Wednesday, October 29, 2014

November 1, 2014 - Europe cedes closer to the Treaty of Lisbon


17 Colum. J. Eur. L. F. 11 (2010)

Jacob Schall Holberg*

The Treaty of Lisbon (the “TOL” or “Treaty”) amending the Treaty on European Union (the “TEU” or “EU Treaty”) and the Treaty establishing the European Community (the “TEC”), signed at Lisbon on December 13, 2007; entered into force on December 1, 2009.[1] The TOL[2] is generally understood as a reform treaty of the European Union, as opposed to a foundational treaty, because its main aim was to adapt the European Union’s constitutional framework in order to make it both suitable and manageable for some twenty-seven Member States. Prior to the signing of the TOL, the European Parliament stated:
There is a recognised need to reform and strengthen the structures of the Union in order to consolidate these achievements and to improve the capacity of a Union of twenty-seven, and potentially more, Member States to function effectively so as to enable it to face common new challenges and to be subject to greater democratic accountability.[3]
The TOL represents an effort to ensure more transparency and to strengthen democracy within the European Union by comparison to the Treaty of Nice: the European Parliament gets more say, national parliaments get a greater role in the adoption of EU legislation, and the Treaty introduces a “European Citizens Initiative” (the “ECI”).[4] The Treaty also makes the EU Charter of Fundamental Rights, declared in 2000, legally binding. Perhaps most importantly, however, it introduces some fundamental changes to the European Union actors and its decision-making process, which may have been the rationale behind the introduction of a formal procedure for a Member State’s withdrawal from the Union. These changes, which are discussed in greater detail below, might raise questions as to whether the TOL has correctly been labelled as a “reform treaty” or should rather be classified as a fundamental treaty.

One could argue that it is strange that a formal EU withdrawal procedure had not previously been in place. Given the history of the European Union, however, the lack of a formal procedure might not be that remarkable. The European Community was originally established in the aftermath of the Second World War, and when the Community was established it was probably unthinkable that any State would wish to withdraw. Therefore, it is noteworthy that, together with the introduction of decision-making procedures in the TOL, which create a more powerful Union, the Treaty of Lisbon also formalizes a procedure for withdrawal from European Union membership. This is so despite the fact that only one state has requested withdrawal thus far, and the request was handled with no significant difficulty by a short Treaty amendment.[5] Withdrawal, which has always been possible by way of a Treaty amendment, has clearly not been a recurrent issue in the history of the European Union. It therefore seems fair to conclude that the drafters of the Treaty of Lisbon were aware of its potential to threaten State sovereignty to such a degree that a formalized withdrawal procedure with an exit clause might become a necessity. In other words, withdrawal was no longer “unthinkable”; it had become a serious possibility.

I. The new President

The issue of whether the European Union should have a President has been ridden with controversy, especially because, among and within the Member States, some fervently hold the opinion that the European Union should not adopt a federal framework like the one of the United States. This issue has been resolved, however, by a new provision in the Treaty on European Union, Article 15(6), which introduces a permanent President of the European Council. The European Council, which the Lisbon Treaty has deemed an institution,[6] has elected Mr. Van Rompuy as the first President for a term of two and a half years beginning on December 1, 2009, with the option of a single renewal. At the present stage, however, it seems clear that the powers granted to the President of the European Union would be nothing like those held by the President of the United States. TEU Article 15(6) makes it clear that the President’s main task is to ensure the preparation and continuity of the work of the European Council and that “at his level and in that capacity, [the President 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 for Foreign Affairs and Security Policy.” It is not clear how far this latter power will reach, but the provision seems to ensure that the European Council and the heads of the Member States will continue to be the overarching decision-making entities in the European Union. Accordingly, the role of the President of the European Council is the result of a compromise whereby, on the one hand, the integration-orientated side was granted a President, and, on the other hand, the non-integration-orientated side was assured that the President’s power, at least as it appears right now, is limited, and that after Lisbon the Member States would continue to have the final word.

II. The changes in the decision-making process

The Treaty of Lisbon had to accommodate the great enlargement of the number of Member States to the European Union. Previous rounds of Treaty reforms had unsuccessfully attempted to put in place the institutional and decision-making changes that were necessary in order to accommodate an enlarged European Union. Agreements to these ends had not previously been made because they would have resulted in every Member State losing individual power in the European Union. A system based on unanimity is common in international law, in light of the principle that sovereign states are not obliged to accept foreign involvement in their internal systems. Accordingly, anything but unanimity will limit the sovereignty of the Member States in some respect.

The most important change to have come about with the TOL is probably the provisions aimed at the enhanced efficiency of the decision-making process. For instance, the default rule now provides that the European Council must act by a qualified majority.[7] TEU Article 16 also lowers the threshold for the existence a qualified majority of Member States needed in order to make a decision. On November 1, 2014, a system will be introduced whereby the adoption of a proposal will, as a general rule, require a qualified majority of 55% of the Member States of the Council, comprising at least 65% of the EU population.[8] Thus a double majority of both Member States and EU citizens will be required in order for a proposal for new legislation to be adopted. The Member State threshold of the double majority will thereby be significantly lower than that mandated by the existing Treaty, which requires 73.9% of the Member States in order to obtain a qualified majority.[9] The population requirement of the double majority, however, will be slightly increased in the Treaty of Lisbon, from the current 62% to 65%. However, until March 31, 2017, a Member State may require that decisions to be made by a qualified majority in the Council are made according to the current definition of a qualified majority, meaning that the new voting system will not definitively come into effect until April 1, 2017.[10] As an added minority protection, the Member States have agreed that if a minority in the Council, constituting not less than three-fourths of the share of the population or three-fourths of the number of Member States required to constitute a blocking minority, indicates its opposition to the adoption of a document, the Council must do its utmost to find a solution satisfactory to the minority.[11] After April 1, 2017, the threshold will be lowered to 55%. The need for a transitional period suggests that the shift towards a default rule on qualified majority and a lower Member State threshold has substantial and controversial consequences for the weight of individual Member States’ influence in the framework of the European Union.

These changes mean that Members States may find their interests overruled by other Member State more frequently than they had before. A principle of unanimity ensures that each and every Member State has the right to veto. There is no doubt that a decision-making process involving so many Member States with such different goals, cultures, and history will make it likely that one or more of the Member States would eventually fear that its sovereignty would be compromised. It should be noted that the loss of state sovereignty applies equally to new and old Member States.

III. The withdrawal procedure

In this context, it is interesting that the Lisbon Treaty has also established a detailed procedure for withdrawing from the European Union. It has always been possible to withdraw from the Union, but so far it is only Greenland that has done so. Greenland is part of the Kingdom of Denmark and is part of the Danish national community. When Denmark joined the European Community in 1973, the EEC Treaty and the Euro Nuclear Treaty also became applicable to Greenland, although Protocol No. 4 to the Accession Treaty contained certain specific provisions for Greenland. After a referendum, Greenland left the European Community through a Treaty dated March 13, 1984,[12] which came into force on February 1, 1985. Instead, Greenland obtained OCT status under the EEC Treaty.[13] These changes came into force by virtue of a short and single Article, Article 3, of a Treaty Amending the Treaties Establishing the European Communities with Regard to Greenland.[14]
The Treaty of Lisbon has now introduced Article 50(1) into the TEU, which includes the following provision: “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” This provision establishes a procedure to be followed if a Member State wishes to withdraw. If a Member State decides to withdraw, it must notify the European Council. An agreement would then be negotiated and concluded with the State concerned on the arrangements for its withdrawal. The agreement that would result from the negotiations would have to be adopted by a qualified majority of the European Council. If a former Member State wishes to become a Member again, that State would have to seek membership in the usual manner, and applications would be processed according to the usual procedures provided by Article 50(5).

IV. The consequences of the Treaty of Lisbon

The European Council has suggested that the Lisbon Treat does not create a “European Super State.”[15] It has further stated that
The Treaty of Lisbon is an international treaty agreed and ratified by sovereign Member States that agree to share some of their sovereignty in supranational cooperation. The Treaty of Lisbon acknowledges that the Union reflects the will of the Member States and their citizens and that its powers stem from these States. The Treaty does not alter the basic nature of the EU, but it introduces some major institutional innovations, which makes the Union stronger and more effective. This is not to the detriment of the Member States; on the contrary, the EU complements Member States’ action when they cannot meet their goals on their own.
Though the Treaty of Lisbon might have been presented as a reform Treaty, the delicate balance achieved between further diminishing Member State sovereignty and the introduction of an exit clause might open the floor to a debate regarding whether the Treaty of Lisbon may better be understood as a foundational Treaty, given the fundamental alteration of the rules that appear to modify the nature of the European Union. It seems clear that the largely undefined scope of power granted to the new President, the principal rule on qualified majority in the Council in TEU Article 16, and the lowering of the threshold for the existence of a qualified majority cumulatively mean that the Member States will now have to share more of their sovereignty with the supranational unity, the EU, than they had before. This reality might eventually actualize the new withdrawal provision in Article 50(1). Perhaps it is this threat that is the true justification for the introduction of a detailed procedure for withdrawal, despite the fact that no State has withdrawn its membership yet other than Greenland in 1985.

1 comment:

John Christopher sunol said...

THIS IS GETTING closer to agenda 21 coming, and a one countryr Europe