EU's democratic progress with the treaty of Lisbon

The rejection of the Constitutional Treaty by the citizens of two founding members of the European Community/Union, the citizens of France and the Netherlands, on 29 May and 1 June 2005 respectively, caused a crisis to the functioning of the institutions and to the progress of the integration process. But this crisis was temporary. Two years and a half later, on 13 December 2007, the political leaders of the 27 Member States signed the Treaty of Lisbon, which should bring the reforms necessary for the EU to move forward [see section 2.5]. After having surmounted the hurdles of a first negative referendum in Ireland in June 2008 [see, European treaties and referendums] and the eurosceptic positions of the Polish and Czech presidents, the new treaty will finally be ratified in November and put into force probably on 1 December 2009.

Baptised ''Reform treaty'' to appease eurosceptics, the treaty of Lisbon maintained all the important elements of the stillborn constitutional Treaty, setting aside certain secondary or emblematic elements, which bothered particularly eurosceptics: the title of "Constitution" that for some concealed the transformation of the Union into a Super-State; the reference to the symbols of unification, such as the flag with the twelve stars, the ode to joy of Beethoven that has already been established as the anthem of Europe; 9 May as the day of Europe in commemoration of  the declaration of R. Schuman. ''European laws'' and ''European framework laws'' will not replace the actual ''regulations'' and ''directives'', as it was proposed by the Constitution, but in any case the proposed change of names of the legal instruments would have had no effect on the European legal system [see section 3.3]. The Charter of Fundamental Rights is not incorporated into the Treaty of Lisbon as it was in the Constitution, but its provisions are given a binding legal force, except for the UK, Poland and the Czech Republic.

In spite of these rather cosmetic changes and the removal of the useless title of ''Constitution'', the treaty of Lisbon has adopted all the substantial reforms to the treaty of Nice proposed by the project of constitutional treaty, reforms that make the European Union more democratic and help its institutions to function effectively in the enlarged Union and in the global scene. In what follows we highlight the democratic progress brought about by the treaty of Lisbon, inspired by the defunct Constitution, indicating the relevant articles of the one and the other.

The treaty of Lisbon (following the draft Constitutional Treaty) defines, for the first time, the democratic foundations of the Union, which are based on three principles : those of democratic equality, representative democracy and participatory democracy. It declares that in all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies (Article 8, Lisbon, Article I-45, Constitution). The functioning of the Union shall be founded on representative democracy. Citizens are directly represented at Union level in the European Parliament. Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen (Article 8 A, Lisbon, Article I-46, Constitution). The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society. Concretely, the treaty of Lisbon authorises citizens to participate in the policies of the Union thanks to the citizens' initiative, whereby at least one million citizens, from a number of member countries, will be able to ask the Commission to present a proposal for a legal act in any of the EU's areas of responsibility (Articles 8 B, Lisbon = Article I-47, Constitution).

The treaty of Lisbon (like the defunct Constitutional Treaty) emphasises the voluntary nature of the integration process [see section 1.1.2], by explicitly recognising the possibility for a Member State to withdraw from the Union (Article 49 A, Lisbon = Article I-60, Constitution). This clear statement was done to belie eurosceptic assertions that Member States can never depart from the European Community/Union. Certainly a legal obligation for a country to participate in the EC/EU never existed and there is the special precedent of Greenland, which in 1973 acceded to the European Communities as a territory of Denmark, but in 1985, after a conflict over fishery rights and a referendum on this subject, preferred the arrangement of a European overseas territory [see section 24.3]. In any case, a withdrawal of a Member State from the Union is difficult to imagine, because of the negative economic and political consequences for the country that would prefer to be isolated from the rest of Europe, which is ever more unified. What is more realistic and already happening is that some Member States stay behind others at various stages of the integration process [see section 1.5.5].

Although it does not depart from current practice on the question of transfer of sovereign rights from the Member States to the Union, the treaty of Lisbon defines in detail the principles which govern this transfer and guarantees that these principles should not be infringed. These principles are: the principle of conferral (Article 3b, Lisbon = Article I-11, Constitution); and the principles of subsidiarity and proportionality (Article 8 C, Lisbon = Article III-259, Constitution). Competences not conferred upon the Union in the Treaties remain with the Member States.

Under the principle of conferral the Union shall act within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein, all other competences remaining with the Member States (Article 3b, Lisbon). This is to say that the Member States - and they alone - may confer to the Union parts of their sovereign powers, if and when they consider that their interests are better served by common action.

The treaty of Lisbon does not change substantially the principles of subsidiarity and proportionality. However, it introduces a major innovation in this regard, requiring that the national parliaments be directly involved in monitoring the proper application of the subsidiarity principle. The Protocol on the application of the principles of subsidiarity and proportionality, annexed to the Treaty, stipulates that the Commission must simultaneously send all its draft legislative acts and its amended drafts to the Union legislator and to the national parliaments of the Member States. Any draft European legislative act must contain a detailed statement making it possible to appraise compliance with the principles of subsidiarity and proportionality. The reasons for concluding that a Union objective can be better achieved at Union level must be substantiated by qualitative and, wherever possible, quantitative indicators. If one third of the parliaments (or only a quarter if the proposal concerns the area of freedom, security and justice) feel that the draft European legislation does not comply with the principle of subsidiarity, the Commission or the institution from which the draft legislative act originates must review its proposal and decide whether to maintain, adjust or withdraw it. If a majority of national parliaments agrees with the objection but the Commission decides to maintain its proposal anyway, the Commission will have to explain its reasons, and it will be up to the European Parliament and the Council to decide whether or not to continue the legislative procedure.

In several ways, the treaty of Lisbon, inspired by the Constitutional Treaty, aims at the democratisation of the functioning of the Union through the reinforcement of the role of national parliaments in the European decision-making process. According to the new Treaty, 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 and through being involved in the political monitoring of Europol and the evaluation of Eurojust's activities [see sections 8.1.2 and 8.1.4]; (d) by taking part in the revision procedures of the Treaties; (e) by being notified of applications for accession to the Union; and (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 (Article 8 C, Lisbon = Articles I-11, I-18, I-42 et I-58, Constitution).

The treaty of Lisbon declares that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007 [Charter and Explanations], which shall have the same legal value as the Treaties (Article 6, Lisbon). This means that the Member States and the European institutions have to respect the principles of the Charter under the control of their courts and of the Court of Justice of the European Union. However, a Protocol appended to the Treaty affirms that the Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms. At the insistence of its eurosceptic President, the October 2009 European Council accepted the exception of the Czech Republic from the application of the Charter.

Copying the Constitution, the Treaty of Lisbon contains many other elements aiming at the further democratisation of the functioning of the Union. It details and reinforces the values and objectives on which the Union is built, notably the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law (Article 1a, Lisbon, Article I-2, Constitution) [see section 9.5]. It gives the national parliaments greater scope to participate alongside the European institutions in the activities of the Union, clearly setting out their rights to information, to mechanisms for evaluating policy in the field of freedom, security and justice, to procedures for reforming the treaties and, most importantly, to monitor that the Union only acts where its action is more effective than an action undertaken at the national level (subsidiarity) [see sections 3.2 and 9.5]. It invites the institutions to maintain an open, transparent and regular dialogue with representative associations and civil society and to give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

The Treaty of Lisbon (like the draft Constitutional Treaty) enhances significantly the functions of the European Parliament. According to it, the Parliament shall, jointly with the Council, exercise legislative and budgetary functions (Article 9 A, Lisbon = Article I-20, Constitution). The new Treaty extends the codecision procedure [see section 4.3], renamed "ordinary legislative procedure", to a large number of fields, including justice and home affairs, certain aspects of the agricultural and commercial policies, but not to the common foreign and security policy. Concerning the budget, in particular, the distinction between ''compulsory'' expenditure (about half of the credits, constituted mainly by those concerning the common agricultural policy, actually outside the powers of the Parliament) and ''non-compulsory'' expenditure is abolished, with the result that the Parliament and the Council will have equal powers concerning the whole budget, which instead of ''budget of the European Communities'' will be called ''Union budget'' (Article 25b, Lisbon = article I-53, Constitution) [see section 3.4].

The powers of the Parliament are extended in the field of the external policy of the Union. The Parliament's assent will be required for all international agreements in fields governed by the ordinary legislative procedure. The request for accession of new Member States shall be subject to the consent of the European Parliament, which may thus turn down a candidate country, even despite the unanimous approval of the governments of the Member States.

The treaty of Lisbon reinforces the functions of political control of the Parliament vis-à-vis the Commission. The President of the Commission will be elected (not approved) by the European Parliament by a majority of its members, acting on a proposal from the European Council. The Parliament may turn down the candidate proposed by the European Council and force it to propose another personality for President of the Commission. The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission will be subject as a body to a vote of consent by the European Parliament (Article 9 D, Lisbon = Article I-27, Constitution), which means that the Parliament may reject the composition of the Commission arranged by its President and force him or her to review it. With a motion of censure, carried by a two-thirds majority of the votes cast, representing a majority of its component members, the European Parliament might force the members of the Commission to resign as a body (Article 9 D.8, Lisbon = Article III-340, Constitution). These procedures will clearly highlight the responsibility of the Commission vis-à-vis the Parliament. They will also make the functions of the European Parliament resemble those of a House of Representatives, representing the citizens of the Union, while the Council will play the role of a Senate, representing the governments of the Member States.

Following the steps of the draft Constitutional Treaty, the treaty of Lisbon extends the community method to virtually all aspects of the field of justice and home affairs, thus abolishing the so-called third pillar of the Union [see section 3.1]. It declares that shared competence between the Union and the Member States applies, inter alia, in the area of freedom, security and justice (Specific Amendments, Title I, Article 2c, Lisbon = Article I-14, Constitution). The European Parliament and the Council, acting in accordance with the ordinary legislative procedure [see section 4.3], shall adopt measures developing notably: a common policy on visas and other short-stay residence permits; an integrated management system for external borders; a common policy on asylum; a common immigration policy (Articles 62 to 63a, Lisbon = Articles III-265 to III-267 Constitution). The Commission shall have sole right of legislative initiative, except in the field of police and judicial cooperation in criminal matters, where a quarter of the Member States may submit a proposal (Article 61 I, Lisbon). The Court of Justice shall have competence in all JHA acts adopted with the ordinary legislative procedure. National Parliaments participate, 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 (Article 8 C, Lisbon = Article I-42, Constitution).

In the next current theme we will examine the institutional progress brought about by the treaty of Lisbon.

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