EU Treaty of Lisbon: European Parliament

The functioning of the European Union is founded on representative democracy. The citizens are directly represented at Union level in the European Parliament. These are the main democratic principles concerning the European Parliament in the amended TEU Article 8a, and they lay the foundations for the specific Treaty provisions.

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A few remarks on the Lisbon Treaty:

The amending Treaty widens the areas of legislation where European Parliament acts as a co-legislator as well as the budgetary powers of the EP. Consequently, the democratic deficit shrinks.

The “election” of the President of the European Commission is not free, but based on a proposal from the European Council. Taking the results of the European Parliament elections into account may strengthen the traits of parliamentary democracy and lead to candidates for the post being put forward by the European political parties in 2009.

The principle of “one man, one vote” with the same weight for each citizen of the Union, clashes with the principle of degressive proportionality, when the minimum threshold has been put as high as six members for the smallest member states. (The Convention proposed a minimum of four, which is still a high minimum considering the enormous differences in population between the different member states.)

If the European Union progresses towards a democratic federal constitution with two chambers, the first chamber should give more or less equal weight to each citizen of the European Union, whereas the second house could represent each state on an equal or more equal basis.

The basic provisions on European Parliament elections are vague: direct universal suffrage in a free and secret ballot. Until now, the elections have been more of a series of national elections than a truly European election. A uniform electoral code, based on proportional representation within each country, would be desirable.

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The existing provisions on the European Parliament are Articles 189 and 190 TEC.

The Convention proposed an Article I-19 on the European Parliament. The corresponding Article in the Treaty establishing a Constitution for Europe is Article I-20 The European Parliament.

This was taken over by the intergovernmental conference (IGC 2007) with minor changes. As laid down “in the Constitution” has become “in the Treaties”.

Originally, the allocation of 750 seats for the legislative period 2009-2014 was supposed to be based on a proposal from the European Parliament. (See Declaration number 5 on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament.) The number and allocation of members lead to a last minute compromise in the European Council, which added one member to Italy. The MEPs shall not exceed 750 in number with the addition “plus the President”. (See Declaration number 4 on the composition of the European Parliament.)

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The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9a TEU.

Article 9a

1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.

2. The European Parliament shall be composed of representatives of the Union's citizens. They shall not exceed seven hundred and fifty in number, plus the President. Representation of citizens shall be degressively proportional, with a minimum threshold of six members per Member State. No Member State shall be allocated more than ninety-six seats.

The European Council shall adopt by unanimity, on the initiative of the European Parliament and with its consent, a decision establishing the composition of the European Parliament, respecting the principles referred to in the first subparagraph.

3. The members of the European Parliament shall be elected for a term of five years by direct universal suffrage in a free and secret ballot.

4. The European Parliament shall elect its President and its officers from among its members.

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Next time, I am going to present the European Council.


Ralf Grahn

EU Treaty of Lisbon: institutional framework

The complex nature of the European Union is reflected in its institutional framework. The European Parliament represents the citizens of the Union and the Commission the general interest, and the Court of Justice ensures the interpretation and application of the Treaties and Community (Union) law.

On the other hand the European Council, which is mentioned separately outside the institutional framework , and the Council are based on the member states. According to TEU Article 4: The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.

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The existing TEU Article 3(1): The Union shall be served by a single institutional framework which shall ensure the consistency and continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

The present TEU Article 5: The European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of this Treaty.

The existing TEC Article 7:

1. The tasks entrusted to the Community shall be carried out by the following institutions:
- a EUROPEAN PARLIAMENT
- a COUNCIL
- a COMMISSION
- a COURT OF JUSTICE
- a COURT OF AUDITORS

Each institution shall act within the limits of the powers conferred upon it by this Treaty.

2. The Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity.

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The Convention proposed an Article I-18 on the institutions of the European Union. In addition to an overview of the institutional framework, Article I-18 clarified the role of the European Council by fully making it one of the institutions. (Informally the European Council started in 1974, and since 1986 it is mentioned in the Treaties.)

In the Treaty establishing a Constitution for Europe, Title IV The Union Institutions and bodies, Chapter I The institutional framework, Article I-19 The Union’s institutions was the corresponding Article.

Compared to the existing Treaties, the Treaty of Lisbon introduces the European Council and the European Central Bank (ECB) as institutions, and the Court of Auditors is retained among the institutions.






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Presently TEU Title III is an empty shell, since it contained provisions amending the Treaty establishing the European Coal and Steel Community (ECSC), which expired after 50 years in existence.

The Treaty of Lisbon (OJ 17.12.2007, C 306) replaces TEU Title III, with a new Title III Provisions on the institutions. Article 9 is replaced by the following

Article 9

1. The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions.

The Union's institutions shall be:

- the European Parliament,
- the European Council,
- the Council,
- the European Commission (hereinafter referred to as "the Commission"),
- the Court of Justice of the European Union,
- the European Central Bank,
- the Court of Auditors.

2. Each institution shall act within the limits of the powers conferred on it in the Treaties, and in conformity with the procedures, conditions and objectives set out in them. The institutions shall practice mutual sincere cooperation.

3. The provisions relating to the European Central Bank and the Court of Auditors and detailed provisions on the other institutions are set out in the Treaty on the Functioning of the European Union.

4. The European Parliament, the Council and the Commission shall be assisted by an Economic and Social Committee and a Committee of the Regions acting in an advisory capacity."

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The institutions have an obligation to act for the common good: the values, objectives and interests of the Union as well as those of its citizens. This obligation encompasses the intergovernmental institutions, the European Council and the Council, too.

Although not the most powerful among the institutions, the Lisbon Treaty continues to mention the European Parliament first, as a sort of “moral victory” for the citizens of the Union. Next, we turn to the EP.


Ralf Grahn

EU Treaty of Lisbon: National Parliaments

The Treaty of Lisbon adds to the complexity of the institutional set-up of the European Union. Not only are the heads of state or government members of the European Council and the governments represented in the Council, the two most important institutions, but the national parliaments are offered a privileged position of scrutiny concerning all Union legislation.

The Convention proposed protocols on the role of national parliaments and the principles of subsidiarity and proportionality. Following the IGC 2004, the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) contained two annexed protocols:

Protocol (number 1) on the role of national parliaments in the European Union.

Protocol (number 2) on the application of the principles of subsidiarity and proportionality.

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The June IGC 2007 (11218/07) set the tone for the intergovernmental conference leading to the Reform Treaty:

“Concerning national parliaments, their role will be further enhanced compared to the provisions agreed in the 2004 IGC (see Annex 1, Title II):

* The period given to national parliaments to examine draft legislative texts and to give a reasoned opinion on subsidiarity will be extended from 6 to 8 weeks (the Protocols on national Parliaments and on subsidiarity and proportionality will be modified accordingly).

* There will be a reinforced control mechanism of subsidiarity in the sense that if a draft legislative act is contested by a simple majority of votes allocated to national parliaments, the Commission will re-examine the draft act, which it may decide to maintain, amend or withdraw. If it chooses to maintain the draft, the Commission will have, in a reasoned opinion, to justify why it considers that the draft complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national parliaments, will have to be transmitted to the EU legislator, for consideration in the legislative procedure. This will trigger a specific procedure:

- before concluding first reading under the ordinary legislative procedure, the legislator (Council and Parliament) shall consider the compatibility of the legislative proposal with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national parliaments as well as the reasoned opinion of the Commission;
- If, by a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration. (The Protocol on subsidiarity and proportionality will be modified accordingly).

A new general Article will reflect the role of the national parliaments.”

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As a result of British prickliness the introductory phrase “National Parliaments shall contribute actively” has become the bland “National Parliaments contribute actively” in the final English version of the Lisbon Treaty.

Time will tell how active or positive this contribution is going to be, since it seems to rest mainly on extended rights to be informed and enhanced powers to block legislation.

The protocols have been amended.


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The Treaty of Lisbon (OJ 17.12.2007, C 306/1) introduces a new Article 8c TEU.

Article 8c

National Parliaments contribute actively to the good functioning of the Union:

(a) through being informed by the institutions of the Union and having draft legislative acts of the Union forwarded to them in accordance with the Protocol on the role of national Parliaments in the European Union;

(b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality;

(c) by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article 61c of the Treaty on the Functioning of the European Union, and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles 69g and 69d of that Treaty;

(d) by taking part in the revision procedures of the Treaties, in accordance with Article 48 of this Treaty;

(e) by being notified of applications for accession to the Union, in accordance with Article 49 of this Treaty;

(f) by taking part in the inter-parliamentary cooperation between national Parliaments and with the European Parliament, in accordance with the Protocol on the role of national Parliaments in the European Union.

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Title III Provisions on the institutions will follow.


Ralf Grahn

EU Lisbon Treaty: Danish consolidated version

A comment on the DJ Nozem blog helped me find a consolidated version in Danish of the EU Treaty of Lisbon. It has been compiled by the EU Information Office of the Danish Parliament. The first part contains the Treaties and the second part the protocols and declarations.

According to the information given about the consolidation, these are nearly final versions, updated to include the modifications brought about by the European Council on 19 October 2007.

We now have Danish, English, French, German, Spanish and Swedish consolidated versions (that I know of). Only 17 language versions to go before equal treatment has been attained.

Additional information is welcome.


Ralf Grahn


Source:

Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/

EU Treaty of Lisbon: participatory democracy

Representative democracy is the basic rule of EU governance (Article 8a amended TEU), although only partially developed. Citizens’ participation in addition to European and national elections is complementary.

The Convention proposed a new Article on participatory democracy. Much of the contents are codified practice, enshrined in secondary legislation and evolved within the framework of improved governance. Still, giving these practices of information, dialogue and consultation treaty status is an improvement.

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The citizens at large are mainly offered the possibility to express their opinions, but this at least presupposes that information on legislative proposals and planned actions is freely available.

Representative associations and (organised) civil society is given a somewhat more privileged position, including open, transparent and regular dialogue. Selectivity and means to participate can influence the conduct of such dialogues.

Interestingly, Article 8b(1)-(2) places an obligation on all the EU institutions, although it is difficult to see how the intergovernmental European Council and Council as well as the European Central Bank have acted on or plan to fulfil their obligations. Traditionally, they deal behind closed doors and only report the results after the fact.

Are we going to experience a miracle when the Lisbon Treaty is in force, the Treaty itself being a prime example of how not to communicate?

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The European Commission has an obligation to consult stakeholders (parties concerned). Since the European Parliament is usually involved as a co-legislator, there are some checks on selectivity and partiality.

The fundamental questions concerning the basic structure of the European Union, the content of the Treaties, resources and expenditure as well as foreign, security and defence policy remain outside the effective reach of the European Commission, the European Parliament, citizens, civil society and “stakeholders”. Intergovernmentalism remains the black hole until later reforms.

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The real innovation of the Convention was the pan-European citizens’ initiative. It can be seen as a safety valve, giving active groups of citizens the possibility to mobilise in order to demand EU legislation on a certain topic.

One would suppose that the European Commission has at least the obligation to give a reasoned reply, if it has received more than a million signatures from a sufficient number of member states.

At the same time, the citizens’ initiative is severely limited, since it is restricted to questions within the powers of the European Commission. Treaty matters and intergovernmental areas, which actually could mobilise citizens, are excluded.

For instance, the One seat campaign concerning the waste caused by the European Parliament’s regular exoduses to its formal seat in Strasbourg, was not only raised before there was a Treaty clause on citizens’ initiatives. The seats of the institutions have been fought over and decided by the governments of the member states, annexed to the Treaties and subject to veto powers. The Commission has no powers to legislate.

But citizens and NGOs are creative and active. Let us wait and see what they will present as citizens’ initiatives when the Treaty of Lisbon is in force.

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Drafting history: The draft Treaty of the Convention introduced a new Article I-46 on participative democracy, which with a slightly altered fourth paragraph became Article I-47 of the Constitutional Treaty with the headline The principle of participatory democracy.

In the Lisbon Treaty, the three first paragraphs and the first subparagraph of paragraph 4 of Article 8b have the same wording as the Constitution, except for the fact that the “Commission” is called the “European Commission”.

Article 8b(4) TEU second subparagraph builds on the end of the Constitution Article I-47(4) and concerns the legislative procedures and conditions required for a citizens’ initiative, referring to Article 21 TFEU.

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The Treaty of Lisbon (OJ 17.12.2007, C 306/1) introduces a new Article 8b:

Article 8b

1. The institutions shall by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

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The following look at the Treaty of Lisbon is going to concern the role of National Parliaments.


Ralf Grahn

Sweden: Lisbon Treaty ratification process

The Swedish government has embarked on the first leg of the process to ratify the EU Treaty of Lisbon. The government has published two tomes of about 400 pages each. The first one contains the legislative proposals and an extensive presentation of the amendments to the existing Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), to be called the Treaty on the functioning of the European Union (TFEU). The second tome contains seven appendixes: the final documents of the intergovernmental conference (IGC 2007).

Sweden did not ratify the Constitutional Treaty of 2004, but left it hanging. Thus, the present stage is a wide-ranging consultation exercise, with 214 government bodies and civil society actors being offered the possibility to express their views. The dead-line for contributions is 25 March 2008.

This clearly means that Sweden is not going to be among the first member states to ratify the Lisbon Treaty, although the government mentions the target date of 1 January 2009 in its press release.

The government of Sweden has clearly stated that the ratification procedure is going to be parliamentary.


Ralf Grahn


Source:

Regeringskansliet: Lissabonfördraget – Ds 2007:48; Press release, 20 December 2007 and downloadable pdf files; Part I with proposals and presentation, Part II with appendixes: 1. the Treaty of Lisbon, 2. Protocols and appendices, 3. the Final Act, 4. Articles with ordinary legislative procedure, 5. Articles with special legislative procedures, 6. Articles with unanimous decision making, 7. the Charter of Fundamental Rights (all in Swedish; I found no information in English);
http://www.regeringen.se

EU Treaty of Lisbon: democratic principles

Citizens’ representation at the European level has evolved slowly. The European Coal and Steel Community had a Common Assembly, with indirectly appointed representatives and consultative powers.

The Assembly formally became the Parliament by the Single European Act (1986). Direct elections to the European Parliament were introduced in 1979. Gradually, the role of the European Parliament has changed from a consultative “talking shop” into a co-legislator.

The so called double legitimacy of the European Union is based on direct representation for the citizens in the European Parliament and representation for the member states in the European Council and the Council.

The Treaty of Lisbon opens up new areas to co-legislation, although the decisive issues are still going to be in the hands of the governments of the member states (the European Council and the Council).

Separate scrutiny of European level decisions of the European Council and Council by the parliaments (and electorates) in 27 member states is less than satisfactory from a democratic point of view.

Disregard for participatory rights of citizens, for openness and for decision making as closely as possible to the citizens has been shown by the Council, when it has refused to publish consolidated versions of the Lisbon Treaty.

Innovative European level parties could offer citizens possibilities to debate common questions and to participate in the formulation of political objectives.

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In large parts of Europe, the European Union and its predecessors managed to strengthen representative democracy at the national level. The challenge for the 21st century is to establish a fully democratic system at the EU level.

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The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310), Article I-46 had the headline The principle of representative democracy, which took over the draft text of the Convention, Article I-45.

Paragraphs 1 – 3 of Article 8a are new. Article 8a(4) is derived from Article 191 TEC.

Although the wording is new, it does not change much in practice. Article 8a TEU mainly clarifies the existing situation.

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The Treaty of Lisbon (OJ 17.12.2007, C 306/1) introduces a new Article 8a into the Treaty on European Union, TEU (latest consolidated version OJ 29.12.2006, C 321 E):

Article 8a

1. The functioning of the Union shall be founded on representative democracy.

2. Citizens are directly represented at Union level in the European Parliament.

Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

3. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.

4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union.

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Dialogue with citizens and consultation are among the questions for the following posting on the Treaty of Lisbon.


Ralf Grahn

British consolidated Lisbon Treaty promised

The UK government has promised a consolidated version of the EU Treaty of Lisbon, but the answer does not specify when the consolidation is going to be available to the House of Lords and, presumably, to the public. This is from the parliamentary record of 4 December 2007:

“EU: Reform Treaty
Lord Stoddart of Swindon asked Her Majesty's Government:
Whether they will ensure that a full official consolidated text of the European Union reform treaty signed in Lisbon showing all changes to previous treaties in readable form is made available before the ratification process begins in Parliament. [HL11]
The Lord President of the Council (Baroness Ashton of Upholland): I apologise to the noble Lord for the delay in answering this Question. The House of Lords European Union Select Committee has proposed to conduct its assessment of the impact of the reform treaty on the basis of the changes it makes to the treaties which are currently in force. As the committee has requested, we will provide a comparison of the reform treaty with the existing treaties and a consolidated text of the treaties as amended by the reform treaty.”

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If the House of Lords needs consolidated versions of the amending Treaties, so do the interested citizens.

If a consolidated version of the Treaty of Lisbon is needed in English, so do consolidations in every official language of the European Union.


Ralf Grahn

EU Treaty of Lisbon: equality and citizenship

The Laeken declaration (2001) expressed the ambition to bring the European institutions closer to the citizens of the Union. The Union needed to become more democratic, more transparent and more efficient. It also had to resolve three basic challenges: how to bring citizens, primarily the young, closer to the European design and the European institutions, how to organise politics and the European political area in an enlarged Union and how to develop the Union into a stabilising factor and model in the new, multipolar world.

The Laeken declaration led to the Convention on the future of Europe, which drafted the Constitutional Treaty, approved by the intergovernmental conference (IGC 2004) with modifications and signed by all member state governments on 29 October 2004.

Equality and citizenship are two of the cornerstones of the relationship between the Europeans and the European Union.

The Treaty of Maastricht (1992) established the citizenship of the European Union.


Equality

The existing Article 12 TEC prohibits discrimination on the grounds of nationality: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.

Article 13(1) TEC offers the legal basis for “appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation”.

The Lisbon Treaty broadens the scope of these prohibitions on discrimination by adding positive obligations to observe equality and equal treatment in all Union action.

In the draft Constitution, the Convention proposed a new Article I-44, which became the basis for the wording of the Constitutional Treaty. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310), Title VI , The democratic life of the Union, Article I-45, The principle of democratic equality: In all its activities, the Union shall observe the principle of equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies.

This sentence was taken over by the intergovernmental conference (IGC 2007) and inserted into the new article 8 TEU.


Citizenship

More than half a century since the beginning of European integration, we are still in the middle of a process of transforming economic communities into a Union of people, with full rights for its citizens.

The so called Spinelli project of the European Parliament (1984), the draft Treaty establishing the European Union, would have established the EU and introduced a citizenship of the Union. These reforms had to wait until 1992, when the European leaders were ready to introduce them in the Treaty on European Union (Treaty of Maastricht).

Article 17(1) of the present Treaty on establishing the European Community (TEC): Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship.

There seem to be people out there, horrified by the prospect of becoming citizens and acquiring fundamental rights in the European Union. Let it therefore be said:

In the new Article 8 TEU there is no need to establish the citizenship of the European Union, because it exists since the Treaty of Maastricht, which entered into force in November 1993.

Then to the wording:

“Every person” becomes “every national” in the amending Lisbon Treaty, but the meaning of the second sentence is the same as in Article 17(1) TEC.

The third sentence alters the wording slightly. Citizenship of the Union shall “complement” national citizenship becomes shall be “additional to” in the new Article 8 TEU, without altering the meaning.

In the draft Constitutional Treaty the corresponding clause was Article I-8(1). In the Constitutional Treaty the wording of Article I-10(1) was already the same as the second and third sentences of Article 8 TEU in the Lisbon Treaty.


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My consolidated version: The Treaty of Lisbon (OJ 17.12.2007, C 306/1) amending the Treaty on European Union (latest consolidation OJ 29.12.2006, C 321 E), new Title II, Provisions on democratic principles, with new Article 8:

Article 8

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.


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My next Lisbon Treaty instalment is going to look at the democratic principles of the European Union.


Ralf Grahn

EU Treaty of Lisbon: neighbourhood policy

I continue my presentation of the consolidated Treaty of Lisbon. But first, let us take a look at the existing Treaty Establishing the European Community.

The TEC (latest consolidation OJ 29.12.2006, C 321 E) Article 310 states: The Community may conclude with one or more states or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure.

This text was, more or less, taken over, via the Constitutional Treaty, to become Article 7a(2) of the Treaty of Lisbon.

TEU Article 7a(1) is new, and it owes its existence to the Convention (Article I-56(1) in the draft Constitutional Treaty). The new paragraph underlines the importance of the relations with the Union’s Eastern and Southern neighbours.

The wording of the whole Article 7a in the Lisbon Treaty is the same as in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) Article I-57.

The intergovernmental conference (IGC 2007) took over the contents of Declaration 11 annexed to the Constitutional Treaty. In the Treaty of Lisbon the now Declaration (number 3) on Article 7a of the Treaty on European Union states: The Union will take into account the particular situation of small-sized countries which maintain specific relations of proximity with it.

In practice, the European Neighbourhood Policy already exists, with specific partnership plans for each country.



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The EU Treaty of Lisbon (OJ 17.12.2007, C 306/1) inserts a new

Article 7a

1. The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.

2. For the purposes of paragraph 1, the Union may conclude specific agreements with the countries concerned. These agreements may contain reciprocal rights and obligations as well as the possibility of undertaking activities jointly. Their implementation shall be the subject of periodic consultation.

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Our next stop is going to be TEU Title II and its Provisions on democratic principles.


Ralf Grahn

EU Treaty of Lisbon: breach of values with sanctions

The values of the European Union, as amended by the Treaty of Lisbon (in the Treaty on European Union, TEU) are:

Article 1a

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

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These values should guide every action by the EU, both internal and external. Countries applying for EU membership have to show that they fulfil the criteria.

The values of the Union apply to the present member states, too. Backsliding on, e.g. democracy, the rule of law or human rights is not allowed. Already a clear risk of a serious breach may be determined, and the procedure may lead to recommendations being issued to the member state.

If a serious and persistent breach is determined, this may lead to sanctions against the culprit. These include suspension of voting rights of the member state in question, but this state is still bound by its membership obligations.

From a citizen’s point of view, the procedures and sanctions mentioned in both the present and the amended Article 7 strengthen democratic and legal rights.

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The changes between the existing TEU Article 7, Article I-59 of the Treaty establishing a Constitution for Europe and the TEU Article 7, as amended by the Treaty of Lisbon, are of minor importance.

The wording is altered to a degree, e.g. the values referred to are found in Article 1a (presently Article 6), the European Parliament gives its consent (not assent), the European Commission replaces the Commission, and the European Council replaces the Council, meeting in the composition of the Heads of State or Government. The more technical voting arrangements (amended paragraph 5) are moved to Article 309 of the Treaty on the Functioning of the European Union.

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The drafting technique used in Article 7, despite the relative simplicity of the amendments, is a convincing example of extreme reader-unfriendliness, with horizontal amendments and minor changes being listed separately from the text of the Article. Not even the paragraphs amended are written in full.

Try yourself to write down the exact contents of this one Article, and multiply the efforts needed by all the teachers and students and other interested citizens all over Europe trying to construct the exact wording of Article 7 (and many more like it), and you understand why centrally compiled, consolidated versions of the Treaty of Lisbon in all the official languages are absolute necessities.

Why has no one stepped forward to claim responsibility for these choices?

Why has no one offered reasons for these choices?

Failing that, the IGC 2007 drafting and the Council’s refusal to publish consolidated versions of the TEU and the TFEU can hardly be seen as inspired by other than an evil genius.

The citizens of the European Union have simply been told to wait for consolidated versions until the ratification processes are over and the Treaty of Lisbon has entered into force.


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The Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1) is amended by the Treaty of Lisbon (OJ 17.12.2007, C 306/1), with Article 7 amended and consolidated to read as follows:

Article 7

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members, after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 1a. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the European Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 1a, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 309 of the Treaty on the Functioning of the European Union.

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My next look at the Treaty of Lisbon is going to concern the Union’s neighbourhood policy.


Ralf Grahn

Isolationist UK

Yesterday I wrote about the new core areas of European integration, with new member states steadily advancing into the growing Schengen area, the expanding Eurozone and the shared values of the Charter of Fundamental Rights of the European Union, as well as most of them being dual EU and NATO members.

The more striking contrasts between old and new members are gradually disappearing, and the core groups are growing.

***

The coin has a flip side. The old member states staying aloof from these areas of deeper integration are gradually marginalising themselves.

Rickety rules for unanimous decision making give ample scope for obstructionist tactics, but blocking decisions and hailing aborted deals as success stories is hardly a constructive line to take. It is hard to believe that isolationist policies are going to win friends and help to influence people within the European Union in the long run.

***

One example of the political price self-imposed marginalisation may entail, came when Valéry Giscard d’Estaing answered a question about the new President of the European Council on his blog. VGE emphasised that the person should be selected with care, and he went on to say that he or she should come from a country which belongs to the Schengen area and the Eurozone and adheres to the Charter.

Any British candidate (including Tony Blair) was eliminated 3 to 0.

Of course, VGE is not part of the European Council now, but I imagine that his line of reasoning strikes a note with many European leaders.

***

No wonder that the new Danish government wants to offer its people a chance to abolish the peculiar opt-outs of the country.

Not surprisingly the new Polish government wants to repair the damages caused by its predecessor.

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The United Kingdom has shown few such signs. These last months Great Britain seems to have drifted farther out into the Atlantic, without getting closer to the United States. The UK used the negative referendums on the Constitution for Europe for domestic purposes, having little to do with the reasons for failure in France and the Netherlands.

The UK launched new demands to generally weaken the treaty it had already signed in 2004 and to introduce non negotiable specific “red lines”. Once again, the European partners showed flexibility.

***

Prime Minister Gordon Brown has not visited the European institutions specifically, something Chancellor Angela Merkel and President Nicolas Sarkozy did instantly after being installed.

The present European Commission is fairly pro-business, pro-globalisation and pro-enlargement. As such it could be an important ally for Britain, but nurturing constructive alliances does not seem to top the British agenda.

Brown has said little about the European Union, except that it should have a more global view and stop reforming its institutions. By signing the Treaty of Lisbon but missing the ceremony, Brown managed to harvest scorn from both anti-EU and pro-EU quarters. This snub to Britain’s oldest ally can have done little to enhance Brown’s prestige among European leaders or further British interests.

There are few indications that Brown’s grumpiness has placated the rabid domestic EU detractors, egged on by an imaginative tabloid press. (Calling this crowd eurosceptic is a euphemism.)

Failing to communicate clearly, why Britain’s interests lie within Europe, is a long term legacy of successive British governments, but Gordon Brown has let the situation worsen.

The Tory opposition has done its utmost to make Gordon Brown look like a real statesman, painting itself into a corner on European affairs, should it win a majority with an obligation to pursue real British interests.


***

Perhaps we have to admit that Schengen, the euro and shared values are hopeless causes in Britain for domestic reasons, in spite of the negative consequences of being an outsider. There is one area, crucial for the future, where the United Kingdom could make a signal contribution, if it wanted to: defence.

The UK is a leading member of NATO and it has the best military capabilities among the EU countries. Here it is more difficult to see domestic reasons for the lack of progress. It rather looks like the umbilical cord tying Britain to the USA is the main reason for the failure to advance decisively to build a common European defence.

In the long run there seem to be few options to a common European defence (built on democratic accountability) in conjunction with the transatlantic ties offered by the intergovernmental NATO alliance. In these questions President Sarkozy seems to be somewhat closer to the truth.

As it is, Britain is decidedly an EU outsider, a leader of steadily shrinking groups of like-minded self-marginalising powers.

***

The regional parliament in Scotland has demanded a British referendum on the Lisbon Treaty. This is only an opinion, since ratification is to be decided by the UK Parliament. But it shows that the pressure is growing.

At the same time, Labour is sinking like a stone in opinion polls. This might lead to Brown’s choice of parliamentary ratification being defeated, by the parliament most keen to be seen as the hallmark of parliamentary sovereignty. Hardly anyone believes that a referendum on an EU Treaty (regardless of content) can be won in Britain.

If the ratification process fails in Britain, it is hard to believe that EU leaders, fed up with 35 years of British obstructionism, would embark on a new round of negotiations to bring the UK on board.

A more probable scenario would be that the rest of the European Union, or at least the more willing member states, would re-establish the EU and upgrade its capacity at the same time.

The end result might come as a blessing for secessionist opinion, but it is hard to see how British long term interests would be served by reverting to isolationist policies.

For Great Britain insularity, isolation and exclusion may soon be more than mere mindsets, unless Scotland and Wales decide on a change of Union, leaving England behind.


Ralf Grahn

EU Treaty of Lisbon: Fundamental Rights

Slowly but surely the people, the citizens of the European Union, emerge with legal rights and obligations.

The Charter of Fundamental Rights of the European Union was prepared by the first broadly based Convention, encompassing members of the European Parliament and national parliaments. At the summit in Nice, in December 2000, the member states were not yet unanimously ready to incorporate the Charter into the Treaty of Nice.

The Charter was jointly proclaimed by the European Parliament, the Council and the European Commission on 7 December 2000, and it became politically but not legally binding (OJ 18.12.2000, C 364/1).

The second Convention incorporated the Charter into the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004 (OJ 16.12.2004, C 310/1), where it became Part II.

Since the Constitutional Treaty was not ratified by all member states, the Charter has continued to live on as a solemn political proclamation.

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The intergovernmental conference (IGC 2007) decided, in line with its June mandate, to make the Charter legally binding without incorporating the text into the Reform Treaty, now called the Treaty of Lisbon.

One day before the signing of the Treaty of Lisbon, the Charter was solemnly proclaimed in Strasbourg by the European Parliament, the Council and the European Commission. The Charter of Fundamental Rights of the European Union has been published in the Official Journal of the European Union (OJ 14.12.2007, C 303/1) with the Explanations relating to the Charter of Fundamental Rights (C 303/17).

***

Since the solemn proclamation ceremony in Strasbourg was marred by unseemly protests in the European Parliament, it is appropriate to mention that the 27 member states’ governments and the European Commission have acted unanimously, and that the groupings against citizens’ rights had suffered a resounding defeat, 534 MEPs voting in favour of the Charter, 85 against and 21 abstentions.

This disgraceful tumult against the rights of EU citizens has been justly reprimanded, although friends of loutish behaviour have done their utmost to turn their soul buddies into champions of free speech for trying to disrupt a solemn and, for most Europeans, joyful occasion.

***

This is not the place for detailed analysis of the Charter, but a brief look at the headlines of the Articles gives an overview of the freedoms, rights and principles it contains:


TITLE I DIGNITY

Human dignity
Right to life
Right to the integrity of the person
Prohibition of torture and inhuman or degrading treatment or punishment
Prohibition of slavery and forced labour


TITLE II FREEDOMS

Right to liberty and security
Respect for private and family life
Protection of personal data
Right to marry and right to found a family
Freedom of thought, conscience and religion
Freedom of expression and information
Freedom of assembly and of association
Freedom of the arts and sciences
Right to education
Freedom to choose an occupation and right to engage in work
Freedom to conduct a business
Right to property
Right to asylum
Protection in the event of removal, expulsion or extradition


TITLE III EQUALITY

Equality before the law
Non-discrimination
Cultural, religious and linguistic diversity
Equality between women and men
The rights of the child
The rights of the elderly
Integration of persons with disabilities


TITLE IV SOLIDARITY

Workers’ right to information and consultation within the undertaking
Right of collective bargaining and action
Right of access to placement services
Protection in the event of unjustified dismissal
Fair and just working conditions
Prohibition of child labour and protection of young people at work
Family and professional life
Social security and social assistance
Health care
Access to services of general economic interest
Environmental protection
Consumer protection


TITLE V CITIZENS’ RIGHTS

Right to vote and to stand as a candidate at the elections to the European Parliament
Right to vote and to stand as a candidate at municipal elections
Right to good administration
Right of access to documents
European Ombudsman
Right to petition
Freedom of movement and of residence
Diplomatic and consular protection


TITLE VI JUSTICE

Right to an effective remedy and to a fair trial
Presumption of innocence and right of defence
Principles of legality and proportionality of criminal offences and penalties
Right not to be tried or punished twice in criminal proceedings for the same criminal offence


TITLE VII GENERAL PROVISIONS GOVERNING THE INTERPRETATION AND APPLICATION OF THE CHARTER

Field of application
Scope and interpretation of rights and principles
Level of protection
Prohibition of abuse of rights

***

Why is the Charter important?

Indeed, the Charter contains no new rights. They all exist in the EU Treaties, in the the European Convention for the Protection of Human Rights and Fundamental Freedoms (Council of Europe) and various other human rights documents.

But bringing these various rights together, and making them visible for the citizens of the Union, is a manifestation of shared European values. The result is the most up to date legally binding human rights document on earth, and it offers the citizens a basis for scrutiny of EU institutions and member states when they implement European Union law.

The political rights of the Union’s citizens are still underdeveloped, but otherwise the Charter is a step towards recognition of the interests of the citizens as the foundation for the European project.
The Charter is a source of pride for the EU citizens, and it is going to be a source of reference for human rights in the world.

Naturally, the Charter would have been more visible if it had become a part of the Lisbon Treaty (and of future consolidated versions of the Treaty).

***

The European Union is given leave to accede to the European Convention for the Protection of Humans Rights and Fundamental Freedoms.

The constitutional traditions common to the Member States form part of the general principles of European Union law.

***

The Treaty of Lisbon (Official Journal of the European Union 17.12.2007, C 306/1) repeals Articles 4 and 5 of the Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1). Consequently, the following Article is numbered 6, the present one being replaced by the following

Article 6

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.

***

Unanimity among the member states’ governments has come at a price. The unity of EU law is diminished by the opt-outs of the governments of the United Kingdom and Poland.

See Protocol Number 7 on the application of the Charter of Fundamental Rights to Poland and the United Kingdom, as well as the Polish declarations 51 and 53 annexed to the Treaty of Lisbon.

The new Polish government has not been able to relinquish the opt-out, since it needs the support of the morally conservative opposition to ratify the Treaty of Lisbon. But the new government wants Poland to become a constructive force in EU politics, so a future renouncement of the opt-out seems to be hanging in the air.

That would leave Great Britain as the only member state fundamentally out of tune with mainstream European values on human rights.


Ralf Grahn

EU core areas

Quite a lot has been written about it already. Yesterday nine new countries, Estonia, the Czech Republic, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia became part of the Schengen area. Internal controls at land and sea borders were lifted, and the airports will follow shortly. The people of these new member states became equal EU citizens in an area of free movement consisting of 24 countries.

A year ago Slovenia was the first new member state to introduce the euro currency, and at the beginning of 2008 the country will be the first of the new members at the helm of the European Union, responsible for the Council presidency. At the same time Malta and Cyprus are going to become eurozone countries. New candidates are striving to achieve the criteria.

The Charter of fundamental rights of the European Union (OJ 14 December 2007, C 303/1) is set to become legally binding along with the Treaty of Lisbon (OJ 17 December 2007, C 306/1). This manifestation of shared European values is going to unite all but two member states, Poland and Great Britain.

The new Polish government looks set to become a constructive force within the European Union. It has not been able to renounce the opt-out from the Charter yet, because it needs the support of the populist and moral conservative opposition to secure ratification of the Treaty of Lisbon. But in due course the values of the Charter may join all the countries save one.

Ten out of twelve new member states are already dual EU and NATO members. Only Cyprus and Malta joined the group of militarily uncommitted (Austria, Finland, Ireland and Sweden). Sooner or later the European Union should be able to establish a common defence (democratically accountable) strengthened by the intergovernmental transatlantic NATO tie.

***

Increasingly the core areas of deeper European integration – Schengen, the euro, the Charter, and prospectively defence – attract new members. Ever more the advance groups are made up of both old and new member states. Progressively the distinctions between old and new are erased.


Ralf Grahn


Sources:

European Commission: Enlargement of the Schengen area: achieving the European goal of free movement of persons; Press release, 20 december 2007; http://europa.eu

European Commission: Background on Schengen enlargement; Memo, 20 December 2007; http://europa.eu

European Commission: Sixth report on practical preparations for the euro: countdown for Cyprus and Malta; Press release, 27 November 2007; http://europa.eu

Nato: NATO Member Countries; http://www.nato.int

German consolidation of the EU Treaty of Lisbon

Nanne on the DJ Nozem blog brought the German consolidated version of The Treaty of Lisbon to my attention (mentioned in my previous entry).

Markus Walther, a student in Leipzig, has compiled the amended Treaty on the European Union, the Treaty on the functioning of the European Union, the protocols to the treaties and the Charter of fundamental rights.

They are the final versions; the entry dated 18 December 2007. He has posted the documents on his web site, where they can be downloaded by all.

***

Isn’t it amazing, the information needs of about 90 million German speaking citizens in the European Union on proposed legislation are filled, not by the EU institutions, nor by the German government, but by a private citizen, probably without remuneration.

When the European Union and the national governments write their following report on communication policy, they could aptly name it “Absent at the creation”.

We just have to hope that they’ll catch up, someday, someway.


Ralf Grahn


Source:

Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; http://www.mwalther.net/union.html

IGC 2007 like the Holy Alliance

The intergovernmental conference 2007 (IGC), which brokered the deal on the Treaty of Lisbon, is in some respects like a re-incarnation of the Holy Alliance, the compact between European sovereigns in 1815, well above the heads of their citizens.

Sometimes in mid October, if I remember correctly, I started looking and asking for readable, consolidated versions of the Reform Treaty, later to become the Treaty of Lisbon.

When I received an answer from a Finnish government source that the European Council had decided not to publish consolidations of the amending treaty, I could hardly believe my eyes. It just could not be true in our enlightened times, AD2007, I thought.

I pestered Finnish and Swedish authorities and EU institutions and received mostly vague and dilatory answers. Then I got a reply from the institutions of the European Union stating that consolidated versions of the amending treaty would be forthcoming only when the ratification processes were over and the treaty had entered into force.

This really got me going. How could the European Council and the Council, responsible for the intergovernmental conference, invent such a counter-productive ploy? How could the European Commission representing the general interest and the European Parliament representing the citizens acquiesce in this conspiracy of silence? Why did the main European think-tanks remain passive?

***

Everything in the European Union emanates from the treaties. No legislation and no action is allowed without a legal basis. The amending treaty was, this autumn, the single most important document of the European Union. If the whole communication effort of the EU had to be restricted to one matter, the new treaty had to be it, I thought.

Therefore, I started looking at the present and the coming treaties, the practices agreed by the institutions and the policy declarations of the Finnish and Swedish governments in order to evaluate the principles we have been taught and their application in practice.

What I found was a clash between words and deeds. Openness, transparency, accountability, equality, decisions taken near the citizens and hopeful blabber about re-engaging with the citizens, all lost their meaning when confronted with the maliciously imposed silence.

I can imagine few more effective means to self-tarnish the image of the member state governments and the EU institutions than to stonewall the publication of readable treaties.

Were it not for the complicity of the other EU institutions, this would be a damning picture of intergovernmentalism at work. Where was this counter-productive strategy invented? By diplomats less than totally committed to the light of day and public scrutiny? By their political masters, well versed in double-speak?

***

Principles aside, there are practical reasons for consolidated treaties well ahead of their entry into force. Actually, the EU institutions and national governments need handy tools, and probably have them. There are teachers and students, who need accessible materials. There are researchers, journalists, NGOs and businesses as well as regional and municipal officials. There are politicians at every level.

There are the citizens of the European Union. No matter if they are for or against the new institutional arrangements, or undecided, they have a right to user-friendly information. The opinions may differ, but the facts must be shared.

Since there are 23 official languages of the European Union, and the existing treaties as well as the new ones have been drafted jointly, the only sensible thing would be for the consolidated versions to be produced and published centrally, by the Council. Only this would guarantee equal treatment for (most) EU citizens.

***

Since the EU has failed miserably, one line of work has been to look for national or single language versions of the amending treaties. Before yesterday I had found ‘national’ consolidations in English, French, Spanish and Swedish.

Yesterday Nanne on the DJ Nozem blog (link in the column on the left) reported that a German student has compiled a consolidated version in German. With about 90 million Germanophones in the EU, this means plugging a really big hole. Only 18 more languages to go, said Nanne.

But it is almost unbelievable that the work has to be done by private individuals and more or less independent organisations. (That is why I likened the EU treaties to samizdat literature.)

Nanne’s post gave further backing to the claims about the deliberate nature of non-publishing from member states’ governments.

Yesterday another, positive but hesitant, step was taken. Eurooppatiedotus, i.e. Europe Information, which is part of the Finnish Ministry for Foreign Affairs, discreetly updated two of its press releases on the signing of the Treaty of Lisbon. The new text inserted promises consolidated versions (presumably in Finnish and Swedish) during the spring of 2008. I reported this on my Finnish and Swedish blogs.

This promise is a step forward. But, the consolidated treaties in force exist, and the final Treaty of Lisbon has been published in the Official Journal. Shouldn’t merging the two, and publishing the new consolidation on the web be a matter of days, rather than months?

***

I still am amazed at the short-sightedness of the European governments and their cronies. How could they knowingly enter upon a course which is bound to tarnish their image and undermine their credibility? Why did they embargo the convenient tools needed for democratic debate based on facts, not only by the rabid Europhobes, but by the pro-European citizens as well? Why have they chosen to multiply the efforts needed by students and teachers of EU politics and law?

The new Commission web site dedicated to the Treaty of Lisbon lacks the essential, i.e. the anticipatory consolidations of the treaties in every official language. Instead, it steadfastly refuses to give us consolidated versions before the Lisbon Treaty has entered into force.

Therefore, the search for consolidated treaties continues. All eyes are on individual governments, semi-private organisations and private individuals. It is up to you to break the deadlock.

Fortress Incommunicando is crumbling, but I am, as ever, grateful for every crumb of information on its demise.


Ralf Grahn

EU Treaty of Lisbon: Spanish update

Real Instituto Elcano has swiftly updated its Spanish consolidated version of the Treaty of Lisbon to accord with the final text of the amending treaty. José Martín y Pérez de Nanclares and Mariola Urrea Corres handled the fine-tuning as well as the editing of the previous version.

The web page offers an introductory explanation to the Lisbon Treaty, written by Martín y Pérez de Nanclares.

The other consolidated language versions (English, French and Swedish) should be adjusted accordingly.

The real blot on the record is that nineteen language versions are still missing (as far as I know). Until they are published, all talk of openness, transparency, accountability, equality, decisions taken near the citizens and re-engaging citizens are rubbish.

Why does the Council want to alienate EU citizens?


Ralf Grahn


Source:

Real Instituto Elcano: Tratado de Lisboa (la versíon consolidada definitiva);
http://www.realinstitutoelcano.org/wps/portal/rielcano/FuturoEuropa/TratadodeLisboa2007

EU Treaty of Lisbon published

Thanks to the EU Law Blog I noticed that the Charter of Fundamental Rights of the European Union had been published sooner than I had thought, on 14 December (2007/C 303/1) along with the explanations.

Official publication of The Lisbon Treaty too, was swifter than anticipated. On 17 December (2007/C 306/01) we find the headline: Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed at Lisbon, 13 December 2007.

The Treaty has been partitioned into quite a few files. My basic computer skills were not up to downloading the whole thing at a go, and if you are no better, some patience may be called for.

Sadly, the published version is no consolidation. You are going to find just the amendments.


Ralf Grahn


Source:

EU Law Blog: Lisbon Treaty and Charter Published; December 17, 2007; http://eulaw.typepad.com

EU Treaty of Lisbon: conferred powers

The Constitution of the United States of America (1787) is a wonder of brevity, made apparent when we read the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC).

The European Treaties have tried to define the respective powers of the EU / EC and the Member States in minute detail, which has led to unwieldy texts for the poor reader. Still, it is impossible to fix the boundaries exactly, if both the EU and the Member States are going to have powers.

In the United States, the Tenth Amendment states that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

More or less, the same principles apply within the European Community, TEC Article 5, although the people has been conveniently omitted. The Community shall act within the limits of the Treaty and its objectives. In areas, where the Community has been given exclusive powers, the situation is clear, in principle.

In areas of shared power, the objectives of the proposed action have to be weighed against the ability of the Member States to achieve the desired results on their own. If the results can be better achieved by the Community, by reason of the scale of the action or its effects, there may be grounds for Community action. This is the principle of subsidiarity, more or less letting the states including their sub-entities act if they are able to.

In addition, Community action shall be restricted to what is necessary to achieve the objectives of the Treaty. This is the principle of proportionality: to intrude no more than the objectives warrant.

The principles of subsidiarity and proportionality are elaborated further in a Protocol, added to the Treaty of Amsterdam, although it is debatable whether the Protocal clarifies matters substantially.

***

The Treaty of Lisbon merges the European Community into the European Union and consequently the treaty structure is clarified to some degree. The main principles and institutional clauses are found in the amended Treaty on European Union, and the “earthlier” questions of various policy areas are dealt with in the Treaty on the functioning of the European Union (the re-named TEC).

The principles of conferred competences (attributed powers), subsidiarity and proportionality remain essentially the same, but are moved to the amended TEU, where a new Article 3b has been dedicated to them.

Those who fear encroachment on states’ powers, may find pleasure in the fact that the IGC 2007 added the word “only” to the text of paragraph 2, compared to the Constitutional Treaty Article I-11, which offered the wording.

Additional guidelines are found in the Protocol on the application of the principles of subsidiarity and proportionality (CIG 14/07). The new protocol is clearer than the present one, since it is more focused on the procedural aspects of the application of TEU Article 3b.

Nine articles deal with wide consultation before legislative acts are proposed, sending proposals and amendments to national parliaments, appraisal of compliance with the principles of subsidiarity and proportionality in draft legislative acts, reasoned opinions of national parliaments within eight weeks, taking reasoned opinions into account, possible review of a proposed act, jurisdiction for the EU Court of Justice and annual Commission reports on the application of Article 3b.

***

In the Treaty of Lisbon (CIG 14/07) version of the Treaty on European Union (TEU), the following Article 3b has been inserted, replacing Article 5 of the Treaty establishing the European Community (TEC):

Article 3b

The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at a central level or at a regional and local level, but can rather, by the reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

The institutions shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.

***

My next article on the Treaty of Lisbon is going to look at questions concerning the citizens of the European Union more directly, namely the provisions on fundamental rights.


Ralf Grahn

New Treaty of Lisbon web site

After the signing of the Treaty of Lisbon, the European Union has launched a new web site, dedicated to the amending Reform Treaty.

Already, there is an assortment of useful information: speeches, press releases, frequently asked questions, links to the Treaty etc.

But, as if to prove that the European Council, the Council and the other institutions are hard of hearing, there is this sentence on much needed consolidated versions of the Lisbon Treaty:

“A consolidated version of the Treaty will be published once it enters into force.”

Well, the quest for 19 more consolidated language versions of the amended Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) must continue outside the institutional framework.

I sincerely hope that there are civic-minded organisations out there, ready to serve the citizens of the European Union.

By the way, the existing consolidations in English, French, Spanish and Swedish have to be brushed up, since minor corrections have been posted on the Council web site. It should not take too long before the corrections are inserted into the final text and published in the Official Journal.


Ralf Grahn


Source: New EU web site dedicated to the Treaty of Lisbon;
http://www.europa.eu/lisbon_treaty/index_en.htm

EU Treaty of Lisbon: Member States

Surely, not only one, but 27 European governments must have signed away their countries, freedoms, democracy, the rule of law as well as their cultures, traditions and languages on that fatal 13 December 2007 in Lisbon, didn’t they?

Everything worth living and dying for was crushed by the new evil empire born, the European Superstate, wasn’t it?

Alice in Wonderland never had the hallucinating experiences a few glimpses of the English tabloids and blogosphere offer in abundance. Vitriolic distortion seems to be par for the course.

Judging from the shouted comments, few of the scare-mongering crowd have read the existing EU and EC Treaties or the amending Treaty of Lisbon, and even fewer have understood their contents.

The government of the United Kingdom has, along with 26 other governments, signed the Reform Treaty of the European Union, named the Treaty of Lisbon. But the UK government and Parliament have not stood up for the amending Treaty.

Mainly, they have been busy with explaining and exploring where they have managed to obstruct the progress of others and how convincingly they have been able to distance themselves from the rest of Europe by various opt-outs and quibbles over wording.

Instead of relinquishing new powers to the European Union, the Member States have mainly tinkered with the internal “rules of procedure” in order to make the enlarged Union become a bit less ineffective in dealing with the competences it already has.

Effectiveness, democracy and solidarity have advanced timorously. On the whole, the European Union is not going to be able to act decisively on the world stage, in spite of growing global challenges.

The foreign, security and defence policies of the European Union continue to be highly intergovernmental and ineffective, requiring unanimity in crucial decisions (liberum veto) and practically outside democratic scrutiny at the Union level. That the individual governments lack the capacity to meet the main challenges effectively, seems to be a minor concern.

***

Let us look at what the amended Treaty on European Union actually says.

After the basic Treaty structure, values and objectives of the European Union, we reach some of the umpteen reminders that the EU at this stage is mainly a creature of Member States’ governments, and that the Union is held on a short leash (well too short to achieve its most important aims).

Instead of a list of overwhelming powers being relinquished by the governments, we are confronted with a variety of clauses hedging in the capacity of the European Union to act.

Up front, the EU Treaty resembles the Ten Commandments: Thou shalt not …

Time and again, we are reminded of what the Union shall not do, irrespectively of if the Member States can meet the challenges effectively on their own.

***

The new Article 3a, paragraph 1, tells us that the European Union exercises only the powers conferred upon it. The principle of attributed powers limits the scope of Union legislation and action. Everything the EU does, has to be based on the Treaties.

All other powers (competences) remain with the Member States. And the Member States themselves, through their representatives, man the European Council and the Council, the two most important institutions of the EU.

The European Union may not be fully democratic, but it is subject to the rule of law.

In addition to the principle of equality of Member States, Article 3a, paragraph 2, contains a host of pointers on the questions remaining within the purview of the Member States. National identities, political and constitutional structures, regional and local self-government, territorial integrity, law and order as well as national security (mentioned twice) remain, fundamentally, matters for the Member States. (This follows the wording of the Constitutional Treaty, Article I-5, paragraph 1, except for the mainly repetitive words now added: In particular, national security remains the sole responsibility of each Member State.)

Since the European Union is a joint effort, established to promote common interests, Article 3a, paragraph 3, reminds us that team efforts are needed. On the whole, the European Union lacks the administrative machinery needed to execute its acts and decisions. Therefore, the Member States have an obligation to fulfil these obligations. This shall be done in a spirit of loyal cooperation. (Article 10 of the current TEC is essentially the same as the second and third subparagraphs of Article 3a(3); Article I-5, paragraph 2, of the Constitutional Treaty would have been essentially the same as the whole paragraph 3 of Article 3a).

***


The Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07). Article 3 is repealed and the following Article 3a is inserted:

1. In accordance with Article 3b, competences not conferred upon the Union in the Treaties remain with the Member States.

2. The Union shall respect the equality of the Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

3. Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.

The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.

The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.


***

The Member States are mentioned ad nauseam in the amended Treaty on European Union, but otherwise I see very little to merit popular uprisings or grave insults. Tedious stuff, mainly.

I realise that I am a hack, totally lacking the inventive spirit of tabloid journalists.


Ralf Grahn

EU Treaty of Lisbon now in Swedish

One hopeful step for mankind, when the quest for consolidated versions of the Treaty of Lisbon has yielded another result.

Sieps, the Swedish Institute for European Policy Studies has published a consolidated version of the Lisbon Reform Treaty of the European Union on its Swedish web page.

Now we have a Swedish updated Lisbon Treaty in addition to the English, French and Spanish consolidations I have mentioned before.

Four languages is a good start, but the EU has 23 official languages. There are still 19 language versions to produce, before we can speak of equal treatment of the citizens of the European Union.

As always, I am grateful for information on existing or forthcoming consolidated versions in different languages.


Ralf Grahn


Source:

Sieps – Svenska institutet för europapolitiska studier: Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf); Choose the Swedish pages http://www.sieps.se

Anti-Europeans showed their true ilk

The anti-European MEPs who launched their demonstration in the European Parliament yesterday really showed the stuff they are made of.

Trying to disrupt the proclamation of the EU Charter of Fundamental Rights, endorsed by a vast majority of the Parliament, as well as the governments of the Member States and the European Commission, is in extremely bad taste.

Euphemistically calling themselves Eurosceptics, they have nothing philosophical about their manners or aims. Loutish behaviour seems to be pack and parcel with their anti-European ilk.

Choosing the proclamation of the Charter of Fundamental Rights as the setting for their disruptive and childish behaviour must have emanated from a highly insular kind of genius.

Largely symbolic, the Charter is one of the signs that the citizens of the European Union were not totally forgotten in the process leading up to the Treaty of Lisbon.

The Charter embodies, in a coherent manner, freedoms as well as political, economic and social rights and principles concerning citizens. The Charter is the most comprehensive and up to date codification of legally binding human rights on this planet.

It is not the fault of 25 Member States that Poland and the United Kingdom chose to opt out of the Charter. There must be interesting reasons for these two countries to disenfranchise their own citizens, but the new Polish government seems to have understood that these reasons are unconvincing in the long run.

And Great Britain? But that is a story for grown-ups, said Kipling.


Ralf Grahn

Who is the best anti-European?

The Kosmopolit blog looked at the relative merits of Jaroslaw Kaczynski, Gordon Brown and Nicolas Sarkozy on blocking or undermining the European Union: The quiet, the loud and the hyperactive: Who is the best anti-European?

Yesterday the Charter of Fundamental Rights of the European Union was proclaimed in Strasbourg and today we are going to witness the signing ceremony of the Treaty of Lisbon.

We should be overjoyed, shouldn’t we? Why these doubting questions from Kosmopolit?

***

I posted a comment, which I am going to repeat here:

Who will be successful in blocking decisions?

Your question is sadly revealing of the mindset of national leaders (feudal lords) trying to insulate Europe against success in the world and to ensure that intergovernmentalism is enshrined instead of democratic accountability in foreign, security and defence policies.

The Treaty of Lisbon, to be signed later today, separately by Mr Brown, is no quantum leap for the security, prosperity and democratic rights of EU citizens.

The bickering leaders may be tired of institutional reform, but they have left the European project in a state of infirmity and disarray.

Europe is, in a way, the “old Continent”, but must it also be decrepit?

Let other politicians, think-tanks, researchers, journalists, NGOs and democratically inclined citizens of the European Union keep up the pressure, in spite of our weary leaders.

***

It is impossible to speak with one voice in the world, if one voice is all it takes in the European Council or Council to block decision-making and when the individual states safeguard their freedom to act independently on the international stage.

It is inconsistent to enshrine values of openness, transparency and democracy, when back-room dealing between state governments leave the European Parliament and the Union’s citizens as mere spectators.

Let it be said, the Charter of Fundamental Rights and the Treaty of Lisbon are improvements on the Nice Treaty, but they fall far short of the effective, democratic and solidary European Union the collective interests of its citizens call for.


Ralf Grahn


Source:

Kosmopolit: The quiet, the loud and the hyperactive: Who is the best anti-European? 13 December 2007; http://kosmopolit.wordpress.com

EU Treaty of Lisbon objectives

Why is there a European Union? What do the Member States want to promote or achieve by joining forces within an institutional framework which presupposes team play? Why have these Member States voluntarily decided to pool their resources, more or less effectively, in certain areas?

The UK Foreign Secretary David Miliband gave one answer when he dealt with threats to our prosperity and security: Nation-states, for all their continuing strengths, are too small to deal on their own with these big problems, but global governance is too weak.

***

The general aims of the European Union are, in my humble opinion, acceptable, but the question remains if the Member States have been able to equip the Union with adequate means to meet our common challenges effectively.

The security threats are supposed to be met by common foreign, security and defence policies, but these seem to fall short of the simple test posed by Alexander Hamilton: “the means ought to be proportional to the end” (The Federalist, Number XXIII). Here, the intergovernmental conference seems to have further strengthened the centrifugal forces, worsened the prospects for effective decision-making and deepened the democratic deficit.

***

The Treaty of Lisbon merges the European Community into a single European Union. In addition, some of the proposals of the Constitutional Treaty find their home among the objectives of the revised Treaty on European Union.

As between rival siblings, jealousy and bickering may lead to spurious victories: French government officials have congratulated themselves on banning free and undistorted competition from the objectives of the Union to a Protocol annexed to the Treaties (Protocol on the internal market and competition).

German industrialists, British merchants, American capitalists, Polish plumbers and Chinese entrepreneurs, all have undermined the confidence of a great nation, always on the lookout for a protective political fix. Only now, it is to be called protection, not protectionism.

***

The Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07),

Article 2

1. The Union’s aim is to promote peace, its values and the well-being of its peoples.

2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.

3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.

It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.

It shall promote economic, social and territorial cohesion, and solidarity among Member States.

It shall respect its rich cultural and linguistic diversity, and ensure that Europe’s cultural heritage is safeguarded and enhanced.

4. The Union shall establish an economic and monetary union whose currency is the euro.

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.




Ralf Grahn

Treaty of Lisbon values

In the final version of the EU Treaty of Lisbon, the values of the European Union have been inserted in Article 1a (CIG 14/07).

The wording is the same as in the Treaty establishing a Constitution for Europe, Article I-2.

At present, the values are mentioned in the Treaty on European Union, Article 6.1: 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 are fundamental, not only to the European Union, but said to be common to the Member States.

The values offer a guide for assessing every action of the European Union, both external and internal. They act as guidelines for enlargement, since new Member States have to fulfil these criteria.

Sanctions may be applied to Member States in breach of the Union’s values (new Article 7).

***

The consolidated Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07), Title I, General Provisions:

Article 1a

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

***

The next posting is going to present the Union’s aims (Article 2).


Ralf Grahn

Consolidated Treaty of Lisbon

People may be for or against, or undecided, but all have a right to readable information on
the Reform Treaty of the European Union, to be named the Treaty of Lisbon.

Quite a number of people seem to be looking for consolidated versions, with the new Treaties inserted into the existing ones. Some might even be ready to base their opinions on facts.

Therefore, I am going to repeat information which can be found in different blog postings since the middle of October.

The official, reader-unfriendly version of the Treaty of Lisbon consists of two documents of the intergovernmental conference (IGC 2007), dated 3 December 2007: the Final Act (CIG 15/07) and the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (CIG 14/07), posted on the web site of the Council.

The intergovernmental conference 2007 has accomplished its task. The signing ceremony takes place in Lisbon on 13 December 2007.

The official text is hard to read, since it consists of amendments. In order to see the Treaties as a whole, you need to compare with the existing Treaties.

***

The citizens of the European Union need reader-friendly, or at least a little bit less unreadable, versions of the new Treaties. In a Union in which decisions are taken as openly as possible and as closely as possible to the citizen (Article 1, paragraph 2, of both the present and the amended EU Treaty) and which observes the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies (Article 8 of the amended EU Treaty), consolidated versions of the Treaty of Lisbon should be available to every citizen in his or her language.

Until now, the institutions of the European Union or the governments of the Member States have not made consolidations available. Luckily, other bodies have published consolidated versions, in four of the 23 official languages of the EU.

The Irish Institute of European Affairs (IIEA) and professor Steve Peers (Statewatch Observatory on the Constitution/Reform Treaty) have published consolidations in English. The French National Assembly (Assemblée nationale) has produced a French version and the think-tank Real Instituto Elcano a Spanish one.

The web addresses are:

http://www.iiea.com English
http://www.statewatch.org English
http://www.assemblee-nationale.fr French
http://www.realinstitutoelcano.org Spanish

Are there other consolidations, which I have not noticed, yet? Are there plans for other language versions?

I am grateful for information you might have.


Ralf Grahn

Two Treaties but one European Union

My aim is to walk through the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), step by step, as if the Reform Treaty to be known as the Treaty of Lisbon was in force. I am going to present a consolidated version of the Treaties, Article by Article. I imagine that my rudimentary comments might be helpful to students and citizens who want basic information.

***

The Treaty of Lisbon is just what it says, an international treaty between states, not a Constitution based on the people.

The Member States have chosen to underline this fact by adding the words “on which the Member States confer competences to attain objectives they have in common” to the first paragraph.

On the other hand, these “competences” (powers) make the European Union unique (sui generis) among international organisations, since the Member States have created supranational institutions with legislative, executive and judiciary powers.

If the first phase, European integration was dominated by the aim to ensure peace between the Member States and to enhance living standards by creating a common market. The present main challenges of the European Union are global and transnational security and economic concerns, which the individual Member States are progressively less capable of handling on their own.

The second paragraph on “an ever closer union” is unchanged. From a citizen’s perspective it is an important principle that decisions are to be taken as openly as possible and as closely as possible to the citizen, although at this stage it reflects government “for the people” rather than “of the people” or “by the people”.

The third paragraph merges the present European Union and the European Community (EC; former EEC) into one European Union (EU). The EC is replaced by the EU and thus becomes history. At the same time Community legislation and activities continue within the EU.

If the Treaty of Lisbon enters into force, we are going to have one Union, but two Treaties. The first one, with amendments, is called the Treaty on European Union, as today. The second one is going to have a new name: the Treaty on the Functioning of the European Union. Together they are “the Treaties”.

***


The consolidated Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07), Title I, General Provisions (formerly Common Provisions):

Article 1

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’, on which the Member States confer competences to attain objectives they have in common.

This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.

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.

***

Our next look is going to be at the founding values of the European Union.


Ralf Grahn


P.S. Readable consolidations of the new Treaties in all of the official languages are a basic necessity if the EU aims to act openly, close to the citizen and to treat all citizens equally.

There are consolidated versions of the Treaty of Lisbon, in English by the Institute of European Affairs (IIEA), in Ireland, and by professor Steve Peers (Statewatch Observatory on the Constitution/Reform Treaty), as well as in French (Assemblée nationale) and in Spanish (Real Instituto Elcano).
English http://www.iiea.com
English http://www.statewatch.org
French http://www.assemblee-nationale.fr
Spanish http://www.realinstitutoelcano.org

I am grateful for information on existing or forthcoming consolidations in different languages.