☘”Summary guide to the Lisbon Treaty”: A Critical Commentary

A CRITICAL COMMENTARY ON

THE NATIONAL FORUM ON EUROPE’S

“SUMMARY GUIDE TO THE TREATY OF LISBON”

 

This commentary is offered to the public by the People’s Movement and the National Platform, organisations that form part of the Special Observer Pillar of the National Forum on Europe. It has been compiled in consultation with individuals belonging to a number of other organisations in the same “Pillar”. Enquiries should be made to Patricia McKenna, Frank Keoghan or Anthony Coughlan. Anthony Coughlan is solely responsible for the specific comments made. See also the web-sites: peoplesmovement.org and their [A Review of the Provisions of the Treaty of Lisbon] and nationalplatform.org

 

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A SUMMARY GUIDE TO THE TREATY OF LISBON

 

– EU Reform Treaty –

 

 

National Forum on Europe – January 2008

 

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TABLE OF CONTENTS

 

FOREWORD

 

BACKGROUND TO THE TREATY

 

SUMMARY GUIDE

-Introduction

– Structure of the Treaty

– Values and Objectives

– EU institutions

– EU Powers and Decisionmaking

– Decisionmaking

– Enhanced Cooperation

– Common Foreign and Security Policy

– Freedom, Security and Justice

– Charter of Fundamental Rights

– Changes in Economic Governance Field

– Procedure for Future Amendments

– Clauses of General Application

– Adoption, Ratification and Entry into Force of

of the Treaty of Lisbon

 

GLOSSARY OF TREATY TERMS

 

SUMMARY LIST OF NEW AREAS FOR QUALIFIED MAJORITY VOTING (QMV)

 

COMPARISION WITH THE EUROPEAN CONSTITUTION

 

EARLIER EU TREATIES

 

EU TREATY AND ENLARGEMENT HISTORY (TIMELINE)

 

 

 

 

FOREWORD

 

BY THE INDEPENDENT CHAIRMAN OF THE NATIONAL FORUM ON EUROPE, MAURICE HAYES

 

This year, the people of Ireland will again have their say on a European treaty. The National Forum on Europe has worked since 2002 to promote a public debate on the EU and on Ireland’s role in Europe. In pursuit of its mandate, the Forum has published a series of documents and audio-visual materials in plain language that could be understood by the citizen.

 

This user-friendly document offers a guide to the latest EU treaty, the Treaty of Lisbon , also known as the Reform Treaty. This Summary Guide is prefaced by a short explanation of the background to this Treaty, including the European Constitution (2004) which will not come into force.

 

COMMENT: The name “Reform Treaty” has disappeared in the final edition of the Treaty. The legally proper name is the Lisbon Treaty. This Treaty contains the same transfer of legal competences to the EU as the rejected EU Constitution. Its full legal title is “Treaty of Lisbon amending the Treaty on European Union and the Treaty Establishing the European Community, signed at Lisbon, 13 December 2007 “.

 

There is a great need for a reliable and readable guide to this new Treaty which is lengthy and complex. The effects of the new Treaty, which operates by amending the existing Treaties, can only be understood in relation to the existing EU arrangements,and changes in one area can impact on other areas.

 

The Summary Guide aims to be factual and does not make judgements on the various elements. A considerable amount of selection was unavoidable in the interests of brevity. While it has not been possible, therefore, to reflect fully all aspects of the treaty, the Summary Guide has sought to cover the most important elements, especially from Ireland’s point of view. Technical language is avoided where possible and a glossary is provided for technical terms which are used. We have also included a comparison between the key features of the European Constitution and the new Treaty.

 

The role of the National Forum On Europe is not to advocate any particular policy or course of action but rather to generate debate and to provide an arena for inclusive dialogue on matters relating to Ireland’s role in the Europe. Our website, http://www.forumoneurope.ie, provides easy access to information about the European Union and about our work over the past six years. You will find clear and user-friendly guides to the EU’s work and institutions.

 

This publication is offered in that spirit as the Irish people prepare to decide on this new Treaty. I hope that it will be accepted as objective information for the public and that it will help people to understand and to discuss the very important matters with which it deals.

 

COMMENT: The intention is very good. But the result will always depend on the eyes that see. There is only one method of providing a description of the new Treaty in a fair way: Bring skilled and reputable persons from both sides together and produce a joint document. This has been done in Denmark several times in connection with EU Treaties. When the two sides disagree on an issue, they simply explain the different interpretations and that is fair towards the two ways of seeing or interpreting what is being proposed.

 

I wish to express my appreciation for the work done by the Forum’s Secretariat and all those who helped prepare this publication.

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BACKGROUND TO THE TREATY

 

The fundamental rules and institutions of the EU are set out in treaties agreed among the Member States. As the EU developed and responded to changing circumstances over the past 50 years, the process of change to these rules and institutions required a series of treaties.

 

The most recent Treaty to come into effect, the Treaty of Nice, made changes to the EU institutions prior to the accession of ten new Member States in 2004.

 

After the Treaty of Nice, the Eurpean Council adopted a Declaration which posed a series of targeted questions on the future of the Union, around four main themes: the division and definition of powers, the simplification of the treaties, the institutional set-up and moving towards a Constitution for European citizens.

 

COMMENT: The European Council also suggested the possibility of repatriating some powers from the EU to the Member States, but nothing like that eventuated.

 

One year later, the Convention on the Future of Europe was established to consider the key issues for the future development of an enlarged EU and to identify the various possible responses.

 

The Convention was made up of 2 05 members (COMMENT: and substitutes) headed by its President, Val�ry Giscard d’Estaing, former President of France. Its members were representatives of Governments and national parliaments from EU Member States and the then candidate countries, together with representatives of the European Parliament and the European Commission.

 

The Convention on the Future of Europe completed its work in July 2003 when it presented its “Draft Treaty establishing a Constitution for Europe” to the Council of Ministers.

 

COMMENT: The Convention also presented a Minority Report to the Prime Ministers, signed by John Gormley TD, the former British Minister for Europe David Heathcoat-Amory, Danish veteran MEP Jens-Peter Bonde and others.

 

Negotiations seeking agreement on the draft European Constitution began with an Inter-Governmental Conference (IGC) in October 2003 and were completed in June 2004 during Ireland’s EU Presidency when all elements of the proposed European Constitution were agreed.

 

The European Constitution sought to consolidate all previous treaties in a single text and to make significant changes. The European Constitution could only come into effect if and when ratified by all Member States.

 

Before Ireland proceeded with its referendum on the European Constitution, referendums in France (May 2005) and in the Netherlands (June 2005) resulted in “No” votes.

 

COMMENT: 55 % of French voters said No in spite of a recommendation for a Yes by 90 % of the members of the French Parliament. 62 % of the Dutch voters said No in face of a recommendation from 80 % of the Dutch National MPs.

 

In response, the European Council called for a “period of reflection”, during which a broad debate would take place in each Member State, involving citizens, civil society, social partners, national Parliaments and political parties. This period was used by the National Forum On Europe as a period, not only of reflection, but also of engagement.

 

In March 2007, Heads of State and Government of the European Union met in Berlin and adopted a Declaration on the 50th Anniversary of the Treaty of Rome, which laid the foundation for today’s EU. In the Declaration, the leaders of Europe were “united in our aim of placing the European Union on a renewed common basis before the European Parliament elections in 2009″.

 

The German Presidency presented a report at the June 2007 European Council based on extensive consultations with Member States about the future of Europe. In response, the European Council agreed a detailed mandate for an Inter-Governmental Conference (IGC) to prepare a new Treaty. The IGC was asked to draw up a Treaty amending the existing European Treaties with a view to enhancing the enlarged EU’s

 

– efficiency and democratic legitimacy, and

– the coherence of its external action

 

The IGC mandate provided that the new Treaty would be based upon the existing Treaties and it would not have “constitutional characteristics”.

 

COMMENT: This meant that the title “Constitution” was no longer used and the word “constitution” would no longer appear in the text of the amended treaties. However, the legal effect would be to implement indirectly rather than directly virtually all the provisions of the original EU Constitution.

 

The Lisbon Treaty establishes or constitutes a legally new European Union, with its own full legal personality for the first time (Art.47 TEU) and a unified constitutional structure, which would take over and replace the European Community that we are currently members of and have been since 1973. This post-Lisbon EU would be constitutionally very different from the European Union that we are currently members of, which was established by the 1992 Treaty of Maastricht. This important constitutional change is evident from the first sentence of the Constitutional Amendment which the Irish people are being asked to insert into the Irish Constitution in June. This would permit the State “to be a member of the European Union established by virtue of that Treaty”, i.e. the Treaty of Lisbon – not the Treaty of Maastricht. This sentence clearly indicates that the Treaty of Lisbon would establish or constitute a new European Union which would be constitutionally very different from the present one. That is why the Lisbon Treaty would give the EU its own Constitution after all, although it would do so indirectly rather than directly � the latter having been the case with the rejected 2004 Treaty Establishing a Constitution for Europe.

 

The mandate specified a number of other ways in which the new Treaty would differ from the Constitution but, otherwise, the new Treaty would incorporate almost all the other innovations proposed in the European Constitution.

 

The final text of the Treaty drawn up by the IGC was approved i the margins of the informal European Council in Lisbon on 18-19 October and signed on behalf of the Member States on 13 December 2007. The signing of the Treaty will be followed by ratification processes in all 27 countries. The new Treaty could come into force as early as 1 January 2009 but it will not come into force unless and until it is ratified by all 27 Member States.

 

COMMENT: The negotiations on the Lisbon Treaty were mainly done by appointed civil servants from the Member States. The negotiations and the working documents from the negotiations were confidential and have still not been delivered to members of the European Parliament. The Prime Ministers also decided among themselves to avoid referendums in all member states except Ireland. They renumbered the Treaty articles four times and refused to make available cross-references between the numbers.

 

They decided that a Consolidated Version of the EU Treaties as amended by the Treaty of Lisbon could not be provided by the Commission Legal Services before the Treaty had first been ratified by all 27 Member States.

 

Ireland’s Institute of European Affairs, the Danish Parliament and some other private interests did it anyway and the Council has now finally decided to facilitate Reader-Frinedly editions of the Consolidated EU Treaties as they would be if amended by the Treaty of Lisbon. The Lisbon Treaty was ratified by the Hungarian Parliament on 17 December 2007, before its members had received the final edition of the Treaty. A �Reader-Friendly Edition of the Consolidated Treaties� as they would be if amended by the Lisbon Treaty, edited by Jens-Peter Bonde, is now available on the internet at EUABC and bonde.com

 

 

SUMMARY GUIDE

 

– Introduction

– Some Key Points of the Treaty

– Structure of the Treaty

– Values and Objectives

– EU Institutions

– EU Powers and Decision-making

– Decisionmaking

– Enhanced Cooperation

– Common Foreign and Security Policy

– Freedom, Security and Justice

– Charter of Fundamental Rights

– Changes in Economic Governance Field

– Procedure for Future Amendments

– Clauses of General application

– Adoption, Ratification and Entry into Force

of the Treaty of Lisbon

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INTRODUCTION

 

In order to highlight the Treaty’s important features, the Summary Guide does not follow the lay-out of the Treaty but it aims to mention its key features. The Summary Guide does not offer a legal interpretation of the Treaty of Lisbon and where it mentions a specific Treaty provision, its account may omit some features in the interests of brevity.

 

COMMENT: Failure to provide a legal assessment of the constitutional significance of the Treaty is a fundamental omission from this “Summary Guide”. It prevents readers of the Guide from appreciating the profound constitutional change which the Lisbon Treaty would bring about in the EU, its Member States and in the political and legal status of the 500 million citizens of the post-Lisbon European Union.

 

Like its predecessor, the “Treaty Establishing a Constitution for Europe”, which the French and Dutch rejected in 2005, the Lisbon Treaty is a Constitutional Treaty which would give the EU its own Constitution indirectly rather than directly. It would do this by amending the two existing European treaties, the “Treaty on European Union” and the “Treaty Establishing the European Community”. It would rename the latter the “Treaty on the Functioning of the Union”. These amended treaties would then become the EU’s Constitution � the TEU and the TFEU.

 

Together they would give the EU the constitutional form of a supranational European Federation – in effect a State – which would be separate from and superior to its 27 Member States and would make us all real citizens of this entity for the first time. This constitutionally new European Union would take over and replace the existing European Community which Ireland has been a member of since 1973. It would also take within its scope governmental powers over crime, justice and home affairs, and foreign policy and security, which have hitherto been exercised by the Member States acting “inter-governmentally” , i.e. on the basis of retained sovereignty.

 

Endowed with this new unified constitutional structure, this post-Lisbon EU would interact as a State with the other members of the international community of States. It would sign treaties with other States in all areas of its powers, would make the majority of our laws each year and would possess all the key features of a State apart from the power to force its component Member States to go to war against their will.

 

The acknowledged omission of a legal analysis from the Forum�s “Summary Guide” means that this constitutional revolution in both the Union and its Member States goes unexplained and unremarked upon. It means that the “Summary Guide” fails fundamentally to give an accurate picture of the constitutional consequences of ratifying the Lisbon Treaty. These points are further elaborated on below.

 

The time-line attached to this Summary Guide shows the dates of each Treaty and other major EU developments, particularly the enlargements of the EU.

 

Some Key Points of the Treaty

* Qualified majority voting (QMV) will become the normal rule for the Council of Ministers. National vetoes will be removed in many areas(summary list in appendix);

 

* Decisions by qualified majority will require a “double majority” in the Council (55% of member states representing 65% of the EU’s population);

 

COMMENT: Ireland will have 0.8 % of the Council votes instead of 2 % today. Germany will have 17 % of the votes instead of 8 % today. France will have 13% as against 8% today and Britain and Italy will have 12% each as compared with 8% today.

 

* The European Parliament will gain co-decision power in many policy areas;

 

COMMENT: The European Parliament (EP) will increase its influence. But voters and members of National Parliaments will lose much more legislative power than is gained by the EP. The EP can only propose amendments and reject a proposal by an absolute majority of its members – that is, by half its total membership plus one. Only the Minority Report at the Convention offered the elected European Parliament real legislative power by requiring that all EU laws should also be supported by a majority in the European Parliament. The Lisbon Treaty gives more legislative powers to the non-elected Commission and the civil servants and Ministers in the Council of Ministers. It adds to the EU’s democratic deficit instead of reducing it.

 

* A European Council President will chair the European Council for up to five years;

 

COMMENT: The President of the EU will be decided on in secret negotiations between Prime Ministers from the biggest Member States instead of being elected as the American or French President is. France’s President Sarkozy has informally proposed Tony Blair as the first EU President.

 

* A High Representative of the Union for Foreign Affairs and Security Policy will combine two existing jobs – Vice-President of the Commission and High Representative for Foreign and Security Policy;

 

Comment: And he will have his own diplomatic service to serve him, separate from that of Member States, as in any sovereign State.

 

* The number of Commissioners will be reduced (each member State would have a Commissioner for two out of every three terms);

 

COMMENT: And the Member States will no longer be entitled to come up with a “proposal” for the person they want to be ae member of the Commission in the lucky periods of their representation, with the right to insist on that proposal being accepted. The Lisbon Treaty only allows a Member State’s Prime Minister to put forward “suggestions” as to who the national Commissioner should be. The previously appointed Commission President will decide WHO will be the Irish member of the Commission. Ireland will therefore lose the right to have its own Commissioner on the body which will have a monopoly of proposing new European laws and amending existing laws. The post-Lisbon Commission President will also be able to shuffle the jobs of the Commissioners at will and can require their resignation at any time, just as a national Prime Minister can do with his or her Government Ministers.

 

* The number of MEPs is set at a maximum of 750 plus the Parliament’s President (with a minimum of six and a maximum of 96 MEPs per country);

 

COMMENT: Ireland had 10 members when we started in the EU, against 36 for Germany. Now Germany will have 8 times our representation instead of 3 times. Ireland will have 12 MEPs and Germany 96 MEPs, making it very difficult for smaller Irish parties to be represented in Strasbourg and Brussels. The travelling circus between Brussels and Strasbourg will continue according to a Protocol to the Lisbon Treaty.

 

* National parliaments get the right to raise objections against draft EU legislation where national or local action would be more effective;

 

COMMENT: This right was actually introduced in September 2006. Up to December 2007 the right was exercised 152 times by different National Parliaments, particularly by the French Senate, the British House of Lords and the German Bundestag. The Irish Dail and Senate have only used this “yellow card” warning for a breach of subsidiarity and proportionality on just one occasion. The European Commission has so far not changed one single legislative proposal following thsee reactions from the National Parliaments. Under Lisbon the Commissioners are not obliged to follow the advice from the National Parliaments. Only 55 % of the governments can protest with the so-called “orange card” and block an EU law proposal. This addition has no legal value since the Council will always need 55 % of the Member States to pass an EU law anyway. So without this supposed improvement of subsidiarity a proposal can be blocked by 45 % of the member states! This also means that the representations of the Dail and 11 other national parliaments can be voted down by one single vote of the EU Council of Ministers.

 

* The EU is given a single legal personality;

 

COMMENT: This is done by Article 47 TEU. It means that – along with other legal changes made relating to the abolition of the European Community and the establishment of a unified constitutional structure for the post-Lisbon Union – the EU will acquire the constitutional form of a supranational State which is able to negotiate all kinds of international Treaties with other States and conduct itself as a State in the international community of States. It would make the post-Lisbon European Union separate from and superior to its Member States, just as Federal Germany is separate from and constitutionally superior to its L�nder, or as the Federal USA is separate from and superior to New York, Kansas and its other 48 states. The treaties which the new Union will agree will have primacy over all Irish laws. The decision to approve Treaties with other States would normally be decided by majority vote in a post-Lisbon EU, where Ireland can be voted down – including in politically sensitive issues.

 

* An exit clause provides procedures for Member States wishing to leave the EU;

 

COMMENT: This has no value for those of us who want to stay in the EU and to reform it. The existence of an exit clause does not prove that the post-Lisbon EU would not have the constitutional form of a sovereign State. There was a similar exit clause in the first Constitution of the old USSR! Such clauses have featured in the Constitutions of other Federal States that were established by national or regional states coming together and surrendering sovereignty to a higher federal entity. An exit clause was implicit in the original USA Constitution, although the attempt to exercise the right to leave led to the American civil war of the 1860s.

 

*Asylum, immigration, police and judicial co-operation will no longer have a separate status (”pillar”) but Ireland, with the UK, will have an opt-out/opt-in;

 

COMMENT: EU laws made by qualified majority voting would apply here. If Lisbon is ratified it would be the Government, not the Irish people by referendum, that would decide what to sign up to. Ireland can at present be legally obliged to deliver wanted persons to some continental EU countries where they can be kept in preventive detention for long periods without a trial – under the EU arrest warrant.

 

* Foreign and Security Policy is integrated with other areas of the EU but special procedures still apply, including unanimity for policy decisions;

 

COMMENT: Proposals from the new EU Foreign Minister to implement unanimously agreed general policy would be decided by majority vote, where neutral Ireland can be easily voted down.

 

*The Treaty maintains full respect for Ireland’s policy of military neutrality. It mandates member states to increase their own military capabilities with a view to increasing the capabilities available for the EU’s common Security and Defence Policy;

 

COMMENT: The Treaty does not mention Ireland, nor does it mention any policy of “military neutrality”. It does however contain a new commitment which is not in the existing Treaties, namely, that if a member of the EU is the “victim of armed aggression on its territory”, then all the Member States are under an obligation to come to its aid and assistance “by all means in their power� (Art.42.7 TEU). This is similar to the commitments found in such pacts as NATO and the Western European Union. This has been referred to as a “mutual defence clause” by Commission President Barroso and the Slovenian Presidency of the EU. After this new and quite specific collective commitment there follows a vague statement that this will “not prejudice” the specific character of some Member States’ policies, which the Irish Government takes as referring to “neutral” States like Ireland; but the new obligation to come to the assistance of any State that is attacked by all means in one’s power still remains.

 

* New challenges, such as climate change and energy solidarity, are recognised;

 

COMMENT: This is both good and bad. It is good to work in common regarding climate change Note that the action is �at international level�. It does not give the EU any new powers internally. Any internal actions on environmental problems would have to be reconciled with the EU’s rules on distorting competition, safeguarding the internal market and sustaining the energy market. The Minority Report proposal from John Gormley, Jens-Peter Bonde and others on joint regulation by minimum standards unfortunately was not carried in the Convention which drew up the EU Constitution. At present environmental regulations regarding climate change and energy may seek total harmonisation, which forbids member states from improving their own standards and taking special initiatives regarding climate change.

 

* A new protocol is added on services of general interest, including economic services of general interest;

 

COMMENT: This Protocol provides little protection against Commission efforts to transfer the provision of many parts of such traditional public services as social, health and education services to private contractors.

 

* The EU is given greater controls in the area of macro economic policy and additional tools to curb Member States with excessive budget deficits;

 

*New procedures for simplified Treaty revisions in certain specified areas

 

COMMENT: Article 48 TEU givse the 27 EU Prime Ministers the right to amend the treaties on their own. They can shift EU law-making from unanimity to qualified majority voting by unanimous agreement among themselves – the so-called “ratchet clause”, “escalator clauses” or “footbridges”/”passerelles”. New treaties would not be required for this to happen and there would be no need to ask the permission of Irish citizens in referendums, once permission had been given by ratification of the Lisbon Treaty. This is one way in which the EU could get control of taxes. It is true that in theory the Prime Ministers can be blocked by a majority in a National Parliament. But Prime Ministers will normally have simple majority support in their National Parliaments. This is no guarantee for the citizens or for a minority in a National Parliament to be heard. In the Dail there was virtual full support for the Nice Treaty, which was rejected by Irish citizens when they first voted on it in 2001. In the Netherlands 80 % of the MPs recommended a Yes to the EU Constitution, while 62 % of the voters said No. Look at how the 26 EU Prime Ministers are pushing through the Lisbon Treaty, and no National Parliament will be allowed to stop it.

 

* The Charter of Fundamental Rights is given Treaty status.

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STRUCTURE OF THE TREATY

 

The Treaty of Lisbon (EU Reform Treaty), if ratified by the Member States, will operate by amending the two treaties that embody the EU’s fundamental rules.

 

These are

– the Treaty on European Union (TEU) i.e. the Maastricht Treaty (1992), as amended;

 

– the Treaty establishing the European Community i.e. the Treaty of Rome (1957) as amended. Its title will change to the Treaty on the Functioning of the European Union (TFEU)

 

The new Treaty will change the format of both the existing Treaties.

 

The Treaty on European Union (TEU) will have six parts,

 

Title I – Common Provisions

Title II – Democratic Principles

Title III – Institutions

Title IV – Enhanced Cooperation

Title V – External Actions and Common Foreign and Security Policy

Title VI – Final Provisions

 

Title II on Democratic Principles and Title II on Institutions are new, although many of their provisions reflect existing rules, and the provisions on Freedom, Justice and Security have been moved to the Treaty on the Functioning of the European Union.

 

The Treaty on the Functioning of the European Union (TFEU), which will contain the detailed rules on the workings of the EU, will have the following format:

 

Part One – Principles

Part Two – Non-discrimination and citizenship of the Union

Part Three – Union Policies and Internal Actions

Parts Four – Overseas Countries and Territories

Part Five – External Action by the Union

Part Six – Institutional and Budgetary Provisions

Part Seven – General and Final Provisions

 

The bulk of the Treaty is contained in Part Three and Part Six. A notable change in the Treaty’s structure is the addition of Part Five dealing with the EU’s external action, which is linked to Title V of the Treaty on European Union (TEU).

 

The Lisbon(Reform) Treaty also contains a series of Protocols and a number of Declaration have been made regarding the Treaty. A number of these protocols and declarations are directly relevant to Ireland, particularly the protocol and declaration relating the Irish and UK opt-out on judicial cooperation in criminal matters and police cooperation (detailed below).

 

An important effect of the new Treaty will be to abolish the EU’s current structure of three “Pillars”. The First Pillar is based on the Treaty on the European Community, which includes the Single Market. First Pillar decisionmaking normally involves a proposal from the Commission with a qualified majority vote in the Council. The role of the European Parliament depends on the nature of the proposal.

 

The Second Pillar deals with the Common Foreign and Security Policy while the Third Pillar deals with Police and Judicial Cooperation in criminal matters. The second and third pillars have inter-governmental procedures with national vetoes for most decisions and a limited role for the European Parliament.

 

The Treaty would abolish this inter-governmental pillar system while retaining special voting procedures for the Common Foreign and Security Policy.

 

The nature of the European Union’s Second and Third Pillars has given rise to questions about its legal status. Under the new Treaty, the European Union replaces the European Community and the existing European Union with a single legal personality with treaty-making powers.

 

COMMENT: The paragraphs above and the somewhat arch reference in the last one to “questions about the EU’s legal status” is the nearest the “Summary Guide” gets to hinting at the constitutional revolution which the Lisbon Treaty would bring about in the EU itself and in its Member States.

 

For the legal effect of abolishing the aforesaid three ” pillars”, abolishing the existing European Community, and giving legal personality and a unified constitutional structuer to the new Union that would take over from it, would be to give the latter entity the constitutional form of a supranational European Federation. Only a State, in this case the new Federal EU, can sign treaties with other States, have its own citizens, have its own foreign policy, diplomatic corps, embassies, Public Prosecutor etc. and make most of the laws for its component member states, for it would have constitutional supremacy over them in all areas of its powers.

 

What we call the European Union at present is not a State and does not even have full legal personality, although the European Community does. By abolishing the existing European Community, replacing it with a legally new European Union which has its own full legal personality and distinct corporate existence for the first time, and by widening the powers of this new Union to encompass the previously “inter-governmental” areas where Member States have hitherto retained their sovereignty, a supranational EU Federation would effectively be constitutionally established, although the words “federal” or “federation” would not be used.

 

The Lisbon Treaty would then make us all real citizens of this new Federal EU, owing obedience to its laws and loyalty to its authority and we would no longer be just notional or nominal EU “citizens” as up to now.

 

Under the present EU Treaties citizenship of the EU is stated to “complement” national citizenship, the latter being clearly primary, not least because the present EU is not a State and is not even a legal entity to which individuals can belong. The Lisbon Treaty changes this wording and provides that citizenship of the new Union would be “additional to” Irish citizenship.

 

This would be a real dual citizenship – not of two sovereign states, but of the Federal and local National levels of the new Federal EU. We would still remain citizens of our National States, just as citizens of Federal Germany and the Federal USA are also citizens of Bavaria, Brandenburg, Texas, Kansas etc. , but our national citizenship would no longer refer to citizenship of an Irish sovereign State. It would refer rather to our membership of the lower tier of the new supranational Federal EU.

 

As real citizens of this constitutionally Federal Union for the first time, we would owe it the normal citizens’ duty of obedience to its laws and loyalty to its authority. This would be superior to our duty to our own country and State in any case of conflict between the two, as the EU’s authority would be constitutionally superior.

 

We would still retain our national Constitutions, just as the local states of the USA retain theirs, but they would be subordinate to the Federal EU Constitution in any case of conflict between the two. The Irish constitutional amendment that would be needed to ratify the Treaty of Lisbon would explicitly recognise this subordination in its text.

 

The same name, The European Union”, would be used before and after the ratification of the Lisbon Treaty, but the constitutional reality of the Union and of its Member States, would be fundamentally transformed.

 

This is a way of bringing about a European Federation, and making us all real citizens of it, without most people noticing or thinking that it matters much. Afterwards, however ,it would be a different story, when people would be faced with the reality of what has happened. The Forum on Europe’s “Summary Guide” gives its readers no inkling of these changes. This is because those drafting the “Summary Guide” decided to provide no legal analysis of what is in effect an EU Constitution.

 

This post-Lisbon EU Federation would be run on most undemocratic lines, without its laws being made by people who are elected to make them, whether in the European Parliament or National Parliaments. If an EU Federation were to be run on normal democratic lines, there are many who would welcome it. But that is not on offer through the Lisbon Treaty.

 

VALUES AND OBJECTIVES

 

Drawing largely on the provisions in the European Constitution, the Reform Treaty sets out the values on which the EU is founded and which are common to the Member States.

 

In a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail, these values are

 

– human dignity,

– liberty,

– democracy,

– equality,

– the rule of law, and

– respect for human rights, including the rights of persons belonging to minorities,

 

While the Reform Treaty does not adopt the Constitution’s preamble, it does add a paragraph from the Constitution to the existing TEU Preamble on the values which have developed from Europe’s “cultural, religious and humanist inheritance”.

 

Article 3 of the Treaty on European Union will set out the basic aim of the EU – “to promote peace, its values and the well-being of its peoples” – and a set of overall objectives for the EU.

 

COMMENT: This statement of objectives is important because the Treaty would allow the post-Lisbon EU to raise its own resources and adopt a variety of other policies geared to attaining the Union’s objectives. The Treaty also contains a so-called “Flexibility Clause” (Article 352 TFEU) which would allow the Union to take whatever steps are needed for it to attain its objectives, even if these are not explicitly set out in the Treaties.

 

The Charter of Fundamental Rights, which sets out the civil, political, economic and social rights recognised by the EU, is given Treaty status by the Treaty of Lisbon. (Details below).

 

COMMENT: These rights would not only be “recognised”, they would also actually be decided on by the EU Court of Justice in Luxembourg, instead of, at present, Ireland’s Supreme Court and, in some areas, the Court of Human Rights in Strasbourg, a court which is quite separate from the EU, although it is envisaged that the post-Lisbon EU would sign the European Convention on Human Rights, as all its Member States have done.

 

Membership of the EU

 

In considering any application for membership of the EU, the new Treaty requires the conditions of eligibility agreed upon by the European Council to be taken into account. This refers to the “Copenhagen criteria” which are:

 

– stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and, protection of minorities;

 

– the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union;

 

– the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

 

Voluntary Withdrawal

 

The Treaty of Lisbon introduces a procedure for voluntary withdrawal from the EU. Should a Member State decide to withdraw, it would notify the Council of its decision. The EU would then negotiate an agreement with the Member State concerned, detailing the arrangements for the withdrawal and outlining the relationship between the Member State and the EU after withdrawal. That agreement would be concluded on behalf of the EU by the Council, acting by QMV, after obtaining the assent of the European Parliament. The withdrawing State would not participate in the Council’s discussions or decisions concerning it.

 

COMMENT: The Constitutions of several classical Federal States have provisions of this kind permitting voluntary withdrawal from the Federation. The first Constitution of the former USSR had such.

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EU INSTITUTONS

 

The Treaty adds both the European Council and the European Central Bank to the existing institutions of the European Union. These institutions are designed to promote the EU’s values,and to advance its objectives and interests The EU wil therefore be served by the following seven institutions working in co-operation:

 

– The European Parliament,

 

– The European Council,

 

– The Council,

 

– The European Commission,

 

– The Court of Justice of the European Union,

 

– The European Central Bank,

 

– The Court of Auditors.

 

Detailed arrangements for the working of each institution are set out in the Treaty on the Functioning of the European Union (TFEU)

 

The European Parliament

 

The new Treaty gives the European Parliament a significantly enhanced role. The Parliament will exercise legislative and budgetary powers jointly with the Council and it will exercise functions of political control and consultation as laid down in the Treaties.

 

COMMENT: The European Parliament would be able to propose amendments to EU laws coming from the Commission and the Council of Ministers in the new areas of law-making which Lisbon would remove from National Parliaments to the supranational EU level. But the increased influence for the European Parliament would not compensate National Parliaments and the citizens that elect them for their loss of power to decide.

 

The Parliament will elect the President of the Commission (at present, its assent is required for this appointment)

 

COMMENT: The 27 Prime Ministers would decide the candidate to be voted on. If the Parliament rejects one candidate the Prime Ministers would nominate another. The European Parliament cannot decide on and elect a name of their own.

 

It will have a maximum of 750 members plus its President (compared to 732 (COMMENT: 785) normally at present). Each Member State will have at least six Members of the European Parliament(MEPs) and no Member State will have more than 96. Within these limits, national representation will be broadly in proportion to population, but with more favourable treatment for the smaller Member States.

 

COMMENT: In the USA all 50 states are equal in the Senate with two senators each and then unequal in the House of Representatives, to which people are elected on a population basis. Under the Lisbon Treaty we will vote according to the number of citizens in BOTH legislative chambers, the Council of Ministers and the European Parliament. When we started in the EU in 1973, Germany had three times Ireland’s representation in the European Parliament. Under Lisbon Germany will have eight times. In the Council of Ministers Germany and the Big States used have three times Ireland’s vote when we joined the original EEC in 1973. . Currently they have four times – 29 votes as against 7. Under Lisbon they will have 15 to 20 times our influence in the Council because of their population size. We are all willing to make sacrifices by reducing our voting influence on the Council of Ministers to take account of the enlargement of the EU to 27 States or more. But why should we sacrifice so much voting influence for the benefit of the biggest Member States? In the German upper chamber, the Bunderat, Rheinland-Westphalia with 18 million citizens has 6 seats and Saarland with one million citizens has 3. Germany would never allow the unequal representation in its own “Bundesrat” which it is now seeking to impose on the rest of us in the EU.

 

Under the Nice Treaty, seats were allocated to take account of the new Member States. Ireland was allocated 12 seats but received an additional temporary seat because Bulgaria and Romania did not join in 2004. The European Council recently agreed on an allocation of seats, based on a proposal by the Parliament, for the 2009 elections. Ireland will have 12 seats – the same number as provided for under the Nice Treaty.

 

COMMENT: Denmark has 5.4 million citizens and will have only 13 seats. In the long run more Member States will join the EU and will reduce the number of our MEPs, since there will now be a maximum of 751 seats instead of the 785 today. Ireland and Denmark and other small member states will then be reduced from their current 12 or 13 members. With expected EU enlargements in the Balkan we will soon come down to 11. When the negotiations on Turkey are finished, we may be under 10.

 

The European Council

 

The European Council gives the EU its political direction and sets its priorities. It is made up of the most senior political representatives of the Member States – Prime Ministers and Presidents with executive powers. The President of the European Commission is also a member of the European Council. The European Council, which does not have power to make laws, will make its decisions by unanimity.

 

COMMENT: No, by “consensus”. A proposal to write “unanimity” into the Treaty was rejected in the Convention that drew up the original EU Constitution. What “consensus” means needs to be defined. An Irish Prime Minister will have difficulties in blocking a decision if he is alone, for example, on a sensitive issue like taxes. Why was the tax issue on the official working programme of the Commission for this year and why was it suddenly moved until after the Irish referendum?

 

As a formal Union institution for the first time, the decisions of the Prime Ministers and Presidents at the European Council “summits” and their failures to act, would be subject to review by the EU Court of Justice. Moreover, if Lisbon is ratified, thereafter the members of the European Council would be constitutionally bound to represent the Union interests in their deliberations rather than the interests of their particular governments or countries in whatever they decide – or at least to give priority to general Union interests if these conflicted with national interests.

 

The Treaty creates a new position of “President of the European Council” who will chair its meetings, drive forward its work and represent the EU abroad at the highest level.

 

This new position will replace the current system where the European Council is chaired by the Member State holding the rotating six-month Presidency of the EU. The European Council will meet at least four times a year (which is the current practice although it is only required to meet twice a year).

 

The European Council will elect its President by a qualified majority vote for a term of two-and-a half years, renewable once (i.e. a maximum of five years). This term can be ended by the European Council in the event of an impediment or serious misconduct. The President of the European Council cannot hold any national position – a serving Prime Minister or Head of State, for example, could not hold this post.

 

COMMENT: The European Council “summit” meetings would be central to the Federalist structure of the post-Lisbon EU. There is no gathering of Heads of State or Government in any other international context which maintains the same president or chairman for several years while individual national Prime Ministers and Presidents come and go.

 

The Council

 

The Council, which is made up of government ministers representing the Member States, will be the key decision-making body, along with the European Parliament

 

COMMENT: In practice 85 % of all European laws are decided in 300 secret working groups under the Council. MPs, MEPs and the public have no access which would enable them to follow this legislative process. .Only contentious issues where agreement cannot be reached lower down tend to come up for decision at Council meetings.

 

Under the new Treaty, the Council will continue to be made up of one Government Minister from every Member State.

 

The European Council will decide on what will in future be the other council formations, e.g. agriculture Ministers, environment Ministers, etc. . However, a new post, the High Representative of the Union for Foreign Affairs and Security Policy, is being created to permanently chair the Foreign Affairs Council.

 

The High Representative of the Union for Foreign Affairs and Security Policy would also represent the EU in the political, diplomatic, trade and aid arenas. This post will replace the two people who cover these areas now – as Vice-President of the Commission, for the trade and aid aspects, and secondly, reporting to the Foreign Affairs Council on the political and diplomatic aspects.

 

A new European External Action Service (an EU Diplomatic Corps) will be established to support the High Representative’s work.

 

The Presidency of the other Council formations will be held by Member State representatives on the basis of strict rotation (currently, the Presidency rotates every 6 months; there are plans for a team system with three Member States sharing the Presidency for an 18 month period).

 

The Council will have a new voting system (see section on Decision-Making) and will meet in public when it is considering or voting on legislation.

 

COMMENT: The existing system, with the Council acting as a rubber stamp for secret committee meetings among its working groups, would continue. A proposal to change this was not adopted in the Convention. The TV cameras will be brought in to film the final signing ceremony for major EU laws. That will be represented as deciding things in public.

 

The European Commission

 

The Commission is intended to represent the interests of the EU as a whole

 

COMMENT: Traditionally the Commission was regarded as being especially important for safeguarding the interests of the smaller Member States. The Commission has a monopoly in proposing new laws and it decides most EU rules on its own. Therefore it is very important for small Member States to have their own representative on the Commission, even though formally and legally speaking, EU Commissioners are not national representatives and are supposed to consider the general interests of the Community/Union at all times. In practice national governments need daily contact with their national Commissioner on a lot of issues. Even more importantly, small and medium-sized companies and smaller countries such as Ireland need day-to-day connections with the 12 or so Irish citizens who make up the cabinet of the Irish Commissioner.

 

If money has not arrived, say, for a project locally in Ireland, it is very difficult to call a French or Slovenian bureaucrat and ask them why. It is much easier to call an Irish citizen who knows about Limerick or Donegal.

 

The Lisbon Treaty effectively abolishes the system of national commissioners. A commissioner of Irish nationality will be in the system on rotation for ten years out of every 15, but it will not be a Commissioner of our own choice. Under Lisbon the Irish Commissioner will be a helper for the Commission President and not a servant for Irish voters. The Commission President will select the Irish Commissioner on the basis of “suggestions” made by Ireland. Thereafter the Commission President will be able to shuffle and reshuffle the Commission portfolios and require the resignation of a Commissioner if desired at any time – just as a national Prime Minister deals with his or her Cabinet Minister.

 

The Commission:

– is the only EU institution with the power to initiate the laws on which the European Parliament and Council have to take a decision;

 

COMMENT: It is the Council of Ministers which primarily decides EU laws by means of qualified majority voting if matters are pushed to a vote. The European Parliament lacks the most essential feature of any normal Parliament, for it cannot propose or initiate any European law. It can only propose amendments to draft laws that come from the Council and Commission. The Parliament has an outright power of vetoing a draft law by absolute majority of its members – i.e. half of 750 plus . This rarely happens, for usually the Parliament welcomes more supranational laws anyway and works closely with the Commission regarding laws. In all normal democracies laws are approved by a majority of the elected members of parliament present at a session.

 

– Administers the budget and manages the Community programmes;

 

– Seeks to ensure that EU treaties, laws, rules and decisions are complied with’

 

– Negotiates for the EU in the international trade and aid areas;

 

– is independent from and does not seek instructions form any government or other body

 

All this would continue but there will be important changes to the Commission’s membership.

 

Currently,

– each of the 27 Member States has one of its nationals as a Commissioner;

 

– the Council of Ministers, meeting at the level of Heads of State or Government, nominates the Commission’s President-elect, deciding by QMV;

 

– the Council of Ministers, again by QMV, agrees the list of Commissioners nominated by the Member States;

 

– the full nominated Commission is submitted to the European Parliament for a vote of approval.

 

Under the Treaty, the system would change from November 2009. The Commission would be made up of one national from each Member State, including its President.

 

– the President of the Commission would be nominated by the European Council, acting on the basis of QMV, and elected by the European Parliament

 

The High Representative of the Union for Foreign Affairs and Security Policy will also be a Vice-President of the Commission.

 

And from 2014:

 

The Commission would comprise a number of members corresponding to two-thirds of the Member States (unless the European Council, acting unanimously, decides otherwise). The Commissioners will be selected on the basis of equal rotation between Member States. In effect, each Member State would have a national serving as Commissioner for ten years out of every fifteen.

 

Once this new system takes effect, for the first time, the European Parliament would be entitled to elect or reject the nominee for Commission President. In the case of rejection, the procedure would be re-run with a fresh candidate. The European Council would have to take account of the results of the European Parliament elections (e.g. as to the relative success of different political groupings) when proposing a candidate for election as Commission President.

 

COMMENT: Under the new system proposed by Lisbon Ireland would have no one on the body that proposes all EU laws for five years out of every fifteen. Moreover, the Irish Commissioner would be selected by the incoming Commission President on the basis of “suggestions” from the Irish Government, whereas at present Ireland has the right to “propose” and in effect decide who the Irish Commissioner is.

 

The “Summary Guide” gives no indication of this important change. Neither does the Referendum Commission in the booklet on the Treaty which it has sent to all households. As regards the Commission President and the list of Commissioners, it is the 27 Prime Ministers and Presidents who would decide these. The European Parliament could reject their nominee for Commission President, in which case the Prime Ministers would present another name. The Parliament can ratify the nominees of the Prime Ministers, but it cannot decide these.

 

The Parliament would continue to have the legal right to approve or reject the proposed membership of the Commission, as a body.

 

The Commission would continue, at all stages, to take decisions by a simple majority of its members. The allocation of portfolios would be a matter for the Commission President, who could also reshuffle the Commissioners’ portfolios during its term of office.

 

COMMENT: The Commission President could also require the resignation of Commissioners, which effectively would give him full authority over them, similar to that of a national Prime Minister over his or her Cabinet.

 

The European Court of Justice(ECJ)

 

The Court of Justice of the European Union, comprising the Court of Justice supported by specialised courts, will continue to be the institution responsible for interpreting and applying EU law.

 

COMMENT: The Court also develops law. On 18 December 2007, five days after the Lisbon Treaty was signed, the Court decided in the Laval/Vaxholm case that it is legal to require workers from other Member States to work in Sweden, Ireland and elsewhere for the Irish minimum wage, but not for the standard going rate. All EU court verdicts are given sanction and approval by the Lisbon Treaty. Thus we would, for example, need a new Protocol to the Lisbon Treaty to be able to require foreign firms operating in Ireland to respect normal Irish salaries.

 

1. There will continue to be one judge appointed to the Court of Justice from each of the Member States (i.e. currently 27 judges). Under the Treaty, a panel of seven experts will scrutinize candidates for the Court of Justice;

 

2. Decisions amending the Court’s Statute or creating new specialised courts will now be made by QMV and co-decision;

 

3. The Court will have increased powers to impose fines on Member States for breaches of EU law;

 

4. There will be somewhat greater scope for actions to be brought before the Court of Justice, even if the plaintiff is not affected individually, as was a condition up to now.

 

5. The legal status of the Charter of Fundamental Rights under the Treaty will significantly increase the jurisdiction of the Court..

 

COMMENT: Under the Lisbon Treaty the EU Court of Justice in Luxembourg would become the final decider of our rights in all areas of EU law, including Member States when implementing EU law, instead of the Irish Supreme Court and the Court of Human Rights in Strasbourg, which ultimately decide our human and civil rights at present. If the EU obtains a full human and civil rights jurisdiction, expanding its existing jurisdiction in this area, it is going to be difficult in practice to insulate sensitive national rights issues from a common EU norm, as national law is generally required to conform to EU law, presumably in this area as in others. Commission proposals to enforce a common standard of rights across the EU are probable developments in time in the post-Lisbon Federal EU. Once people become real EU citizens legally and constitutionally and realise that fact, they are likely to expect no less.

 

European Central Bank (ECB),

 

The ECB is the central bank for Europe’s single currency, the euro. The euro is the official currency of the 15 EU Member States, including Ireland, that have introduced the euro since 1999.

 

The Treaty of Lisbon formalises the position of the ECB by making it an institution of the European Union. The Treaty also gives the ECB wider power to adopt measures concerning international aspects of monetary union

 

The European System of Central Banks (ESCB)

 

The ESCB comprises the ECB and the national central banks of all EU Member States whether or not they have adopted the euro.

 

The Euro Group, which comprises the Member States of the euro zone, is also given a formal status by the Treaty. The Euro Group can adopt a recommendation on whether a new Member State should join the eurozone.

 

Other EU Bodies

 

The Treaty also makes minor changes regarding the EU Court of Auditors, the two main EU advisory bodies – the Economic and Social Committee and the Committee of the Regions – and the European Investment Bank.

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EU POWERS AND DECISIONMAKING

 

The Treaty makes clear that it is the Member States who confer powers (competences) on the EU in order to attain objectives which they have in common. Powers not conferred upon the EU remain with the Member States and the Reform Treaty strengthens controls on actions where powers are not specifically granted to the EU.

 

COMMENT: These provisions are quite standard in classical Federal Constitutions, for example in the Constitution of the USA. They say little more than that the authorities at federal and national level of the EU shall each act in accordance with the treaties, law and constitution that give them their powers. They are nice words, but one should insist on an answer to this simple question: What areas of national law-making or policy-making can the EU not touch with either Treaty articles, horizontal principles, the EU Charter of Fundamental Rights or particular EU Court verdicts if the Lisbon Treaty comes into force?

 

Legal experts were asked this question at a hearing on the Lisbon Treaty in the Danish Parliament, but could not give one single example. The Dutch expert attending from the Netherlands State Council admitted there was not one single area of national competence or policy which would not be touched or affected in some way or other by the Lisbon Treaty.

 

Exclusive competence

The EU has exclusive competence in the some areas (i.e. only the

EU may legislate; Member States can only do so if empowered by EU or to implement EU legislation). The EU has exclusive competence for:

 

– customs union;

– competition rules necessary for the internal market;

– monetary policy (for the Member States whose currency is the euro);

– conservation under the common fisheries policy;

– common commercial policy;

– conclusion of certain international agreements

 

Shared competence

The EU will have shared competence with the Member States in the a wide range of other areas. Shared competence means that the Member States can take action if the EU does not act. If the EU takes action which is limited to some particular elements of the area (e.g. energy policy), Members States are free to take action on other elements of that area. The following are the principal areas of shared competence:

 

– internal market;

– social policy, for the aspects defined in this Treaty;

– economic, social and territorial cohesion;

– agriculture and fisheries, excluding the conservation of marine biological resources;

– environment;

– consumer protection;

– transport;

– trans-European networks;

– energy;

– area of freedom, security and justice;

– common safety concerns in public health matters, for the aspects defined in this Treaty.

 

The EU and the Member States will each have competence to carry out activities and implement programmes in the areas of research, technological development and space.

 

COMMENT: In relation to these areas of “shared competence” or power, the Treaty states that: “The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence”(Art.2.2 TFEU). This shows clearly that the exercise of competence or power in these areas by Member States is essentially subordinate or secondary to that of the EU, which would have priority in deciding what to do if it wishes to exercise its powers. This is because it would be the constitutionally superior entity vis-a-vis its national Member States.

 

In the areas of development cooperation and humanitarian aid, the Union will have competence to carry out activities but this does not prevent Member States from also having programmes in these fields.

 

The EU will have a specific coordinating role on Member States’ actions for:

 

– Economic policies;

 

-Employment policies;

 

– Social policies.

 

Supporting Role

 

In addition to areas where the EU has exclusive or shared competence, the EU will have competence to support, coordinate or supplement the actions of the Member States in the areas of:

– protection and improvement of human health;

– industry;

– culture;

– tourism;

– education, vocational training, youth and sport;

– civil protection;

– administrative cooperation.

 

COMMENT: If there is any conflict between EU law and national law in all the afore-mentioned areas EU law will prevail. Even the Irish Constitution will have to be ignored if it should be against a rule from the EU or a verdict from the judges in Luxembourg. The competence of Member States to govern on their own would always be limited by EU rules and principles.

New legal bases

 

The EU can only take action if it has a legal base in the Treaty.

 

COMMENT: This should be true, but is not respected. For example, the EU has no competence to decide on our hospitals and sickness care. In spite of that the European Commission has prepared a directive on access to health care. As the legal base they use the Treaty Articles on the internal market! This proposal has been put on the back-burner until after the Irish referendum. It would give rich Irish citizens the right to go abroad and have their health care abroad paid for by Irish taxpayers. Money would be taken by the public health services in Ireland and would then not be available for the many who cannot afford to go to another country for health care.

 

The EU also has a “rubber paragraph”, the so-called Flexibility Clause ( Art. 352.1 TFEU), which can be used to adopt all types of legislation that one might not think about today. This Article states that where the Treaty does not provide the necessary powers to enable the Union to attain its very wide objectives, the Council may take appropriate measures by unanimity. The Lisbon Treaty would extend this provision from the area of operation of the common market, where it currently applies, to all the new Union’s policies, directed as these would be to attaining the much wider objectives set out in the Lisbon Treaty. The Flexibility Clause has been widely used to extend EU law-making over the years and would undoubtedly be similarly used in the post-Lisbon context.

 

The Treaty of Lisbon provides new legal bases which would allow the EU to take action on:

 

– public health (such as disease prevention), in response to wider concerns affecting the safety of the general public;

 

– energy security;

 

– dealing with natural or man-made disasters;

 

– sport;

 

– space policy.

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DECISIONMAKING

 

The general rule will be that European legislation will be decided by the Council and the European Parliament interacting on an equal footing, on the basis of proposals made by the Commission. In the great majority of areas, only the Commission could put forward proposals. These arrangements are termed, in the Reform Treaty, the Ordinary Legislative Procedure.

 

There are a small number of exceptions. Foreign policy is one such area where separate, specific decision-making procedures will apply.

 

Another important exception relates to

– judicial co-operation in criminal matters;

– police co-operation

 

In these areas, legislative proposals can be made by Member States numbering at least one-quarter of the total (currently, seven Member States).

 

The new Treaty changes the procedures under which the EU budget will be adopted by the European Parliament and the Council.

 

Principles That EU Law-Making Must Respect

 

The new Treaty and protocols attached to it significantly strengthen certain principles first set down in earlier treaties and streamline how decisions would be made.

 

The use of EU powers is governed by the principles of subsidiarity and proportionality. The Reform Treaty elaborates on these principles and adds control mechanisms.

 

COMMENT: The principle of subsidiarity has not prevented 84 % of all German laws now coming from the EU rather than from the German Bundestag, according to an article last year by former German President Roman Herzog. The majority of Ireland’s laws now come from the EU, probably around two-thirds – exact figures are not available. These would include statutory instruments as well as primary legislation.

 

The Commission has applied the system of subsidiarity check for more than a year now without taking notice of the expressed concern of several National Parliaments in relation to a single issue, by altering the law proposal that has attracted objections.

 

Under the principle of subsidiarity, the EU acts only where its objectives could not be sufficiently achieved by the Member States, whether at central, regional or local level, but could be better achieved at EU level.

 

Clearly, this principle relates to cases where either the EU or the Member States could act – and not to areas where the EU has exclusive powers.

 

Under the principle of proportionality, the type and substance of EU action should not go any further than what is necessary to achieve the aims of the treaties, e.g. a regulation should not be proposed where a recommendation would suffice: if a regulation is needed, it should only cover what is strictly necessary. A legally binding protocol lays down how these principles are to be applied in detail. Any disputes over the application of the principles would be decided by the European Court of Justice.

 

Democratic principles

 

The Treaty of Lisbon introduces new provisions regarding citizenship and representative democracy.

 

Every national of a Member State is also a citizen of the EU. This EU citizenship is additional to – not a replacement of – national citizenship.

 

COMMENT: The Summary Guide gives no explanation of what is meant by EU citizenship and what it entails in the line of rights and duties. By transforming the constitutional character of the Union, the Lisbon Treaty would transform the meaning of Union citizenship. Lisbon would replace the word “complement” in the sentence: “Citizenship of the Union shall complement national citizenship,” so that the new sentence would read: “Citizenship of the Union shall be additional to national citizenship and shall not replace it. (Art.9 TEU).

 

This would for the first time give the 500 million inhabitants of the present EU Member States a real separate citizenship from that of their national States. If there is a conflict between the rights and duties attaching to the two citizenships, the European Union citizenship would prevail because of the primacy of EU law over national law. The Lisbon Treaty deletes the word “complementary” citizenship and introduces a real dual citizenship with the word “additional”. So every citizen would have two citizenships after Lisbon.

 

One can only be a citizen of a State and all States must have citizens. What is referred to here is dual citizenship of two different levels of one State, not citizenships of two different States. Such dual citizenship is normal in Federal States, where sovereignty is divided between the Federal and regional or provincial levels of the same State – as, for example, citizenship of Bavaria vis-a-vis Germany or citizenship of Texas vis-a-vis the USA. The EU citizenship can develop into the politically most important status with time, and the content of the lower local citizenship can be gradually eroded away, as has happened in such classical Federal States as the USA and Germany.

 

Citizens are directly represented in the European Parliament while the Member States are represented in the European Council and in the Council by their governments which are in turn democratically accountable either to their national Parliaments, or to their citizens.

 

COMMENT: In theory, Yes. In reality, civil servants influenced by lobbyists run the major part of the EU’s legislative process without clear instructions from the accountable Ministers.

 

Under Lisbon the Members of the European Parliament would cease to represent “the peoples of the Member States brought together in the Community ” and would instead represent “the citizens of the Union”(Art.14.2 TEU; cf. current Art.189 TEC).. This is a further example of the Federal institutional structure which Lisbon would establish.

 

National Parliaments are given new functions in certain areas, particularly to ensure respect for “subsidiarity” and in any future revisions of the Treaties.

 

National Parliaments will be given at least eight weeks in which to consider any proposed EU legislation before it is put to the Council. National Parliaments will receive key documents such as Council agendas, Commission communications and the Commission’s legislative programme.

 

COMMENT: The eight weeks is a true improvement in relation to the six weeks given today. But it is only of value if the Dail will use it! The Dail has not used this system although it has already existed in principle for the past eighteen months.

 

National parliaments can vote to issue a ‘reasoned opinion’ on whether or not a Commission proposal respects the principle of subsidiarity. Each national Parliament has two votes in this system (the D�il and the Seanad will each have one vote). If at least one-third (currently 18) of such votes are issued, the Commission’s draft must be reviewed. However the Commission is not obliged to amend or reject the proposal.

 

COMMENT: In other words, it is entirely up to the Commission to decide.

 

In the case of proposals in the areas of judicial co-operation in criminal matters and police co-operation, the threshold is one-quarter of the votes (currently, 14).

 

If it chooses to maintain the proposal, the Commission will have to justify, in a reasoned opinion, why it considers that the proposal complies with the principle of subsidiarity.

 

If a majority of national parliaments oppose a Commission proposal as a breach of subsidiarity, and the Council or the European Parliament agree with them, then the proposal can be struck down These two levels of control, known as ‘yellow cards’ and ‘orange cards’, are set out in a special Protocol.

 

Comment: It is misleading to call this “control” by National Parliaments. It is a right to make representations to the Commission, but the latter retains full power to decide. The approval of 55% of national Governments is in any case required to make an EU law, so the opposition of half of the Parliaments is legally redundant.

 

As a last resort, national parliaments or Member State governments or, in cases relevant to its functions, the Committee of the Regions, would have the power to refer their concerns about any breach of subsidiarity to the European Court of Justice, for a binding ruling.

 

COMMENT: In which case it is of course the EU Court of Justice, not the National Parliaments, that would decide.

 

Provision is also made for a “Citizens Initiative” where at least one million citizens from a number of member States can invite the Commission to submit a proposal on any matter where citizens want legislation to implement the Treaties.The Commission is obliged to consider the proposal.

 

COMMENT: One million citizens have already signed a petition for getting rid of the travelling circus between Strasbourg and Brussels. The minority in the European Parliament who supported this petition was not even able to have a debate on the topic in the Parliament. More than one million citizens have already signed different petitions to have referendums on the Lisbon Treaty. The Prime Ministers and Presidents have however decided on no account to have them.

 

Changes In Decision-Making

 

Under the Treaty, there will be significant changes in how EU institutions make decisions.

 

The European Parliament is given co-decision powers in a number of additional areas.

 

COMMENT: This is not an “equal footing” between the Council of Ministers and the Parliament. The Commission has the monopoly to propose. The Council decides, mostly behind closed doors. The documents from the legislative meetings are not even available for MEPs. The European Parliament can then propose amendments. But the non-elected members of the Commission decide whether these amendments have a chance or not. It is only after so-called three “readings” that the European Parliament gets to approve compromise amendments on an equal footing with the Council.

 

The voting system in the Council would change from unanimity to QMV in further areas. A list of these areas is attached to this Summary Guide.

 

The Treaty also creates special procedures – detailed below – which would extend QMV and/or co-decision under the Treaty if the European Council so decides unanimously.

 

Until 2014, the definition of QMV in the Treaty of Nice would continue to apply. From 1 November 2014, a new definition of QMV would come into operation. From then on, a qualified majority, also known as “double majority”, would be defined as 55% of the members of the EU comprising at least 15 Member States representing 65% of the population of the EU. On the other hand, a proposal can only be blocked if it is opposed by at least four Member States (a blocking minority).

 

Currently, 255 votes are required out of a total of 345 votes (of which Ireland has 7 votes). The new “double-majority”, if applied now, would require support by

 

– 15 out of 27 Member States, and

– Member States representing a total population of 322 million, out of an EU total of 495 million.(Ireland currently has approximatel 0.85 per cent of the total EU population).

 

For a transitional period (from 1 November 2014 to 31 March 2017), a member State may request application of the current weighted voting system, instead of the double-majority system.

 

Under the new system, a group of states that cannot form a blocking minority can temporarily suspend a decision of the Council if the group represents at least 75% of the number of member States or 75% of the population needed to block a proposal. In that event, the Council will continue to discuss the proposal for a “reasonable time” .

 

From 1 April 2017, the 75% threshold will be lowered to 55% and this can be reduced to a simple majority by a decision of the European Council (i.e. by unanimity).

 

When not acting on a proposal from the Commission or the Minister for Foreign Affairs, a qualified majority would be defined as 72% of the Members of the EU representing 65% of the population of its Member States

 

The need for a unanimous vote will remain in almost 60 cases.

 

__________

 

ENHANCED CO-OPERATION

 

‘Enhanced co-operation’ is a set of arrangements which could have effect where some Member States, but not all, want to co-operate more closely in a particular area.

 

Enhanced co-operation, which currently requires one-third of Member States, will require at least nine Member States under the new Treaty and

 

– would have to be open, then and later, to all Member States;

– where it related to internal EU matters, external economic relations and humanitarian aid, would have to get the backing of the Commission, be approved by the Council and be accepted by the European Parliamen;

 

– where it related to common foreign and security policy, would have to be approved by the Council acting unanimously;

 

– could only be a last resort (where it is clear that the objectives in view could not be achieved by the EU as a whole within a reasonable timeframe;

 

-cannot be used with respect to areas of exclusive competence.

 

It would also have to

 

– avoid undermining the single market or regional policy in the EU;

 

– not be a barrier to, or lead to discrimination in trade between, Member States’

 

– not distort competition.

 

Under the new Treaty, the previous ban on enhanced co-operation being used in the security and defence area no longer applies.

 

COMMENT: Enhanced co-operation allows sub-groups of Member States to integrate further among themselves even though the others disagree. They could then present the rest with economic and political faits-accomplis. This represents a move away from the concept of the EU as a “partnership” which prevailed until the Nice Treaty. If Lisbon is ratified it is likely to be used by the Big States to push further with EU militarization and tax harmonisation.

 

___________

 

COMMON FOREIGN AND SECURITY POLICY (CFSP)

 

The Common Foreign and Security Policy (CFSP), which covers all aspects of foreign and security policy, is based on a separate chapter of the Treaty of European Union. CFSP currently forms a separate part of the EU’s, the so-called “Second Pillar”, which operates largely through intergovernmental decision-making. The new Treaty would abolish this separate “Pillar” ending its intergovernmental character but CFSP would have special decision-making rules. The EU’s action in the wider world will be guided by a set of principles which include democracy, the rule of law and respect for the UN Charter.

 

COMMENT: The Treaty allows the EU to go to war WITHOUT a mandate from the UN.

 

Decisions in regard to the Common Foreign and Security Policy would, in general, continue to be by unanimity. However, there would be two exceptions. Firstly, the Treaty specifically provides for the possibility of QMV where a particular decision relates to a policy previously decided at summit level or, alternatively, to details of implementation. But, even in these cases, a Member State could, for vital and stated reasons of national policy, veto any resort to decision by QMV.

 

COMMENT: This would allow for qualified majority voting for implementation measures in foreign policy and on proposals of the EU Foreign Minister (High Representative for Foreign and Security Policy)

 

Secondly, there is a general clause, under which the European Council could decide unanimously to transfer decisions from the unanimity to the QMV category in any Common Foreign and Security Policy domain, other than military and defence aspects (detailed below).

 

COMMENT: This is one of the several self-amending provisions of the Lisbon Treaty which obviate the need for new treaties or referendums in the area concerned. They are variously called “ratchet clauses”, “escalator clauses”, “footbridge clauses” or “passerelles”. Giscard d’Estaing styled them “the most novel feature” of his original EU Constitution, now embodied in the Lisbon Treaty.

 

Common Security and Defence Policy (CSDP)

 

The Common Foreign and Security Policy would enable the EU to draw on civil and military resources provided by the Member States to take part in missions outside its borders. These would be

 

– joint disarmament operations;

– humanitarian and rescue tasks;

– military advice and assistance tasks;

– conflict prevention;

– peace-keeping;

– tasks of combat forces in crisis management (including peacemaking and post-conflict stabilisation;

– to strengthen international security, in line with the principles of the United Nations Charter.

 

Such missions would only be authorised by a unanimous vote of the Council on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or a Member State.

 

The Treaty will, however, allow for those Member States with bigger military capabilities to commit to taking part together in the most demanding missions within the external tasks listed above.

 

This will be called “Structured Co-operation”.

 

Only Ministers of those Member States taking part in this arrangement would be allowed to debate and vote in the Council on any action proposed under this pact.

 

Member States would be bound to support the EU’s Common Foreign and Security Policy and not to impede its implementation. They would also have to consult each other or major foreign and security policy issues, especially before undertaking any actions or commitments that could affect the common interests of the EU.

 

In regard to defence within EU borders, the new Treaty also explicitly states that the security and defence policy will include the progressive framing of a common defence policy and that this “will lead to a common defence” when the European Council unanimously so decides.

 

Any such decision would have to be ratified constitutionally – which, should Ireland wish to participate in such a common defence, would require a ‘yes’ in a referendum. The Treaty does not amend the “Seville Declaration” on Irish neutrality made at the European Council in 2002.

 

Any policy in this area would respect the neutrality of Member States like Ireland, would respect the obligations of other Members States which are part of NATO and fit in with the security and defence policy established in that framework.

 

Pending any European Council decision to move to a common defence against external aggression, the Treaty provides for “Closer co-operation” between willing Member States on mutual defence – this would oblige those States to go to the aid of a fellow EU country which was a participant in such co-operation and came under armed aggression.

 

COMMENT: The Seville Declaration has no legal value under EU law, even if it may bind Irish governments morally in relation to their citizens.

 

Article 42.7 of the Treaty on European Union as amended by the Treaty of Lisbon would read: �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 means in their power in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States. Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.”

 

The current Slovenian EU presidency of the EU has referred to Article 42.7 as a �mutual defence clause�. Commission President J.M. Barroso also referred to it in a speech on the Treaty on 4 December 2007, stating: �It will introduce a mutual defence clause.�

 

The wording of this new clause inserted by Lisbon is very similar to NATO’s mutual defence commitment: The existing EC and EU Treaties contain no mutual defence clause. This is a new departure for the EU and would commit all Member States including Ireland. Whatever one thinks of the wisdom of this new departure, it deserves to be openly debated. Instead it is flatly denied by the Treaty’s champions in Ireland. The Forum on Europe’s “Summary Guide” does not discuss this sea-change in Ireland’s defence policy. There is instead a passing reference to the clause, suggesting that it only has relevance to certain EU States which are involved in something the Guide terms “Closer co-operation” – see the paragraph of the “Summary Guide” immediately above – a term that does not appear in this part of the Lisbon Treaty.

 

The European Defence Agency was established by the Council of Ministers in July 2004 with the aim of supporting the Member States and the Council “in their efforts to improve European defence capabilities in the field of crisis management and to sustain the European Security and Defence Policy as it stands now and develops in the future”. It is open to all Member States “wishing to be part of it” – all but Denmark have already done so.

 

COMMENT: Denmark is a member of NATO but has derogated from the common EU defence. Ireland is neutral, but takes part in all military decisions in the EU and in the new permanent military battle-groups which can go to war without a mandate from the UN. Ireland can then decide that no Irish soldiers will take part in military actions not approved by the UN. That is the Irish Government�s interpretation of �neutrality�.

 

The new Treaty introduces a new area of solidarity that would be expected of all EU members. The Solidarity Clause says that the EU and its Member States would act jointly in a spirit of solidarity if a Member State were the victim of a terrorist attack or a natural or man-made disaster

 

COMMENT: This is the solidarity clause from NATO and the Western European Union which is now inserted in the EU Treaties.

 

The EU would mobilise all its resources, civil and military, to:

 

– prevent the terrorist threat in the territory of the Member States;

 

– protect democratic institutions and the civilian population from any terrorist attack;

 

– assist a Member State in its territory at the request of its political authorities if a terrorist attack happened;

 

– assist a Member State in its territory at the request of its political authorities in the event of a disaster.

 

Precise arrangements for putting this clause into effect would be settled unanimously by the Council, on the basis of a joint proposal by the Commission and the High Representative of the Union for Foreign Affairs and Security Policy.

 

COMMENT: No. The “Summary Guide” is incorrect here. Unanimity would only be required where decisions under the Solidarity Clause have defence implications. Otherwise they would be taken by qualified majority vote.

 

The Treaty recognises that Member States may come to each other’s assistance in the face of armed aggression, in keeping with the UN Charter.

 

COMMENT: No. A proposal always to insist on UN mandates for EU armed actions was not approved in the Convention which drew up the EU Constitution now being implemented through the Treaty of Lisbon.

__________

FREEDOM, SECURITY AND JUSTICE

 

The European Union defines itself as an area of freedom, security and justice. In a Europe where people move freely across borders, police and judicial cooperation is required to protect people from terrorism and serious crime.

 

The new Treaty sets out to do this by including provisions that would

– give the EU more powers in the Justice and Home Affairs area;

 

– enhance the EU’s effectiveness in fields where it has already been active – external border control, visas, asylum and immigration, judicial cooperation in criminal matters and police cooperation;

 

– extend the EU’s field of action to the fight against serious cross-border crime, police co-operation, mutual recognition of decisions by courts and judges and the creation of a (sic) EU public prosecutor, with functions in defined areas.

 

The EU would

 

– ensure the absence of border controls inside the EU;

 

– frame a common policy, including passing legislative measures on asylum, immigration and control at the EU’s outside borders, based on solidarity, financially and otherwise, between Member States and also fairness to the people of countries outside the EU;

 

– promote and take measures to prevent and fight crime, racism and hatred of foreigners and for co-operation between police forces, prosecutors, courts and judges; and also by mutual recognition of judgments in criminal matters and, if needed, bringing Member States’ criminal laws closer together;

 

– promote access to justice, especially by mutual recognition of decisions in Member States in civil law matters.

 

Under the existing treaties, the EU can already act in the areas of police co-operation and judicial co-operation on criminal matters, but using inter-governmental co-operation methods,with a limited role of (sic) the Parliament and Court of Justice, rather than the normal ‘Community method’.

 

COMMENT: In other words, Member States at present retain their traditional sovereignty in the crime and justice areas and decide such matters unanimously among themselves. Under the Lisbon Treaty power to make laws in these areas would be handed over to the new Federal Union which the Treaty would establish in place of the existing European Community and which would exercise much wider powers than the Community does.

 

Under the new Treaty, the handling of these areas would be more in line with normal EU procedures, where the Commission makes proposals, the European Parliament and Council co-legislate on an equal footing (including qualified majority voting in the Council).

 

COMMENT: These are misleading words. “More in line with normal EU procedures” is not correct. The Commission making proposals and the Council of Ministers making laws by QMV is normal European Community, not Union, procedure. This misuse of words in the Forum�s �Summary Guide� is to avoid drawing attention to the fact that the Lisbon Treaty would replace the existing European Community with a constitutionally new Union with its own legal personality and a unified constitutional structure for the first time, and with real citizens owing obedience to its laws – a supranational Federation in effect – which would have powers over most areas of public life, in comparison with the much more limited powers exercised by the European Community today.

 

The legislation adopted will be subject to the scrutiny of the Court of Justice. One special feature: a quarter of Member States could propose a measure, in the same way as the Commission.

 

Ireland and the UK have special opt-out/ opt-in arrangements in this field (details below).

 

COMMENT: If the Lisbon Treaty is ratified, discretion to abide by EU laws in these areas would be with the Government and Government Ministers, not with the Irish Dail or the Irish people by referendum.

 

As regards judicial co-operation in criminal matters, the Council could set down minimum standards for the definition of offences and for penalties in regard to listed serious and cross-border offences – organised crime, terrorism, trafficking in human beings, sexual exploitation of women and children, drugs and arms trafficking, money laundering, counterfeiting, computer crime and corruption.

 

Under the proposals, the EU could also decide on criminal procedure, setting down minimum rules with regard to the rights of individuals in such procedure and the rights of victims – but adoption of such rules would not prevent Member States from maintaining or introducing a higher standard of protection for the rights of individuals.

 

COMMENT: EU laws to establish uniform criminal procedures raise the possibility of the EU deciding rules of evidence and matters affecting habeas corpus and trial by jury because of the well-known differences between Anglo-Saxon and continental justice systems � bearing in mind the latter’s provisions for preventive detention and inquisitorial magistrates.

 

Where a Member State considers that proposed legislation in this area would affect fundamental aspects of its criminal justice system, it may request that the proposal be referred to the European Council where consensus will be required for the proposal to proceed. If there is disagreement, Member States supporting the proposal can proceed by the “enhanced cooperation” mechanism. (A similar ‘emergency brake’ mechanism will apply to proposals on social security for migrant workers.)

 

The mechanisms for judicial co-operation in this field, such as Eurojust, would be strengthened but also, for the first time, made subject to evaluation by the European Parliament and national parliaments. At some time in the future, the Council could decide, by unanimous vote, to set up a European Public Prosecutor’s Office to track down and prosecute the perpetrators of, and accomplices in crimes affecting the financial interests of the EU, with the option of extending its powers to include serious crime having cross-border dimensions.

 

The Reform Treaty provides, for the first time, that Europol, too, would be subject to evaluation by the European Parliament and national parliaments.

 

Ireland’s Opt-out/Opt-In

 

The provisions of the Reform Treaty in the areas of criminal law and police cooperation are based on the proposals in the European Constitution which were agreed under the Irish Presidency. However, during the negotiations leading to the Treaty of Lisbon, the UK decided to exercise an opt-out in this area which created important implications for Ireland’s position, particularly as Ireland and Britain both have common law systems which are quite distinct from other European legal systems. In a situation where the UK has opted-out, Ireland would be acting alone in seeking to shape proposals to our take account of our legal practice and tradition. The opt-out arrangement includes a provision which allows Ireland (and the UK) to opt into future measures on a case-by-case basis. In a separate Declaration on these arrangements, Ireland has indicated its intention to opt-in to all such measures to the maximum extent it deems possible. Ireland also declared its intention to review the operation of these arrangements within three years (i.e. as early as 1 January 2012).

 

COMMENT: The key point here is that if the Treaty of Lisbon is ratified, the Irish people and Dail Eireann would no longer decide these matters, which go to the heart of traditional national sovereignty. Power would be given to the EU to decide and Irish Government Ministers would be able to opt in or opt out of the relevant EU laws on a case-by-case basis as they see fit.

____________

 

THE CHARTER OF FUNDAMENTAL RIGHTS

 

The European Union Charter of Fundamental Rights sets out the civil, political, economic and social rights recognised by the EU. The text of the Charter was the outcome of special Convention which met between 1999 – 2000 and comprised representatives of Member States’ Governments, National Parliaments, the European Parliament and the Commission.

 

The Charter gives the European Curt of Justice a new reference point on human rights but it does not add to the competences of the Court.

 

COMMENT: How is the last statement reconcilable with the earlier statement of the “Summary Guide”, when describing how Lisbon would affect the ECJ, that “The legal status of the Charter of Fundamental Rights under the Treaty will significantly increase the jurisdiction of the Court”? The EU has already got a human rights competence, in that the Court of Justice can adjudicate on such rights as equality and non-discrimination under the existing Treaties. Therefore making the Charter legally binding does not extend the powers or competence of the Union as such. What Lisbon would do would be to give the ECJ a much wider range of human and civil rights to interpret and decide on, for the Charter would cover all the rights of EU citizens in the post-Lisbon Union. The Court has laid down in several court cases over the years that National Law must be applied in ways that are consistent with EU law, for the latter has supremacy in any conflict between the two. This principle must logically apply to rights issues also. ECJ judgements on rights issues would override national provisions in any case of conflict between the two.

 

The text of the Charter was unanimously approved by the European Council in October 2000 and subsequently by the European Parliament and the Commission. The Charter was signed and proclaimed on behalf of all three institutions at the European Council in Nice (December 2000). It has been revised to clarify its scope and limits and was re-proclaimed by the EU institutions on 12 December 2007. The revised version of the Charter will take effect on the same day that the new treaty will enter into force.

 

COMMENT: “Will take effect” means that the Charter will become legally binding under EU law, which means that the EU Court of Justice in Luxembourg will consequently obtain a much wider human and civil rights jurisdiction which will enable its judges to decide our human and civil rights over the vast area of EU law instead of the Irish Supreme Court and the Court of Human Rights in Strasbourg, which decide these matters at present. It is remarkable that the “Summary Guide” does not explicitly state that the provisions of the Charter would enable the EU Court to decide our fundamental rights as EU citizens. In the post-Lisbon Union our rights as EU citizens would be legally distinguishable from our rights as Irish citizens. Instead the “Summary Guide” rather delicately states that the Charter “gives the Court a new reference point on human rights”. This failure on the part of the �Summary Guide� stems from its unwillingness to draw attention to the significance of EU citizenship in a post-Lisbon Union. That in turns stems from its failure to give a legal analysis of the constitutional change the Treaty would make in the post-Lisbon as compared with the pre-Lisbon EU.

 

The Treaty, while not incorporating the text of the Charter, gives the Charter the same legal value as the main Treaties.

 

COMMENT: “The same legal value” means that the rights set out in the Charter are supreme in EU law and are superior to rights set out in national law in any case of conflict between the two.

 

Nothing in the Charter is to be interpreted as restricting or adversely affecting human rights, as recognized by, for example, the Member States’ constitutions.

 

COMMENT: As real EU citizens post-Lisbon, our fundamental rights would be set out in the Charter and it would be open to the EU Court of Justice to interpret them and decide what they are in specific court cases in the years and decades to come. EU citizens would presumably expect no less in the post-Lisbon EU,

 

The Charter proclaims “the right to life” – but does life start with the birth, nine months later or somewhere in between? Should the EU Court be given power to decide this? The Charter refers to the right to strike – does that also cover civil servants? The right to strike does not cover the right to organise for increasing salaries above Ireland’s �8.50 minimum wage for workers from other Member States when they come to work in Ireland. This has already been decided by the EU Court in the so-called Laval/Vaxholm case adjudicated on on 18 December 2007. If there is a conflict between rights in the Irish Constitution and rights in the Charter as interpreted by the EU judges in Luxembourg, the rights in the Irish Constitution would have to give way and eventually not be respected.

 

It is quite on the cards that the EU Court would be asked to decide in specific cases what are EU citizens’ rights to life, rights to marry, to go on strike, to possess property, to have a fair trial etc. The ECJ could decide, for example, what the rights of the child are as EU citizens, and no one knows what it might decide in the years and decades to come. Ireland’s Abortion Protocol is part of the Treaty and that would seem to be adequate protection under EU law for the special Irish position in this area. But if the EU Court should decide in some future court case that there is a general EU citizens’ right to abortion, which is within the bounds of possibility, one could see a “conflict of rights” situation arising, which the Court would have to resolve. It is hard to imagine one group of EU citizens – those living in Ireland – having different EU citizens’ rights from EU citizens living outside Ireland. Rights would surely have to be uniform for all 500 million EU citizens. The EU Court of Justice would be the arbiter in all such conflicts.

 

The content of the Charter is broader than that of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (EHCR). It draws on the previous European Social Charters worked out by both the EU and the Council of Europe. While the ECHR is limited to civil and political rights, the Charter of Fundamental Rights covers other areas.

 

The Charter contains a preamble and 54 Articles, grouped in following chapters:

 

* Chapter I: Dignity, which includes:

– human dignity;

– the right to life;

– the right to the integrity of the person;

– prohibition of torture and inhuman or degrading treatment or

punishment;

– prohibition of slavery and forced labour.

 

* Chapter II: Freedoms, which include:

 

– the right to liberty and security;

– respect for private and family life, protection of personal data;

– the right to marry and found a family;

– freedom of thought, conscience and religion;

– freedom of expression and information;

– freedom of assembly and association;

– freedom of the arts and sciences;

– the right to education;

– freedom to choose an occupation and the right to engage in work,

freedom to conduct a business;

– the right to property;

– the right to asylum, and protection in the event of removal, expulsion or

extradition

 

* Chapter III: Equality, which includes:

– equality before the law;

– non-discrimination;

– cultural, religious and linguistic diversity;

– equality between men and women;

– the rights of the child;

– the rights of the elderly;

– integration of persons with disabilities.

 

* Chapter IV: Solidarity, which includes

– workers’ right to information and consultation within the undertaking;

– the right of collective bargaining and action;

– the right of access to placement services;

– protection in the event of unjustified dismissal;

– fair and just working conditions;

– prohibition of child labour and protection of young people at work;

– protection regarding the family and professional life;

– social security and social assistance;

– health care;

– access to services of general economic interest;

– environmental protection;

– consumer protection.

 

* Chapter V: Citizens’ Rights, which include:

 

– the right to vote and stand as a candidate at elections to the European Parliament;

– the right to vote and stand as a candidate at municipal elections;

– the right to good administration;

– the right of access to documents;

-Right of reference to the EU ombudsman;

– the right to petition the European Parliament;

– Freedom of movement and residence;

– diplomatic and consular protection.

 

* Chapter VI: Justice, which includes:

– the right to an effective remedy and a fair trial;

– the presumption of innocence and the right of defence;

– principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

 

* Chapter VII: General provisions

In general, the rights referred to apply to everyone. However, the Charter also refers to categories of persons with special needs (children, the elderly, people with a disability). Chapter V also deals with the specific situation of European citizens, referring to certain rights already mentioned in the treaties (freedom of movement and residence, the right to vote, the right to petition) and introducing the right to good administration.

 

COMMENT: In the post-Lisbon Union those belonging to the new category of real EU citizens would be entitled to be guaranteed all the rights referred to in the Charter, not just those attaching to people in the Community up to now, such as the right to free movement across borders, right to residence, right to set up a business, right to free movement of capital etc.

 

Recognising the changes that have occurred in society, the Charter includes not only the traditional rights (right to life, freedom of expression, right to an effective remedy), but also rights that were not included in the Council of Europe Convention of 1950 (data protection, bioethics). Using more modern language, in line with certain national legislation, it also recognises ways of founding a family other than marriage and no longer refers to marriage between men and women, but simply marriage, always recognising that this is a matter for each Member State.

 

COMMENT: If the Lisbon Treaty is ratified it would be for the EU Court of Justice to interpret the Charter in specific law-cases over the years and decades ahead. It is the ECJ that would decide what is a matter for each Member State to decide and what for the EU to decide in any case of dispute. The ECJ would have the last word, for the Lisbon Treaty would give it legal supremacy in this large area. It would in principle be able to decide the extent of its own competence under the Treaties.

 

The general provisions serve to establish links between the Charter and the European Convention on Human Rights and to determine the scope of the Charter. The Charter applies to the European institutions, subject to the principle of subsidiarity, and may under no circumstances extend the powers and tasks conferred on them by the treaties. The principles of the Charter also apply to the Member States (to central, regional and local authorities) when they are implementing Union law.

 

COMMENT: The limitation of the Charter to Union law is unrealistic (a) because the principles of primacy and uniformity of Union law mean that Member States would not only be bound by the Charter when implementing EU law, but also through the “interpretation and application of their national laws in conformity with Union laws”, as laid down in several well-known ECJ cases; and (b) the Charter sets out fundamental rights in areas in which the Union has currently no competence, e.g. outlawing the death penalty, asserting citizens’ rights in criminal proceedings etc.

 

One little-known aspect of the EU Charter of Fundamental Rights is that it would permit the use of the death penalty in times of war under EU law, even though all the EU Member States have banned the death penalty outright. This is done in one of the �Explanations� attached to the Charter to guide the EU Court of Justice in interpreting it. This relies on Protocol 6 of the European Convention of Human Rights, which allows the death penalty in time of war or threat of war, rather than on the alternative Protocol 13, which bans the death penalty in all circumstances, and which the Member States have signed up to. This has caused much controversy in Austria and Germany, although few people in Ireland are aware of it.

 

The EU will also accede to the European Convention on Human Rights, subject to the unanimous approval of the European Council and the completion of domestic ratification procedures by the Member States.

 

COMMENT: This is another example of the post-Lisbon Union acquiring the constitutional character of a State, for only States have acceded to the Convention on Human Rights. Protocol No.8 states that “accession of the Union shall not affect the competences of the Union or the powers of its institutions” – the latter including the Court of Justice. There would seem to be ample scope here for conflicts of jurisdiction as between the two Courts.

 

The rights under the Charter, as now incorporated, apply to every person in the EU except where it is stated that they are ‘citizens rights’ and thus apply only to those who are EU citizens.

 

CHANGES IN ECONOMIC GOVERNANCE FIELD

 

The Treaty proposes to strengthen the powers of the European Commission where Member States have excessive budget deficits. In the future, the Council would only be able to diverge from a Commission proposal concerning the existence of an excessive deficit, by unanimous vote, as opposed to the present situation where the Commission makes a recommendation which Finance Ministers do not have to accept.

 

The proposals also include a new set of articles specific to Member States which are part of the Euro area. A related protocol is annexed to the Reform Treaty, under which

 

– provision is proposed for specific economic policy guidelines for those Member States;

 

– provision is made for the Eurozone ministers to settle common positions on matters arising in international financial institutions and conferences that are relevant to the euro and its management;

 

– provision is made whereby the informal grouping of Eurozone Finance Ministers would have an elected President for a two and a half year period, replacing the rotation system that operated up to now.

A Protocol is added to the Treaty on “Services of General Interest” which indicates the shared values regarding services of general economic interest and makes clear that the competence of Member States is not affected by the Treaty in regard to non-economic services of general interest.

 

COMMENT: “Services of General Interest” is EU-speak for public services. This Protocol asserts that the EU will not apply internal market rules – viz. competition between state and private providers – to “non-economic services”. But nowhere in the Treaty are non-economic services defined. The Commission White Paper of November 2007 , however, draws on Court of Justice case-law to declare: “For a given service to qualify as an economic activity under the internal market rules the essential characteristic is that it must be provided for remuneration. The service does not have to be paid by those benefiting from it…In practice the vast majority of activities can be considered as ‘economic activities.’”

 

The Commission White Paper includes in this approach any element of a public service that can be outsourced. The Protocol provides little protection, therefore, against Commission efforts to transfer provision of many parts of state-provided services to private contractors – ranging through social, health, education and related services. This dovetails with the Commission’s drive to liberalise international trade in health, education and social services through the removal by the Lisbon Treaty of the veto by Member States on trade deals in these services.

_____________

 

PROCEDURE FOR FUTURE AMENDMENTS

 

The Treaty of Lisbon sets out two procedures for amending the EU Treaties, the “Ordinary Revision Procedure” which is equivalent to the traditional procedures, and the “Simplified Revision Procedures” which are limited in scope

 

The “Ordinary Revision Procedure”

 

The decision as to whether to examine any proposed amendments would be taken by the European Council, by a simple majority, after consulting the European Parliament.

 

If the European Council says “no”, that would be the end for the proposed amendment. If its answer were “yes”, its President would have to convene a Convention, with membership as inclusive as in the Convention on the Future of Europe (described above).

 

However, if they decided, again by a simple majority, that the proposed amendments were not important enough to warrant calling a Convention, it would be for an IGC to do this work. Where a Convention was held, it would adopt a consensus recommendation on the proposed amendments. This would then be considered by an IGC, which would, as now, have to reach a unanimous decision. Before any amendments could enter into force, they would have to be ratified by all Member States in accordance with their constitutional requirements.

 

If, two years after the signing of any such treaty, at least four-fifths of Member States had ratified that treaty but one or more others had met difficulties in doing so, the matter would have to be referred to the European Council, to consider what to do.

 

Simplified Revision Procedures

 

The Simplified Revision Procedures relate to specific, limited aspects of the Treaties. Amendments to Part III of the TFEU (EU Policies and Internal Actions) could be decided by the European Council but this decision would have to be approved by all the Member States in accordance with their constitutional procedures (e.g. parliamentary ratification, referendum).

 

COMMENT: Once the Lisbon Treaty has been ratified the Irish people would have been given permission for the “simple revision procedure” of the Treaty to be used without the need for further referendums in Ireland. Likewise Lisbon would give permission for the unanimity requirement where it exists to be replaced by qualified majority voting by agreement among the EU Prime Ministers and Presidents without the need for further referendums here. This gives Lisbon the character of a self-amending Treaty in significant respects.

 

Except for military and defence issues, the European Council will also be able to allow

 

(a) qualified majority voting where unanimity is required, and

(b) the “ordinary legislative procedure” where special procedures apply (giving co-decision powers to the European Parliament)

 

However, any national parliament could block such a change within six months. This clause is known as the “general passerelle” from the French word meaning “footbridge”.

 

In addition, there are some specific “passerelle” clauses – where the European Council, acting unanimously, could introduce qualified majority voting in specific areas where unanimity is currently required.

 

COMMENT: These are the “ratchet clauses”or “escalator clauses� which former French President V.Giscard d’Estaing said were �the most novel feature� of the EU Constitution he helped draft.

 

The new Article 48 would open the way to the EU raising its “own resources”, viz. taxes, to achieve its many objectives. The Prime Ministers and Presidents would be able to introduce majority voting for this and other areas by unanimous agreement among themselves. While a National Parliament could veto this mechanism, Irish citizens would have given up their power to veto it by ratifying the Lisbon Treaty. Governments can in any case usually get their National Parliaments to approve of something if they want it badly enough. Look at how they are getting them to agree to the Lisbon Treaty. The 27 EU Prime Ministers and Presidents would decide. Practically speaking therefore, this would almost certainly be our last EU referendum, at least for a long time, for the new Federal EU would have got all the governmental powers that matter for running a Federation. It is hard indeed to see what new competence it would need to act as a full normal State, apart from the power to be able to compel its component Member States to go to war against their will.

________

 

CLAUSES OF GENERAL APPLICATION

 

A short series of articles seeks to ensure that wider EU objectives – gender equality, opposition to discrimination on multiple grounds, protection of the environment, the fight against social exclusion, consumer protection, reduction of regional disparities, widespread access to services of general economic interest – are taken fully into account when defining and implementing each specific policy of the EU.

 

Provision is made for the adoption of legislative measures, if and as necessary, to combat discrimination on any of a range of grounds; to facilitate the exercise of the right to move and reside freely within the EU; and to fix the detailed arrangements for the exercise of the rights of European citizens to vote, where they live, in European Parliament and local elections.

 

An article clarifies in which languages citizens have a right to address, and get a reply from, the EU institutions and advisory bodies – these include the Irish language.

__________

 

ADOPTION, RATIFICATION AND ENTRY INTO FORCE OF THE TREATY OF LISBON (EU REFORM TREATY)

 

As with previous EU Treaties, the new Treaty can only enter into force if it is ratified by all 27 Member States in accordance with the constitutional procedures of each Member State. The Treaty could come into effect on 1 January 2009 if all Member States have ratified it by that date.

 

The Treaty is valid in all the EU’s official languages, including the Irish language.

 

___________

 

 

GLOSSARY OF TREATY TERMS

 

 

Explanatory Note

The terms explained in this glossary are, in general, ones that occur in the Treaty of Lisbon(EU Reform Treaty) , where the meaning may not be clear to the ordinary person who is not an expert on European affairs and where it is not explained fully in the text of the summary. A small number of other words or phrases which often arise in discussions about the matters dealt with in the Treaty are also included.

 

 

Accountability

The capacity or duty to account in an open, transparent manner for actions taken, or not taken, whether by an individual or an institution.

 

Appropriations

In the EU context, this is a term relating to the budget and refers to amounts of money to be committed to be spent at some time in the next short period of years (commitment appropriations) or actually to be spent in the current or forthcoming financial year (expenditure appropriations).

 

(To) Approximate (National Laws)

This means to bring about a situation where the law applying in certain areas of life in the different Member States is more closely similar but not necessarily exactly the same.

 

Charter of Fundamental Rights

This Charter, adopted by an earlier Convention in October 2000, sets out in a single text, for the first time in the European Union’s history, civil, political, economic and social rights and freedoms of European citizens and all persons resident in the EU. Before its adoption, these rights were laid down in a variety of national, European and international sources. The Charter has been incorporated into the European Constitution but it will not form part of the text of the new Treaty, although it will be given the same legal status as treaties. as Part II. It would apply to the EU’s Institutions and to the Member States’ governments only when they were implementing EU law.

 

COMMENT: The EU Court over the years has made judgements in areas that are clearly outside Community competence. The Court has laid down in several cases that there is a general obligation on Member States to bring their national laws in line with European law in areas covered by the treaties. That should logically apply to the area of human and civil rights also. There is no practical limit to the ECJ’s power that can be found or described. The Court itself would ultimately decide in particular court cases in the years to come if it is endowed with an expanded human rights jurisdiction through the Lisbon Treaty.

 

Co-decision

The procedure through which the Council and the European Parliament enact most EU legislation. Under the Reform Treaty, it will form part of the Ordinary Legislative Procedure.

 

Common Foreign and Security Policy (CFSP)

Following on from earlier efforts, since the early 1970s, at cooperation in the area of foreign policy, the Common Foreign and Security Policy was established as the “second pillar” in the Maastricht Treaty (1992) and developed under the Amsterdam Treaty (1997) and the Treaty of Nice (2002). The common policy exists in parallel to the separate foreign and security policies of the EU Member States. The Reform Treaty contains extensive provisions on Common Foreign and Security Policy which are summarised above.

 

Community Method (Community Way)

The “Community method” refers to the unique institutional procedures brought into being by the Treaty of Rome, defining relations between sovereign states of unequal size who agree to pool sovereignty. The Community method involves an institutional structure where the European Commission alone has the right to propose European legislation and where decisions are made in an interaction between the Council and the European Parliament. These decisions are open to challenge before the European Court of Justice.

 

Principle of Conferral

The principle of conferral means that the EU does not have general competences in its own right, but only those that are specifically conferred upon it by the Member States in the founding treaties and their subsequent modifications. The EU can only act on the basis of a provision of the treaties that authorises it to do so. In treaty terms, competence means the legal capacity or ability to legislate or to take other action.

 

COMMENT: But this is frequently not respected. In classical Federal States which are established by previously sovereign States surrendering their sovereignty to a higher Federal level � e.g. the USA, Canada, Australia, Switzerland and 19th century Germany – such constitutional provisions are normal. They say no more than that the authorities in the Federal and Provincial levels shall act in accordance with the constitutional powers conferred upon them.

 

Conferred Powers

This refers to the principle whereby the EU has only the powers conferred on its institutions by the treaties. Powers not conferred remain with the Member States.

 

COMMENT: At one level this is no more than a statement of the obvious. In practice in the EU national decisions can always be found to be in breach of Community law or principles.

 

Convergence

Becoming more alike or closer together in terms of various characteristics or capabilities.

 

Council of Europe

The Council of Europe is an intergovernmental organisation, set up in 1948, which includes in its aims the protection of human rights and the promotion and awareness of Europe’s cultural identity and diversity. It has a wider membership than the EU. Though all Member States of the EU are also members of the Council of Europe, the latter is a distinct organisation in its own right.

 

Council of Ministers / Council

The Council of Ministers (formally named simply the Council) is the EU institution in which the governments of the Member States are represented. The Council consists of one representative of each Member State at Ministerial level. The Council meets in a whole range of formations, mainly sectoral (e.g. the Ministers for Agriculture when the Council takes decisions on the Common Agricultural Policy). The President (or chair) of the Council is the Minister of the Member State currently holding the Presidency of the EU. Up to now, this was for a six-month term according to an agreed and equal rotation. The Treaty of Lisbon contains some changes in regard to the Council of Ministers, which are summarised in this document.

 

Digressively Proportional

This refers to a system of representation of EU Member States in the European Parliament, whereby the number of seats a country has is broadly proportional to the size of its population but with the ratio between the number of seats and the population size being progressively more favourable the smaller the size of a country’s population.

 

Delegated Act

Under the proposals in the Reform Treaty, where there are non-essential elements to a legislative measure, these laws may delegate to the European Commission the power to enact detailed regulations to supplement or amend these elements. The objective, content, scope and duration of these delegations has to be defined in the original legislative measure. The Council of Ministers and the European Parliament are to supervise the use of this power and may also revoke any such delegation.

 

COMMENT: This gives the non-elected EU Commission direct legislative power which can be quite wide. What are the “essential” and “non-essential” elements of an EU law?

 

Direct Universal Suffrage

Election directly under a system where all persons of voting age are eligible to vote.

 

 

Economic, Social and Territorial Cohesion

This means balanced and sustainable development, reducing economic, social and infrastructural inequalities between regions and countries and promoting equal opportunities for all individuals. In practical terms, the EU seeks to achieve these aims by means of a variety of financing operations, principally through the Structural Funds.

 

Enhanced Cooperation

Enhanced cooperation is the term used to describe a specific EU provision, first introduced in the Treaty of Amsterdam (1997), which allows groups of Member States fewer than the entire membership of the EU to avail of the institutions of the EU in order to undertake closer co-operation between themselves. The Nice Treaty sets out in a consolidated format the pre-conditions for authorisation of enhanced cooperation. The Treaty of Lisbon contains some changes in regard to what has applied up to now, as regards Enhanced Co-operation. These are summarised in this document.

 

Euratom

The European Atomic Energy Community was created in 1958 by the European Atomic Energy Treaty. The Euratom Treaty is not amended by the Treaty of Lisbon and Euratom will continue to operate under the EU’s institutional framework. A declaration by five Member States, including Ireland, notes that the main provisions of the Euratom Treaty which have never been amended, need to be brought up to date as soon as possible by an intergovernmental conference to revise the Treaty.

 

COMMENT: The Euratom Treaty entails a commitment to encouraging nuclear power. The Declaration referred to above is no more than a political statement of a wish and is not legally part of the Lisbon Treaty.

 

Euro

The euro is the European Union’s single currency which has been adopted to date by 15 Member States (Austria, Belgium, Cyprus, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, Malta, the Netherlands, Portugal, Slovenia, Spain), an area unofficially known as the “Eurozone”.

 

European Defence Agency

The European Defence Agency was established in 2004 to support the Memmber States and the Council in their effort to improve European defence capabilities in the field of crisis management, to monitor the capability commitments of Member States, and to promote harmonisation of procurement and support defence technology research.

 

European Commission

The European Commission is one of the EU institutions. It was created as an independent body to represent the European interest common to all Member States. Currently, the 27 members of the Commission are drawn from each of the EU countries, but they each swear an oath of independence, distancing themselves from partisan influence from any source. The Commission is the driving force in the legislative process, proposing the legislation on which the European Parliament and the Council of Ministers make decisions. The new Treaty contains changes in regard to the Commission. These are summarised in this document.

 

European Council

The European Council is the term used to describe the institution within which the Heads of State or Government of the European EU Member States meet regularly. It meets at least twice a year – more recently, about four times – and the President of the European Commission attends as a full member. Its functions are to give the EU the impetus it needs in order to develop and to define general policy guidelines and priorities. The new Treaty contains changes in regard to the European Council. These are summarised in this document.

 

European Convention on Human Rights (ECHR)

The European Convention on Human Rights and Fundamental Freedoms, signed in 1950 under the aegis of the Council of Europe, sets out a list of human rights, which the participating countries guarantee to respect and uphold. The Convention established, for the first time, a system of international protection for human rights offering individuals the possibility of applying to a dedicated international court – the European Court of Human Rights – for the enforcement of their rights. All Members States of the EU have ratified the Convention. The new Treaty envisages that the EU, as such, would seek to join the Convention.

 

COMMENT: This will mean that all questions on human rights will have the EU Court in Luxembourg as its most important interpreter.

 

European Court of Auditors

The Court of Auditors is an institution that acts like the auditors of a business or other organisation. It monitors the EU’s accounts, examining the legality and regularity of the revenue and expenditure in the budget and ensuring sound financial management.

 

COMMENT: The Court has not approved the accounts of the Commission for the past 11 years.

 

Court of Justice of the European Union

This is the institution responsible for interpreting and enforcing EU law.

 

COMMENT: Strictly speaking, there is no such thing as “EU law” at present. There is only European Community, that is, �EC� law. With the abolition of the European Community by the Lisbon Treaty and the giving of legal personality to a constitutionally new European Union, and making other related legal changes, the EU would be endowed with the constitutional form of statehood and one could then speak validly of European “Union” law.

 

The Court has one judge from each Member State. It has jurisdiction in disputes between Member States, between the EU and its Member States and between institutions and private individuals and the EU about matters that fall within the remit of the EU or are regulated by EU legislation or decisions.

 

Eurojust

The European Judicial Co-operation Unit. A body of national prosecutors, magistrates or police officers from the Member States, established in 2002 under the Treaty of Nice to coordinate the fight against crime. The Treaty of Lisbon contains some changes in respect of Eurojust and its work. These are summarised in this document.

 

Europol

European Police Office, established under an agreement reached in 1995 and which entered into force on 1 October 1998, but only became fully operational on 1 July 1999. Europol’s headquarters are in The Hague and it coordinates police co-operation throughout the EU in particular, agreed areas, for example in the areas of drug trafficking, clandestine immigration networks, trafficking in stolen vehicles, trafficking in human beings (including child pornography), counterfeiting currency and falsification of other means of payment, trafficking in radioactive and nuclear substances, terrorism and money-laundering. The Treaty contains some changes in respect of Europol and its work. These are summarised in this document.

 

European Ombudsman

The office of the European Ombudsman is empowered to receive and investigate complaints from any citizen of the EU or any natural or legal person residing in a Member State concerning instances of alleged bad or unfair administration in the activities of the Community institutions or bodies and to follow up and report on the outcomes.

 

European Parliament

The European Parliament is the EU institution that represents the citizens of the Member States. It currently consists of 732 (COMMENT: 785) members directly elected by the electorates in constituencies in the 25 (COMMENT: 27 ) Member States. In many areas, the Parliament has co-decision powers in legislating with the Council. The Parliament and the Council of Ministers jointly constitute the budgetary authority. The Treaty contains a number of changes affecting the make-up and powers of the Parliament. These changes are summarised in this document.

 

 

European Security and Defence Policy (ESDP)

Established in 1999 at the Cologne European Council, the ESDP aims to allow the EU to develop its civilian and military capacities for crisis management and conflict prevention at international level, thus helping to maintain peace and international security, in accordance with the United Nations Charter. It will be renamed the Common Security and Defence Policy under the Treaty of Lisbon.

 

Flexibility Clause

The flexibility clause within the new Treaty, the antecedents of which go back to the Treaty of Rome, allows flexible adjustments of EU competence within the defined remit of the EU. The existing clause can only be used in connection with the common market. The new clause will allow flexibility in all areas of the EU.

 

COMMENT: This Article has been widely used over the years to do all sorts of things that are not explicitly permitted in the Treaties. It is likely to be used more widely still under the Lisbon Treaty as its remit is broadened to encompass all the objectives of the Treaty and not just the internal market.

 

Freedom of Establishment

Every EU citizen, through freedom of establishment, is allowed to set up a business in any EU country in the same way and on the same legal basis as a national of that country.

 

Geneva Convention

UN rules on asylum dating from 1951. They give every refugee the right to have an application for asylum at least considered by the country in which they apply.

 

Harmonisation

This means co-ordinating national policies, rules and technical standards so closely that products and services, capital and labour can move freely throughout the EU.

 

Intergovernmental Conference (IGC)

A conference composed of representatives from each Member State in which amendments to the treaties can be agreed through negotiations.

 

Languages of the Treaty of Lisbon

This refers to the languages in which the Treaty is to be drawn up, each version being equally authentic, as set out in Article IV-10, the last article of the new Treaty: the list includes the Irish language.

 

Legal Base

In order for the EU to have power to act in any area, that area must have what is known as a “legal base” in the treaty structure. Any areas where the EU is to have such power must be recognised formally and explicitly in the legal structure of the treaties. The Treaty of Lisbon maintains all areas where there were legal bases previously and creates legal bases in some further, limited areas.

COMMENT: In practice there would be no areas of national competence that could not be touched or affected by the EU after Lisbon.

 

Legitimacy

This is a political concept, relating to whether, or how far, a political system or a set of political arrangements or institutions is regarded as being valid and worthy of acceptance or support by the people who are governed under such arrangements or whose lives are affected by what is done by the institutions.

 

Lisbon Process or Strategy

Launched at an EU summit in Lisbon, Portugal in 2000, the Lisbon Process or Strategy is a voluntary co-ordination (often referred to as the Open Method of Co-ordination) of a whole range of economic, social and sectoral policies among Member States. It aims to make the EU the most competitive and knowledge-based economy in the world by 2010. (Not to be confused with the Treaty of Lisbon which is the subject of this publication)

 

 

 

Mutual Recognition

Instead of harmonisation, i.e. making standards within the EU fully consistent by imposing a common, cross-EU law, the EU often uses the method of “mutual recognition” of standards. This means that a national standard in one country – for example regarding what specifications a product must have – is accepted as being valid in all.

 

Opt-out:

An option to decline to participate in certain measures or arrangements which would otherwise be obligatory.

 

Opt-in:

An option to participate in certain measures or arrangements in which the Member State would otherwise not participate.

 

Official Journal of the European Union

This refers to a daily publication setting out the official acts of the EU, such as the laws it has passed, decisions it has taken, contracts it is offering for tender, jobs for which it wants to recruit etc.

 

Petersberg Tasks

In the Maastricht Treaty of 1992, the Member States of the EU undertook to enhance co-operation on international affairs through the Common Foreign and Security Policy. The Treaty of Amsterdam, 1997 reflects new priorities of humanitarian, rescue, peacekeeping and crisis management tasks – the Petersberg tasks (called after the venue in Germany where agreement on them was reached) – by incorporating these tasks into the EU’s Common Foreign and Security Policy. The Treaty extends the tasks to cover joint disarmament operations, military advice and post-conflict stabilisation.

 

Principle of Loyal Cooperation

The principle which commits the EU and its individual Member States to assist each other in carrying out tasks, common or co-ordinated, which flow from the obligations they have assumed and refrain from acting in ways that would block or impede discharge of those tasks.

 

Proportionality

The principle that EU action must not exceed what is necessary to achieve the objectives of the Treaties.

 

Protocol

A protocol is a legal text, which is usually added (annexed) to a treaty and which deals in a more detailed way with a certain topic, e.g. in the new Treaty there is a protocol on subsidiarity and the role of national parliaments. A protocol to a treaty has the same legal status as the treaty itself when it has been ratified by the Member States.

 

Qualified Majority Voting (QMV)

QMV is the form of decisionmaking used for most Council of Ministers decisions. Currently, each Member State is assigned a number of votes weighted according to a scale which groups together Member States of similar population size. Under the Reform Treaty a new system of QMV will apply, based on a “Double Majority” as summarised in this document.

 

Ratification

In the context of international treaties, this is the process by which each State formally decides, through their own national procedures, that a Treaty, previously signed on their behalf, will be legally binding on them. In the case of EU Treaties, including tis latest Treaty, the Treaty will only come into force if and when all Member States have completed the process of ratification.

 

Reasoned Opinion

The European Commission scrutinises steps taken by each Member State to implement EU law and, if dissatisfied, may issue what is known as a “reasoned opinion” to Member States governments. This is a sort of “early warning system” within which the Commission outlines the measures that will need to be taken in order for the Member State(s) to fully implement the EU law in question. Should these measures not be taken, then the Commission refers the matter to the European Court of Justice.

 

A second meaning of the term arises in the protocol on applying the principles of proportionality. There, the term refers to an opinion with reasons, put forward by a national parliament (or one of its Houses) that a proposal for a law, made by the Commission, is in breach of the principle of subsidiarity. In this case, a reasoned opinion is part of an “early warning system”, to be operated by national parliaments.

 

Right of Initiative

Reflecting its role as guardian of the treaties and defender of the general interest, the European Commission has been given the “right of initiative” which empowers and requires it to make proposals on the matters contained in the Treaty, either because the Treaty expressly so provides or because the Commission considers it necessary.

 

Currently, the right of initiative is exclusive to the Commission in all areas except Common Foreign and Security Policy, where Member States also have the right to make proposals and some areas of Justice and Home Affairs where only Member States may make proposals. The new Treaty contains changes in regard to who has the right of initiative in different areas. These are summarised in this document.

 

Services of General Interest

This is an expression in the treaties to describe telecommunications, water, postal, transport services and other infrastructure in the Member States, as well as education, health, that are widely regarded as basic necessities for a satisfactory life under modern conditions in Europe.

 

Seville Declaration

Solemn declarations by the Irish Government and the European Council in 2002 relating to Ireland’s participation in the Common Security and Defence Policy.

 

Social Market Economy

This refers to the type of economic model that has characterised the countries in the EU since reconstruction after the Second World War, in which the economy is primarily based on the competitive operation of the market but with significant regulation in the public interest and in addition, in most cases, a significant consultative role for the social partners in the management of the economy and, in some countries, also at firm level.

 

Solidarity Clause

A clause contained in the Treaty committing the EU and its Member States to aid another Member State(s) if that Member State(s) is/are the victim of either a terrorist attack or natural or man-made disaster.

 

Special Legislative Procedure

A number of areas outlined in the Reform Treaty lie outside the remit of the Ordinary Legislative Procedure described above and fall under what is described as a “Special Legislative Procedure”. Decisionmaking procedures vary and may allow for a dominant role for either the Council of Ministers or the European Parliament. In some cases, proposals may come from sources other than the Commission. Unanimity is also allowed for in some cases.

 

Stability and Growth Pact

An agreement introduced in the lead-up to monetary EU, the aim of the Stability and Growth Pact is to ensure that the Member States continued their budgetary discipline efforts once the single currency was introduced. The pact details technical arrangements on surveillance of budgetary positions as well as co-ordination of economic policies and implementation of an excessive deficit procedure, allowing the Council to penalise any participating Member State which fails to take appropriate measures to end an excessive budget deficit. In the medium, term the Member States have undertaken to pursue the objective of a balanced or nearly balanced budget.

 

Subsidiarity

The principle that the European Union does not take action (in areas of shared competence) unless it is more effective than action taken at national, regional or local level.

 

Supranational

Transcending national limits or boundaries. In the context of the EU, the term usually refers to the institutions that exist to pursue the common European EU interests, shared by the Member States. It also refers to the discharge of functions and exercise of powers by those institutions, transcending national boundaries, in the domains where the Member States, in the treaties, have conferred those functions and powers on them. The supranational approach is often contrasted with the intergovernmental approach that involves keeping supranational institutions, and their role, to a minimum.

 

Sustainable Development

A form of economic growth, which is based on the most economical use of resources, particularly those that are scarce and which is thus more likely to satisfy society’s needs over the long term, rather than using the resources rapidly in the short term. The concept is founded on the assumption that development, while meeting today’s needs or tomorrow’s, must do so without jeopardising the prospects of future generations.

 

Transparency

Making it possible to see clearly and to follow from outside the way in which decisions are reached.

COMMENT: This is rarely possible in the EU in practice.

 

Unanimity

The requirement for all Member States to agree on a proposal before it can be adopted.

 

Veto

The power to block a proposal

 

_________

 

 

 

Forum Contact address

National Forum on Europe,

State Apartments,

Dublin Castle,

Dublin 2

 

Tel.: 01-670 5900; Fax. 01-670 5877

E-mail: info @forumoneurope.ie

http://www.forumoneurope.ie

 

_____________

 

 

 

Published by the Stationery Office, Dublin

To be purchased directly from the Government Publications Office,

Sun Alliance House, Molesworth Street, Dublin 2

 

Or by mail order from Government Publications, Postal Trade Section, 51 St. Stephen’s Green, Dublin 2 (Tel. 01 6476834/35/36/37: Fax: 01 6476843)

 

Or through any bookseller.

Designed by Austin Butler ( HYPERLINK “mailto:austinbutler@mac.com” austinbutler@mac.com)

 

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