Tag Archives: Treaty of Lisbon

The Tedious Necessity of Treaty Revisions

The spirit of reform is haunting Europe once again. There’s talk of political union, scrapping EU institutions, and even leaving the European Union altogether. I can only sympathize with this spirit of reform and creative destruction. But one thing worries me – the lack of apprehension of the legal foundation of the EU.

The European Union is not a tribal clan. It is a supranational organization based on law, and encompassing an intricate network of rules that makes the whole thing possible. Having ideas about reform is cool, but reform necessitates the revision of the Treaties by the prescribed procedures.

That is why a political union cannot happen on a short notice. It will have to go the long way through the ordinary revision procedure, since it will provide new powers to the EU (art. 48 TEU). This is also the case with scrapping the European Economic and Social Committee, for example (it changes the institutional framework of the EU). As for the potential quitting of the EU by the United Kingdom, a more detailed legal analysis is needed in order to calculate all the costs and provisional time-frames for such a move.

Whatever the spirit of reform brings to the table, we need to execute reform legally. Backdoors are not available (see the position of Otmar Issing against the adoption of a political union through the backdoor of a monetary union).

 

 

Political Compromise on New Comitology Regime

This is a very special day. The European Parliament has confirmed today the agreement with the Council on the new regulation on implementing powers for the Commission. This new regulation, will enter into force on 1st March and will automatically replace the existing system.

As in the past, the mechanism of control foreseen by the regulation is based on “comitology” – i.e. committees composed by representatives of Member States to which the Commission submits draft implementing measures – but, contrary to the present system, there can be no intervention from the Council as an appeal body. In some specific cases there might be a need to go to an “appeal committee”, but this is just a “normal” committee, chaired by the Commission, albeit of a higher level of representation. It provides the opportunity to reconsider the draft measures or to r make changes if need be.

The regulation foresees that implementing measures in policy areas such as trade defence measures will be included in the normal regime. Until now these measures were submitted to special procedures in which the Council frequently had the last word.

The new procedures also give more flexibility to the Commission and a greater political responsibility. In the absence of a qualified majority against or in favour of a Commission draft implementing act, the Commission will have the choice between adopting the act or reviewing it.

I am currently writing an article on the new legal regime of comitology, which will be available on this blog somewhere in February 2011.

First Delegated Regulations Published!!!

I am glad to inform you that the first delegated regulations under the new hierarchy of EU legal acts have been published. The delegated regulations are adopted by the European Commission without needing the approval of a comitology committee. Delegated acts supplement or amend certain non-essential elements of the legislative act (art. 290 TFEU).

New Insights on Possible Treaty Amendments

The idea for an amendment of the founding Treaties in order to accommodate a permanent bail-out mechanism is on the table after the last European Council meeting. Now there are new developments and opinions that touch on this subject.

CEPS has published three reports that contemplate on possible Treaty amendments – a post-mortem on the European Council, an overview of revision procedures under the Lisbon Treaty, and a more specific overview of the practicalities of the Lisbon Treaty revision(s). All documents suggest that a limited revision of the Treaties is achievable. The more specific proposals are:

  • amending art. 122 TFEU, and including a reference to financial stability (plus a permanent European Financial Stability Facility – EFSF, created on an intergovernmental basis), or
  • adding a reference to art. 143 TFEU – the legal basis to extend the existing EU support mechanism to non-euro area member countries in art. 136 TFEU – the special Treaty article for the euro area countries.

The authors note that the viability of both approaches will depend on the interpretation whether such an amendment would affect the no-bailout clause in Art. 125 TFEU, thereby changing the nature of monetary union and creating a fiscal transfer union (in German Transferunion). Additionally, it is arguable whether such an amendment would constitute a change to the “essential scope and objectives” of the EU, thus requiring an ordinary revision procedure.

Meanwhile some Dutch parties are trying to force a preliminary referendum on any pending Lisbon Treaty amendments.

It appears that any proposal for Treaty amendment must be considered very carefully in the light of possible ratification, as well as taking into account the no-bailout clause of art. 125 TFEU. My personal conviction is that any institutionalisation of a permanent bailout mechanism is legally troublesome, and in any case should be subject to ordinary revision procedure. But first of all we need to see the amendments in print before speculating on their legal essence.

A Good Guide to Institutional Innovations in the Treaty of Lisbon

The Center for European Policy Studies (CEPS), Egmont (Belgium’s Royal Institute of International Affairs) and the European Policy Centre (EPC) have come together to publish a second study of the institutional innovations included of the Treaty of Lisbon. The authors have identified ten issues that they explore in length. A couple of general conclusions are made:

  • The institutional system of the European Union has become more complex;
  • The European Parliament and the European Council have clearly been reinforced by the Treaty of Lisbon;
  • The Lisbon Treaty reinforces and accelerates an evolution towards increased joint management.

I recommend this publication to anyone interested in the institutional dynamics of the European Union.

First Revision of the Treaties after Lisbon

You may have heard of it – one of the leftovers of the Treaty of Lisbon is the question about the 18 missing MEP seats. The 2009 European Parliament elections were conducted under the old rules with a total of 736 MEPs, because the Treaty of Lisbon was not yet in force. Under the Treaty of Lisbon there had to be 754 MEPs. That is why 18 MEPs could not take their places unless a new Intergovernmental conference (IGC) was conducted, and a Treaty amendment was ratified.

This IGC has speedily approved the text of the amendment, and so has the European Parliament. But the 18 MEPs will only be able to take their places in the EP after the ratification process is concluded in all the 27 Member States.

Will the Cameron Government Be THAT Euroskeptical?

Update: the UK government has issued a statement on a common position on relations with the EU. As expected, it reiterates the idea of future referendums on new revisions of the founding treaties. The idea of new opt-outs from the Treaty of Lisbon is discarded, however.

The deed is done, and a coalition between the Conservative Party and the Liberal Democratic Party will probably govern the United Kingdom. As usual, I try to figure out what does this mean for the European Union.

First, on the personality effects. David Cameron and the future Foreign Secretary, William Hague, are not, well, real fans of the European Union. Cameron and Hague have given some pretty worrying signals in the past. Cameron promised to run a referendum on the Treaty of Lisbon, but later backed down. He also did try to sabotage the entry into force of the Treaty of Lisbon by writing to Vaclav Klaus.

Mr. Hague, the former chairman of the Conservative Party, and future Foreign Secretary, has a motto: ‘In Europe not run by Europe’. His special breed of euroskepticism was an essential part of his strategy as a party leader, and later as a shadow Foreign Secretary. He eagerly opposed any idea of joining the euro. He went so far that no other than the White House administration expressed its concern that the Conservative’s Euroscepticism could undermine the ability of a Conservative government to influence events in the EU. However, a leaked memo in the Guardian, drafted by civil servants on behalf of William Hague, shows that he is still in the same boat. He reiterates the earlier demand by Cameron for a number of new opt-outs (criminal justice, the Charter of Fundamental Rights, and social/employment issues) that would demand new revisions of the founding treaties.

So the question is will Mr. Cameron and Mr. Hague pursue this policy in full? I am not so sure. The Cameron government will be a coalition government, to begin with. On the criminal justice front the Liberal Democrats demand keeping Britain part of international crime-fighting measures such as the European Arrest Warrant, European Police Office (Europol), Eurojust, and the European Criminal Records Information System. They also believe that it is in Britain’s long-term interest to be part of the euro. Again, on a personal level, Nick Clegg – the future Deputy Prime Minister, was a European Commission official, and later – a member of the European Parliament.

This obvious contradiction must be cleared. It remains to be seen how the new British coalition government will manage these issues. In fact, the future government’s stance on Europe may the main stumbling block ahead. Perhaps Mr. Cameron can use some wisdom stemming from the special relationship.