Treaty of Lisbon and 2004 Constitutional Treaty Comparison

Before considering the differences between the contents of the Treaty of Lisbon and the failed 2004 Constitutional Treaty, not least because in the views of many this could be a short discussion, it seems prudent to briefly consider why it was felt necessary that any change to what was then, and in fact still is now, the status quo was required.

At the conference of Nice, in 2000, a declaration was made as a result, in part, due to the agreement between Member States that the way should be opened for the expansion of the Community to allow entrance of a number of new States to the Community^[1]. The conference felt that a number of points needed to be considered and addressed. There were four points raised for discussion namely:

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• how to establish and monitor a more precise delimitation of powers between the European Union and Member States, reflecting the principle of subsidiarity.
• the status of the Charter of Fundamental Rights of the European Union…
• a simplification of the Treaties…
• the role of national parliaments in the European architecture.^[2]

These points were considered in December 2001 in Laeken in Belgium where a declaration was made in respect of how it was felt the Union needed to proceed in order to ensure a successful future^[3]. The Laeken Declaration drew deeply on history and the divisions which had been caused, in the main, by the Second World War. It saw that the future and unified Europe would expunge those divisions and pave a bright future for the Union as a whole.

The resultant Constitutional Treaty set out how it was felt that the Union could proceed as a defined unit. The coverage of its abrupt failure has been comprehensive with many views expressed as to reasons for this. Some believed that it was erroneous to even consider a document of this kind in relation to Europe, arguing that the situation in place worked sufficiently well^[4]. Whilst others were critical of its contents believing that it was a step too far in the direction if a federal Europe and others believed that its failure was the result of an underlying suspicion of the Union as whole in many member states^[5]. Whatever the reasons behind its failure, and it is likely to be a combination of all of the expressed views, the process towards some kind of constitutional document continued.

Following the rejection of the Constitutional Treaty in referenda in France and the Netherlands and the likely imminent rejection in other states including possibly the United Kingdom, a halt was placed on proceedings and a period of reflection was implemented in which Member States were encouraged to enter into debate and discussion with their citizens in an attempt to pave a way forwards. This process took place during the remainder of 2004 and 2005, and then in 2006, Germany was commissioned by the European Council to assess the situation with regards to the Constitutional Treaty. Following this, in June 2007 the ‘Reform Treaty’ was introduced and this was developed over the next year or so and, because the European Union Presidency was held by Portugal at the end of 2007, was renamed as the Treaty of Lisbon. This treaty like the Constitutional Treaty before it required ratification by all Member States. This was mostly achieved, but Ireland, the only Member State whose constitution requires a referendum before ratifying the Treaty, returned a no vote in that referendum. The reasons for this will be discussed below, but at the current time the constitution of the European Union, or lack thereof, remains as it did in 2000 following the Treaty of Nice.

One of the key complaints, as mentioned above, of the Constitutional Treaty was its implications in relation to a federal Europe. Article I-8 of the Treaty provided for amongst others the celebration of Union Day on 9^th May each year. In drafting the Treaty of Lisbon the Council were careful to ensure that any reference to a constitutional document was removed. There can be no doubt that the Treaty of Lisbon makes a number of key amendments to the EC Treaty. Large numbers of these however are replications of what was already contained within the Constitutional Treaty.

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One area where there is remarkable consistency between the Constitutional Treaty and the new Treaty on European Union and the Treaty on the Functioning of the European Union which the Treaty of Lisbon creates in place of the EU Treaty, is that of the role of national parliaments in relation to the Union. It will be remembered that this was one of the key questions discussed Laeken and was clearly believed to be vital in ensuring a unified Europe. Article I-11 of the Constitutional Treaty provided that national parliaments would ensure compliance with the principle of subsidiarity, a principle which states that the European Union will only take action on matters which it is felt, due to their scale, cannot be addressed at a national level. This statement is transferred in almost identical form to Article 5 of the Treaty on European Union by Article 1(6) of the Treaty of Lisbon.

Article I-18(2) of the constitutional treaty required the European Commission to bring to the attention of national parliaments proposals to instigate a flexibility clause which allows for the adoption of measures by the Union where there are insufficient powers in place to allow for their adoption. This statement is added almost word for word into Article 352(2) of the Treaty on the Functioning of the European Union. These are two examples of the nine provisions contained within the Constitutional Treaty in relation to the role of subsidiarity, which have remained to all purposes unaltered within the contents of the Treaty of Lisbon. Whilst this is not the place for a full discussion on the validity of these provisions, there seems to be little doubt that they provide for a greater contribution to Union policy making by national parliaments and, in conjunction with the provisions of Article 7(3) of the Protocol on the Application of the Principles of Subsidiarity and Proportionality in allowing, in certain circumstances, national parliaments to veto Union legislation give national parliaments a much more significant position within the Union’s political processes.

The next area considered at Laeken was the introduction of the Charter of Fundamental Rights. Both this and the European Convention on Human rights would have been accepted into the European Constitution under Article I-9 of the Constitutional Treaty. Rather unsurprisingly given the tone of what has gone before both were to become legally binding following the ratification of the Treaty of Lisbon. It is interesting to note that the text of the Charter is absent from the Treaty itself, rather it was to be introduced in Article 6(1) of the Treaty on European Union.

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It is necessary next to address the fourth of the four considerations of the Laeken declaration before considering the third. The Constitutional Treaty contained provisions giving the Union competence or the ability to legislate in certain areas. These split into two sections exclusive competence, in which only the Union could legislate and shared competence in which this ability is shared with the member state, providing the Union has not exercised its competence^[6]. The wording in relation to these competences is indicative of the level of change that took place between the Constitutional Treaty and the Treaty of Lisbon. Paragraph two of Article 2, in the Treaty on European Union read: ‘The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.’ This was amended from the following in the Constitutional Treaty: ‘The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.’ This seems to be an attempt to demonstrate that some power with regard to these competences can be returned to the member state if the Union ceases to act, but it can be seen that the change between the two treaties is minimal^[7].

The final of the four considerations expressed in Nice and given voice in Laeken was that of simplifying the Treaties. There can be no doubt that the Constitutional Treaty would have done this. There would be one definitive document containing the whole scope and powers of the Union, the Treaty of Lisbon was clearly a long way from achieving that aim. This treaty is an amendment of previously existing treaties and read in isolation is almost pointless. It also results in yet another reclassification of the treaty articles and subsequently yet another table of equivalences. Whilst it seems an obvious point, this one factor is the single largest difference between the Constitutional Treaty and the Treaty of Lisbon, thus indicating that other differences, as has been discussed, are rather minor.

Before continuing to discuss the possible reasons behind the Irish no vote, this seems a sensible point to summarise the differences which exist between the Treaty of Lisbon and its failed predecessor. One of the single, and perhaps most significant, differences between the two does not involve the details of their respective texts at all. One of the ideas considered at Laeken was that the Union should adopt a more open and democratic approach to its policy making process. This was given effect in the drafting of the Constitutional Treaty. Following its failure however the Union immediately returned to the previous approach of secretive, less democratic policy making. In an attempt to push through the reforms contained within the Constitutional Treaty, all be it minus certain contentious areas, the Union developed the Treaty of Lisbon with little or no public consultation.

It has been mentioned numerously above that there are very few significant substantive changes between the two treaties. It should be emphasised that the express constitutional intent has been removed and any statements which could be viewed as suggestive of federalism have also disappeared. The declaration that the European Parliament is sovereign has also been removed^[8]. There are a number of minor technical changes in relation to the scope of competences and rights in relation to subsidiarity have also been lightly modified. In most other respects the two treaties are the same.

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So, why did the Irish public choose not to ratify the Treaty of Lisbon? There were a number of specific details presented by the Irish ‘No’ campaign in the lead up the Irish referendum on the ratification of the Treaty of Lisbon. Tony Gregory TD stated that it was his belief that the Treaty would weaken the position of Ireland within Europe and would cause Ireland to lose its traditionally neutral military position^[9]. Other areas of the campaign stated that a yes vote would ‘introduce abortion and high taxes, and abolish peat cutting and union rights.’^[10] The no campaigners, rather conflictingly, used the loss of the Irish seat on the Commission, a result in its size reduction following ratification, as a reason for refusing the Treaty. It could be argued that any of these reasons or a collection of them were responsible for the no vote but it would seem naïve on the part of both sides of the debate to believe that specifics were the cause of the failure of the Treaty.

Whilst it is impossible to give definitive reasons for failure, it seems to me that the Irish, French and Dutch no votes must, in some way be linked. And since it is unlikely that any specific point could give rise to the same level of reaction in each country there must be some other underlying reason for the populations’ refusal to accept a constitutional type of treaty for Europe. When asked for comment by the BBC, one Irish no voter stated that he had voted in this manner for, amongst other reasons, the fact that ‘the whole European Union regime is getting ridiculous and is too underhand to even follow’^[11] It is the word underhand which is most interesting in this statement. Could it be that despite all of the efforts made to the contrary, the European Population believe that the European Union is encroaching too far on national sovereignty and is an elite non-democratic force which is not necessarily always a force for good. This would certainly be a euro-sceptics view, but as the results of these referenda demonstrate they do appear to be the majority.

The ratification of the Treaty of Lisbon by most Member States has been seen by many as underhand. Its contents are not sufficiently different to the Constitutional Treaty to warrant ratification without referral to the general population and whilst this could be a reason for the no vote in Ireland I believe the descent runs deeper. It appears that there could be large scale Euro-scepticism at play in many Member States.

With this in mind, the steps that are now taken by the Union will surely be instrumental in deciding its success or, not failure because that is unlikely, but certainly value and purpose. Given their efforts in trying to ratify the Treaty of Lisbon, it seems reasonably certain that the executive powers in the Member States will not stop in their moves to introduce the measures provided for in the Constitutional Treaty. The options are few; should there now be a further period of reflection and try to restart the process once the dust has settled? Should areas be dealt with in a point by point manner, simply amended existing European legislation as and when required? Should, as the French government suggest, the Irish no vote be ignored and the Treaty ratified in their absence? Or should the current status quo remain untouched. At a summit in Brussels in December, the Irish government gave a commitment to attempt, via a new referendum; get the Treaty ratified within the next twelve months providing certain guarantees were made by other Member States. It seems that so far as the Treaty of Lisbon is concerned the European Union is quite happy to take the approach of ‘if at first you don’t succeed, try, try again’. This is all very well, but surely it would be better to consider the reasons for failure rather than trying to push the populace into accepting a situation for which there are clearly serious and numerous reservations.

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As a conclusion it seems fitting to use Joseph Weiler’s erudite discussion on the treaties and consider the bearing this has on the problems encountered.

‘The segue was of course priceless – even Houdini would marvel at the magic. Take the Treaty which masqueraded as a Constitution, do some repackaging, and now it is a Constitution masquerading as a Treaty. The repackaging is pretty crude: strip away the word constitution. Pretend the Charter of Fundamental Rights is not part of the Reform Treaty … and all this whilst pontificating on the need for transparency.’^[12]

Table of Legislation

EC Treaty (Treaty of Rome) 1957

Treaty of Nice C80 2001

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Treaty Establishing a Constitution for Europe C310 Volume 47 2004

Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community C306 Volume 50 2007

Bibliography

The Laeken Declaration

G. Barrett, “The king is dead, long live the king: the recasting by the Treaty of Lisbon of the provisions of the Constitutional Treaty concerning national parliaments” (2008) European Law Review 33(1)

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J. Bateman, “Brussels Bulletin: a New European Framework” [2008] International Family Law Jounal 134

R. Bellamy, “ The European Constitution is Dead, Long live European Constitutionalism” (2006) 13 Constellations 181

BBC News Online

(http://news.bbc.co.uk/1/shared/spl/hi/pop_ups/08/europe_ireland_votes_no/html/1.stm)

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Graínne de Búrca, Reflections on the path from the Constitutional Treaty to the Lisbon Treaty, Jean Monnet Working Paper 03/08

P. Craig, “The Treaty of Lisbon, process, architecture and substance” (2008) European Law Review 33(2)

M. Dougan, “The Treaty of Lisbon 2007: winning minds, not hearts” (2008) 45 Common Market Law Review 617-703

D Granville, “Irish Democrat: Gregory Joins the No Campaign”, Connolly Publications Ltd, London, 2008

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B. Laffan and J O’Mahoney “Ireland and the European Union” Palgrave MacMillan, London, 2008

D. MacShane, “Ireland’s No Vote: Europe Is Not Going Away”, Times Online, 2008 (http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4133106.ece)

R. McAllister “European Union: A Historical and Political Survey” Taylor and Francis Ltd, London 2008

L. Siedentop, “ A Crisis of Legitimacy” (2005) 112 Prospect

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J. Snell, “European constitutional settlement, an ever closer union, and the Treaty of Lisbon: democracy or relevance?” (2008) European Law Review 33(5)

P. Syrpis, “The Treaty of Lisbon: Much ado … but about what?’ (2008) Industrial Law Review 37(3)

J Weiler, “European Journal of International Law – Marking the anniversary of the Universal Declaration; the Irish no and the Lisbon Treaty” E.J.I.L. 2008, 19(4), 647-653

S. Weatherill, “The Lisbon Treaty: Aspiration and Structure”, in Weatherill, EU Law (OUP: 8th ed. 2007),

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S Weatherill “Cases and Materials on EU Law”, 8^th Revised Edition, OUP, Oxford, 2007

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Footnotes

^[1] Treaty of Nice ‘Declaration on the Future of the Union’

^[2] Ibid

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^[3] The Laeken Declaration

^[4] R. Bellamy, “ The European Constitution is Dead, Long live European Constitutionalism” (2006) 13 Constellations 181

^[5] L. Siedentop, “ A Crisis of Legitimacy” (2005) 112 Prospect

^[6] Article 2 of the Treaty on European Union. I-12 of the Constitutional Treaty.

^[7] See www.statewatch.org for further detailed comparisons

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^[8] Article I-6

^[9] D Granville, “Irish Democrat: Gregory Joins the No Campaign”, Connolly Publications Ltd, London, 2008

^[10] D. MacShane, “Ireland’s No Vote: Europe Is Not Going Away”, Times Online, 2008 (http://www.timesonline.co.uk/tol/comment/columnists/guest_contributors/article4133106.ece)

^[11] BBC News Online (http://news.bbc.co.uk/1/shared/spl/hi/pop_ups/08/europe_ireland_votes_no/html/1.stm)

^[12] J Weiler, “European Journal of International Law – Marking the anniversary of the Universal Declaration; the Irish no and the Lisbon Treaty” E.J.I.L. 2008, 19(4), 647-653

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