The Lisbon Treaty The Treaty-Making Process

Finn LAURSEN

Introduction The European Union (EU) is based on a number of treaties, some of which go back to the 1950s, especially the Rome “Treaty establishing the European Economic Community” (EEC). Prior to the Lisbon Treaty, which entered into force in December 2009, the EU was based on the treaty framework that emerged when the Treaty of Nice entered into force in 2003 (European Union 2003). The Constitutional Treaty – elaborated during the Convention on the Future of Europe, 2002-2003, and finally negotiated during the intergovernmental conference (IGC) of 2003-2004 – proposed a number of changes in that framework (Council of the European Union 2004a and 2004b; European Convention 2003). But the treaty was rejected in referendums in France and the Nether- lands in May and June 2005, respectively (Laursen 2008). After a reflection period, it was decided that a so-called “reform treaty” should be negotiated. The German presidency played an important role in securing agreement on a mandate for a new IGC in June 2007 (Council of the European Union 2007a and 2007b). During the Portuguese presidency in the autumn of 2007, this IGC produced a new treaty, the Lisbon Treaty (European Union 2007). The ratification of the treaty took longer than originally expected, because the Irish people rejected ratification of the treaty in a referen- dum in June 2008. However, the Irish subsequently accepted the treaty in a second referendum in October 2009. Domestic problems also created some delay of ratification in Poland and especially in the Czech Republic. In this book, various scholars explore the process of producing this latest EU treaty. The focus is on the role of member states, arguably the “masters of the treaty.” Intergovernmental conferences have become the main setting for treaty reforms since the Single European Act (SEA) in the mid-1980s. Although the European Commission is taking part in the IGCs, its voice does not count when determining whether there is unanimous support for a proposal. The other main EU institution, the

17 The Lisbon Treaty: The Treaty-Making Process

European Parliament, is also associated with the process. It can put forward proposals and ideas; however, it has no veto when the final decisions are made. So inter-state bargaining is important when new treaties are negotiated and all member states have to ratify a new treaty before it can enter into force. The Lisbon Treaty mostly delineates a number of institutional changes. In the end the product has to be evaluated against the standards established at the outset. Will the treaty improve the efficiency, demo- cratic legitimacy “as well as the coherence of its external action,” as the mandate from June 2007 claimed it should? (Council of the European Union 2007a, 2). Only time can answer that question. The finally- adopted treaty does leave the EU with some new institutional possibili- ties as well as limitations, the latter especially in the area of foreign and security policy.1 The Constitutional Treaty would have replaced all existing treaties of the EU. The Lisbon Treaty, however, reverts to the classical method of treaty reform, amending the existing treaties. For that reason the treaty that was signed in Lisbon on 13 December 2007 is much more difficult to read than the Constitutional Treaty (Council of the European Union 2004a and 2004b). Luckily, the consolidated version of the treaties incorporating the Lisbon Treaty, which was published in early 2008, is easier to read than the Lisbon Treaty itself (European Union 2008).

Table 1: Treaty of Lisbon Chronology Dates Events European Council meeting agrees on the Nice Treaty. 7-10 December 2000 Adoption of post-Nice agenda European Council meeting at Laeken. Adoption of 14-15 December 2001 declaration and decision to establish “Convention on the Future of Europe” 28 February 2002- The European Convention draws up “Draft Treaty 18 June/10 July 2003 establishing a Constitution for Europe” 4 October 2003- Intergovernmental conference (IGC) considers and agrees 18 June 2004 on Constitutional Treaty 29 October 2004 Constitutional Treaty signed in Rome 29 May 2005 French people vote “no” to Constitutional Treaty 1 June 2005 Dutch people vote “no” to Constitutional Treaty 16 June 2005 The European Council decides to have a reflection period Reflection period extended and upcoming German 15-16 June 2006 presidency invited to prepare report

1 For a more detailed analysis of the institutions, see Laursen forthcoming.

18 Finn Laursen

First half of 2007 German presidency Fiftieth anniversary of the Treaties of Rome. Berlin 25 March 2007 Declaration adopted by European Council Chancellor Angela Merkel sends confidential letter with 17 April 2007 12 questions to members of European Council, later leaked to the press 6 May 2007 Nicolas Sarkozy elected president in France Meeting of personal representatives 15 May 2007 (“focal points” or Sherpas) 14 June 2007 Presidency report on consultations and negotiations 17 June 2007 General Affairs and External Relations Council meeting 19 June 2007 Sherpas discuss first draft of IGC mandate 22 June 2007 Sherpas discuss second draft of IGC mandate European Council agrees on mandate for IGC to draw up 21-23 June 2007 “Reform Treaty” Second half of 2007 Portuguese presidency 23 July- IGC works on and finalises the Treaty of Lisbon 13 December 2007 24 July- IGC working group of legal experts elaborate the Treaty of 3 October 2007 Lisbon on the basis of the IGC mandate General Affairs and External Relations Council, 15 October 2007 Luxembourg IGC meets at level of heads of state or government, Lisbon 17-18 October 2007 – final decisions 13 December 2007 Treaty of Lisbon signed 12 June 2008 The Irish people vote “no” to the Treaty of Lisbon European Council agrees to deal with the concerns of the 11-12 December 2008 Irish people. It is decided that the Commission continue to include one national from each member state European Council agrees to declaration on legal guarantees to respond to the concerns of Irish people 18-19 June 2009 (right to life, family and education; taxation; security and defence) The Irish people accept the Treaty of Lisbon in a second 2 October 2009 referendum 1 December 2009 Treaty of Lisbon enters into force Source: Compiled by the author, based on several sources: BBC News 2009; Carbone 2010, 217; Euractiv 2009; Herma 2008.

The Process: A Rescuing Mission with German Leadership Strictly speaking, to explain the institutional choice of the Lisbon Treaty, we should study the institutional choice of the Constitutional Treaty (Laursen 2008). And if we were to fully explore the origin of the Lisbon Treaty we would have to go back to the post-Nice agenda estab- lished at the Nice meeting of the European Council in December 2000

19 The Lisbon Treaty: The Treaty-Making Process

(Laursen 2006). This agenda included yet another reform process, which first produced the ill-fated Constitutional Treaty. In this introduction, however, I will focus on the decision by the European Council in June 2007 to abandon the Constitutional Treaty and go for a new treaty, initially referred to as the “Reform Treaty.” It was in the run-up to this decision, which included a detailed mandate for a new IGC, that we saw the German presidency, Chancellor Angela Merkel in particular, playing a role of leadership. The coming to power of Nicolas Sarkozy in France in May 2007 was also an important factor in the process. The June 2006 meeting of the European Council decided that “the Presidency will present a report to the European Council during the first semester of 2007, based on extensive consultations with the Member States. This report shall contain an assessment of the state of discussion with regard to the Constitutional Treaty and explore possible future developments.” This was a mandate to the future German presidency to start consultations. It was also specified that the reform process should be completed “during the second semester of 2008 at the latest.” It was not mentioned explicitly at the time, but the idea was to finish the process before the elections to the European Parliament in June 2009. The Presidency Conclusions from the June 2006 meeting also men- tioned that a political declaration should be adopted in Berlin on 25 March 2007, commemorating 50 years of the Treaties of Rome (Council of the European Union 2006, 17). Finding a solution to the constitutional impasse produced by the negative referendums in France and the Netherlands was the most important point on the agenda of the German presidency in the first half of 2007. Seventeen of the now 27 member states had ratified the Consti- tutional Treaty and in Germany the parliamentary part of the ratification had been completed. The treaty had been rejected by referendums in France and the Netherlands. The remaining member states had put the ratification process on hold. Those countries that had ratified the Constitutional Treaty wanted something as close as possible to that treaty. French presidential hopeful Sarkozy had suggested a “mini-treaty,” which would only include the essential elements of the Constitutional Treaty. The Netherlands and the UK also wanted some kind of minimal reform that would allow them to avoid a referendum. Sweden and Denmark had sympathy for such an approach. Poland had big problems with the new double majority, which meant that at least 55% of the member states would represent at least 65% of the population, as was included in the Constitutional Treaty (Kurpas and Riecke 2007; Seeger and Emmanouilidis 2007). The Poles were happy with the voting rules adopted in Nice in 2000, and

20 Finn Laursen they then suggested a square-root-of-population approach as the best solution to the weighting of votes. The drafting of the Berlin Declaration commemorating the fiftieth birthday of the treaties of Rome showed the divergence of views and interests among the 27 member states. In the end, the declaration was only signed by the representatives of the three main institutions – Chan- cellor Merkel for the presidency, Hans-Gert Pöttering as president of the European Parliament, and José Manuel Barroso as president of the Commission. Afterwards, critical comments came from the Czech president, Václav Klaus, and the Polish president, Lech Kaczińsky, who felt under pressure (Kurpas and Riecke 2007). The press also pointed out that there were some differences in the various translations (Spongenberg 2007). In the German text, we read: “Wir Bürgerinnen und Bürger der Europäischen Union sind zu unserem Glück vereint.” In the English version, it was: “We, the citizens of the European Union, have united for the better.” And the French version said: “Notre chance pour nous, citoyennes et citoyens de l’Union européenne, c’est d’être unis.”2 In April Chancellor Merkel sent to the member governments a letter with 12 questions that implied a pragmatic approach. While wanting only to do what was absolutely necessary to satisfy the sceptical gov- ernments – especially the UK, Poland and the Czech Republic, but also France and the Netherlands – the questions suggested the possibility of reverting to the classical method of amending the existing treaties, doing away with the “foreign minister” title and removing the various symbols of a constitution (flag, hymn and logo) (Mahony 2007a). The presidency adopted a strategy of bilateral negotiations behind closed doors, very different from the Constitutional Treaty approach. Heads of state or government were asked to appoint personal repre- sentatives (“focal points” or Sherpas). Through bilateral consultations, the presidency could get information about the bottom lines of the member states and consider possible solutions. The chancellor had meetings with her counterparts and the Sherpas were also involved in bilateral consultations. There was only one plenary meeting of the Sherpas on 15 May 2007; however, there were two additional meetings just prior to the European Council meeting in June and at that time there was also a meeting of foreign ministers. Interestingly enough, the whole process was controlled in Berlin, not Brussels. This also meant that the Council Secretariat was largely excluded at this point (Herma 2008).

2 The Danish version is similar to the English: “Vi, borgere i Den Europæiske Union, er forenet til det bedre.” Professor of law at Copenhagen University, Henning Kock, called it a political translation (Spongenberg 2007).

21 The Lisbon Treaty: The Treaty-Making Process

The only official report from the negotiations emerged on 14 June 2007. It claimed that all member states were united in the aim of agree- ing on a new treaty before the European Parliament elections in 2009. Some issues were discussed: on one hand, there was a “need to preserve the substance of the innovations agreed upon in the 2004 IGC” (Council of the European Union 2007a, 3). On the other hand, it was felt neces- sary to “return to the traditional method of treaty change through an amending treaty” (ibid., 5). There was a “concern to underline the respect for the identity of the Member States,” and also “a clear demand from some delegations to further enhance the role of national parlia- ments” (ibid., 4). By this time there were also suggestions of “the need to address energy security and climate change” and it had been “pro- posed that greater prominence be given to the ‘Copenhagen criteria’ on enlargement” (ibid., 4). There were, moreover, questions about the Charter of Fundamental Rights. The report finished by listing six issues for further discussion: 1. The question of the symbols and the primacy of EU law 2. Possible terminological changes 3. The treatment of the Charter in [sic] Fundamental Rights 4. The specificity of the CFSP [Common Foreign and Security Poli- cy] 5. The delimitation of competences between the EU and the Mem- ber States 6. The role of national parliaments (ibid.) Just prior to the June summit, UK Prime Minister Tony Blair made a statement outlining four British “red lines”: First, we will not accept a treaty that allows the charter of fundamental rights to change UK law in any way. Second, we will not agree to something that replaces the role of British for- eign policy and our foreign minister. Thirdly, we will not agree to give up our ability to control our common law and judicial and police system. And fourthly, we will not agree to anything that moves to qualified majority voting something that can have a big say in our own tax and benefit system. We must have the right in those circumstances to determine it by unanimity (BBC News 2007). He added: “If we achieve those four objectives I defy people to say what it is that is supposed to be so fundamental that could require a referendum” (ibid.). At the 21-22 June 2007 meeting of the European Council, which went into the morning of June 23, the UK government was therefore

22 Finn Laursen once again a difficult partner. And so was Poland – the country opposed the new double majority rule in the Constitutional Treaty, which would reduce its formal influence in the Council. The Nice Treaty negotiations had given 27 votes to Spain, compared with 29 for Germany, France, the UK and Italy. Spain has about 40 million people (Laursen 2006). When Poland, with about 38 million people, joined the EU in 2004, it got the same number of votes as Spain (Wilga 2008). Since Germany has about 82 million people, the double majority formula from the Constitutional Treaty would give Poland only about half of that influ- ence. With the square-root-of-the-population formula, Poland would retain about two thirds the influence of Germany (Kurpas and Riecke 2007). Spain would of course also lose influence, but the Spanish socialist prime minister, Zapatero, who had won a referendum on the Constitutional Treaty, had reconciled that reduction. As the summit started, the Polish position was deemed unpredicta- ble. Just prior to the meeting, the Polish prime minister, Jarosław Ka- czyński, said on Polish national radio: “We are only demanding one thing, that we get back what was taken from us.” And he explained: “If Poland had not had to live through the years of 1939 to 1945, Poland would be today looking at the demographics of a country of 66 million” (quoted from Mahony 2007b; Parker, Cienski and Benoit 2007). As mentioned, the actual meeting of the European Council went into the morning of 23 June. The Polish demand was the most difficult issue. As the other participants thought that an agreement was near, late in the evening of 22 June, the Polish prime minister, Jarosław Kaczyński, stated in a press conference back in Warsaw that the compromise pro- posed to his brother, President Lech Kaczyński, who was in Brussels, was not acceptable. According to informed sources, Angela Merkel at this point threatened the Poles by saying she would seek an agreement among the remaining 26 member states, thus leaving Poland on the sidelines (Kurpas and Riecke 2007; Rettman 2007). Two countries, Lithuania and the Czech Republic, indicated that they would not favour such an approach. Through further negotiations – in which the German presidency was assisted by Blair, Sarkozy and Luxembourg’s prime minister, Jean-Claude Juncker – a compromise was found, which was accepted by Poland (Kurpas and Riecke 2007). What Poland received included a delay in the application of double majority voting until 2014 and the so-called Ioannina compromise to be applied afterwards, which basically states that if 75% of a blocking minority is reached, talks in the Council shall continue. The UK and Poland both got an opt-out from the Charter of Fundamental Rights, as well as on police and judicial cooperation on criminal matters. Austria succeeded in inserting a reference to the Union’s values as a condition

23 The Lisbon Treaty: The Treaty-Making Process of membership and the Netherlands attained a strengthening of the national parliaments in their control of the application of the principle of subsidiarity, the so-called “orange card procedure” (ibid.). Sweden’s prime minister, Fredrik Reinfeldt, tried to resist the toughening of membership conditions, and Belgium’s federalist prime minister, Guy Verhofstadt, was against a further strengthening of national parliaments (Björklund 2007; Financial Times 2007a). To the dismay of many, France succeeded in eliminating the reference to “free and undistorted competition” from the Union’s objectives. Some French voters in the 2005 referendum had voted “no” because they saw the Union as too liberal or “Anglo-Saxon” (Buck, Blitz and Bickerton 2007; Parker, Buck and Benoit 2007). The demand that competition not be distorted reappeared in Protocol No. 27 on the Internal Market and competition – this was, however, at the demand of the Commission (for a detailed account, see Herma 2008).3 In the end, the summit adopted a 16-page mandate for an IGC, which then started early during the Portuguese presidency, on 23 July 2007. The German presidency deserves credit for its handling of the nego- tiations that reached the agreement on the mandate (Bulmer 2010). After the June summit, the Financial Times (2007b) wrote: Angela Merkel, the German chancellor, emerged with her reputation en- hanced, as a clear-sighted leader and a persuasive negotiator. She looked after the interests of big and small alike, essential in an enlarged EU. Against the odds, she produced a detailed road map for a “reform treaty” that manages to preserve most of the substance, but water it down enough to satisfy the “minimalists” in France, the Netherlands and the UK. Those gov- ernments were desperate to have a deal that would not require them to call referendums, and risk another No vote. Ms. Merkel persuaded the “maxi- malists” to shelve their ambitions and accept a second best deal.

The Portuguese Presidency Given the detail of the mandate for the IGC, it was possible to con- clude the IGC quickly during the Portuguese presidency. Most of the work that subsequently had to be carried out was done by the IGC working group of legal experts. The work of the group was chaired by Jean-Claude Piris, director-general of the Council’s Legal Service, on behalf of the Portuguese presidency. All member states, as well as the Commission and the European Parliament, were represented in the group. The working languages of the group were French and

3 Sadly, many documents that scholars would like to consult are still not publicly available, including documents cited by Herma.

24 Finn Laursen

English, but the draft text they worked on was only in French. A Polish participant later wrote that “Jean-Claude Piris made a significant impact on the works [sic] of the groups and hence on the final form of the reform treaty” (Herma 2008, 59). In Herma’s detailed account, we learn about a number of technical questions that had to be answered. We also learn that the participants often would refer to the political sensitivity of an issue, suggesting that what was basically editorial could become decisive during the ratifica- tion process. Free movement of services, for instance, was a very sensi- tive issue in France, so it was important to get the language right. The UK and Irish opt-outs required careful drafting, too (ibid.). There was one informal meeting of the foreign affairs ministers (the so-called “Gymnich meeting”) in Viana do Castelo, Portugal, on 7- 8 September 2007. However, the ministers largely repeated national positions, and Poland used the occasion to mention the possibility of joining the UK protocol on the Charter of Fundamental Rights (ibid.). The working group finished the revised draft treaty in French on 14 September 2007, but had some additional meetings over the follow- ing two weeks to deal with one issue – the UK and Irish opt-outs from the areas of freedom, security and justice (AFSJ). The work of the group ended on 3 October 2007 (ibid.). The IGC then had a meeting at the ministerial level, in the form of the General Affairs and External Relations Council, in Luxembourg on 15 October 2007. However, none of the remaining issues could be solved by the ministers (ibid.). Two days later, the European Council met in Lisbon, on 17-18 Oc- tober. This was where the IGC settled the remaining issues. Poland was again a demandeur, then joined by Italy. Poland secured a stronger wording of the Ioannina compromise as well as a permanent Polish advocate-general in the European Court of Justice (ECJ). This was done by increasing the number of advocates-general from 8 to 11. Italy, moreover, secured an additional seat in the European Parliament by an increase in the number of MEPs to 751 (Hans 2007; Herma 2008).4 The treaty was signed in Lisbon on 13 December 2007.

The Ratification Process Hungary was the first to ratify (see Table 2). By the time the Irish voted “no” in the first referendum in June 2008, eight member states had deposited their ratification. By the time of the second Irish referen-

4 The texts of these final agreements can be located at the Council’s website: http://www.consilium.europa.eu/showPage.aspx?id=1317&lang=EN.

25 The Lisbon Treaty: The Treaty-Making Process dum in October 2009, all member states except Poland and the Czech Republic had completed ratification. Eventually, facing enormous pressure at both the domestic and EU level, the Polish president signed, followed by the Czech president. The most dramatic part of the ratification process was the fact that Ireland needed two referendums – as had also happened in the case of the Treaty of Nice. But the two Eurosceptical presidents of Poland and the Czech Republic certainly added their fair share of turmoil to the process. After the final hurdles, the treaty could enter into force on 1 Decem- ber 2009. Nearly nine years had passed since the heads of state and government had decided upon the post-Nice agenda, which clearly indicated that there were leftovers that had to be dealt with from the Treaty of Nice process.

Table 2: Ratification Results (chronological order) Deposition with the Member State Results and Dates Italian Government National Assembly: 325 in favour, 5 opposed, Hungary 6 February 2008 5 abstentions on 17 December 2007 House of Representatives: 65 to 0 in favour, Malta 6 February 2008 0 abstentions on 29 January 2008 National Assembly: 336 to 52 in favour, France 22 abstentions on 7 February 2008; Senate: 265 to 14 February 2008 42 in favour, 13 abstentions on 7 February 2008 Parliament: 387 to 1 in favour, Romania 11 March 2008 1 abstention on 4 February 2008 National Assembly: 74 to 6 in favour, Slovenia 24 April 2008 0 abstentions on 29 January 2008 National Assembly: 195 to 15 in favour, Bulgaria 28 April 2008 30 abstentions on 21 March 2008 National Council: 151 to 27 in favour, Austria 13 May 2008 5 abstentions on 9 April 2008 Parliament: 90 to 25 in favour, Denmark 29 May 2008 0 abstentions on 24 April 2008 Parliament: 70 to 3 in favour, Latvia 16 June 2008 1 abstention on 8 May 2008 Assembly of the Republic: 208 to 21 in favour, Portugal 17 June 2008 0 abstentions on 23 April 2008 National Council: 103 to 5 in favour, Slovakia 24 June 2008 1 abstention on 10 April 2008 House of Commons: 346 to 206 in favour United on 11 March 2008; House of Lords: 16 July 2008 Kingdom passed on 18 June 2008 Chamber of Deputies: 47 to 1 in favour, Luxembourg 21 July 2008 3 abstentions on 29 May 2008 Chamber of Deputies: 551 to 0 in favour, Italy 8 August 2008 0 abstentions on 31 July 2008

26 Finn Laursen

Parliament: 250 to 42 in favour, Greece 12 August 2008 8 abstentions on 11 June 2008 House of Representatives: 31 to 17 in favour, Cyprus 26 August 2008 1 abstention on 3 July 2008 Parliament: 83 to 5 in favour, Lithuania 26 August 2008 23 abstentions on 8 May 2008 Senate: 60 to 15 in favour, Netherlands 11 September 2008 0 abstentions on 8 July 2008 Assembly: 91 to 1 in favour, Estonia 23 September 2008 9 abstentions on 11 June 2008 Federal Assembly: 515 to 58 in favour, Germany 1 abstention on 24 April 2008; Federal Council: 25 September 2008 65 to 0 in favour, 4 abstentions on 23 May 2008 Parliament: 151 to 27 in favour, Finland 30 September 2008 21 abstentions on 11 June 2008 Congress of Deputies: 322 to 6 in favour, Spain 2 abstentions on 26 June 2008; Senate: 232 8 October 2008 to 6 in favour, 2 abstentions on 15 July 2008 Senate: 48 to 8 in favour on 6 March 2008; Chamber of Representatives: 116 to 11 in favour, Belgium 15 October 2008 7 abstentions on 10 April 2008. Also positive votes in the regional parliaments Parliament: 243 to 39 in favour, Sweden 10 December 2008 13 abstentions on 29 November 2008 House of Representatives: 384 to 56 in favour, Poland 12 abstentions on 1 April 2008; Senate: 74 to 12 October 2009 17 in favour, 6 abstentions on 2 April 2008 First referendum: 47% in favour, 53% against Ireland on 12 June 2008; second referendum: 23 October 2009 67% in favour, 33% against on 2 October 2009 Chamber of Deputies: 125 to 61 in favour, Czech Republic 11 abstentions on 18 February 2009; Senate: 13 November 2009 54 to 29 in favour, 5 abstentions on 6 May 2009 Compiled from various sources: COSAC n.d.; Euractiv 2008; Europa n.d.; University of Zaragoza 2008.

Overview of Book Chapters Given the important role of Germany in the process of negotiating the Lisbon Treaty – and the increasing influence of Germany in the EU in general – this book first has two chapters on the role of Germany by leading German scholars (in Part II). Hans Lietzmann looks at the German path from the EU constitution to the Lisbon Treaty through a political and philosophical analysis, with a focus on the “constitutionalisation” of politics. Constitutions deal with a dual challenge, namely providing a regulative public framework for trade, production and labour while also dealing with the identification and integration of the people. Thus, a constitution combines govern- mental ability and attachment of the governed to the political structure.

27 The Lisbon Treaty: The Treaty-Making Process

Similarly, the Constitutional Treaty had both a “technical” and a “sym- bolic” part. Regrettably, the Lisbon Treaty has basically dropped the latter to save the former. In his analysis, Lietzmann compares the con- cepts of “constitution” in Germany, France and Great Britain. In Ger- many, the concept has much to do with “freedom and democracy”; in Great Britain it is associated with French rule over England, while in France the concept ultimately means sovereignty of the people. As mentioned in his chapter, at the EC/EU level, constitutionalism has generally been understood as second-order constitutionalism. Legitimi- sation has gone through national governments and European citizenship played no role. Lietzmann asserts that, in 2007, during the German presidency, “the EU obviously and visibly abandons its access to the ideational visions of its citizens,” by dropping the “constitutional char- acter” of the Constitutional Treaty in favour of the new Reform Treaty. Frank Pfetsch studies Germany’s role during the reform process. He starts with some historic background. Outlining three basic approaches to European integration – federalism, supranationalism and intergov- ernmentalism – he situates the main German political parties – the Christian Democratic Union (CDU), the Christian Social Union (CSU), the Social Democratic Party (SPD), the Free Democratic Party (FDP) and the Green Party (Grüne) – in relation to these approaches. An analysis of the negotiations during the German presidency is pre- ceded by some theoretical considerations. Basically, the chair has three main functions: organisational, intellectual and tactical. As a mediator, the chair can be a communicator, a formulator or a broker. Chancellor Merkel, Pfetsch outlines, was more of “a moderator and mediator holding back or even giving up national positions or interests.” She had to make concessions during the process. The German presidency used various tactical methods to get the de- cisive mandate adopted at the meeting of the European Council in June 2007, through bilateral meetings, coalition-building, time pressure, opt- outs and, in the end (especially against Poland), threats of exclusion. Further, the negotiation skills of Chancellor Merkel should be recog- nised as an important ingredient of the success. Her style is more coop- erative than confrontational, more compromise-oriented than polarising. Then follow chapters on other big member states: France, the UK, Italy and Spain (in Part III). Bernard Barthalay looks at France. He contrasts the ideas on Europe of General de Gaulle and Jean Monnet, suggesting that France has two souls. De Gaulle worked for the greatness of France, Monnet for Euro- pean unity. De Gaulle thought in terms of the Westphalian system of sovereign states. Monnet was thinking of Europe as a constitutional

28 Finn Laursen order in the making. De Gaulle favoured European cooperation based on confederal relations; Monnet looked forward to a federation, a “United States of Europe.” Seen from the perspectives of the two French souls, the Lisbon Treaty is ambiguous. There was no commit- ment to unity, especially full fiscal unity – the necessity of which was subsequently demonstrated by the financial crisis. The author is very critical of the treaty, talking of its fundamental irrelevance. He argues that there is still a legitimacy gap in Europe and suggests that the next step should be “a federal pact among governments of the euro zone (plus or minus a few others).” The fact that the Lisbon Treaty left the Stability and Growth Pact unchanged was one of its major shortcom- ings. Alasdair Blair deals with Britain and the negotiation of the Lisbon Treaty. We learn about the domestic politics in the UK that make EU politics so sensitive and difficult. According to Blair, British govern- ments have had a “perennial concern about sovereignty” and have entered recent treaty reforms with “red lines.” Britain has influence, being one of the bigger member states – with the second biggest econ- omy – and possessing important assets in relation to Common Foreign and Security Policy (CFSP) and Common Security and Defence Policy (CSDP). Just prior to the decisive summit in Brussels in June 2007, Prime Minister Blair stressed four “red lines,” as mentioned previously. The agreement on the IGC mandate reached a few days later respected the British “red lines” and the UK government could claim that there was nothing in the Reform Treaty that would require a referendum in the UK. Federiga Bindi and Luigi Gianniti then write about Italy and the Lis- bon Treaty. We learn that the treaty was not a big problem politically in Italy. Italy had ratified the Constitutional Treaty and wanted as much as possible of its contents in the Reform or Lisbon Treaty. Only one prob- lem emerged for Italy, rather late during the IGC. When the Italian media and politicians learned that Italy would lose more seats in the European Parliament than France and the UK, it became a big issue. Italy then issued threats of veto and eventually secured one additional seat. In the end, both chambers of the Italian Parliament agreed unani- mously to ratification, something never seen before. Joaquin Roy writes about Spain. Spain has led the Constitutional Treaty project and the country held a successful referendum in January 2005. When efforts to rescue the treaty started after the French and Dutch “no” votes in referendums in late spring of 2005, Spain was among the countries that wanted as much as possible transferred from the Constitutional Treaty to the Reform Treaty. In January 2007, a meeting of the member states that had ratified the Constitutional Treaty

29 The Lisbon Treaty: The Treaty-Making Process

(as well as Portugal and Ireland) took place in Madrid. When the consti- tutional approach was abandoned later by the German presidency, Spain worked to secure as much as possible from the Constitutional Treaty, loyally supporting the German initiative and leadership. After the entry into force of the Lisbon Treaty, Spain held the rotating presidency during the first half of 2010, so implementation of the treaty started under the Spanish presidency. The term was marred by the grave finan- cial crisis as well as some uncertainty about who would represent the Union on what occasions. This uncertainty seems to have contributed to President Obama’s no-show at a planned EU-USA summit, much to the chagrin of the Spanish. The chapters in Part IV deal with the roles of selected new and small member states – namely, the Czech Republic, Poland and Denmark. Lenka Rovná and Suzana Kasáková cover the case of the Czech Re- public, the last member state to complete ratification. We read of efforts to recreate a Czech identity after the Nazi and Soviet occupations and communist rule. “Back to Europe” became a slogan after the end of the Cold War. The former president, Václav Havel, emphasised the Europe- an dimension of the Czech identity while President Václav Klaus took a more national approach. We learn about the attitudes of the main Czech political parties to European integration and how domestic politics, including the role of President Klaus, complicated the ratification process. The Czech Constitutional Court was twice asked about the compatibility of the Lisbon Treaty with the Czech constitution. Presi- dent Klaus only signed after the second Irish referendum had given a “yes” majority in favour of Irish ratification and after getting a last- moment opt-out from the Charter of Fundamental Rights for the Czech Republic, as the UK and Poland had received earlier. Another member state that joined in 2004, Poland, is covered by Maciej Wilga and Ireneusz Pawel Karolewski. Poland, like the Czech Republic, was a difficult partner in the process of getting the Lisbon Treaty adopted and ratified. Again, the explanation for this struggle has to be found in domestic politics and the difficult process of adapting to a post-national political system like the EU a relatively short time after freeing itself from communist rule. Poland, furthermore, is a relatively large country, so part of the Polish quest has been to receive recognition as such. The question of the weighting of the votes in the Council thus became a central issue for Poland in the negotiations leading to the Constitutional Treaty. Since the Lisbon Treaty continued the double majority system from the Constitutional Treaty, Poland persisted in its battle for the weights adopted in Nice, and, barring that, a formula based on the square root of the population of the member states. Since the other member states had accepted the double majority, Poland in the end

30 Finn Laursen had to accept this, particularly after the German presidency threatened to exclude the country. As part of a compromise, though, the double majority was written to only start in 2014, with a further transition period to 2017 and a strengthened Ioannina mechanism in force beyond 2017, allowing a minority of a certain size to ask for the matter to be discussed further. Poland also fought a losing battle for a reference to Christianity in the treaty. In the end, fearing that the Charter of Funda- mental Rights might interfere with the Catholic-centric morality of Polish society, delegates asked for an opt-out from the charter. The Polish president, Lech Kaczyński, postponed his signature until after the “yes” vote in the second Irish referendum. The editor then covers Denmark, another country that has occasion- ally been a difficult partner – especially in 1992, when the Danes voted “no” to the Maastricht Treaty. However, they then accepted the Maas- tricht Treaty with opt-outs a year later. Referendums were also used in Denmark to accept the Treaty of Accession in 1972, the Single Europe- an Act in 1987 and the Amsterdam Treaty in 1998. A referendum was avoided for the Treaty of Nice, but one was foreseen for the Constitu- tional Treaty. To be covered by the special procedures of Section 20 of the Danish constitution, an international treaty must involve a transfer of sovereignty. If such a transfer takes place, there must be either a five- sixths majority in the parliament or the decision to ratify the treaty must be confirmed by a positive vote in a referendum. The Ministry of Justice had concluded that the Constitutional Treaty had nine provisions that implied a transfer of sovereignty. To avoid a referendum on the Reform Treaty, Denmark therefore sought changes that would change the new treaty on these points. In cooperation with the German presidency, the government was successful – thus, Denmark could ratify the Lisbon Treaty by a parliamentary act. Given the importance of the Irish referendums – first “no,” then “yes” votes by the Irish people – we then turn to the Irish case. Declan Walsh looks at how Ireland changed from “no” to “yes.” We learn how Ireland, as the only member state required to hold a referen- dum, in the end held two popular votes. The negative result from the first referendum was surprising because Eurobarometer findings showed Ireland as overwhelmingly positive towards European integration. Research done on the referendum suggests that ignorance – a large information gap – was an important reason for the “no” vote in the first referendum. Subsequent research indicated that concerns by the Irish people included “losing a commissioner,” neutrality, workers’ rights, abortion and corporate taxation. Prior to the second referendum, the Irish government therefore worked to get clarifications and legal guar- antees on these points; it started with a political agreement at the De-

31 The Lisbon Treaty: The Treaty-Making Process cember 2008 meeting of the European Council that each member state will keep a commissioner in the future and, at the European Council in June 2009, received legal guarantees on three points – taxation, neutrali- ty and the “right to life, education and the family” – as enshrined in the Irish constitution. With these assurances and a much more proactive Referendum Commission, the second referendum brought a clear “yes” vote in October 2009. Gavin Barrett also looks at the Irish referendums. Between the two referendums, two things happened. First, there was the “economic tsunami,” which increased the number of “yes” votes because “yes” would “help the Irish economy.” Second, Ireland secured promises and a “decision” from the member states with legal guarantees. This deci- sion will become part of the EU’s constitutive treaties in the form of a protocol in connection with the next enlargement. Both Walsh and Barrett touch upon the implications of the Irish re- quirement of a constitutional amendment to be confirmed by a referen- dum each time the EU treaties are changed. In his postscript, Walsh mentions the possibility that the now agreed limited treaty change may be ratified in Ireland without a referendum. Nonetheless, he expects a legal challenge if that were to happen. This, however, would give the Irish Supreme Court an opportunity to clarify its view. Finally, in the conclusions, the editor revisits theories about treaty reform, especially Andrew Moravcsik’s liberal intergovernmentalism, which marks national preferences and inter-state bargaining in the IGCs as important components of treaty reforms (Moravcsik 1998). This approach was heavily criticised by a number of scholars, especially during the heyday of the European Convention that elaborated the draft Constitutional Treaty. Given the debacle of the Constitutional Treaty, is it time to conclude that interests and power trump ideas and deliberation during EU treaty reforms? Is this what we can read into the reversion to the traditional treaty reform process and the abandonment of the Consti- tutional Treaty and associated discourse?

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