EU Treaty of Lisbon: Geographical scope I

Where are the Treaties of the European Union (EU) applicable? If a citizen of the EU manages to answer “In the member states”, it is a good answer. If he is able to name the member states, his response would be excellent for everyday purposes.

But we, as students of European integration, want to dig a little deeper. Therefore, we turn to the fresh accord between European governments, the Treaty of Lisbon. For comparison, we present the main provision in the current Treaty establishing the European Community (TEC) and mention the intermediary stages for those who want to follow the modifications step by step.

Since the territorial or geographical applicability of the EU Treaties is tied up with the membership of the Union, we recapitulate the different enlargement stages of the European Communities and the European Union.

Then, we add a few comments about the scope of the Reform Treaty. This is how far we go in part I.

After the proposed main provision in the Lisbon Treaty, we advance to the detailed provisions in a second part of this article, to be published later.

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The intergovernmental conference (IGC 2007) agreed to insert the following Article 49c into the Lisbon Treaty version of the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/40):

An Article 49 C shall be inserted:

Article 49c

1. The Treaties shall apply to the Kingdom of Belgium, Republic of Bulgaria, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, Ireland, the Hellenic Republic, the Kingdom of Spain, the French Republic, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, Romania, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.

2. The territorial scope of the Treaties is specified in Article 311a of the Treaty on the Functioning of the European Union.

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The current corresponding Article is found in Article 299 of the Treaty establishing the European Community (TEC) (latest consolidated version of the TEU and TEC in OJ C 321 E/174 and 175, but amended by the 2003 Act of Accession regarding the latest entrants Bulgaria and Romania):


Article 299 TEC

1. This Treaty shall apply to the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland.

2. The provisions of this Treaty shall apply to the French overseas departments, the Azores, Madeira and the Canary Islands.

However, taking account of the structural social and economic situation of the French overseas departments, the Azores, Madeira and the Canary Islands, which is compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development, the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament, shall adopt specific measures aimed, in particular, at laying down the conditions of application of the present Treaty to those regions, including common policies.

The Council shall, when adopting the relevant measures referred to in the second subparagraph, take into account areas such as customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, State aids and conditions of access to structural funds and to horizontal Community programmes.

The Council shall adopt the measures referred to in the second subparagraph taking into account the special characteristics and constraints of the outermost regions without undermining the integrity and the coherence of the Community legal order, including the internal market and common policies.

3. The special arrangements for association set out in Part Four of this Treaty shall apply to the overseas countries and territories listed in Annex II to this Treaty.

This Treaty shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.

4. The provisions of this Treaty shall apply to the European territories for whose external relations a Member State is responsible.

5. The provisions of this Treaty shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.

6. Notwithstanding the preceding paragraphs:

(a) this Treaty shall not apply to the Faeroe Islands;

(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;

(c) this Treaty shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.

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I refer the reader who wants to compare the evolvement of the scope of the Treaties to the main provisions of the following intermediary stages:

The European Convention proposed an Article IV-4 Scope, under Part IV General and final provisions, with three dots at the end of paragraph 1 in anticipation of the ten entrants of May 2004. See draft Treaty establishing a Constitution for Europe, OJ 18.7.2003 C 169/91 and 92.

The IGC 2004 signed up to Article IV-440 Scope, under Part IV General and final provisions, with modifications in the Treaty establishing a Constitution for Europe. See OJ 16.12.2004 C 310/188 and 189.

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The IGC 2007 was a tidying-up exercise in at least two respects, as far as Article 49c(1) TEU of the Treaty of Lisbon is concerned. The Article introduces a complete list of the member states of the European Union, all 27 of them, by including the latest accession countries Bulgaria and Romania.

The second clarification is the choice to mention only the member states in the more basic of the basic treaties, the TEU. The TEU and the Treaty on the Functioning of the European Union (TFEU) are equally binding, but the TEU could be described as being more equal than the other.

The general reader finds the needed information, the names of the member states, in the future TEU. The gritty detail is shifted to the TFEU for those want to delve deeper. This is done by the referral in Article 49c(2) to Article 311a TFEU.

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Let us start with the main point, the spectacular enlargement of the European Communities. First there was the European Coal and Steel Community (ECSC), established by the Treaty of Paris 1951, which expired in 2002 after 50 years in force.

When only five of the six original members showed maturity enough to launch the European Defence Community and the European (Political) Community and the effort failed, the relaunch of European construction was achieved by the six founding members on a more modest scale by the Treaties of Rome 1957, establishing the European Economic Community (EEC) and the European Atomic Energy Community (EAEC or Euratom).

The six founding members of the ECSC, the EEC and Euratom were Belgium, France, (West) Germany, Italy, Luxembourg and the Netherlands.

Denmark, Ireland and the United Kingdom joined in 1973, bringing the membership to nine.

The Mediterranean enlargement followed in two phases, first Greece in 1981 and then Portugal and Spain in 1986. A Europe of twelve was born.

The first Eastern enlargement was not technically an accession, since the Federal Republic of Germany absorbed the German Democratic Republic in 1990.

A flavour of neutrality and non-alignment was added in 1995 with the accession of Austria, Finland and Sweden to what had become the European Union (EU) and the European Community (EC).

The abbreviation EU-15 started to make its appearance with increasing frequency as the EU headed towards the big bang of Eastern (and Mediterranean) enlargement. In May 2004 ten new states became EU members:

Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia (EU-25).

Bulgaria and Romania completed this enlargement round by joining the EU in 2007, raising the number of members to 27 and the population of the EU to around 490 million, some would say ‘an internal market of’, others ‘citizens’. (Of course, the internal market comprising the European Economic Area, EEA, is slightly larger than the EC, if we want to make the distinction.)

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A few comments by your glossator:

As a treaty based organisation, the European Union has no territory primarily its own. The geographical extent of the EU is derived from its member states, being in principle the sum of its member states’ (European) territories.

Three things seem worth mentioning:

First, according to the wording, the Treaties do not apply “in” but primarily “to” the member states mentioned. Applicability “in” their territories could be said to be incidental.

Second, from the applicability of primary law (the Treaties) follows that the secondary legislation – regulations, directives and decisions – is applicable, too.

Third, international treaties concluded by the European Community (in the future the European Union) within its powers, are applied in the same territory.

Thus far, the scope of EU law looks pretty clear. We are ready to answer most of the questions most of the time, but we have yet to face the small print, which will be the subject of instalment II.


Ralf Grahn

EU Treaty of Lisbon: Protocols and Annexes

In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:

59) The following Article 49 B shall be inserted:

Article 49 B

The Protocols and Annexes to the Treaties shall form an integral part thereof.


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There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):

Article 311

The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.


According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).


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Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):

Article IV-6
Protocols

The protocols annexed to this Treaty shall form an integral part thereof.

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The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):

Article IV-442
Protocols and Annexes

The Protocols and Annexes to this Treaty shall form an integral part thereof.

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In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).


The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.

The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.

The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.

The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.

As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:

“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”

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We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).

As far as I understand, the legally binding parts are:

I the TEU and the TFEU

II the Protocols, namely:

A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community

B. Protocols annexed to the Treaty of Lisbon

III. Annex to the Treaty of Lisbon (tables of equivalences)

They form an integral part of the Treaties.



FINAL ACT (OJ 17.12.2007 C 306/229)

THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:

I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

II. Protocols

A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions

These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.

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B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community

Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.

Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).

Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.


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III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon

This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.

In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:

Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.

The reader who feels slightly bewildered is excused.


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The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:

A. Declarations concerning provisions of the Treaties

B. Declarations concerning Protocols annexed to the Treaties


The Conference has adopted the following declarations annexed to this Final Act.

A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union

B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions

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Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.

Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union

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If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.


Ralf Grahn


Sources:

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

EU Treaty of Lisbon: Better out?

Is the European Union a prison of “We, the People” like the United States of America, where President Abraham Lincoln abolished slavery and secession without express authorisation by the Constitution? Or is the EU a prison of peoples like the former Soviet Union, where both secession and dissent were smothered until the empire imploded?

What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?

There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.

International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?

Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).

Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.

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Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.


Article 62
Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

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There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).

***

The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):

58) The following new Article 49 A shall be inserted:

‘Article 49 A

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 205(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’.

***

The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).

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For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).

Article 59
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.

The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.

4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.

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The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):

Article I-60
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in European decisions concerning it.

A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article I-58.

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We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.

The differences between the Constitution and the Lisbon Treaty are only technical.

***

Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:

Article 188n(3) TFEU

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

***

A few comments by your glossator:

The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.

It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).

Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.

The Treaty of Lisbon is, in effect, only a codification of law as it stands.

Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.

Then, one can ask how much the procedural provisions actually achieve.

Notification of the intention is such a basic requirement as to be almost self-evident in international relations.

In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.

It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.

Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).

I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.

Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.


Ralf Grahn

EU Treaty of Lisbon: New members

The intergovernmental conference (IGC 2007) was mandated to do the following (IGC 2007 Mandate, Council document 11218/07, point 16):

“In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI).”

Annex 1 to the Mandate is called Amendments to the EU Treaty, and under Title VI – Final provisions, point 9), it clarified:

“In Article 49, first subparagraph, insertion of a new last sentence, the second subparagraph remaining unchanged:

Article 49
Conditions of eligibility and procedure for accession to the Union

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.”

***

Not much room for creativity there, but we check what the IGC 2007 agreed on (OJ 17.12.2007 C 306/39), in addition to its reader-unfriendly proclivity:

57) The first paragraph of Article 49 shall be amended as follows:

(a) in the first sentence, the words ‘which respects the principles set out in Article 6(1) may
apply’ shall be replaced by ‘which respects the values referred to in Article 1a and is
committed to promoting them may apply’;

(b) in the second sentence, the words ‘It shall address its application to the Council, which
shall act unanimously’ shall be replaced by ‘The European Parliament and national
Parliaments shall be notified of this application. The applicant State shall address its
application to the Council, which shall act unanimously’; the word ‘assent’ shall be
replaced by ‘consent’ and the words ‘an absolute majority’ shall be replaced by ‘a majority’;

(c) the following sentence shall be added at the end of the paragraph: ‘The conditions of
eligibility agreed upon by the European Council shall be taken into account.’.

***

The amended and consolidated Article 49 TEU has to be constructed, starting from the current Article 49 (latest consolidated version of the Treaty on European Union and the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/34 and 35):

Article 49

Any European State which respects the principles set out in Article 6(1) may apply to become
a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

***

Having inserted the IGC’s amendments we end up with the following consolidated Lisbon Treaty version of Article 49 TEU:

Article 49

Any European State which respects the values referred to in Article 1a and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

***

The pedantically inclined may have noticed a slight change of terminology compared to the IGC 2007 Mandate (and the present Article 49): EP ‘consent’ has replaced ‘assent’ and a ‘majority’ has taken the place of an ‘absolute majority’.

Otherwise the Heads of State or Government seem to have been true to their word, from start to finish.

***

What did the European Convention have to say on membership in the draft Treaty establishing a Constitution for Europe?

We go to Article I-57, under Title IX Union membership (OJ 18.7.2003 C 169/21):

Article 57
Conditions of eligibility and procedure for accession to
the Union

1. The Union shall be open to all European States which respect the values referred to in Article 2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States' national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

***

In the Treaty establishing a Constitution for Europe the member state governments signed up to the following Article I-58, under Title IX Union membership (OJ 16.12.2004 C 310/38):

Article I-58
Conditions of eligibility and procedure for accession to the Union

1. The Union shall be open to all European States which respect the values referred to in Article I-2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

***

Strictly speaking, Article 49 of the current Treaty on European Union (TEU) only offers any European State which respects the EU’s principles the right to apply for membership. We have to assume that even minute changes of the wording have significance in areas as politically charged as the membership criteria.

The Convention made two changes:

First, it proposed that the EU ‘shall be open to all European States’. This is extremely close to a right of accession, given that the criteria for membership are fulfilled.

Second, the Convention raised the bar for accession.

The existing principles set out in Article 6(1) TEU are: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

The ‘values’ might be construed to have a more profound meaning than the ‘principles’, and the Convention added a few aspects in its Article I-2 The Union's values: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.

Human dignity and equality in the first sentence, as well as pluralism, tolerance, justice, solidarity and non-discrimination in the second sentence widened the scope of the values and consequently the criteria for membership.

The second innovation was to require active promotion of the Union’s values together with the other member states.

***

Going from the draft Constitutional Treaty to the Constitution we see that the IGC 2004 added about the European Parliament ‘which shall act by a majority of its component members’. The rest of the differences are technical.

***

In part, the IGC 2007 went back to square one. Values and (active) promotion are retained, but there is no right to accede, only to apply for membership. The values referred to have expanded to take into account the rights of persons belonging to minorities (and the present connotations of ‘liberty’ may have led to the adoption of ‘freedom’).

In addition, the Reform Treaty brings the conditions of eligibility agreed upon by the European Council into the Treaty.

At the present time, these conditions of eligibility are the ones known as the Copenhagen criteria, adopted by the European Council 21-22 June 1993. According to the Conclusions of the Presidency (SN 180/1/93 REV 1):

“Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries.”

***

To broach a topical issue: The expansion of membership criteria is not going to make Turkey’s or the other applicant states’ quest any easier, since many difficult questions like human dignity, equality and minority rights have entered the picture in the shape of values to be promoted, as well as the binding nature of the Copenhagen criteria.

On the other hand, the definition ‘European State’ has not changed one iota from the existing TEU, via the Convention and the Constitution to the Lisbon Treaty.

It would be absurd to contend that Turkey is geographically less European now than when it was accepted as an applicant country.

***

An innovation retained from the Convention is the mandatory notification of the European Parliament and national parliaments of an application. In principle, the national parliaments have been officially seized of the matter only at the end of the process, when the accession Treaty has come up for ratification.


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

EU Treaty of Lisbon: Legal personality

Much virulent criticism of the Treaty of Lisbon seems to be based on misconception, misconstruction or misrepresentation. Legal personality for the European Union (EU) is one example.

The European Community (EC) already has express legal personality, and the EC has concluded hosts of international treaties and agreements within its powers.

The current state of affairs is described in a UK House of Commons Library Research Paper in the following way (p. 72):

“This means that only the Community, represented by the Commission, currently has rights and obligations under international law. The Commission negotiates international agreements, such as trade and commercial agreements, on behalf of the Community with the authorisation of the Council. Member States decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any final agreement on the same basis. The EU has no express legal personality at present, but Articles 24 and 38 TEU provide a treaty negotiation procedure on the basis of which treaties have been signed in the name of the EU.”

The Lisbon Treaty abolishes the EC and the pillar structure. The EC is succeeded by the EU. Therefore, legal personality is expressly conferred upon the EU. This can be likened to taking down a partitioning wall, creating a wider space.

The exercise of the European Union’s rights and duties under international law is still subject to the competences (powers) conferred upon the EU by the Treaties. The member states have agreed on a declaration to that effect.

***

We arrive at the Final provisions (Title VI) of the Treaty on European Union, as amended by the Treaty of Lisbon. We can take an introductory look at what the intergovernmental conference (IGC 2007) set out to do according to its Mandate (Council document 11218/07):

“Final Provisions (VI)

16. Title VI (former Title VIII of the existing TEU) will be amended as agreed in the 2004 IGC. There will in particular be an Article on the legal personality of the Union (8), an Article on voluntary withdrawal from the Union and Article 48 will be amended so as to bring together the procedures for revising the Treaties (the ordinary and the two simplified procedures). This Article, in its paragraph on the ordinary revision procedure, will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union. In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union's values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI). The usual final provision will also be adapted (territorial scope, duration, ratification and authentic texts and translations).(9)”

Footnote 8 added: The IGC will agree on the following Declaration: "The Conference confirms that the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the Member States in the Treaties."

Footnote 9 stated: Articles 41, 42, 46 and 50 of the TEU will be deleted, Article 47 being placed, as amended in the 2004 IGC, in the CFSP Chapter.

***

The intergovernmental conference (IGC 2007) agreed on the following, mercifully short, provision at the beginning of the new Title VI Final provisions (OJ 17.12.2007 C 306/37):

55) The following new Article 46 A shall be inserted:


Article 46a

The Union shall have legal personality.

***

The nearest antecedent in the existing Treaties is Article 281 of the Treaty establishing the European Community (TEC)(latest consolidated version OJ 29.12.2006 C 321 E/170):

Article 281

The Community shall have legal personality.

***

The Convention proposed the following provision in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/9):

Article I-6
Legal personality

The Union shall have legal personality.

***

The IGC 2004 agreed on the following provision in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/13):

Article I-7
Legal personality

The Union shall have legal personality.

***

We can see that the European Community (EC) has legal personality.

The Convention, the Constitutional Treaty and the Lisbon Treaty all confer this explicit legal personality on the European Union.

Since the EC becomes history by being merged into the EU, legal personality follows. See Article 1(3) of the Reform Treaty TEU:

“Article 1(3)

The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union (hereinafter referred to as “the Treaties”). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.”

Only lawyers and official documents seem to have upheld the existing distinction between the EC and the EU. Media, politicians and citizens have subsumed everything under the EU heading a long time ago. Thus, the end result with only the EU should be clearer and easier for citizens.

The refounded EU replaces and succeeds the EC. This includes legal personality.

As a legal person the European Union is a subject of international law, with rights and duties. It can bring international claims, make treaties and conclude agreements and enjoy privileges and immunities from national jurisdictions, within the competences (powers) conferred upon it by the member states.


Ralf Grahn


Source:

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

EU Treaty of Lisbon: Permanent structured cooperation

Permanent structured cooperation gives a core group of European Union (EU) member states a possibility to cooperate more closely within the common security and defence policy (CSDP).

A main objective of this enhanced defence cooperation is for the EU to be able to assist the United Nations through international peace missions involving military forces.

The member states participating in permanent structured cooperation form a self-governing advance group, meant to shoulder responsibilities from the day the Treaty of Lisbon enters into force. Hence the need for advance preparation. Laggards may be allowed to join later.

Participating member states have to be both willing and able, with the needed capabilities outlined in a Protocol annexed to the Lisbon Treaty.

***

In the Treaty of Lisbon the intergovernmental conference (IGC 2007) agreed on new provisions on the common security and defence policy (CSDP) to form part of the Treaty on European Union (TEU)(OJ 17.12.2007 C 306/36 and 37):

50) The following new Articles 28 B to 28 E shall be inserted:

-----

Article 28e

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 28 A(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined in accordance with Article 205(3)(a) of the Treaty on the Functioning of the European Union.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

***

Since Article 28e TEU is already consolidated and readable, we go to the Protocol on permanent structured cooperation (OJ 17.12.2007 C 306/151 to 153) :

Protocol on permanent structured cooperation established by Article 28a of the Treaty on European Union

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article 28 A(6) and Article 28 E of the Treaty on European Union,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 28 B of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of thesecurity and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The permanent structured cooperation referred to in Article 28 A(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 28 E of the Treaty on European Union.

***

There is no antecedent to the new Article 28e in the existing Treaty on European Union (latest consolidated version OJ 29.12.2006 C 321 E/1), so we turn to the draft Treaty establishing a Constitution for Europe, where Articles III-213 and partly III-214 seem relevant (OJ 18.7.2003 C 169/69 and 70):

Article III-213

1. The Member States listed in the Protocol [title], which fulfil higher military capability criteria and wish to enter into more binding commitments in this matter with a view to the most demanding tasks, hereby establish structured cooperation between themselves within the meaning of Article I-40(6). The military capability criteria and commitments which those Member States have defined are set out in that Protocol.

2. If a Member State wishes to participate in such cooperation at a later stage, and thus subscribe to the obligations it imposes, it shall inform the European Council of its intention. The Council of Ministers shall deliberate at the request of that Member State. Only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the vote.

3. When the Council of Ministers adopts European decisions relating to matters covered by structured cooperation, only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the deliberations and the adoption of such decisions. The Union Minister for Foreign Affairs shall attend the deliberations. The representatives of the other Member States shall be duly and regularly informed by the Union Minister for Foreign Affairs of developments in structured cooperation.

4. The Council of Ministers may ask the Member States participating in such cooperation to carry out at Union level a task referred to in Article III-210.

5. Notwithstanding the previous paragraphs, the appropriate provisions relating to enhanced cooperation shall apply to the structured cooperation governed by this Article.

Article III-214

1. The closer cooperation on mutual defence provided for in Article I-40(7) shall be open to all Member States of the Union. A list of Member States participating in closer cooperation shall be set out in the declaration [title]. If a Member State wishes to take part in such cooperation at a later stage, and thus accept the obligations it imposes, it shall inform the European Council of its intention and shall subscribe to that declaration.

2. A Member State participating in such cooperation which is the victim of armed aggression on its territory shall inform the other participating States of the situation and may request aid and assistance from them. Participating Member States shall meet at ministerial level, assisted by their representatives on the Political and Security Committee and the Military Committee.

3. The United Nations Security Council shall be informed immediately of any armed aggression and the measures taken as a result.

4. This Article shall not affect the rights and obligations resulting, for the Member States concerned, from the North Atlantic Treaty.

***

The IGC 2004 modified the draft of the Convention in the Treaty establishing a Constitution for Europe, where Article III-312 was drafted like this (OJ 16.12.2004 C 310/140 and 141):

Article III-312

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article I-41(6), which fulfil the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation shall notify their intention to the Council and to the Union Minister for Foreign Affairs.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a European decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the Union Minister for Foreign Affairs.

The Council shall adopt a European decision confirming the participation of the Member State concerned which fulfils the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the Union Minister for Foreign Affairs. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.

A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.

4. If a participating Member State no longer fulfils the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a European decision suspending the participation of the Member State concerned.

The Council shall act by a qualified majority. Only members of the Council representing the participating Member States, with the exception of the Member State in question, shall take part in the vote.

A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States.

A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained.

5. Any participating Member State which wishes to withdraw from permanent structured cooperation shall notify its intention to the Council, which shall take note that the Member State in question has ceased to participate.

6. The European decisions and recommendations of the Council within the framework of permanent structured cooperation, other than those provided for in paragraphs 2 to 5, shall be adopted by unanimity. For the purposes of this paragraph, unanimity shall be constituted by the votes of the representatives of the participating Member States only.

***

The IGC 2004 agreed on a Protocol (number 23) on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution (OJ 16.12.2004 C 310/364):

23. Protocol on permanent structured cooperation established by Article I-41(6) and Article III-312 of the Constitution

THE HIGH CONTRACTING PARTIES,

HAVING REGARD TO Article I‑41(6) and Article III‑312 of the Constitution,

RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;

RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article III‑309 of the Constitution outside the Union for peace‑keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;

RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;

RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States, which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;

CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;

DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;

RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;

RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;

CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;

RECALLING the importance of the Minister for Foreign Affairs being fully involved in proceedings relating to permanent structured cooperation,

HAVE AGREED UPON the following provisions, which shall be annexed to the Constitution:

Article 1

The permanent structured cooperation referred to in Article I‑41(6) of the Constitution shall be open to any Member State which undertakes, from the date of entry into force of the Treaty establishing a Constitution for Europe, to:

(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and

(b) have the capacity to supply by 2007 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article III‑309, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Article 2

To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to:

(a) cooperate, as from the entry into force of the Treaty establishing a Constitution for Europe, with a iew to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;

(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;

(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision‑making procedures;

(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;

(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.

Article 3

The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and European decisions adopted in accordance with Article III‑312 of the Constitution.

***

Some remarks on the drafting history:

Permanent structured cooperation was a novelty in the draft Constitution.

The IGC 2004 modified the proposals of the Convention. Originally, the member states outside the permanent structured cooperation were meant only to be ‘duly informed’, but the Constitutional Treaty abolished this restriction concerning the outsiders as to deliberations. Still, only the participating members were to make the decisions.

A weak and non-binding clause on mutual assistance restricted to the participating states was inserted in the Convention’s Article III-214(2), but the Constitution introduceded a general mutual defence clause in Article I-41(7), although with customary references to the ‘specific character of some member states’ policies and NATO membership of others.

The Constitution added the Protocol envisioned by the Convention.

The IGC 2007 adopted the substance of the Constitutional Treaty, with technical adaptations like ‘decision’, the ‘High Representative’ and a referral to the voting rules in the Treaty on the Functioning of the European Union (TFEU) Article 205(a)(3).

The Protocol on permanent structured cooperation in the Lisbon Treaty version undergoes only technical adjustments compared to the Protocol annexed to the Constitution, as you can see for yourself.

***

A few general comments:

Permanent structured cooperation is a form of flexible integration, specific to the common security and defence policy (CSDP).

Jean-Luc Sauron makes the comparison with Schengen: “Cette cooperation structurée, sorte de « Schengen de la défense », sera ouverte aux États qui...” (p. 122).

Each state has to state its wish if it wants to participate. In addition it must fulfil the criteria and must have taken on the commitments set out in the Protocol on permanent structured cooperation.

Permanent structured cooperation is one of many of the institutional arrangements in the Lisbon Treaty requiring implementing decisions. This form of progressive cooperation is instituted by the Reform Treaty and the first decision establishing permanent structured cooperation is to be taken within three months of the Treaty’s entry into force. This decision to determine the original advance group of member states will clearly need advance preparation, since the participating states undertake the obligations from the date of entry into force of the Treaty of Lisbon (Protocol Article 1).

The laggards are being offered the option to join later.

On the other hand, a state unwilling or unable may drop out of the permanent structured cooperation, or its participation can be suspended.

With the exceptions expressly mentioned, the Council decisions and recommendations within the structured cooperation require unanimity (for instance the launch of operations), but this unanimity is constituted by the participants only. In other words, this defence lead group is self-governing and it is able to advance without being hindered by the outsiders.

The Protocol gives general guidance on the membership criteria of this core group: contributing forces to the EU, participation in main equipment programmes and European Defence Agency activities, participation in battle groups, investing in defence equipment, converging defence forces, improving interoperability and enhancing military capabilities.

The Protocol, which respects both the specific nature of the security and defence policy of certain member states (neutral, non-aligned, Denmark) and the obligations of NATO members, expresses the determination that the EU is capable of fully assuming its responsibilities within the international community. United Nations Organisation missions are mentioned especially.


Ralf Grahn


Source:

Jean-Luc Sauron: Comprendre le Traité de Lisbonne, Texte consolidé intégral des traités, Explications et commentaires ; Gualino éditeur, 2008