to think and to speak.

Researchers, students, editorialists, columnists, bloggers and concerned EU citizens can discuss the challenges of European integration and the needed remedies against irrelevance, without pussyfooting.

Even if there seems to be little hope for effective cures in the short term, those interested in Europe’s place in the world can use the deep flaws exposed by the Irish referendum as a starting point for serious thought and discussion.

Here are some suggestions for further discussion:

1) National referendums on European level questions, and more generally the merits of representative vs. direct democracy.

2) The effects of EU’s treaty base and unanimous ratification.

3) Unanimous decision-making and the consequences of ‘liberum veto’.

4) The lack of democratic foundations and democratic legitimacy of the EU.

5) American and European experiences compared.

***

I wouldn’t go as far as to say that a weak European Union is in nobody’s interest. But it is not in the interest of us EU citizens.

One important reminder of that is James Rogers on Global Power Europe:

http://www.globalpowereurope.eu/

Read and reflect.


Ralf Grahn

Why Europe?

There are fairly small groups of vehement and vocal anti-EU campaigners, but they resonate with varying proportions of national electorates hostile to or suspicious of ‘Brussels’, although profound indifference towards the European Union is probably the prevalent mood, equally frustrating for the anti-EU crowd as for Europhiles.

My attempt to sum up the European malaise is: Distant and meddling.

Distant bureaucrats fine-tuning standards for different products in the internal market, incomprehensible treaties and tons of secondary legislation, unclear responsibilities and poor accountability, almost faceless politicians ushered in from black cars to do, what?

At the same time, a pervasive feeling that these tentacles reach into every nook and cranny, somehow threatening our daily lives and comforts, as well as our jobs and futures.

Thus far, the feelings are common to large swathes of the peoples, but more prevalent among the poor, the uneducated, the old and the rural populations, in short, those who live precariously.

The causes of discontent vary wildly, too, from accusations of an ‘ultra-liberalist’ conspiracy trampling workers’ rights to ‘socialist’ over-regulation choking free enterprise.

***

There is no magic cure. ‘Washington’ is as much of a swearword in US politicking as ‘Brussels’ in Europe, and there is a guaranteed market for various shades of populist hopefuls nationally, regionally and locally.

Although the division of labour between the EU and the member states is far from perfect, the questions decided at the European level tend to be far from the daily concerns of individuals, unless they happen to be directly affected like farmers or fishermen.

***

But something needs to be done. Something could be done.

The European Convention, the Constitutional Treaty and the Lisbon Treaty (in the consolidated version) made some gestures towards presenting the basic rules of the European Union in a readable form, but they all carried with them the luggage of previous treaties.

Their improved aims and principles are admirable. In the long run they strengthen the foundations for progress towards a citizens’ Europe, although the process may be a long one.

But the basic principles and necessary institutions would have to be presented in an even shorter document than the proposed Treaty on European Union. If, despite its intergovernmental character, the common foreign and security policy, including the common security and defence policy, was moved to the proposed Treaty on the Functioning of the European Union, we would be near a readable basic document for EU citizens (as legal texts go).

The constitutional document could be fairly neutral, leaving it to the various political parties to try to convince the EU citizens of the merits of their programmes.

***

Every home in the EU would receive this fundamental document and it would have to be produced in a form which would make people voluntarily place it in their bookshelf for further reference.

The objectives and principles of the European Union tell us something about what the EU has been established for and how it is supposed to work, but more is needed as to why.

More about that in a coming post.


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: Irish legal concerns

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 spite of this conclusion in my previous post, I believe that there is a need for deliberation if we want our societies to prosper. Therefore, Irish concerns pertaining to questions common to the Constitutional Treaty and the Lisbon Treaty merit study despite the referendum outcome. Some are peculiar to Ireland or more prominent there than elsewhere, but many of them have a bearing on Europeans in general, not least because of common themes and borderless misconceptions diffused by electronic means.

Laurent Pech has written the National Report for Ireland on the subject: Preparing the European Union for the Future? Necessary Revisions of Primary Law after the non-ratification of the Treaty establishing a Constitution for Europe. (23rd FIDE Congress in Linz, 28–31 May 2008)

People interested in politics and law can be recommended to read the clearly written 24 page report. It has been published as a working paper, which can be downloaded from:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1123935#PaperDownload.

At the time of writing, the author expected to produce a final version in June 2008.

Laurent Pech has written a newly published book with a long perspective on the evolving European treaties:

The European Union and its Constitution: From Rome to Lisbon (Clarus Press, March 2008; 45 €).

For more information, see:

http://www.claruspress.ie



Ralf Grahn

Derailed by Irish Lisbon Treaty vote

I have to admit that I was derailed by the Irish vote on the Treaty of Lisbon. I would have placed no bets on the outcome, but I had not expected such a clear rejection of the amending treaty. Being a fan of Ireland and the Irish, I surely wanted to see them as companions on the road to an improved European Union, but it was not for me to decide.

Ireland has its own constitutional requirements. If a referendum is deemed to be called for each time the European Union needs to update its treaties, who am I to argue that it is an exceedingly blunt instrument to handle complex questions?

We parted company amicably, they in adventurous search of new and uncharted territory, I stolidly continuing along the road to EU reform.

***

Nobody should ram an unwanted treaty, once rejected, down their throats. But sooner or later the focus will shift from referendum counts and causes to the future. For the Irish people and government a novel expedition commences: to define their collective aspirations with regard to Europe after opting out of treaty reform.

The first chances at the European level come next week, when the foreign ministers meet Monday and the heads of state or government a few days later. Does the Irish government know what to propose, or will it require more analysis of the reasons for rejection?

Anyway, it is heartening to know that Ireland is not going to obstruct progress for the EU member states willing and able to move ahead. It is important for the other EU countries, but it will make them more receptive to Ireland’s concerns.

***

Two thirds or 18 of the EU members have already completed the essential requirements for ratification of the Lisbon Treaty. Eight have yet to ratify the treaty in accordance with their constitutional requirements. Possibly Ireland will be joined by one or a few countries belonging to that group.

The circumstances surrounding the Lisbon Treaty have changed as a result of the Irish rejection. This means that the ratifying states have to take a new position on the entry into force of the Treaty of Lisbon.

While the ratifying member states should respect the outcome in Ireland, they are entitled to the same amount of respect for their own aspirations to bring an almost decade long reform cycle to a conclusion.

This means that the Lisbon Treaty, initially requiring ratification by all member states, has to be adjusted to the changed circumstances. The main requirement is that the treaty has to enter into force between the ratifying states. Additionally a number of technical adaptations are needed, without altering the substance of the treaty.

The shift from the present European Union to the new one may call for the re-establishment of the EU, leaving the relationship with the relative outsider(s) to be determined separately.

Clear signals from the EU foreign ministers and the heads of state or government should be forthcoming next week.

***

Yes, I was derailed by the outcome of the Irish referendum. Instead of the customary post on the following Article of the Treaty on the Functioning of the European Union (TFEU), I strayed. For an evening and a day I fell for the temptation to respond to comments and to read and to comment on blogs discussing the referendum in Ireland.

Formally, the Irish voters had derailed the Treaty of Lisbon for the whole European Union. In practice, it appears, they had only opted out of a process set to continue. Even in the worst case, the reform process needs recording, since the underlying aspirations are not going to disappear.

Therefore, the service on this blog will continue in a short while, in boring detail.


Ralf Grahn

Europe after Ireland’s NO

The early results of Ireland’s referendum on the Treaty of Lisbon look solid enough: The Irish voters have clearly rejected the EU reform treaty by a wide margin.

This means that the Lisbon Treaty, as it now stands, fails to become binding for Ireland, but also for the 26 other member states.

The default option is that the European Union continues to be governed by the Treaty of Nice (2001), admitted to be inadequate by the very signatories the moment it was born, as attested by the Nice declaration.

The high point of the reform process was the Laeken declaration, which led to the European Convention, more closely resembling a constituent assembly than anything we have had on offer as EU citizens.

If a quirk of Ireland’s Constitution demands a referendum each time the EU needs to reform its treaties, it is their system. If the Irish vote to block progress, it is their legitimate choice.

After this resounding No, it would be distasteful to tinker with the treaty and to offer the Irish voters a second vote on more or less the same contents. It is hard to imagine the present or any Irish government in the near future willing even to try.

Unacceptable, however, is that the rest of the European Union should suffer more than necessary as a result. In about half a year since the signing of the Lisbon Treaty, 18 member states have fulfilled the essential requirements to ratify the amending treaty.

Most of them were ready to approve the Constitutional Treaty, but had to accept the diluted Lisbon Treaty in an effort to get all the member states on board.

But enough is enough. Something has to give, because the Nice Treaty is not fit for Europe’s future challenges.

Although the European Union would need more, rather than less democratic reform offered by the Lisbon Treaty, ambitious new reforms may be too much in the immediate future.

With regard to the substance, there are two options: The new European Union could be based on the Constitutional Treaty or the Lisbon Treaty. In the short run, the Constitutional Treaty would probably encounter more problems in some member states than the Lisbon Treaty freshly ratified or undergoing ratification.

As a technical improvement, the contents of the new treaty could be based on the consolidated version of the Lisbon Treaty, to give everybody the chance to read the text from the outset.

Only the provisions on entry into force would have to be reformed in a real sense, and some technical modifications made with regard to signatories, territory, member states, languages etc., mostly in the final provisions.

These additions to the Lisbon Treaty would not require too much work, if the political will is there. This and future treaties would essentially enter into force between the ratifying states, as most international treaties. These limited changes could be ratified separately and in short order.

If this is the way forward for Europe, it leaves the question of the state or states staying outside the new European Union. Here it would be best to wait to see what they propose. If these suggestions are reasonable, like participation in the European Economic Area (EEA) and possibly some other policy fields, these matters could be negotiated in a constructive atmosphere.

After the first flurry of activity, the EU leaders would have to discuss the future of the European Union and its democratic legitimacy more seriously.

The countries outside the Union or its core could contemplate their future relations without rush, until the next referendum.


Ralf Grahn

Lisbon mini treaty?

I have compared the existing treaties of the European Union with the draft Constitution and the Constitutional Treaty as well as with the Treaty of Lisbon, working Article by Article from the beginning of the Treaty on European Union (TEU) until Article 108 of the Treaty on the Functioning of the European Union (TFEU).

Time for an interim assessment, I would say.

***

The differences between the stages are small, when we look at the treaties as a whole, although each treaty had its own terminology and numbering. Even if the end result of the IGC 2007, the size of the Treaty of Lisbon, was far from the ‘mini treaty’ first envisaged by the future French president Nicolas Sarkozy, the lawyers coordinated by the Council Secretariat did diminish the bulk of the text by two editorial choices.

The use of horizontal amendments achieved the goal of a consistent terminology throughout the amending treaties, with minimal use of space. Hundreds of small and materially insignificant changes were, in fact, deferred until the appearance of the consolidated versions of the Treaty of Lisbon.

The other editorial choice in the ‘mini treaty’ spirit was to bypass (the draft Constitution and) the Constitutional Treaty, when the later wording was different (and possibly better), but the more recent text did not represent an ‘innovation’, in other words, no substantive change. In these cases, the drafters let the current provision lie (with one or more probable horizontal changes).

In spite of this, the formal page count or word count of the Treaty of Lisbon is surprisingly high.

***

But word counts say very little about the substance, when we consider that the significant changes are, in the end, not far removed from the vision of an institutionally focused ‘mini treaty’.

They represent a compromise view on how to reform the core institutions, very little expanded areas of EU action, but a substantial amount of more efficient decision-making within the Council (in part from 2014 or 2017) and democratic scrutiny by the European Parliament (and the national parliaments).

I have to admit that the more I study the subject, the paler the result of a decade of treaty reform appears.


Ralf Grahn

EU TFEU: Competition transition provision

The transitional provision on competition rules seems to illustrate the institutional focus of the treaty reform aspirations during the last decade. The EU Treaty of Lisbon makes technical adjustments, without taking notice of the relevance or irrelevance of most provisions concerning the internal policy areas.

If the Treaty of Lisbon enters into force, there might be an opening to modernise the Treaty on the Functioning of the European Union (TFEU).


***

Article 104 of the Treaty on the Functioning of the European Union (TFEU) is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/90:

Part Three ‘Policies and internal actions of the Union’

Title VII Common rules on competition, taxation and approximation of laws

Chapter 1 Rules on competition

Section 1 Rules applying to undertakings

Article 104 TFEU
(ex Article 84 TEC)

Until the entry into force of the provisions adopted in pursuance of Article 103, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with the law of their country and with the provisions of Article 101, in particular paragraph 3, and of Article 102.

***

In Article 2, point 75 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) laid out the specific amendments to Article 80 TEC and point 76 amended Article 85 TEC. Thus, no specific amendments were made to Article 84 TEC (OJ 17.12.2007 C 306/68).

***

The TFEU table of equivalences tells us that Article 84 TEC first became Article 84 TFEU (ToL) in the original Treaty of LIsbon, but later renumbered Article 104 TFEU in the consolidated version (OJ 17.12.2007 C 306/211).

***

The current Article 84 of the Treaty establishing the European Community (TEC) is found under Title VI ‘Common rules on competition, taxation and approximation of laws’, Chapter 1 ‘Rules on competition’, Section 1 ‘Rules applying to undertakings’, in the latest consolidated version of the treaties in force (OJ 29.12.2006 C 321 E/75).

In Article 104 TFEU the words ‘common market’ were replaced by ‘internal market’ in accordance with the Article 2 of the Treaty of Lisbon, horizontal amendment 2(g). Cf. OJ 17.12.2007 C 306/41..

In addition, the Articles referred to were renumbered in the amending treaty. For ease of use, the current Article 84 TEC is reproduced here in full:

Article 84 TEC

Until the entry into force of the provisions adopted in pursuance of Article 83, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the common market in accordance with the law of their country and with the provisions of Article 81, in particular paragraph 3, and of Article 82.

***

For the sake of a systematic comparison, we look at the Article during the previous treaty reform stages.

First, we turn to the European Convention, which located the provisions on competition in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter I ‘Internal market’, Section 5 ‘Rules on competition’, with Subsection 1 ‘Rules applying to undertakings’.

The draft Treaty establishing a Constitution for Europe opted for the term ‘internal market’ and Article III-53 defined the legal instruments in the field of competition as ‘European regulations’. Naturally, the Articles referred to were numbered differently. Otherwise the rewording was minimal. In case someone wants to study the draft provisions more closely, the text looked like this (OJ 18.7.2003 C 169/36):

Article III-53 Draft Constitution

Until the entry into force of the European regulations adopted pursuant to Article III-52, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their internal law and Articles III-50, in particular paragraph 3, and Article III-51.

***

The location of Article III-164 of the Treaty establishing a Constitution for Europe was the same as for the corresponding provision of the draft (OJ 16.12.2004 C 310/70).

The term ‘internal law’ became ‘national law’ and the Articles referred to were numbered differently:

Article III-164 Constitution

Until the entry into force of the European regulations adopted pursuant to Article III-163, the authorities in Member States shall rule on the admissibility of agreements, decisions and concerted practices and on abuse of a dominant position in the internal market in accordance with their national law and Article III-161, in particular paragraph 3, and Article III-162.

***

We have seen that Article 104 TFEU, content to make only horizontal and technical adjustments, is almost exactly the same as the current Article 84 TEC. Thus, instead of legal instruments with distinct names, the provision refers to ‘the provisions adopted in pursuance of Article 103’.

***


What has been said about Article 104 TFEU?


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title VI Common rules on competition, taxation and approximation of laws.

Peers highlighted the amendment to Article 84 TEC and TFEU (ToL), to be renumbered Article 104 TFEU in the consolidated version, without comment (page 25).

The analysis 3.3 and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

***

The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). It offers the following comment on Article 104 TFEU, Article 84 TFEU (ToL) in the original Lisbon Treaty (page 11):

“Unchanged from Article 84 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

***

The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) discussed competition on pages 57 to 60. It commented on Articles 81 and 82 as well as Article 85 TEC and ToL on page 58, but Article 84 TEC and ToL drew no comment.

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

***

The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the internal market and competition on pages 218 and 219.

The main discussion centred on concerns about the removal of ‘free and undistorted competition’ (according to Article I-3(2) of the Constitutional Treaty objectives), but the Committee offered the following statement on the contents of the competition provisions (page 218):

“9.14. The rules on competition contained in previous treaties would be unchanged by the Lisbon Treaty. Articles 101–103 of the TFEU are the same as Articles 81–83 of the TEC. They give the EU power to legislate to combat practices “which have as their object or effect the prevention, restriction or distortion of competition”.

As we see, Article 104 TFEU (Article 84 TEC and ToL) was not mentioned.

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

***

Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, deals with the internal market on pages 261 to 269, ’22.1 Inre marknaden’. There is a brief description of the existing competition rules, Articles 81 to 89 TEC, on page 262.

On pages 265 to 266 the consultation paper explains the amendments to the competition rules (Konkurrensregler), but there are no specific comments on Article 84 TFEU (ToL).

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

***

Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), includes only a short comment on the unchanged nature of Article 84 TFEU (ToL), renumbered Article 104 TFEU (on page 207):

”84 artiklaa (uusi 104 artikla), joka koskee 83 artiklan nojalla annettujen asetusten ja direktiivien täytäntöönpanoa jäsenvaltioissa, ei muuteta.”

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rd), offers the same brief observation about Article 84 TFEU (ToL), the future Article 104 TFEU, on page 210:

”Artikel 84 (blivande artikel 104), som gäller genomförandet av förordningar och direktiv som antagits med stöd av artikel 83, ändras inte.”

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

***

European Community (European Union) competition law and policy is a developed area, with treaty provisions, secondary legislation, supplementing guidelines and a significant body of case law.

Today, areas not covered by EC law seem marginal or inexistent, especially after Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (Text with EEA relevance), as amended by Regulations No 411/2004 and 1419/2006:

Council Regulation (EC) No 411/2004 of 26 February 2004 repealing Regulation (EEC) No 3975/87 and amending Regulations (EEC) No 3976/87 and (EC) No 1/2003, in connection with air transport between the Community and third countries (Text with EEA relevance)

Council Regulation (EC) No 1419/2006 of 25 September 2006 repealing Regulation (EEC) No 4056/86 laying down detailed rules for the application of Articles 85 and 86 of the Treaty to maritime transport, and amending Regulation (EC) No 1/2003 as regards the extension of its scope to include cabotage and international tramp services (Text with EEA relevance)

For convenience, see the consolidated version of Regulation 1/2003:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CONSLEG:2003R0001:20061018:EN:PDF

In addition, we take note of the Article 3(1)(b) TFEU, on the future competition law of the European Union:

1. The Union shall have exclusive competence in the following areas:

---
(b) the establishing of the competition rules necessary for the functioning of the internal market;
---

If the Treaty of Lisbon enters into force, a reform of the policy areas in the EU treaties, especially the TFEU, seems to be called for, if only to rid the treaties of more or less redundant provisions.


Ralf Grahn

Alfred the Ordinary

You take up so many levels of matters and such various grounds for discontent in your comment on transport support and protection that it is difficult to answer within the space of comment of normal proportions. In a way, my writing about the Lisbon Treaty is a running commentary, although only one Article is dealt with each time.

Treaties: In spite of the fact that my postings are excruciatingly dull to read, I think that they have some merit in that they deal with every provision of the Lisbon Treaty, including the unchanged ones of little interest to national governments and parliaments with regard to the ongoing ratification processes.

Importance of treaties: Like it or not, but the European Community (European Union) is based on the rule of law. Thus, what the treaties say and what they omit forms the basis for secondary legislation and subsequent action.

Transport: I have to admit that the vagueness of the (unreformed) transport Articles is somewhat disturbing. Yesterday I proposed that the treaties should be overhauled as to the internal policy areas. The common agricultural policy and the common transport policy are two examples of practically unreformed areas, and there are many more or less redundant provisions elsewhere, which have been technically adjusted, but just clutter up the coming TFEU.

EU studies: If, as some purport, 80 per cent of national legislation emanates from “Brussels” (or even significantly less, as I believe), curricula for EU law and politics should be extended significantly. Yesterday I noted that students probably learn nothing about EU transport (or most other policy areas) from the standard EU law coursebooks in English. I also noted that many continental students seem to get a more complete view of the EU.

Internal market, competition and protectionism: French protectionism has deep roots; a sense of inferiority running back to at least German unification in the late 19th century. But if you abolish the internal market and its competition rules, as well as the supranational Commission as the guardian of the treaties, what would result? Enforcing and improving competition rules is a hard slog for the Commission, but have you thought through the alternatives to the EU (countries) as a whole, or even the situation for the United Kingdom after possible secession?

CAP: In my view, the EU would be much better off if the resources spent on the common agricultural policy were used to improve the conditions for Europe to compete in a globalising world. But how can the resources and expenditure of the EU be reformed decisively as long as the member states’ governments have to reach unanimous decisions on the financial perspectives?

Fisheries: Is not the global root problem overfishing? What should be done about that?

Black and white: Any working human society requires some sort of adaptation, be it family, work, municipality, region, state or the EU. Wholesale rejection is seldom the right answer. I have to adjust to the fact that some of the decisions and actions of these entities are less palatable, even distasteful. When in a minority, I can try to influence opinions and to work for what I believe to be a more constructive future majority. Where does anger lead, if not turned into action for improvement?

Intergovernmentalism: Many of the basic problems of the European Union have much to do with the defects and limits of intergovernmental cooperation. Often it would be better to ask about the interests of EU citizens, instead of brandishing barren concepts like ‘sovereignty’ when the nation state is incapable of offering solutions.

In my humble opinion, we Europeans need a European Union, but a better EU based on effective decision-making, democracy and solidarity.

Imperfect as it is, the Treaty of Lisbon is a step in the right direction, but many more are needed.


Ralf Grahn

EU Treaty of Lisbon: Treaty revision procedures

The Treaty of Lisbon marks a stage in the development of the European Union (EU). In spite of evolving internal decision making rules and democratic elements in EU law beyond the scope of ordinary international organisations, the EU remains an international organisation based on treaty law.

The member states are still the “masters of the Treaties”, holding on to the ultimate power of Treaty change (German: Kompetenz-Kompetenz).

Still, the Lisbon Treaty rules for amending the Treaties refine and develop the current Treaty provisions.

***

The Convention method, used twice before, is introduced as the ordinary revision procedure. As a procedural question, the European Council may decide by simple majority on a Convention to be convened, but the Convention’s proposals are decided on by a unanimous intergovernmental conference (IGC), and the resulting Treaty amendments have to be ratified by all member states.

The IGC may be called without a Convention if the extent of the proposed amendments does not justify convening one.

The Treaties can be revised to increase or to reduce the powers of the EU. The express mentioning of the possibility to decrease EU competences is a novelty.

***

The Reform Treaty introduces some elements of flexibility into less sensitive areas of the Treaties. Two simplified revision procedures are introduced:

1) Provisions of Part 3 of the Treaty on the Functioning of the European Union (TFEU), Union policies and internal actions, can be revised without increasing the competences conferred on the EU in the Treaties. Unanimous decision by the European Council and approval by the member states is required. The European Parliament, the Commission (and the European Central Bank) are consulted.

2) ‘Passerelle’ or enabling clauses opening up for more effective or democratic and transparent decision making:

2a) A move from unanimity to qualified majority voting (QMV) in the Council within the TFEU (except in questions excluded by Article 308a TFEU) or the common foreign and security policy (CFSP), except in decisions with military implications or in the area of defence. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.

2b) A move from special legislative procedure to the ordinary legislative procedure within the TFEU (except in questions excluded by Article 308a TFEU), thereby widening the scope for co-legislation and democratic accountability through the European Parliament. Absence of opposition from member state parliaments is required for the final unanimous decision by the European Council. The European Parliament needs to give its consent.

***

The intergovernmental conference (IGC 2007) agreed on the following hefty Article 48 of the Treaty on European Union (TEU) on Treaty revision procedures (OJ 17.12.2007 C 306/37-39):

56) Article 48 shall be replaced by the following:


1. The Treaties may be amended in accordance with an ordinary revision procedure. They may also be amended in accordance with simplified revision procedures.

Ordinary revision procedure

2. The Government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of the Treaties. These proposals may, inter alia, serve either to increase or to reduce the competences conferred on the Union in the Treaties. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

3. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 4.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

4. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to the Treaties.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

5. If, two years after the signature of a treaty amending the Treaties, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

Simplified revision procedures

6. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union relating to the internal policies and action of the Union.

The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

The decision referred to in the second subparagraph shall not increase the competences conferred on the Union in the Treaties.

7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

***

In order to compare the new Article 48 TEU with existing provisions, we turn to Article 48 TEU to be replaced, under Title VIII Final provisions (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E/34):

Article 48

The government of any Member State or the Commission may submit to the Council proposals for the amendment of the Treaties on which the Union is founded.

If the Council, after consulting the European Parliament and, where appropriate, the Commission, delivers an opinion in favour of calling a conference of representatives of the governments of the Member States, the conference shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to those Treaties. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

***

A glance at the old and the new Article 48 TEU is enough to tell us that there are differences between the two versions.

We proceed to what the Convention proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/ 92):

Article IV-7
Procedure for revising the Treaty establishing the Constitution

1. The government of any Member State, the European Parliament or the Commission may submit to the Council of Ministers proposals for the amendment of the Treaty establishing the Constitution. The national Parliaments of the Member States shall be notified of these proposals.

2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments of the Member States, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene the Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for the conference of representatives of the governments of the Member States.

The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to the conference of representatives of the governments of the Member States provided for in paragraph 3.

3. The conference of representatives of the governments of the Member States shall be convened by the President of the Council of Ministers for the purpose of determining by common accord the amendments to be made to the Treaty establishing the Constitution.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

4. If, two years after the signature of the treaty amending the Treaty establishing the Constitution, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.

***

The IGC 2004 made its mark on the proposed arrangements for Treaty revision by drafting three Articles on Treaty revision procedures in the Treaty establishing a Constitution for Europe, in Part IV General and final provisions (OJ 16.12.2004 C 310/189-191):

Article IV-443
Ordinary revision procedure

1. The government of any Member State, the European Parliament or the Commission may submit to the Council proposals for the amendment of this Treaty. These proposals shall be submitted to the European Council by the Council and the national Parliaments shall be notified.

2. If the European Council, after consulting the European Parliament and the Commission, adopts by a simple majority a decision in favour of examining the proposed amendments, the President of the European Council shall convene a Convention composed of representatives of the national Parliaments, of the Heads of State or Government of the Member States, of the European Parliament and of the Commission. The European Central Bank shall also be consulted in the case of institutional changes in the monetary area. The Convention shall examine the proposals for amendments and shall adopt by consensus a recommendation to a conference of representatives of the governments of the Member States as provided for in paragraph 3.

The European Council may decide by a simple majority, after obtaining the consent of the European Parliament, not to convene a Convention should this not be justified by the extent of the proposed amendments. In the latter case, the European Council shall define the terms of reference for a conference of representatives of the governments of the Member States.

3. A conference of representatives of the governments of the Member States shall be convened by the President of the Council for the purpose of determining by common accord the amendments to be made to this Treaty.

The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.

4. If, two years after the signature of the treaty amending this Treaty, four fifths of the Member States have ratified it and one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.


Article IV-444
Simplified revision procedure

1. Where Part III provides for the Council to act by unanimity in a given area or case, the European Council may adopt a European decision authorising the Council to act by a qualified majority in that area or in that case.
This paragraph shall not apply to decisions with military implications or those in the area of defence.

2. Where Part III provides for European laws and framework laws to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a European decision allowing for the adoption of such European laws or framework laws in accordance with the ordinary legislative procedure.

3. Any initiative taken by the European Council on the basis of paragraphs 1 or 2 shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the European decision referred to in paragraphs 1 or 2 shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the European decisions referred to in paragraphs 1 and 2, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.


Article IV-445
Simplified revision procedure concerning internal Union policies and action

1. The Government of any Member State, the European Parliament or the Commission may submit to the European Council proposals for revising all or part of the provisions of Title III of Part III on the internal policies and action of the Union.

2. The European Council may adopt a European decision amending all or part of the provisions of Title III of Part III. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area.

Such a European decision shall not come into force until it has been approved by the Member States in accordance with their respective constitutional requirements.

3. The European decision referred to in paragraph 2 shall not increase the competences conferred on the Union in this Treaty.

***

You can study the similarities and differences between the current TEU, the draft Constitution, the Constitution and the Treaty of Lisbon.

Personally, I find that the Constitution text with three separate Articles, was easiest to read and comprehend, but the IGC 2007 Mandate ordered: Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). (Council document 11218/07, point 16)

A readable overview of the Treaty revision procedures introduced by the Lisbon Treaty and some British positions are given in the relevant UK House of Commons Library Research Paper (page 74 to 76).

The “Green Paper” of the Swedish government, in addition to various presentations of the revision procedures, points out the new Article 308a of the Treaty on the Functioning of the European Union (TFEU), which limits the scope for possible simplified Treaty revisions (page 394 to 395).

Let us take a look at the new Article 308a TFEU (OJ 17.12.2007 C 306/131):

Article 308a TFEU

Article 48(7) of the Treaty on European Union shall not apply to the following Articles:
— Article 269, third and fourth paragraphs,
— Article 270a(2), first subparagraph,
— Article 308, and
— Article 309.’.

This means that the following areas are excluded from the simplified Treaty revision procedure concerning a move from unanimity to qualified majority voting (QMV) in policy areas covered by the TFEU or TEU Title V (external action and the common foreign and security policy; except decisions with military implications or those in the area of defence, which are already expressly excluded), as well as a move from a special legislative procedure to the ordinary legislative procedure, mentioned in Article 48(7) TEU:

- The system of the EU’s own resources and implementing measures for the Union’s system of own resources; Article 269 TFEU
- The Regulation on the multiannual financial framework; Article 270a(2) TFEU
- The flexibility clause; Article 308 TFEU
- The voting rules on suspension of membership rights (in case of a breach of the EU’s values); Article 309 TFEU

The six specific current ‘passerelle’ clauses (page 40) and the new ones (page 41) are explained in the Danish ratification bill, as well as the other provisions to modify the Treaties.



Ralf Grahn


Sources:

UK House of Commons Library Research Paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2007/rp07-080.pdf

NB: My references are to the version above, but I just noticed that it has been replaced by a new one:

UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf


Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981

Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf

Portugals öppenhet (in Swedish)

Regeringskonferensen för Europeiska unionens fördragsreform inleddes i går i tecken av samförstånd. Europeiska rådet gav under midsommaren efter sega förhandlingar konferensen ett synnerligen detaljerat uppdrag, så arbetet borde rimligtvis löpa smärtfritt, om inte några mindre förutsägbara länder plötsligt får för sig att ställa till bråk.

Portugal, som sköter ordförandeskapet i EU-rådet, har lovat hålla fast vid det överenskomna mandatet. Dessutom har Portugal lovat ge unionens medborgare möjligheter att följa med hur regeringskonferensen framskrider genom att publicera dokumenten på webben.

Rådets sekretariat hade berett utkast till nya fördrag jämte bilagor. Redan i går fanns de tillgängliga via ordförandeskapets webbsidor, visserligen enbart på franska.

Som namnet regeringskonferens anger är unionens medborgare inte inviterade eller involverade, men kan i någon mån hålla sig informerade.

Ralf Grahn

The spectre of Charles de Gaulle

No, it was not that the United Kingdom left itself behind on the European Coal and Steel Community and the Rome Treaties (EEC and Euratom). It was the pragmatism of Jean Monnet to launch European integration again, after the failure of the European Defence Community and European Political Community that Eulawblogger meant. See “What Monnet did: a further response to the Grahnlaw blog” on:

http://eulawblogger.blogspot.com

Raising the spectre of Charles de Gaulle, was a real masterstroke.

How can I talk about ‘disruptive behaviour’ looking at the present: a well-meaning, but timid British government trying to wriggle itself out of a quandary, a Polish government ‘willing to die’ for the over-representation it somehow wrestled during the chaotic Nice summit, or the general unenthusiasm of the Czech government?

Pretty silly stuff, I have to admit, when we look back at Charles de Gaulle’s view of himself, of France and of Europe. A coalition of Gaullists and Communists shot down the EDC and the EPC. The efforts to downgrade the Commission, the empty chair, the Luxembourg ‘compromise’ effectively reinstating a general veto power, the Fouchet plans to emasculate the Communities, the two vetoes against British membership, were the hallmarks of a certain idea of Europe, but far from European in spirit: self-aggrandisement that has left a lasting legacy.

In those days one unadulterated nationalist was able to wreak havoc on a Europe of six. Today, the European institutions, which have to serve 27 members and almost 500 million citizens, are all the more fragile, because one man can still damage the Union, but the actors have multiplied.

This basic weakness would in no way evaporate if the Constitutional Treaty entered into force; still less if important pieces are left outside the new ‘simplified treaty’.

At a more practical level, there seems to be some movement on EU treaty reform.

The latest news that I have seen are all dated yesterday, 7 June 2007:

International Herald Tribune: Sarkozy says he and Blair agree on reforming the EU
Euobserver.com: MEPs for votes swap suggested to Poland in EU treaty debate
EurActiv: Parliament pushes for ‘Treaty plus’

Pragmatism and cherries in the air. I still hope that substantial treaty reform wins the day.

Ralf Grahn