Tag Archives: Treaty of Nice

Czech Constitutional Court Delays Decision

The Czech Constitutional court has indicated that it will rule on whether the Treaty of Lisbon is compatible with Czech constitutional law next week.

This means two things –

1. the European Council summit will probably not make decisions on the posts of President of the European Council and High Representative for foreign and security policy;

2. The amendment in art. 4, para. 2 and the following of the Treaty of Nice will enter into force – with all consequences of that fact.

Who Holds the Keys to the Treaty of Lisbon?

Tomorrow the people in Ireland shall decide the faith of the Treaty of Lisbon.

But it does not end there. Seventeen Czech senators have filed a second complaint against the Lisbon Treaty with the Constitutional Court in Prague. They say that the Irish guarantees have a character of additional clauses to the Lisbon treaty and the guarantees of keeping a commissioner for Ireland in particular is a clear amendment to the Lisbon treaty.

At the same time Mirek Topolanek, a former Czech PM said after a meeting with Jose Manuel Barroso that “if the Lisbon Treaty is not ratified because of President Klaus’ refusal to sign, the European Commission will be reduced”, leaving the Czech Republic without a commissioner.

This may well be true. But we still need a unanimous decision by the Council under the Treaty of Nice to stipulate rules for a “rotation system based on the principle of equality”.

Given the new procedure before the Czech Constitutional Court it may be reasonable to start negotiations now.

Germany Finished Ratifying the Treaty of Lisbon

With a sigh of relief we can report that German government has finished the ratification process of the Treaty of Lisbon. Now it is up to Ireland, Poland and the Czech Republic to ratify the treaty.

We have numerous reports about the possible delay of the ratification of the Treaty of Lisbon in the Czech Republic (Grahnlaw, Independent.ie). Strangely enough, Euractiv says “there is no plan B”. Well, there should be one.

No one can legally force the Czech Republic to ratify the Treaty of Lisbon before November, 1st. I have already pointed out that is unthinkable to appoint the European Commission under the rules of the Treaty of Lisbon if it has not entered into force on November, 1st.

All in all we will probably have a European Commission appointed under the Treaty of Nice. Whether this will be a temporary solution (as Grahnlaw suggests) is not so clear to me.

Important Institutional Dimensions of the Commission Selection Process

Now we have Jose Manuel Barroso approved as the next President of the European Commission. However, the procedure does not end here; now the College of commissioners should be selected.

This, in turn, demands the exploration of two problems, relevant to the composition of the next Commission, as well as to its political orientation.

First, as I have already pointed out, for the first time the President of the Commission has presented his political program before being approved by the European Parliament. One can say that this was made on the spur of the moment. However, during the debate prior to the approval vote, Guy Verhofstadt, leader of the liberals and democrats in the EP, had this to say:

“Our support is very clear. It is conditional. That means that our support will last until we see that these elements [from the political guidelines] will be found in the whole program of the Commission (…)

Finally, our support also will depend, as you know it, on the new structure of the Commission.”

This statement by Mr. Verhofstadt means that the future Commission will be put under direct political scrutiny at least by the liberal democrats and more, that Mr. Barroso will have to accommodate particular demands on the structure and distribution of mandates in the Commission.

Second, and much, much more important – we have the issue of the Treaty of Lisbon. Even if the referendum in Ireland is successful, I very much doubt that all ratification documents will be deposited with the Italian government before October, 31st. That is very important, because art. 6 of the Treaty of Lisbon says that it will enter into force “on the first day of the month following the deposit of the instrument of ratification by the last signatory State to take this step.” There are many signals that the Czech Republic and/or Poland may delay the ratification.

Now, if the Treaty of Lisbon has not entered into force on November 1st, then we need to elect the European Commission by the rules provided by the Treaty of Nice. That follows from art. 4, para. 2 and the following of the Treaty of Nice. The rules of that treaty stipulate that the number of commissioners should be less than 27. More, these rules require the unanimous approval by the Council of a “rotation system based on the principle of equality” for the election of members of the Commission.


Some say that we can approve the college by the rules of the Treaty of Lisbon provided that we have certainty about the future date of entry into force of that treaty (say, in December). Unfortunately this is not the case. If the Treaty of Lisbon has not entered into force on November, 1st and if the Commission was appointed by the rules of that same treaty, then anyone can challenge the legality of that act of appointment on the basis of violation of primary Community law.

Ireland Pressured to Decide in September on the Lisbon Treaty

This was expected. Euractiv says that Ireland has been pressured by other EU member states to speed up preparations for a second referendum on the Treaty of Lisbon. Member states have Abandoned initial plans to extend the Commission’s mandate, and now want to enable the new EU executive to be appointed in October under the terms of the Lisbon Treaty.

I was quite skeptical of the legal basis for extension of the Commission mandate, and obviously the implications of the Nice Treaty are better understood now.

Mandate Extension for the Commission?

EurActiv reports that the mandate of the present European Commission will most likely be extended, to manage the outcome of the possible second Irish referendum on the Lisbon Treaty. The idea is that should the Irish vote ‘yes’, EC will work to bring the Treaty of Lisbon into force, incorporating the ‘one commissioner per country’ concession granted to Ireland in December. Should the Irish vote ‘no’, the Nice Treaty will continue to apply, meaning that a new institutional arrangement will have to be found to satisfy the treaty’s rules on the make-up of the Commission.

This sounds simpler than it actually is. First, I really want to see the legal basis for the extension. Second, even if there is a legal extension of the Commission mandate, there will be too much uncertainty as to the outcome of the second Irish referendum. This is quite dangerous provided that the second referendum may again fail. Given the provisions in the Treaty of Nice, it will be really hard for the Commission to work out an institutional solution on short notice. We still cannot be certain of the fate of the ratification process in the Czech Republic and Germany.

That is why I think that talks about a possible solution under the rules of the Treaty of Nice should really start now.