THE TREATY OF LISBON – TOWARDS AN EVER CLOSER UNION, WITH A FORMAL WITHDRAWAL PROCEDURE
17
Colum. J. Eur. L.
F.
11
(2010)
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.
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