EU institutional progress with the treaty of Lisbon

In the previous current theme we have examined EU's democratic progress with the treaty of Lisbon. We therefore focus at present on the institutional reforms brought to the European Union by the new treaty.

The most important reforms proposed by the defunct Constitution are taken over by the Treaty of Lisbon. First of all, the European Union will absorb the European Community, which will cease to exist as such. Under the name of the city where they were signed, i.e. Lisbon, there will still be found two Treaties having the same rank: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which will replace the Treaty establishing the European Community (TEC), thus ending the confusion between ''the Community'' and the ''Union''. The merge of the Community and the Union, will do away with the absurd notion of the ''three pillars'' of the Union: the European Community (EC), the common foreign and security policy (CFSP) and justice and home affairs (JHA). As of the coming into force of the Treaty of Lisbon we will speak only of the European Union, but we will necessarily refer to the European Community concerning all legislation enacted on the basis of the treaty, which had established it (TEC).

The European Union will have a single legal personality under which it will negotiate, sign and implement all its external commitments, policies and activities, including trade, aid to development, representation in third countries and in international organisations and foreign and security policy. Both from the interior (its citizens) and from the exterior (third countries) the Union will, thus, be seen as a strong organism rather than as two Siamese frail and precarious (the one named Community and the other Union).

The reforms of the European institutions brought about by the Treaty of Lisbon are practically the same as the ones that was proposing the still-born Constitution. We examine them below (insisting on the similarity of their articles), in the order followed in the Europedia section concerning the main European institutions.

European Council

The European Council becomes a full EU institution. Although it will not gain any new powers, it will be headed by a permanent president, who will take on the work formerly assigned to rotating Presidencies. He or she will be elected by qualified majority, for a term of two and a half years, renewable once (Article 9b, Lisbon = Article I-22, Constitution). This new institutional arrangement is designed to lend a degree of visibility and stability to the Presidency of the European Council. The Permanent President will necessarily have the same nationality as one of the members of the European Council, but will not participate in the voting procedure within this institution. Since he or she will not hold a national office, the President will have the freedom of time and spirit to conduct the necessary discussions and negotiations with the twenty-seven heads of government, usually in their respective capitals, before the meetings of the European Council. Thus, the President should be able to facilitate cohesion and consensus and drive forward the work of the European Council. In addition, the President of the European Council will ensure the external representation of the Union on issues concerning common foreign and security policy, without prejudice to the responsibilities of the High Representative of the Union for Foreign Affairs and Security Policy. It remains to be seen how these two personalities will share their responsibilities on the external representation of the Union.

European Commission

The Treaty of Lisbon (like the defunct Constitution) confirms the near monopoly of the legislative initiative of the Commission in the normal legislative procedure (Article 9 D.2, Lisbon = Article I-26, Constitution). However, the Treaty of Lisbon gives the citizens the possibility to influence the initiatives of the Commission [see EU's democratic progress with the treaty of Lisbon].

According to the treaty of Lisbon, the President of the European Commission shall be proposed to the European Parliament by the European Council, acting by a qualified majority. The proposal of the European Council should take into account the elections to the European Parliament, thus respecting the will of the majority of the citizens of the Union, since the personality proposed to head the Commission should have the same political orientations as the political group which carried the European elections. The Parliament shall elect the candidate, acting by a majority of its component members. If he or she 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 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, who would be a Vice-president of the Commission (article 9 E, Lisbon = article I-28, Constitution). The President, the High Representative of the Union for Foreign Affairs and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament (article 9 D, Lisbon = article I-27, Constitution).

The Treaty of Lisbon extends the role of the Commission in the field of common foreign and security policy (CFSP), since the High Representative of the Union for Foreign Affairs and Security Policy, who shall be one of the Vice-Presidents of the Commission, will have the power of proposal and will, thus, have a strong voice in the development of the Union's common foreign and security policy, which should be conducted and carried out as mandated by the Council (Article 9 E, Lisbon = Article I-28, Constitution). Indeed, the High Representative of the Union will play a dual role, one in the Commission, as its Vice-President, and one in the Foreign Affairs Council, as its President. He or she will be responsible within the Commission for tasks incumbent on it in external relations and for coordinating other aspects of the Union's external action. This coordination task implies that the High Representative will have to cooperate with his colleagues in the Commission responsible for commercial policy, aid to development, humanitarian aid and in many cases competition, agriculture and fisheries, which means that the foreign policy proposals of the High Representative will in fact be proposals of the Commission.

Within the Council, the High Representative will ensure the consistency of the Union's external action in all its facets. An ambiguous matter will be the external representation of the Union. The Treaty of Lisbon states that the President of the European Council shall 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 (Article 9 B, Lisbon = Article I-22, Constitution) [see section 4.1.1]. The question is where the powers of the former will end and those of the latter will begin and if and how the two will be able to ensure the external representation of the Union in tandem.

European Parliament

In parallel with its strengthened role [see EU's democratic progress with the treaty of Lisbon], the composition of the European Parliament is also adapted to the new circumstances of the enlarged Union. The number of MEPs is capped at 751 (750 plus the president of the Parliament) and Seats will be distributed among countries according to "degressive proportionality", i.e. MEPs from more populous countries will each represent more people than those from smaller countries (Article 9 A(2), Lisbon = Article I-20, Constitution) [see section 4.1.3]. No Member State shall be allocated more than 96 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 (i.e., the distribution of the seats among the Member States), respecting the principles referred to above (Article 9 A, Lisbon = Article I-20, Constitution). It follows that, since the number of EMPs should never exceed the total of 750 and, since the smaller Member States should always be allocated at least 6 EMPs each, in case of new enlargements of the Union, the larger Member States should have to hand down a number of their seats to the acceding Member States.

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. The question is whether the Parliament may also reject the nominee for the post of the High Representative of the Union for the external policy and force the European Council to re-examine its proposal. Still, 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 national parliament.

Council

The Treaty of Lisbon confirms the existing provisions on the composition of the Council and its policy-making and coordinating functions. It stipulates that the Presidency of all Council configurations, other than that of Foreign Affairs, is to be held by Member State representatives on the basis of a system of equal rotation, defined by a European Council decision adopted by a qualified majority. The new Treaty (like the stillborn Constitutional Treaty) separates the Foreign Affairs Council, which shall elaborate the Union's external action, from the General Affairs Council, which shall ensure consistency in the work of the different Council configurations (Article 9 C, Lisbon, Articles I-24 and III-295, Constitution). This will put an end to the strange tradition of having the Ministers responsible for foreign affairs oversee the internal affairs of the Union.

However, the Council loses some of its traditional powers in favour of both the European Commission and the European Parliament. Its most important configuration, that of Foreign Affairs, will henceforth be chaired by a vice-president of the Commission, which means that the Commission will have some bearing on the agenda and on the policy-making of this Council configuration. Furthermore, the Council will from now on share legislative and budgetary functions with the Parliament (Article 9 C, Lisbon, Article I-23, Constitution). Hence, the legislative and budgetary functions of the Council will come close to those of an Upper House or Senate, representing the governments of the Member States, sharing these functions with the European Parliament, representing directly the peoples of the Union.

Copying once more the defunct Constitution, the treaty of Lisbon firstly, generalises qualified majority voting in the Council in the normal legislative process. Secondly, it facilitates considerably the system of qualified majority voting. Instead of the three criteria required by the Treaty of Nice for a qualified majority (threshold of weighted votes, majority of Member States and 62% of the population of the Union), in the future just two criteria will apply for normal legislative acts: 55% of the Member States, representing at least 65% of the population of the Union. It should be noted that the third criterion required by the Treaty of Lisbon - 15 Member States in favour of the proposal - is superfluous. In fact, in a Union of 27 Member States, 55% of the total number of States mathematically comprises at least 15 of them and the third criterion has no sense. The new voting system respects the equality of Member States as each one has one vote in respect of the first criterion, whilst their different population sizes are taken into account in meeting the second criterion. Moreover, the new system, which defines once and for all the criteria of qualified majority, would prevent, during subsequent enlargements, long negotiations on the allocation of votes to Member States and the definition of the qualified majority threshold.

A blocking minority should include at least four Council members, failing which the qualified majority would be deemed attained, even if it did not satisfy the population criterion. Although clear divisions between "large" and "small" Member States hardly ever occur, this clause would facilitate decision-making in the Council, as it would make more difficult a hypothetical alliance of "big" Member States, three of which could by themselves form a blocking minority, since their populations would represent more than 35% of the Union's population. Since a blocking minority should include at least four members, three ''big'' would need to draw a ''small'' in their coalition in order to block a decision of the Council. It should be noted that all Council deliberations on legislative matters will be made public, which means that journalists will attend the meetings and will report the main points of those deliberations to the citizens (article 9 C(8), Lisbon = Article I-24, Constitution).

The Court of justice

According to the treaty of Lisbon, the Court of Justice of the European Union includes the Court of Justice, the General Court and specialised courts. Hence, the term "Court of Justice of the European Union" will officially designate the two levels of jurisdiction taken together. The supreme body will be called the "Court of Justice" while the Court of First Instance will be renamed "General Court", but their actual composition and tasks will not be changed (Article 9 F, Lisbon, Article I-29, Constitution). By regulation adopted with the ordinary legislative procedure, at the initiative of the Commission or of the Court of Justice, specialised courts may be attached to the General Court to hear and determine at first instance certain classes of action or proceeding brought in specific areas (Article 224a Lisbon = Article III-359, Constitution).

The Treaty of Lisbon maintains the existing provisions concerning the appointment of members of the Court by common accord of the Governments of the Member States for six years, but from now on they will be appointed after consultation of a panel responsible for giving an opinion on candidates' suitability to perform the duties of Judge and Advocate General of the Court of Justice and the General Court. This panel will be composed by seven persons chosen from among former members of the two Courts, members of national supreme courts and lawyers of recognised competence, one of whom will be proposed by the European Parliament.

Justice and home affairs

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) [see details in section 8.1].

Common foreign and security policy

The treaty of Lisbon (like the stillborn Constitutional Treaty) increases the European Union's visibility and efficiency in the world scene. The permanent president of the European Council will represent the EU in discussions among world leaders, such as the G8, ''putting a face'' on the Union. The fact that the new High Representative for Foreign Affairs and Security Policy will be Vice-President of the Commission and will chair the ''foreign affairs Council'' will help the EU work more effectively and consistently on the world scene [Article 13a, Lisbon]. The task of the High Representative is to give the EU a clearer voice in relations with partner countries and organisations worldwide, connecting different strands of EU external policy, such as diplomacy, security, trade, aid to development, humanitarian aid and international negotiations. Also, the fact that the new Treaty, will do away with the European Community and will introduce a single legal personality for the European Union will enable it to conclude international agreements and join international organisations as such, raising its profile worldwide [see section 3.1].

The High Representative of the Union for Foreign Affairs and Security Policy will be in charge of a European External Action Service set up to assist the High Representative in his or her functions (Article 13a, Lisbon = Article III-296, Constitution). This service will comprise officials from relevant departments of the General Secretariat of the Council of Ministers and of the Commission and staff seconded from national diplomatic services. This multinational service could develop into a real European diplomatic corps; a development which could improve bilateral relations and enhance the image of the Union in the administrations of third countries.

The European security and defence policy (ESDP) will be an integral part of the common foreign and security policy and will provide the Union with an operational capacity drawing on civilian and military assets, which will be used on missions outside the Union, such as joint disarmament operations, military advice and assistance tasks, conflict prevention and post-conflict stabilisation. The Treaty of Lisbon also states that all these tasks may contribute to the fight against terrorism (Article 28 B, Lisbon = Article III-309, Constitution). A European Defence Agency shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector and shall assist the Council in evaluating the improvement of EU's military capabilities (Article 28 A TEU, Lisbon).

According to a solidarity clause, the Union and the other Member States shall provide assistance if a Member State is the victim of a terrorist attack or a natural or man-made disaster. In this case, the Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States, in order to assist the Member State concerned (Article 188 R, Lisbon = Article I-43, Constitution). Still more important is the mutual defence clause of the Treaty of Lisbon (copying the draft Constitution) asserting that, if a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter (Article 28 A(7), Lisbon = Article I-41(7), Constitution).

These provisions mean a certain progress; but, the unanimity rule still prevails in the Treaty of Lisbon (as in the draft Constitution) concerning the CFSP, thus preventing this policy from becoming really common and effective (article 10 C, Lisbon) [see section 8.2.1]. The common foreign and security policy will still be defined and implemented by the European Council and the Council acting unanimously, except when they will be implementing decisions of the European Council taken unanimously or if the European Council will unanimously decide that the Council of Ministers should act by qualified majority (Article 15b, Lisbon).  Since the Council will continue to decide by unanimity in most cases, Member States will still have the right of veto. The adoption of legislative acts will be excluded (Article 10 c, Lisbon). The Court of Justice of the European Union will not have jurisdiction with respect to the provisions relating to the CFSP (Article 240a, Lisbon).

However, the treaty of Lisbon (copying again the draft Constitutional Treaty), provides two outlets to the Member States which would want to proceed to their further integration: enhanced cooperation and permanent structured cooperation. 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 (Article 10, Lisbon, Articles I-44 and III-416 to III-423, Constitution). The decision authorising enhanced cooperation shall be adopted by the Council, acting unanimously, as a last resort, if it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and if at least one third of the Member States participated in it. Special conditions concern the permanent structured cooperation.

Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework (Article 28 A.6, Lisbon = Articles I-41.6 and III-312, Constitution). Such cooperation shall be governed by Article 28 E and by the Protocol on permanent structured cooperation. The latter specifies that such cooperation shall be open to any Member State which undertakes to: (a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and (b) have the capacity to supply by 2010 at the latest targeted combat units for the missions planned, structured at a tactical level as a battle group capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.

Appraisal and outlook

The reforms signalled above mean a clear progress for the institutions of the European Union. The absorption of the European Community and the European Union will end the confusion about the two and will enhance the image of the latter both inside and outside it. It will also eliminate the absurd notion of the ''three pillars'' of the Union. The President of the European Council will facilitate cohesion and consensus inside this supreme institution. The High Representative of the Union for Foreign Affairs and Security Policy may help the development of these two frail policies of the Union. Both the President and the High Representative will at least show the faces of the Union in the world scene and future Kissingers or Rumsfelds will know their telephone numbers, if they want to consult the EU on international problems. The legislative and budgetary functions of the European Parliament will henceforth be similar to those of national parliaments, eliminating the so-called democratic deficit of the Union. The generalisation and simplification of qualified majority voting in the normal legislative process will facilitate decision-making in the Council. The extension of the community method to virtually all aspects of the field of justice and home affairs will facilitate the further development of these policies. The European External Action Service, the European Defence Agency, the solidarity clause, the mutual defence clause, enhanced cooperation and permanent structured cooperation mean also some progress in the weak common foreign and security policy.

We have deliberately highlighted the similarities between the still-born constitutional treaty and the treaty of Lisbon to show that the political leaders of Europe, who, in October 2004, had signed the former took up all the innovations that this was proposing and included them in the latter, named ''reform treaty'' instead of ''Constitution'' to bypass the problem of the rejection of the latter by the peoples of France and the Netherlands in 2005. They thus signalled their determination to pass the reforms that they deemed necessary for the European institutions to work more effectively in a European Union of 27 and probably soon more Member States. And then, after all the labour needed to draft, sign and ratify the new treaty, in November 2009, these same political leaders, chose two unknown and rather weak personalities to occupy the two much acclaimed posts of President of the European Council and High Representative of the Union for Foreign Affairs and Security Policy. This shows that the leaders of the Member States, particularly those of the ''big'' ones, do not want a new Delors to become a super-leader above their heads. The way to improve and democratise the filling of these posts is for the European Parliament to insist upon it being presented, in the future, with at least two or three candidates for each post, proposed by the European Council, and for it to elect among them the President and the High Representative.

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