Tomorrow the EU leaders meet in Lisbon to sign the so-called “Reform Treaty’ – the renamed EU Constitutional Treaty. What does this treaty mean? An analysis by Prof. Anthony Coughlan.
What the Lisbon Treaty – the Renamed EU Constitutional Treaty – would do:
1. It would give the EU a Federal State Constitution: The Treaty would establish a legally new European Union, quite different from what we call the EU at present, in the constitutional form of a supranational Federal State which would be separate from and superior to its Member States, just as Federal Germany is separate from and superior to Bavaria, or the USA to California. The new Union would sign treaties with other States in all areas of its competence. It would have most of the features of a fully-developed State. The Treaty would make this change by means of three key legal steps:
(a) establishing a new European Union with its own legal personality and distinct corporate existence for the first time;
(b) abolishing the distinction between the supranational and intergovernmental "pillars" of the two existing basic European Treaties, so that all powers of government can be exercised by the new Union, either actually or potentially, through a uniform constitutional structure; and
(c) making us all real citizens of this new Union for the first time, rather than just notional or honorary EU "citizens" as at present. A State must have citizens and one can only be a citizen of a State. We would all have real dual citizenship henceforth as EU citizens and citizens of our national States. We would owe the new Federal European Union which the Lisbon Treaty would establish 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, as the new EU's authority would be superior.
2. It would give more voting power to the Big Member States: The new double majority voting system for adopting EU laws on the Council of Ministers – at least 15 Member States with 65% of the total EU population – would make population size the key criterion of influence and put the Big States, especially Germany, in a much stronger position. In future the Commission would start by consulting the bigger countries on its law proposals, for it would know the smaller ones could always be outvoted. In future Germany and France, because of their population size, would be able to block any EU law if they can get two other countries to vote with them. When Ireland joined the then EEC in 1973 we had 3 votes in European law-making as against 10 each for the Big States. Under the Nice Treaty we have 7 votes as against their 29 each. Under Lisbon Ireland would have 4 million people as against Germany's 82 millon and an average of 60 million each for France, Italy and Britain. This would give the Big States almost total control of the new EU. Turkey would be the biggest EU State if it joins.
3. It would remove each country's right to a permanent EU Commissioner: Lisbon would remove the right of each Member State to have an EU Commissioner for two out of every three Commission terms, that is for five years out of every 15. Big States would lose their right to a permanent Commissioner too, but they have other means of exerting their influence on this body which proposes all EU laws. Having a permanent EU Commissioner has always been recognised as especially important for smaller Member States. Our national Government would also lose the right to decide who our country's Commissioner would be. Under Lisbon this would be decided by special majority vote of 20 out of 27 Prime Ministers/Presidents, representing 65% of EU population on the basis of "suggestions" rather than "proposals" from the Member States.
4. It would give the European Union the power to make laws or take decisions on 68 new policy areas or matters: The new Treaty would add to the powers of the Brussels institutions, which already make the majority of our laws, in some 68 new areas or matters where the national veto would be abolished. Of these 49 would give the EU a new legal basis for making laws or taking decisions, while 19 would shift existing EU law-making or decision-taking from unanimity to majority voting. The new areas of EU law-making would be civil and criminal law, justice and policing, immigration, public services, energy, transport, tourism, space, sport, civil protection, public health and the EU budget. There would be majority voting also in some areas of foreign policy.
This increase in EU powers would simultaneously increase the personal power of the 27 national politicians who make up the Council of Ministers by enabling them to make further laws behind closed doors for 500 million Europeans, while taking power away from the citizens and national Parliaments which elect those politicians and which have made these laws for their own countries up to now. Within each Member State this shift of power to the EU entails a further shift of power from the Legislative arm of government to the Executive arm. It would hollow out our national democracy further. The Treaty would also increase the power of the non-elected Brussels Commission, which has the monopoly of proposing European laws to the Council of Ministers, by giving it many new policy areas to propose laws for.
The 68 policy areas or matters which the Lisbon Treaty would move to majority voting on the EU Council of Ministers compares with a similar 68 in the EU Constitution which the French and Dutch rejected in 2005, 46 in the 2002 Nice Treaty, 24 in the 1998 Amsterdam Treaty, 30 in the 1992 Maastricht Treaty on European Union, 12 in the 1986 Single European Act Treaty and 38 in the original 1957 Treaty of Rome and Euratom Treaties.
5. It would give the EU the final power to decide our rights: The new Treaty would give the EU the final power to decide our human and civil rights in all areas of European law, including Member States when implementing EU law, which now constitutes the greater part of our laws each year. It would do this by making the rights set out in the EU Charter of Fundamental Rights legally binding. This would make the 27 judges of the EU Court of Justice rather than the Irish Supreme Court or the Court of Human Rights in Strasbourg the final decider of our rights in many areas. The EU Court of Justice would be more remote, more expensive and harder for citizens to get to as they seek to vindicate their rights.
If the Lisbon Treaty gives the new Federal EU a human rights jurisdiction it is likely that the Commission will in time propose laws to guarantee and implement those rights and ensure their uniform application across all EU States, as has happened in the case of all the other Treaties. National law must be applied in a way that is consistent with EU law, for the latter has supremacy in any conflict between the two. That principle must apply also to rights matters. This raises the possibility of clashes over rights standards in sensitive areas where there are significant differences between Member States at present: for example, rules of evidence in court, trial by jury, censorship law, the legalisation of hard drugs and prostitution, rights attaching to State churches, conscientious objection to military service, the right to life, euthanasia, succession, property, family law, labour law, the rights of children and the elderly.
6. It would be a self-amending Treaty: The new Treaty would contain various "ratchet clauses" or "passerelles" enabling qualified majority voting to be substituted for unanimity in eight policy areas and in a "simplified revision procedure" for amending the Treaties by decision of the EU Prime Ministers and Presidents, without need for new Treaties or Treaty ratification. National Parliaments would have a veto over this mechanism but citizens would have no say, for there would be no need of referendums on its use. Governments can in any case usually get their National Parliaments to approve of something if they want it badly enough.
7. It would propose a new role for National Parliaments: The Lisbon Treaty provides that if one-third of National Parliaments object to a Commission proposal for an EU law, the Commission must reconsider it, but not necessarily abandon it. Supporters of the Treaty hail this as a significant new role for National Parliaments in the structure of the new Union. However it seems small compensation for National Parliaments losing the power to make laws and decide things in the 68 new areas of EU law-making and decision-taking mentioned in Point 4 above, which the Lisbon Treaty would shift from the national to the supranational level.
N.B. Is Lisbon necessary to make the 27-Member EU more effective?
The advent of the 12 new Member States has not made the negotiation of new EU laws more difficult since they joined the EU in 2004. On the contrary, a study by the Science-Po University in Paris in early 2007 calculated that new rules have been adopted a quarter times more quickly since the enlargement from 15 to 27 Member States compared with the two years before enlargement. The study also showed that the 15 older Member States block proposed EU laws twice as often as the newcomers. The Nice Treaty voting arrangements therefore seem to be working well.
A valuable source of information: For a general analysis of the Lisbon Treaty and the full list of the 68 national vetoes which it would abolish, see the book by Denmark's Jens-Peter Bonde MEP: New Name, Same Content: The Lisbon Treaty – Is it also an EU Constitution?, which may be downloaded from www.bonde.com