This article deals with the process of ratification of the Lisbon Treaty and analyses following legal development. Both costs and benefits of the adoption of the new legal infrastructure are outlined. The procedural hurdles in the ratification process have strengthened the notion of a democratic deficit and an unevenness of the states. On the contrary the competences of the EU were better delimitated by the Treaty, increased effectivity of the institutions and efficiency of the decision making process were brought and a standard of human rights protection was raised. On balance the article claims that positives of the Lisbon Treaty outweigh negatives, but the Treaty does not represent epochal change and therefore further development is needed.
The process which led to the ratification of the Lisbon Treaty has brought considerable political costs. Following the no vote in French and Dutch referendums the Constitutional Treaty, time for reflection had come. The result was a formation of the Lisbon Treaty which also faced significant political hurdles but was finally ratified by all states shortly after second (successful) referendum in Ireland. Although the Reform Treaty was not very different from the Treaty establishing the Constitution for Europe, states did not use the referendum anymore; instead parliamentary consent was used as the way of the ratification. The only exception was due to the constitutional requirement Ireland that resulted in the rejection of the treaty by popular vote.
The fact that Ireland had to submit the same treaty with minor exemptions to Irish citizens has intensified two apprehensions European citizens had already had. Firstly it clearly showed that deepening of European integration is elite-driven.1 Secondly it confirmed the feeling of the people from small member states that countries are not treated equally. Moreover the ratification process in some countries with strong eurosceptical political parties such as the Czech Republic has caused problems on the political scene and pressures within these parties. Finally and the most importantly the EU has lost a considerable amount of time focusing on the institutional framework which could have been used for substantive development.
In this essay I am going to claim that these costs were balanced by the strengthened EU based on the increased human rights protection and were necessary to improve clarity of EU law and to make the institutions more effective. On the contrary the Lisbon Treaty does not present an epochal change to the European Union and further reforms to address EU democratic deficit are needed.
The Treaty of Lisbon includes seven articles and number of protocols and declarations. It changes the Treaties rather than substitutes them. Thus Treaty establishing the European Community becomes Treaty on the Functioning of the European Union (TFEU) and Treaty on the European Union (TEU) is also amended.2 Apart from this, it is to a great extent based on the rejected Constitutional Treaty. A quick process of drafting also relied on the open and transparent deliberation regarding the Constitutional Treaty.
In the following chapters I am listing and evaluating the most important changes that were brought by the Reform Treaty. I am dividing them into categories of amendments in EU structure, institutions and human rights protection. Final chapter represents overall reflection about mentioned alterations with regard to the alleged democratic deficit of the EU.
Changes in the EU structure and competences
The Lisbon treaty brings to an end a formal distinctive pillar structure of the Union. The third pillar, police and judicial cooperation, becomes the part of the new Title 5 of the Treaty on the Functioning of the EU called Area of Freedom, Security and Justice. The normal jurisdiction of the ECJ is generally applied to this area which is to be welcomed as criminal matters are unsuitable to be dealt within the intergovernmental level without judiciary supervision.
On the contrary, second pillar regarding Common Foreign and Security Policy (CFSP) still holds its intergovernmental character, no legislative acts are to be adopted, the competence belongs to the European Council and Council and specific applicable rules and procedures are mentioned (art. 24 TEU).
The expanded post of High Representative of the Union for Foreign Affairs and Security Policy shall contribute to a higher continuity and consistency of CFSP. It combines three posts – former High representative for CFSP, Commissioner in charge of external relations and President of the Foreign Affairs Council (art. 18(3) and 18(4)TEU). As a result it completely replaces the so called troika which represented EU in external relations so far. This change shall be most welcomed since the difference in the interest of three representatives and unclearness in their competences often proved to be prohibitive for the clarity of EU stance on matters within the international fora (Pitrova and kol. 2008: 142). Furthermore two parts of the foreign policy: CFSP and other external policies such as humanitarian or trade are linked together through this office.
This development is further strengthened by the formal conferral of the legal personality to the EU as a whole in the treaties (art. 47 TEU). Even though only European Communities had express legal personality until know EU had already been party of some international treaties already and there was a notion of personality in practice (Raluca 2010). EU legal personality to enter into international treaties is still subject to the principle of conferral which determines what competences EU have (art. 4(1) TEU). The main shift is therefore enshrined into the art. 216 TFEU that provides a vague definition of implied powers of EU. In accord with an expansive interpretation of EU powers by the ECJ this will certainly strengthen EU external actions with regard to former second and third pillar (Ondrejek 2009: 258).
Art. 2 TFEU distinguishes between exclusive and shared competence. The areas of exclusive competencies are listed in art. 3 TFEU (e.g. customs union or competition rules) and member states are obliged not to intervene into these areas. The shared competence is applied to most of the EU activities (art. 4 TFEU). It means that in these areas states may legislate and adopt other acts; however only to the extent the EU does not. Under the conditions laid down by the Treaties, the EU can in certain areas (art.6 TFEU) carry out steps to support, coordinate or supplement the actions of member states without superseding them. Finally the CFSP and coordination of economic and employment policy is dealt with separately due to its political sensitiveness.
This competence delineation shall be helpful because of the improved clarity (e.g. before the Lisbon, no exclusive competences were mentioned). On the contrary the wording such as support action is not particularly clear and boundary problems between groups of competence with different regime may arise (Craig 2008: 148). P. Syrpis analyses the change in the area of a social policy regarding the new settlement of the competences. He suggests possible outcome could be that “the Treaty of Lisbon, has, at least from the perspective of Labour lawyers, been much ado about nothing” (Syrpis 2008: 228), however in accord with the other Lisbon changes, especially with human rights and changes in the aims, principles and objectives, cases relating to the trade unions may be decided differently (see below). All these points indicate that the ECJ will play a crucial role in an interpretation of the new version of the Treaties. Therefore whether changes in competence will prove to be helpful in practice remains to be seen.
To conclude the structural changes strengthen EU and attempt to clarify the law. The removal of the pillar structure results in an improved transparency for EU citizens with regard to the applicable procedures concerning justice and police affairs. The legal personality of EU and the expanded post of High representative shall bring more clarity to external relations and provide higher transparency for EU foreign partners. The delimitation of competences may deliver clarity for member states concerning powers of EU.
Competences are linked to the principle of subsidiarity which brings to the EU functioning for the first time directly national parliaments. Art. 69 TFEU specifically addresses the role of the national parliaments as a “watchdog” in judicial and police cooperation. However, main rules can be found in the Protocol on the Application of the Principles of Subsidiarity and Proportionality. The rules are relatively technical but basically they strengthen a dialog between the national parliaments and the Union legislature. Drafts of the legislative acts are sent to the national parliaments which may review them within eight weeks and if unsatisfied, can give a reasoned opinion that must then be taken into account. If a sufficient number of national parliaments find problems with application of the subsidiarity in the act, Commission must review the proposal. Final jurisdiction possesses the ECJ. Member states may notify actions regarding infringement of subsidiarity on behalf of its parliaments.
The basic idea is to grant the policing powers to those who are most incentivized to act. Thus parliaments are more suitable to provide time for considering the application of the subsidiarity by the EU than the ECJ which as “an EU institution also carrying in its genes the code of an ever-closer union, has sanctioned and aided the march of integration rather than significantly limiting it.”(Snell 2008: 627). As no measure has been annuled so far due to an infringement of the subsidiarity, this new involvement of national parliaments may improve the application of the subsidiarity. However, it is highly questionable whether it will be done in practice. National parliaments will face large amount of drafts within strict time limit and in order to make a difference number of parliaments have to cooperate. Snell even argues that this measure may lessen the protection of the principle of subsidiarity as the ECJ will relax its supervision assuming that national parliaments will protect their interests. If the national parliaments are not effective, no one will be concerned about the application of the principle. Moreover, the second principle, which should protect member states from an unnecessary expansion of the EU institutions, the supervision of the application of the principle of proportionality closely related to subsidiarity, remains largely unchanged.
The European Parliament has gained probably the most from the Lisbon Treaty. Co-decision procedure is now an ordinary legislative procedure (art. 289 TFEU). Furthermore it gets increased budgetary powers and elects the President of the Commission subject to the proposition of the candidate by European Council (art. 14(1) and art. 17(7) TEU). The European Council which is listed as the EU institution (art. 13 TEU) is given its own president who should ensure improved continuity of policies in the EU as this institution provides general impetus and direction of the EU evolvement (art. 15 (1) TEU). This represents the reality since the executive power is shared by the Commission and the European Council; the Lisbon Treaty thus gives this role of the main intergovernmental body legal wording.
Commission shall consist of just two thirds of members of the EU from 2014, which is to be welcomed as commissioners should not act in the interest of home states and too many “EU ministers” may limit the efficiency of institution designed as a small collegiate body.3 It was hoped that the reform of the appointment of the President of the Commission and its linkage to the election of the European Parliament will increase the democratic credential of the Commission. However as Craig points out the indirectly-indirectly elected Commission President will hardly enhance its legitimacy (Craig 2008: 155).
New rules for voting in the Council (former Council of Ministers) will also be effective from 2014. Qualified majority will consist of at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the European Union (art.16 (4) TEU). Qualified majority becomes a general decision making method (art. 16(3) TEU). It will be applicable in 68 more areas. “This expansion represents the highest advance in the history of EU so far” in the usage of qualified majority voting (Pitrova and kol. 2008: 27). As a result, decisions in the Council become more supranational in nature; however, this was necessary due to the total number of members of the EU and efficiency of voting. The problems with unanimous decision making and opportunistic behaviour of the member states can be nicely demonstrated on the ratification process. The Czech Republic being the last started to raise further conditions for its ratification using the increased negotiation potential. This is rather an extreme example; Nevertheless, it is obvious that the situation where one state can block the consensus of other 26 (in questions which are not crucial) is not sustainable, should the EU go forward.
To summarize the idea of institutional changes is that supranational tendencies are tried to be balanced by the new role of national parliaments and formalization of European Council and legitimized by the intensification of the powers of the European Parliament. I believe none the less that the establishment of both qualified majority voting in the Council and a co-decision procedure as a standard law making tools is the most significant alteration in this area. It clearly strengthens EU institutions at the expense of the member states. Moreover suppose Commission is comprised of fewer commissioners than the number of the member states, it may increase its independence (the commissioners are formally independent already as they cannot take instructions from the governments but informal influence is considerable). Modifications in the structure of the EU bodies will lead to enhanced effectivity. It is expected that the new post of the President of European Council (together with the High Representative already mentioned in previous chapter) will contribute to a continual durable long-term leadership of the EU.
Charter of Fundamental Rights finally becomes a formal part of the EU legal order and has the same legal value as the treaties (art .6 (1) TEU). Applicability to the member states is limited to the cases where states implement the EU law. The incorporation of the Charter into the legal order was welcomed by the German Federal Constitutional Court in the judgment about the consistency of the Lisbon Treaty with the German Constitution as a step towards fulfillment of Solange1 requirement for accepting the supremacy of EU law (Doukas 2009: 868). However, it may increase the number of rights-based cases where the ECJ will be considering the truly constitutional balancing of human rights. It is noteworthy to state that the ECJ have already referred to the provisions of the Charter as general principles of the EU law.
Second improvement in human rights protection is the obligation of the EU to accede to the European Convention on Human Rights (art. 6 (2) TEU). The form of the accession is not stated but shall not affect the EU competences. What will be the consequences for the citizens is unclear but the logic would follow that some cases may be brought to the European Court of Human Rights (ECHR). But will it have a final jurisdiction? The relationship between the ECJ and the ECHR will be crucial. Theoretically there shall be no controversy because the art. 6 (2) TEU states that rights guaranteed by ECHR result from the common constitutional traditions and will be regarded as general principles of EU law.
However Syrpis argues that the accession would influence cases before the ECJ. He claims that some harmonization of judgments between these two courts will be necessary. As the employment and trade union cases are now decided by the ECJ from the starting point of free movement and competition they have to be justified on some grounds otherwise illegal. However the ECHR would not comprise the need of free movement into its reflections and will decide the case just on the basis of the balancing of the rights. This can represent the shift of the burden of proof in the cases regarding social policy (Syrpis 2008: 232–235).
On balance I believe that raising the legal value of the Charter renders increased transparency for EU citizens as for their rights and in the same time strengthens the EU as an entity which guarantees an extensive catalogue of rights to its citizens. It will further legitimize the EU role on the international scene as a promoter of human rights. As for the accession of the EU to the European Convention of Human Rights it will be very interesting to see how the relationship between the ECJ and ECHR evolves. Generally it shall not affect EU citizens negatively in any case. The jurisprudence and courts practice suggest that the courts assessing human rights are using the higher standard of protection in case of conflicting sources.
EU is often perceived as a bureaucratic entity with a weak legitimizing chain from the national states. “Democratic deficit” is deemed to exist mainly due to a low accountability of EU officials and a non-transparent adoption of legislation. There is, however, no academic consensus whether the democratic deficit really exists and if so whether it is desirable to eliminate it.
Deniers of the deficit claim that “some of the loudest complaints over a European democratic deficit may be based on idealizations of democracy in the nation-state.” (Krisch 2005: 325). Others note that there are more types of legitimacy. Main alternative to the legitimacy derived from people is the legitimacy by results. In a globalized world some matters are needed to be dealt with internationally. Furthermore technocratic expert body may serve the purpose better. As long as the EU fulfills the aims which were the basis of its creation it may not have problems with the legitimacy. This could be further supported by the proper reasoning of the results. Wintr appreciates “the trend of thorough reasoning of courts’ judgments at all levels and extensive reasoning of the legislative acts of the EU” (Wintr 2009:174). However, as the policies of the EU stop being only regulatory and become more and more redistributive, the legitimacy by results starts to be insufficient (Snell 2008). Therefore, I believe some form of increased legitimacy derived from people is strongly needed.
In my view, Lisbon Treaty reflects this need and attempts to address this issue. In addition to changes in representative democracy it tries to enshrine participatory democracy formally into EU law (art. 11 TEU). I did not mention the formalization of consultation of Commission and new provision of public initiative in previous chapters because they do not represent in my opinion major change. Nevertheless, it is worth to discuss them with regard to the democratic deficit as they may start an important process of EU governance.
Consultation forms part of the theory of deliberate democracy. Lisbon treaty reflects to a great extent the already existing practice. The critique consists mainly of the objection that it is not representative and it priorities the interest groups which have financial and other means to access Commission. Furthermore the requirement of consultation applies only to the Commission notwithstanding the role of the Parliament in the legislative process.4
Public comprised of at least million citizens who are nationals of a significant number of member states may take the initiative of inviting Commission to submit a proposal within its powers. The critique of the public initiative is similar to that related to the consultation. It is pointed out that mass media and well organized interest groups will play the key role in putting the people together. 0,2 percent of EU population can put pressure on the Commission to act in its interest which can be much different from the EU interest and even though this instrument is not obligatory for Commission to follow it could be misused (Ondrejkova 2009: 163).
Concerning representative democracy, the improved status of the co-decision among legislative procedure confirmed the trend of raising the powers of European Parliament. It is a question though whether it delivers the needed legitimacy. European demos still do not seem to exist. As still reflected in the Preamble of both TFEU and TEU the EU is comprised of peoples rather than people. The low turnout in the European Parliament elections with predominant topics of domestic politics provides clear evidence. The media responds to a low demand for news about European politics by almost disregarding the European topics. This further lowers the awareness of European people about its common citizenship as even potentially interested people do not have easily accessible information. Lowering the demand further affects media thus creating a vicious circle.
In order to break such vicious circle more radical and shock reform is necessary. Even after the Reform Treaty the Parliament is still “at best, a junior partner of the Council in the legislative process, with its influence further diminished by the relatively independent status of the Commission.” (Kumm 2008: 132) As long as the Parliament does not function as an agenda setter and people cannot vote for alternative visions of Europe it is hard to imagine the creation of European demos. Without the existence of European demos the increased powers of the European Parliament do not legitimize increased EU powers.
Bringing the national parliaments into the play provides seemingly simple and quick solution to the EU legitimacy problem. National parliaments are considered as the bearers of the original sovereignty of people. If they are sufficient to legitimize e.g. foreign policy of the state, why they cannot become the guarantee of the democracy in the EU? Suppose the certain quorum of national parliaments is given veto over the EU legislative acts, does it make the EU legislation ultimately democratic? It seems it does, however it is not at all conclusive.
The decisions in national parliaments are taken according to the national interest. Political parties are rarely voted for because of their political vision of the EU; rather it is their approach to taxes and other domestic issues which appeals to their electorate. And even if they have the detailed program for EU matters, it is considered whether it is beneficial for the concerned state, not whether it is good for the EU as a whole. Hypothetically, if parliaments in fifteen states were able to reject the EU legislation, it would not legitimize the legislative process with regard to the other twelve states since the decision was made on the basis of national “their” interest rather than European “our common” interest. In case of the absence of strong collective identity it is difficult to believe that minority willingly accepts majoritarian decision (Wilkinson 2005: 309). Therefore in case of lack of the European identity and absence of the European demos some forms of strengthening of the national parliaments will not enhance legitimacy of supranational decision-making. This conclusion does not want to claim that policing of subsidiarity by the national parliaments shall not to be welcomed, it merely points out on the distinction between the observer of the rules and the decision maker.
To conclude Lisbon Treaty contains certain innovative ideas how to deal with the democratic deficit, however these provisions are far from sufficient. All of the changes have also their own negative features. It shall be appreciated though that the treaty attempts to mix different types of legitimacy from different bodies in order to balance the weaknesses and select the strengths.
The Declaration 23 of the Future of the Union appended to the Nice Treaty identified four issues that should have been addressed by the Constitutional Treaty: “the delimitation of the powers between the EU and the Member states, the status of the Charter of Fundamental Rights, simplification of the Treaties, and the role of the national parliaments” (Craig- de Búrca 2007: 31). All of these issues were somehow dealt with also in the Lisbon Treaty. The structural changes brought by the treaty strengthened EU while bringing the increased clarity with regard to the division of the competences between EU and member states. The removal of pillar structure albeit incomplete increased transparency of the EU. Although the Charter of Fundamental Rights was not included directly into the treaty as it was in the case of Constitutional Treaty it gained the highest legal force. Protocol on the role of national parliaments in the EU attached to the treaty describes in detail the importance of national parliaments to EU.
The Lisbon Treaty has had, however, more ambitious goal. After the substantial enlargement in 2004 EU needed the institutional changes of constitutional nature in order to ensure desired effectivity. Expansion of the qualified majority voting in the Council and planned decrease of the number of the commissioners in the Commission could prove to be positive in a very near term. The benefits of new posts of President and High Representative will depend on the practical significance they get. The particular importance shall be attributed to the role of the personalities in the first terms in office that will shape the customs and conventions regarding their relations with other institutional players.
The main weakness of the EU constitutional legal order – democratic deficit remains existent despite manifested effort of the reformers. The EU as a sui generis entity cannot be judged according to the democratic standards that apply to national states. Nevertheless some forms of accountability, democratic control and citizens’ engagement are needed. The multidimensional approach to the legitimacy employed by the Lisbon Treaty seems to be promising. However, the EU will have to address the democratic deficit in the future more radically otherwise the next treaty may not be allowed ratification by some constitutional courts (Doukas 2009) and people may have a reason to think about using the new option provided by the Lisbon Treaty – to withdraw from the Union.
Tomáš Búry is a student of law at Charles University and concurrently the student of tax policy at University of Economics in Prague. He works in the Association for International Affairs (an independent think tank) as a member of the European program. To his fields of interest belong European Union, financial markets and environmental law.