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A new direction for the European Union?

Britain and EU migrants

The Lisbon Treaty in Practice

Introduction

The signing of the Lisbon Treaty by the President of the Czech Republic in November 2009 completed the ratification process that has lasted since the Treaty was agreed almost two years earlier. The Treaty will enter into force on 1 December 2009.

The Treaty, a set of reforms to the institutions and powers of the EU in order to make the enlarged organisation easier to function, is an amending treaty in the manner of previous treaties, such as the Single European Act of 1986 and the 2001 Nice Treaty. This means that the existing Treaty on European Union (commonly known as the Maastricht Treaty) and the Treaty of Rome will now be amended to take account of the changes Member States have agreed. A consolidated text will be available shortly.

This paper considers the main changes in the operation of the EU that will be made by the implementation of the Treaty of Lisbon and considers some specific issues from a UK perspective. It is not a replacement for earlier briefing notes that focused on the origins of this Treaty and the debate about its contents.

Key Points of the Lisbon Treaty

The key changes made by the Treaty of Lisbon are:

  • the European Council will become a separate institution of the EU and the rotating presidency of the European Council will be replaced by a full-time president, appointed for a period of two and a half years (renewable for one further term);
  • the European Council, acting collectively, will in future define the general political direction and priorities of the EU;
  • the existing posts of High Representative for the Common Foreign & Security Policy (CFSP) and the Commissioner for External Relations will be combined in a new post of High Representative of the Union for Foreign and Security Policy;
  • the existing six-month presidency of the Council will disappear and the new High Representative will chair the Foreign Affairs Council, speak and act for the Union in CFSP matters as mandated by the Council and, as Vice President of the Commission will be responsible for co-ordinating the Commission’s external policies (including development, enlargement, trade, neighbourhood and other policies);
  • the rotating presidency will continue in respect of meetings of the Council of Ministers other than Foreign Affairs (for example, of agricultural ministers) but each Member State will work with its predecessor and successor Member States in the presidency to ensure continuity;
  • the powers of the European Parliament have been increased, with its consent under the co-decision procedure now needed for almost all EU legislation, bringing approval of the CAP and the whole of the EU budget, for example, within its responsibility;
  • national parliaments will for the first time have a direct say in the legislative process, with all proposed EU legislation sent directly to them and the ability of the national parliaments, working together, to object on grounds of subsidiarity;
  • the policy structure of the EU, which has operated since the Maastricht Treaty, will change so that justice and home affairs work will be managed in the same way as most policies, i.e. through the Commission and decided by QMV, but the opt-in/opt-out arrangements for the UK and Ireland continue (see below);
  • the formula used when calculating a qualified majority vote will change in 2014 in order to give larger Member States a more equitable weighting;
  • provision is made for a Member State to be able to withdraw from the EU;
  • the EU will have institutional "legal personality" but only to make international agreements in areas within the EU’s competence (and with the unanimous consent of Member States).

Changes to the Institutions of the EU

European Council

As described above, the European Council will be established as an institution of the EU in its own right (alongside the Commission, Parliament, Council of Ministers, European Central Bank, Court of Justice and Court of Auditors). It will appoint the President of the European Council, who must not hold national office, by QMV.

The Commission

Under the Nice Treaty, the Commission would have been reduced from 27 members – i.e. one per Member State – to 15 members with membership rotating through Member States. As a result of the first Irish referendum in 2008, their Government sought assurances, one of which was that Member States would retain individual Commissioners. This was agreed at the June 2009 European Council and is possible because the Lisbon Treaty enables the European Council to set aside the provision in the Treaty of Nice, which they will now do. As a result, the UK will continue to have a Commissioner at all times

The new Commission will be appointed by the European Council, with the consent of the European Parliament. The President of the Commission will be Mr Barroso, who was granted a second term after the European Parliament agreed in September 2009.

Council of Ministers

The rotating six-monthly presidency for the meetings of the Council will be retained (except when dealing with foreign affairs). In order to ensure greater co-ordination, each country holding the presidency will work with the predecessor and successor presidencies in what is referred to as a "team presidency". This arrangement should benefit smaller Member States, who have found holding the presidency a considerable burden.

European Parliament

The extension of the legislative procedure known as co-decision – where the consent of both the Parliament and the Council is required before a draft law can be adopted – to almost all the work of the EU is a significant increase in the power of the Parliament.

Foreign & Security Policy

The creation of a combined post of High Representative for Foreign and Security Policy and Vice-President of the Commission is an important step in the development of more effective engagement by the EU with third countries and international bodies. The appointment will be made by the European Council using QMV and with the agreement of the President of the Commission. As with other Commissioners, the person appointed will have to be approved by the Parliament as part of the College of Commissioners but not on an individual basis.

The new High Representative (HR) will chair the foreign affairs council and be responsible to the Council for the management of the CFSP. The HR will be supported by the European External Action Service, made up of existing Commission and Council personnel together with diplomats seconded from Member States who will make up at least one third of the staff. Outside Europe the service will have ‘Union Delegations’ based on the Commission’s existing network of Delegations accredited to more than 150 countries and international organisations. The HR will work to mandates laid down by the Council and within the European Council’s overall strategy (see below) and although the HR will be able to initiate policy proposals, he or she will have to take them to the Council for approval.

The European Council will continue to set the strategic objectives of the CFSP by unanimity. The decision-making procedure in the Foreign Affairs Council for CFSP will continue to be unanimity, except in the implementation of measures under previously agreed strategies. The existing system for a referral of a measure back to the European Council where a country objects to the use of QMV will continue. The Lisbon Treaty states that the Court of Justice has no jurisdiction over the CFSP, save that it will continue to be able to ensure that CFSP measures are confined to the CFSP area and it will be able to consider cases involving sanctions against individuals (necessary to ensure that they have a right of appeal).

In the case of defence and security decisions, unanimity will be required in all cases and the Treaty states that national security is the responsibility of Member States. There are no provisions regarding the creation of an "EU army" or allowing the imposition of defence decisions on Member States against their will.

The EU’s Powers

The powers of the EU derive from competences conferred on it by Member States. This point is made explicit for the first time through an amendment to Article 1 of the Treaty on European Union, which now reads:

"By this Treaty, the high contracting parties establish a European Union hereinafter called the ‘Union’ on which Member States confer competences to attain objectives they have in common".

The Treaty now also states that "competences not conferred upon the Union in the Treaties remain with Member States", as part of a new Article on relations between the EU and Member States. This Article goes on to say that the EU has to respect the equality of Member States, "as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government".

The Lisbon Treaty involved no transfer of new areas of responsibility from the Member States to the EU. The new competences conferred by the Lisbon Treaty are in areas of existing EU co-operation, such as energy and freedom, security and justice. There will be some extension of shared competence in less significant policy areas such as space and technological research but these will not stop Member States from acting on their own initiative.

A new system of qualified majority voting (QMV) will come into force on 1 November 2014 with transitional provisions until 2017. The new system, often called a double-majority system, will mean that a minimum of 55 per cent of Member States representing at least 65 per cent of the EU’s population will be needed for legislation to pass. Furthermore, there is a new mechanism that enables a blocking minority - if it is large enough – to stop the adoption of an act by qualified majority of the council and set in motion a process to try and reach agreement on a way forward. The transitional provisions enable a Member State to call for a vote on the basis of a slightly different weighting of votes and was a compromise following Polish and Spanish objections to the final text of the Treaty.

More decisions in the Council of Ministers will be made by QMV in future, many of a technical nature. Of the 50 new topics to be decided by QMV in future, 13 do not apply to the UK because they relate to matters of justice and home affairs or to the eurozone. The nine Articles of substance relate to areas where moving to QMV is in the UK’s interest, including humanitarian aid, the supervision and co-ordination of intellectual property rights protection and energy market liberalisation. Taxation, social security and defence are not affected by these changes; they remain subject to unanimity.

The Treaty includes a procedure enabling a move from unanimity to QMV in new areas without requiring a new treaty but such a provision will require that any change is dependent on unanimous agreement by the Member States in the European Council. The UK Government has committed itself to only agreeing to such a change with UK Parliamentary approval. The removal of unanimity in defence is excluded.

Freedom, Security & Justice

The Treaty strengthens the EU’s ability to deal with cross-border crime in Europe by making this area of EU activity part of its normal work. This means that the European Parliament and national parliaments will more easily be able to scrutinise proposals. The right of initiation of policy will be with the Commission in most of the freedom, security and justice field, albeit that the European Council will set out the basic strategy to be followed and Member States will still be able (if a quarter of them agree) to initiate proposals in the fields of police and criminal judicial co-operation.

As a result of bringing what has hitherto been known as justice and home affairs – the "third pillar" of the work of the EU since the Maastricht Treaty – under what is now the normal legislative procedure (i.e. co-decision between the Council and Parliament with the Council voting by QMV) an emergency brake procedure has been introduced. This is so that if a Member State feels that a proposal would, "affect fundamental aspects of its criminal justice system", it can refer the matter to the European Council for a decision by consensus. But if Member States cannot agree at the European Council and, if at least one third of Member States then wish to proceed, they can do so using the enhanced co-operation procedure to adopt the measure for their countries.

The UK obtained a significant extension of its previously agreed (in the 1997 Amsterdam Treaty) right to opt-in or opt-out of policies in the area of freedom and security. These rights already applied to border controls, asylum and immigration and judicial co-operation in civil matters; they will now be extended to judicial co-operation in criminal matters and to police co-operation. Ireland is to decide whether or not to make use of this extension at a later date.

The Charter of Fundamental Rights

The Charter of Fundamental Rights was not incorporated in the Lisbon Treaty but adopted as a separate legal document by the EU institutions and then referred to in the Treaty as having "the same legal value as the Treaties". The Member States agreed a declaration in respect of the Charter which states that the Charter does not extended the application of Union law beyond, "the powers of the Union or establish any new power or task for the Union, or modify powers and tasks defined by the Union". It is important that the EU be bound by human rights principles as it is increasingly involved in crime and justice work where the liberties of the individual are often at stake.

In a separate protocol (a protocol has the same legal force as the treaty itself), the United Kingdom obtained a statement to the effect that the British courts and the European Court of Justice could not find the laws of the UK incompatible with the Charter and that the Charter does not create justiciable rights in the UK that go beyond existing rights recognised in British law (this is sometimes mistakenly described as an "opt-out"). This protocol will also apply to Ireland and the Czech Republic.

Subsidiarity & National Parliaments

The Lisbon Treaty includes important extensions of the role of national parliaments in the EU. National parliaments will receive proposed EU legislation directly – rather than via their national governments – at the same time as the European Parliament and the Council of Ministers.

The new Article gives the national parliaments (working together) a specific role in the monitoring of subsidiarity, including the ability to refer back to the Commission if a majority agree, legislative proposals which they believe to be in breach of the subsidiarity principle. This will necessitate new procedures in national parliaments to trigger this process and also to implement the new provision which also enables a chamber of a Member State parliament to refer proposed legislation to the European Court of Justice on the grounds that it breaches the subsidiarity principle.

National parliaments will also establish special committees to scrutinise the EU’s work in the area of freedom, security and justice and they have to give their unanimous consent before QMV can be introduced for civil judicial matters concerning family law.

The EU scrutiny process in Britain will be changed as a result of the Lisbon Treaty and also as a result of the undertakings given by the British Government to enable its ratification.

In the case of freedom, security and justice proposals, the Government promised that when the UK Government chose to opt-in to a proposal, there would be a debate in both Houses on a motion to approve that proposal if the European Union Select Committee requested it.

 

November 2009

 

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