One the one hand, the governments of the Member States of the European Union find it necessary to join their forces by creating a common foreign and security policy (CFSP), including a common security and defence policy (CSDP). On the other hand, these same governments are loath to give up their formal sovereignty. Therefore, in addition to the amended Treaty provisions, including requirements for unanimous decisions, they agree on a joint declaration, which says, in effect, that they can continue to do what they very well please.
The amended Treaty on European Union (TEU) has to be read in conjunction with Declaration (number 13) concerning the common foreign and security policy:
“The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the Establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.”
***
Your glossator is caught thinking that such inconsistencies translate into weaknesses. Dealing with the great and rising powers of the world will continue to be based on the eventual good will of the Member States of the EU.
The declaration seems to be unclear enough to offer an escape route for almost any occasion, should a Member State choose to distance itself from the common efforts to achieve a consistent EU policy. Every Member State would seem to be able to release itself from responsibility concerning the formulation and conduct of its foreign policy in general and its national representation in third countries and international organisations, as well as in all questions pertaining to the “specific character” (whatever that is) of its security and defence policy. A special escape clause seems to be on offer for the members of the Security Council of the United Nations, especially the permanent members France and the United Kingdom.
On this basis, is the Reform Treaty going to create a “superstate”, a “superpower”, a “great power” or a “great regional power”?
What do the coming arrangements resemble more, the Constitution of the United States of America (1787) or the Articles of Confederation (1778) and the Continental Congress, which nearly lost the colonies the war for independence?
***
The IGC 2007 Mandate (Council document 11218/07, point 15) said: The second Chapter contains the provisions of Title V of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. (Footnote 6 contained the text of the declaration mentioned above.)
After Chapter 1 General provisions on the Union’s external action, follows Chapter 2 Specific provisions on the common foreign and security policy. The new first Article (10c TEU) in Chapter 2 refers to the provisions in Chapter 1, and it forms a bridge between the two chapters. .
***
The Treaty of Lisbon (OJ 17.12.2007, C 306), Chapter 2 Specific provisions on the common foreign and security policy, Section 1 Common provisions, inserts an Article 10c TEU.
Article 10c
The Union’s action on the international scene, pursuant to this Chapter, shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions laid down in Chapter 1.
***
Next time we turn to the CFSP competence of the European Union.
Ralf Grahn
Wednesday, 9 January 2008
Tuesday, 8 January 2008
EU Treaty of Lisbon: Foreign policy strategies
When the Heads of State or Government convene in the European Council, they have the option to make strategic decisions for the citizens of the European Union, but every one of the leaders bears a lock which can lead to paralysis: veto power.
The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).
In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.
***
The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:
“1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action of the Union.”
***
The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).
The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.
***
A few remarks by your glossator:
Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.
Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).
They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.
The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.
Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.
The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.
According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.
Article 10b
1. On the basis of the principles and objectives set out in Article 10 A, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Next, we are going to look at the specific provisions on the common foreign and security policy.
Ralf Grahn
The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).
In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.
***
The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:
“1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action of the Union.”
***
The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).
The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.
***
A few remarks by your glossator:
Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.
Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).
They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.
The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.
Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.
The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.
According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.
Article 10b
1. On the basis of the principles and objectives set out in Article 10 A, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Next, we are going to look at the specific provisions on the common foreign and security policy.
Ralf Grahn
Monday, 7 January 2008
EU Treaty of Lisbon: External action
The external action of the European Union and the European Community aims to strengthen the security and to enhance the prosperity of the citizens of the EU. The Reform Treaty merges the European Union into the European Union, abolishing the pillar structure but not the intergovernmental decision making procedures specific to the common foreign and security policy or the common security and defence policy.
In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.
The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.
Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.
***
The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
The present Article 11 TEU says:
“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council shall ensure that these principles are complied with.”
***
The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)
This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:
“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).
---
(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.
(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”
***
Your glossator’s remarks:
The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.
Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.
The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.
Article 10a
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
***
Next time we turn to the strategic role of the European Council.
Ralf Grahn
In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.
The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.
Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.
***
The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
The present Article 11 TEU says:
“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council shall ensure that these principles are complied with.”
***
The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)
This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:
“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).
---
(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.
(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”
***
Your glossator’s remarks:
The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.
Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.
The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.
Article 10a
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
***
Next time we turn to the strategic role of the European Council.
Ralf Grahn
Sunday, 6 January 2008
EU Treaty of Lisbon: Enhanced cooperation
How can Member States advance without being held back by less integrationist countries? Articles 43 to 45 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) offer the possibility for a group of states to establish enhanced cooperation between themselves within the institutional framework of the EU (EC).
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
Saturday, 5 January 2008
EU Treaty of Lisbon: Court of Justice
The Court of Justice has existed since the beginning of the European Coal and Steel Community. Article 220 of the Treaty establishing the European Community (TEC) sets out: The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. – Articles 220 to 245 TEC contain detailed provisions.
The Convention dedicated Article I-28 to the Court of Justice. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) included an Article I-29 The Court of Justice of the European Union.
***
Comments by your glossator:
Legal order or wish-list? If government bodies and courts in the Member States were free to apply or disregard European Community acts, the ‘acquis communautaire’ would be just a collection of political declarations. Therefore, it is a logical necessity that Community legislation takes precedence over incompatible national legislation. Only thus can natural persons and firms get the legal protection guaranteed by Community law.
Naturally, primacy concerns only areas where the Community has powers to legislate (e.g. internal market); powers not conferred upon the EC rest with the Member States.
The Constitutional Treaty would have admitted this frankly. Article I-6 Union law said:
“The Constitution and law adopted by the institutions of the Union in exercising competences conferred upon it shall have primacy over the law of the Member States.”
It can therefore be seen as a test of the maturity of public opinion and government in some Member States that the intergovernmental conference (IGC 2007) struck the provision on primacy from the Lisbon Treaty.
Instead, the IGC 2007 tucked away this corner stone of the EU edifice in a Declaration (number 17) concerning primacy, supplemented by an Opinion of the Council Legal Service:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
---
(1) It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
***
Should a citizen of the European Union thank the voters in France and the Netherlands who, in effect, landed us with the contortionist act called the Reform Treaty?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9f TEU on the Court of Justice of the European Union.
Article 9f
1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The judges and the Advocates-General of the Court of Justice and the judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 223 and 224 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring judges and Advocates-General may be reappointed.
3. The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
***
Ralf Grahn
The Convention dedicated Article I-28 to the Court of Justice. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) included an Article I-29 The Court of Justice of the European Union.
***
Comments by your glossator:
Legal order or wish-list? If government bodies and courts in the Member States were free to apply or disregard European Community acts, the ‘acquis communautaire’ would be just a collection of political declarations. Therefore, it is a logical necessity that Community legislation takes precedence over incompatible national legislation. Only thus can natural persons and firms get the legal protection guaranteed by Community law.
Naturally, primacy concerns only areas where the Community has powers to legislate (e.g. internal market); powers not conferred upon the EC rest with the Member States.
The Constitutional Treaty would have admitted this frankly. Article I-6 Union law said:
“The Constitution and law adopted by the institutions of the Union in exercising competences conferred upon it shall have primacy over the law of the Member States.”
It can therefore be seen as a test of the maturity of public opinion and government in some Member States that the intergovernmental conference (IGC 2007) struck the provision on primacy from the Lisbon Treaty.
Instead, the IGC 2007 tucked away this corner stone of the EU edifice in a Declaration (number 17) concerning primacy, supplemented by an Opinion of the Council Legal Service:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
---
(1) It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
***
Should a citizen of the European Union thank the voters in France and the Netherlands who, in effect, landed us with the contortionist act called the Reform Treaty?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9f TEU on the Court of Justice of the European Union.
Article 9f
1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The judges and the Advocates-General of the Court of Justice and the judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 223 and 224 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring judges and Advocates-General may be reappointed.
3. The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
***
Ralf Grahn
Friday, 4 January 2008
EU Treaty of Lisbon: High Representative
Is the European Union entering the Facebook era? Perhaps not, but the Lisbon Treaty would go some way towards giving the EU recognisable leading personalities. The new President of the European Council is the clearest example, since this is a new post. If the candidate of the largest political party emerging from the European Parliament elections becomes Commission President, he or she will at the outset be much more of a European figure than the Presidents who until now have been sifted out by the European leaders behind closed doors. The High Representative already exists (presently Javier Solana), but the new High Representative of the Union for Foreign Affairs and Security Policy is going to take over the external action of the European Commission, as Vice-President, and lead the External action service of the EU.
***
Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:
“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.
The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:
“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”
Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.
***
A few comments from your glossator:
The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.
With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.
Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.
The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.
The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.
Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.
Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).
Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.
Article 9e
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.
3. The High Representative shall preside over the Foreign Affairs Council.
4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.
***
The renamed Court of Justice of the European Union is going to be next.
Ralf Grahn
***
Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:
“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.
The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:
“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”
Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.
***
A few comments from your glossator:
The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.
With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.
Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.
The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.
The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.
Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.
Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).
Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.
Article 9e
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.
3. The High Representative shall preside over the Foreign Affairs Council.
4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.
***
The renamed Court of Justice of the European Union is going to be next.
Ralf Grahn
Thursday, 3 January 2008
Daniel Hannan digs the US Constitution
The best things can always be briefly stated, were Daniel Hannan’s words about the US constitution:
“The Lisbon Treaty, say its advocates, is shorter than the old European Constitution. Where the previous draft ran to 349 pages, the new one is a mere 287. (As opposed to my copy of the US constitution which, with all 27 amendments, runs to a mere 18: the best things can always be briefly stated.)”
***
Briefly stated, perhaps the next European Constitution will start to propel the ‘Federal Republic of Europe’ towards the greatness achieved long ago by the United States of America.
Ralf Grahn
Source:
Daniel Hannan: Testing our intelligence with the Treaty; Telegraph blog, 2 January 2008;
http://blogs.telegraph.co.uk/politics/danielhannan/jan08/lisbontreaty.htm
“The Lisbon Treaty, say its advocates, is shorter than the old European Constitution. Where the previous draft ran to 349 pages, the new one is a mere 287. (As opposed to my copy of the US constitution which, with all 27 amendments, runs to a mere 18: the best things can always be briefly stated.)”
***
Briefly stated, perhaps the next European Constitution will start to propel the ‘Federal Republic of Europe’ towards the greatness achieved long ago by the United States of America.
Ralf Grahn
Source:
Daniel Hannan: Testing our intelligence with the Treaty; Telegraph blog, 2 January 2008;
http://blogs.telegraph.co.uk/politics/danielhannan/jan08/lisbontreaty.htm
EU Treaty of Lisbon: European Commission
The European Union has become a victim of its own success. Institutional arrangements designed for the original Communities with six Member States have had to accommodate 27 members and the prospect of more entrants. Successive Treaty reforms, including the Lisbon Treaty, have tried to address the needs of an enlarged Union.
The Member States have, reluctantly, agreed to limit the future size of the Commission, but they have not been able to renounce the principle of national representation. Consequently, the Treaty of Lisbon introduces a system of equal rotation from 2014, which means that the next Commission, from 2009, is going to have one representative from each Member State.
***
Articles 211 to 219 of the existing Treaty establishing the European Community (TEC; latest consolidated version OJ 29.12.2006, C 321 E) deal with the Commission.
The Convention proposed two Articles on the Commission, I-25 on the European Commission and I-26 on its President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) the Member States signed on to Article I-26 The European Commission and Article I-27 The President of the European Commission.
***
I decided not to compare the various stages from the existing Treaties to the Lisbon Treaty. A few general comments from an EU citizen:
The European Commission shall promote the general interest of the Union. Subject to democratic scrutiny by the European Parliament, the Commission’s mission is, or should be, near the interests of the citizens of the Union.
On the whole, the Commission’s powers to propose legislation and to act as guardian of the Treaties, is in the interests of the citizens of the EU.
The June 2009 elections to the European Parliament are going to become more interesting if the European political parties nominate their candidates for the office of President of the Commission. But the rest of the Commission is still going to consist of Member State appointees.
A long term view would be to create a democratically accountable executive based on the election results. This would call for further reforms making clearer distinctions between political leadership (norms, resources, objectives) and more apolitical regulatory and management functions (delegated to various bodies).
But would politically responsible members of the Commission be less conscious of the general interest or less independent than the present ones, who are more or less directly appointed by the Member States?
The new ‘Commission’ would shoulder the executive powers of the Union, including foreign, security and defence policy. Democratic scrutiny would be exercised by a European Parliament with a directly elected first chamber representing the citizens and a second chamber representing the Member States.
The Lisbon Treaty is a halfway house between democratic accountability and Member States’ representation concerning the European Commission.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9d into the Treaty on European Union (TEU).
Article 9d
1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.
2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
3. The Commission's term of office shall be five years.
The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 9 E(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.
4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014 shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 211a of the Treaty on the Functioning of the European Union.
6. The President of the Commission shall:
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 9 E(1), if the President so requests.
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 201 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties that he carries out in the Commission.
***
The High Representative of the Union for Foreign Affairs and Security Policy is next.
Ralf Grahn
The Member States have, reluctantly, agreed to limit the future size of the Commission, but they have not been able to renounce the principle of national representation. Consequently, the Treaty of Lisbon introduces a system of equal rotation from 2014, which means that the next Commission, from 2009, is going to have one representative from each Member State.
***
Articles 211 to 219 of the existing Treaty establishing the European Community (TEC; latest consolidated version OJ 29.12.2006, C 321 E) deal with the Commission.
The Convention proposed two Articles on the Commission, I-25 on the European Commission and I-26 on its President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) the Member States signed on to Article I-26 The European Commission and Article I-27 The President of the European Commission.
***
I decided not to compare the various stages from the existing Treaties to the Lisbon Treaty. A few general comments from an EU citizen:
The European Commission shall promote the general interest of the Union. Subject to democratic scrutiny by the European Parliament, the Commission’s mission is, or should be, near the interests of the citizens of the Union.
On the whole, the Commission’s powers to propose legislation and to act as guardian of the Treaties, is in the interests of the citizens of the EU.
The June 2009 elections to the European Parliament are going to become more interesting if the European political parties nominate their candidates for the office of President of the Commission. But the rest of the Commission is still going to consist of Member State appointees.
A long term view would be to create a democratically accountable executive based on the election results. This would call for further reforms making clearer distinctions between political leadership (norms, resources, objectives) and more apolitical regulatory and management functions (delegated to various bodies).
But would politically responsible members of the Commission be less conscious of the general interest or less independent than the present ones, who are more or less directly appointed by the Member States?
The new ‘Commission’ would shoulder the executive powers of the Union, including foreign, security and defence policy. Democratic scrutiny would be exercised by a European Parliament with a directly elected first chamber representing the citizens and a second chamber representing the Member States.
The Lisbon Treaty is a halfway house between democratic accountability and Member States’ representation concerning the European Commission.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9d into the Treaty on European Union (TEU).
Article 9d
1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.
2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
3. The Commission's term of office shall be five years.
The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 9 E(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.
4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014 shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 211a of the Treaty on the Functioning of the European Union.
6. The President of the Commission shall:
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 9 E(1), if the President so requests.
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 201 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties that he carries out in the Commission.
***
The High Representative of the Union for Foreign Affairs and Security Policy is next.
Ralf Grahn
Wednesday, 2 January 2008
EU Treaty of Lisbon: Council
In a European Union of citizens and states, the latter have the upper hand. Not only is the EU based on international Treaties between the Member States, but the states are represented in the European Council and in the Council (of Ministers), the two most important institutions of the Union.
***
The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).
The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.
In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.
The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.
***
A few comments on the end result:
Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.
If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.
The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.
Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.
The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.
The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.
The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.
Article 9c
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.
3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 205(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 201b of the Treaty on the Functioning of the European Union.
The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council.
8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 201b of the Treaty on the Functioning of the European Union.
***
An overview of the Commission will follow.
Ralf Grahn
***
The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).
The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.
In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.
The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.
***
A few comments on the end result:
Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.
If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.
The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.
Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.
The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.
The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.
The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.
Article 9c
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.
3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 205(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 201b of the Treaty on the Functioning of the European Union.
The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council.
8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 201b of the Treaty on the Functioning of the European Union.
***
An overview of the Commission will follow.
Ralf Grahn
Tuesday, 1 January 2008
EU Treaty of Lisbon: European Council
If the European Union is a ship, the European Council represents the shipowners. The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) Article 4 presents the tasks, the membership and the reporting of the European Council, without formally making it one of the EU institutions:
“Article 4
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.”
***
The Convention included the European Council among the institutions and proposed two Articles. The first one, I-20, reiterated the present tasks of the European Council, but clarified that it does not exercise legislative functions. The basic membership (Heads of State or Government) was the same, but the new chairman (President) was mentioned. The Ministers for Foreign Affairs would have lost their membership; their participation would have become optional. This was intended to bring back something of the informal beginnings as “fireside chats” which were becoming impossible with more than fifty participants in an enlarged Union.
The European Council would have met every three months. Extraordinary meetings would have been possible. Decisions would have been made by consensus, if the Constitution did not provide otherwise. The difference between “consensus” and “unanimity” was not elaborated.
The second provision proposed by the Convention, Article I-21, concerned the new semi-permanent President of the European Council, elected for two and a half years (renewable once) and replacing the chairmanship of the current six month Presidency of the Council. This was a victory for those who wanted the European Council to steer a clearer course and to safeguard continuity in action. One of the innovations in this direction was that the President could not hold a national office at the same time. (On the other hand, uniting the offices of President of the European Council and of the Commission remained a possibility.)
The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) took on board most of the proposals made by the Convention, in Artcles I-21 and I-22. The national Ministers for Foreign Affairs, whose participation was becoming optional, lost their monopoly to participate if ministers were needed. For instance, the ministers representing the member states in the evolving General Affairs Council, or the Ministers for Finance or the Economy could have participated depending on the theme of the meeting. (The spring European Council, with the economic reforms and the Lisbon strategy on the agenda could offer an example, as well as future meetings dedicated to the area of freedom, security and justice.)
The intergovernmental conference (IGC 2007) decided to merge two Articles into one, Article 9b. There are minor differences. In Article 9b(2) the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”. In Article 9b(3) the quarterly meetings have become somewhat more flexible: meetings twice every six months. Otherwise, the changes are minimal compared to the Constitutional Treaty.
***
Like all institutions, the European Council is reminded of the “common good”: 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. Article 9(1) TEU.
The wording follows the structure of the amended TEU and advances more or less in the same order from values to objectives and further to the interests of the citizens of the Union and of its Member States.
Consistency, effectiveness and continuity are mentioned as essential guidelines for decision making.
Is this shocking? Every successful organisation needs a modicum of team play. Even if the members of the European Council represent the particular interests of the Member States all of the time, these national leaders have to make the effort to find the common interests that bind them together, at least for about eight days yearly.
Without the strategic direction given by the European Council, the European Union would come to nought.
***
The crucial reform of the Lisbon Treaty concerning the European Council, in addition to formal status as an institution, is the semi-permanent President.
He or she shall chair the meetings and drive forward the work of the European Council. The President ensures the preparation and continuity of its work and tries to facilitate cohesion and consensus. The President takes over the reporting to the European Parliament, as well. The President represents the Union “at his level and in that capacity” on issues concerning the foreign and security policy of the European Union.
Gone will be the days when an active President or Prime Minister of a Member State had to juggle his national obligations with the task to drive forward the European Council and to represent it both substantially and ceremonially.
***
The Treaty of Lisbon creates a demanding square between the new President of the European Council, the partly new “double-hatted” High Representative/Vice President of the Commission, the existing President of the European Commission and the somewhat devalued rotating Presidency of the Council, in charge of the General Affairs Council and the ‘ordinary’ Council formations (if separate persons head the European Council and the Commission).
On the whole, the Lisbon Treaty seems to strengthen the intergovernmental traits of the European Union. The President of the European Council is the potential new star, firmly embedded in an intergovernmental setting, and it looks more probable that the High Representative is going to extend the power of the Council into the Commission, than the other way around.
***
Much will depend on the choice of persons and their capacity to interact. Despite the bland wording of joint Declaration (number 6) on Article 9 B(5) and (6), Article 9 D (6) and (7) and Article 9 E of the Treaty on European Union, the jockeying for positions can be expected to be intense. The Protocol says:
“In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.”
Taken at face value, the “geographical and demographic diversity” of the EU and its Member States refer to the map and population size, but in reality the political aspects are preponderant. Should the persons to be chosen represent the values of the integrationist core or halfway houses outside the Eurozone, the Schengen area, the Charter of Fundamental Rights and readiness to promote a common defence based on dual EU and NATO membership?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9b.
Article 9b
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
In my next instalment I turn to the Council.
Ralf Grahn
“Article 4
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.”
***
The Convention included the European Council among the institutions and proposed two Articles. The first one, I-20, reiterated the present tasks of the European Council, but clarified that it does not exercise legislative functions. The basic membership (Heads of State or Government) was the same, but the new chairman (President) was mentioned. The Ministers for Foreign Affairs would have lost their membership; their participation would have become optional. This was intended to bring back something of the informal beginnings as “fireside chats” which were becoming impossible with more than fifty participants in an enlarged Union.
The European Council would have met every three months. Extraordinary meetings would have been possible. Decisions would have been made by consensus, if the Constitution did not provide otherwise. The difference between “consensus” and “unanimity” was not elaborated.
The second provision proposed by the Convention, Article I-21, concerned the new semi-permanent President of the European Council, elected for two and a half years (renewable once) and replacing the chairmanship of the current six month Presidency of the Council. This was a victory for those who wanted the European Council to steer a clearer course and to safeguard continuity in action. One of the innovations in this direction was that the President could not hold a national office at the same time. (On the other hand, uniting the offices of President of the European Council and of the Commission remained a possibility.)
The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) took on board most of the proposals made by the Convention, in Artcles I-21 and I-22. The national Ministers for Foreign Affairs, whose participation was becoming optional, lost their monopoly to participate if ministers were needed. For instance, the ministers representing the member states in the evolving General Affairs Council, or the Ministers for Finance or the Economy could have participated depending on the theme of the meeting. (The spring European Council, with the economic reforms and the Lisbon strategy on the agenda could offer an example, as well as future meetings dedicated to the area of freedom, security and justice.)
The intergovernmental conference (IGC 2007) decided to merge two Articles into one, Article 9b. There are minor differences. In Article 9b(2) the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”. In Article 9b(3) the quarterly meetings have become somewhat more flexible: meetings twice every six months. Otherwise, the changes are minimal compared to the Constitutional Treaty.
***
Like all institutions, the European Council is reminded of the “common good”: 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. Article 9(1) TEU.
The wording follows the structure of the amended TEU and advances more or less in the same order from values to objectives and further to the interests of the citizens of the Union and of its Member States.
Consistency, effectiveness and continuity are mentioned as essential guidelines for decision making.
Is this shocking? Every successful organisation needs a modicum of team play. Even if the members of the European Council represent the particular interests of the Member States all of the time, these national leaders have to make the effort to find the common interests that bind them together, at least for about eight days yearly.
Without the strategic direction given by the European Council, the European Union would come to nought.
***
The crucial reform of the Lisbon Treaty concerning the European Council, in addition to formal status as an institution, is the semi-permanent President.
He or she shall chair the meetings and drive forward the work of the European Council. The President ensures the preparation and continuity of its work and tries to facilitate cohesion and consensus. The President takes over the reporting to the European Parliament, as well. The President represents the Union “at his level and in that capacity” on issues concerning the foreign and security policy of the European Union.
Gone will be the days when an active President or Prime Minister of a Member State had to juggle his national obligations with the task to drive forward the European Council and to represent it both substantially and ceremonially.
***
The Treaty of Lisbon creates a demanding square between the new President of the European Council, the partly new “double-hatted” High Representative/Vice President of the Commission, the existing President of the European Commission and the somewhat devalued rotating Presidency of the Council, in charge of the General Affairs Council and the ‘ordinary’ Council formations (if separate persons head the European Council and the Commission).
On the whole, the Lisbon Treaty seems to strengthen the intergovernmental traits of the European Union. The President of the European Council is the potential new star, firmly embedded in an intergovernmental setting, and it looks more probable that the High Representative is going to extend the power of the Council into the Commission, than the other way around.
***
Much will depend on the choice of persons and their capacity to interact. Despite the bland wording of joint Declaration (number 6) on Article 9 B(5) and (6), Article 9 D (6) and (7) and Article 9 E of the Treaty on European Union, the jockeying for positions can be expected to be intense. The Protocol says:
“In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.”
Taken at face value, the “geographical and demographic diversity” of the EU and its Member States refer to the map and population size, but in reality the political aspects are preponderant. Should the persons to be chosen represent the values of the integrationist core or halfway houses outside the Eurozone, the Schengen area, the Charter of Fundamental Rights and readiness to promote a common defence based on dual EU and NATO membership?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9b.
Article 9b
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
In my next instalment I turn to the Council.
Ralf Grahn
Monday, 31 December 2007
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.
***
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.
***
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.)
***
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.
***
Next time, I am going to present the European Council.
Ralf Grahn
***
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.
***
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.)
***
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.
***
Next time, I am going to present the European Council.
Ralf Grahn
Sunday, 30 December 2007
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.
***
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.
***
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.
***
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."
***
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
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.
***
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.
***
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.
***
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."
***
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
Saturday, 29 December 2007
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.
***
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.”
***
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.
***
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.
***
Title III Provisions on the institutions will follow.
Ralf Grahn
Friday, 28 December 2007
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/
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.
***
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?
***
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.
***
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.
***
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.
***
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.
***
The following look at the Treaty of Lisbon is going to concern the role of National Parliaments.
Ralf Grahn
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.
***
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?
***
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.
***
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.
***
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.
***
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.
***
The following look at the Treaty of Lisbon is going to concern the role of National Parliaments.
Ralf Grahn
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