Th e Treaty of Lisbon: A Second Look at the Institutional Innovations September 2010 Joint Study EUROPEAN POLICY CENTRE RAPPORTEURS: CEPS Piotr Maciej Kaczyński and Peadar ó Broin. EGMONT – THE ROYAL INSTITUTE FOR INTERNATIONAL RELATIONS Franklin Dehousse, Philippe de Schoutheete, Tinne Heremans, Jacques Keller, Guy Milton (in association) and Nick Witney (in association). EUROPEAN POLICY CENTRE Janis Emmanouilidis, Antonio Missiroli, and Corina Stratulat. –––––––––– Articles in this publication represent the views of the authors and not necessarily those of the institutions to which they belong. All rights of copy, reproduction and translation in any form or by any means for all countries are strictly reserved to CEPS, Egmont and EPC. © Copyright 2010 Th e Treaty of Lisbon: A Second Look at the Institutional Innovations Joint CEPS, EGMONT and EPC Study September 2010 INTRODUCTION . 3 THE EUROPEAN COUNCIL . 5 THE EUROPEAN PARLIAMENT . 29 THE COMMISSION . 45 THE PRESIDENCY TRIANGLE . 63 DELEGATED AND IMPLEMENTING ACTS UNDER THE LISBON TREATY: WHAT FUTURE FOR COMITOLOGY? . 85 NATIONAL PARLIAMENTS & SUBSIDIARITY CHECK: A NEW ACTOR IN TOWN . 107 THE CITIZENS’ INITIATIVE: OPPORTUNITIES AND CHALLENGES . 121 EXTERNAL ACTION: A WORK IN PROGRESS . 139 DEFENCE: PERMANENT STRUCTURED COOPERATION . 163 SIMPLIFIED TREATY REVISION POSSIBILITIES WITHIN THE LISBON TREATY . 177 CONCLUSION . 187 LIST OF ANNEXES . 195 1 INTRODUCTION Th ree years ago, three Brussels based think tanks thought it useful to join eff orts in analysing potential implications of the Lisbon Treaty in the fi eld of institutions. At the time that Treaty had not been ratifi ed and the question of whether it would ever come into force was an open one. Th e result of their eff orts was published in November 2007 as a joint study under the title Th e Treaty of Lisbon: Implementing the Institutional Innovations[1]. It attracted the attention of policy makers, national and European administrations and the academic community. Now that the Treaty has come into force and that the institutional innovations are gradually being implemented, the same three think tanks have thought it useful to revisit and develop their joint analysis. It is obviously too early to pass fi nal judg- ment on the implications of the Lisbon Treaty on the institutional framework of the Union. Past experience shows that it takes a period of fi ve to ten years to be able to exercise that sort of judgment. But some trends are already apparent. One aspect common to all European treaties is that, as a general rule, they are not implemented in the exact context, and with the precise objectives, in which they were conceived. Th is is due in part to the length of the ratifi cation process, particularly signifi cant in the case of the Lisbon Treaty. It is also due to changing circumstances. Two major challenges, which were not so obvious when the Treaty texts were ini- tially drafted, determine the context in which they are being implemented. Climate and energy is accepted as the major issue of the new century and the European Union strives to infl uence global solutions, not always successfully as was shown by the Copenhagen conference. Th e banking and fi nancial crisis, initiated in the United States, has economic and monetary consequences which are gradually unfolding, and they infl uence the balance of economic power in the world. Both challenges are a source of considerable external pressure as the European Union, like other world actors, tries to adapt to the co-management of globalisation. It is with those considerations in mind, that ten issues have been identifi ed and are dealt with in the following chapters. As in any collective eff ort, the three institu- tions involved share the general conclusions to which they have come, but do not necessarily feel bound by the specifi c formulations in each chapter. [1] Joint Study The Treaty of Lisbon: Implementing the Institutional Innovations (Brussels, CEPS, EGMONT and EPC, Novem- ber 2007), retrievable at: http://www.egmontinstitute.be/SD/Joint_Study_complet.pdf, hereafter referred to as “First Lisbon Study”. 3 THE EUROPEAN COUNCIL 5 The European Council 1. BEFORE LISBON Th e European Council was created at the Paris summit of 1974 in order to ensure progress and overall consistency in European aff airs. A regular but informal “fi reside chat” (kamingespräch, said Willy Brandt) of Heads of State or Government should give new dynamism and political impulse to European integration. Jean Monnet called it the beginning of a European authority. Tindemans hoped that it would give the continuing political momentum needed for the construction of Europe. High expectations have certainly been fulfi lled. By the end of the century it was being called “the arbiter of systemic change”, “the principal agenda setter and the core of the EU’s executive”[1], or “the primary source of history making decisions”[2]. Th e gradually increasing power of the Heads of State or Government can be mapped through the history of treaty changes. Th ey had only marginal infl uence on the drafting of the Single European Act (1985). Th ey played a more signifi cant role in the Maastricht negotiation (1992), but completing essential work done beforehand by Foreign (CFSP) and Finance Ministers (Monetary Union). Th ey took centre stage in the Amsterdam negotiation (1997) and have never left it since. Both the Nice Treaty and the six-year saga that leads from the end of the Convention to the ratifi cation of the Lisbon Treaty were determined and fi nally resolved by action at European Council level. Th ere is no doubt that the European Council has been a positive instrument of change. It has moved the fl edgling European Community of the sixties to the larger, more diverse, but certainly more integrated European Union of today. An instrument deliberately created by some (and feared by others) as purely inter- governmental, has led to, or at least condoned, more supranational authority, for instance in Parliament or on the euro. But it is also clear that the European Council has gained power and political space at the expense of the original Community institutions. Quite obviously the Commis- sion is no longer today the main initiator of the integration process, as it was in the early years of the Community. Th e Council of Ministers is no longer the ultimate decision taker on most important issues. Th ose roles have been in practice taken over by the European Council. Gradually over two decades, real power, political guidance and impetus, moved to an entity outside the institutional framework. When that happens the institutional structure is inevitably weakened. [1] LUDLOW, P., The Laeken Council (European Council Commentary) (Brussels, EuroComment, 2002), pp. 5-15. [2] PETERSON, J. and BOMBERG, E., Decision-Making in the European Union (Basingstoke, Palgrave Macmillan, 1999), p. 33. 7 The Treaty of Lisbon — A Second Look at the Institutional Innovations Over the years the main achievement of the European Council has been the abil- ity to fi nd solutions where normal Council procedures were failing: on the British budgetary problem in the eighties for instance. It has also usefully operated as a collective head on major policy issues, such as enlargement or the euro. But per- ceived weaknesses came in parallel with the achievements. Two weaknesses, that became very obvious in the nineties, were overload and procedural improvisation: • Too many issues landed on the table of the European Council which should have been settled elsewhere within the institutional system of the Union. Too many problems were postponed for discussion in an indefi nite future because of obvious or suspected disagreement. Written conclusions were clogged with irrelevant material. In view of their national obligations, Heads of State or Government simply do not have the time to settle a wide variety of European issues. Th ey operate optimally when dealing with one central issue, but at most meetings they found a dozen on their agenda. • Because the European Council was not initially conceived as an institution it operated in a world apart. Successive meetings were held in an improb- able variety of Renaissance fortresses and palaces, nineteenth century hotels, modern conference buildings and trade centres, housing an ever-increasing number of delegates and journalists. Successive presidencies had their own objectives, their own ways of preparing meetings through personal contacts, a lightning tour of capitals and telephone calls. Conclusions were drafted in the night and distributed at dawn. Responsibility for the implementation of decisions remained diff use and uncertain. Th is combination resulted in chaos. Tony Blair, leaving the Nice European Coun- cil in 2000 famously stated: “We cannot go on working like this”. Th e Secretary General of the Council, Javier Solana, was tasked with the drafting of a report on the functioning of the European Council. His report was uncompromising: the European Council has been sidetracked from its original purpose, he stated, and presidency is used for furthering national preoccupations and inappropriate exercises in self-congratulation. Th is stark analysis resulted in a number of procedural changes adopted at Seville [1] in June 2002. European Council meetings were generally held in Brussels. [1] This results from Declaration 22 annexed to the Final Act of the Nice Treaty: “When the Union comprises 18 members, all European Council meetings will be held in Brussels”. 8 The European Council COREPER and the General Aff airs Council undertook the preparation of draft conclusions prior to the meeting itself. Some eff ort was made to limit the size of delegations, the number of points on the agenda and the length of conclusions. It was certainly a change for the better. 2. FROM CONSTITUTIONAL TREATY TO LISBON RATIFICATION Th e Convention, which met in 2002 and 2003 to prepare treaty changes, led to an unprecedented exercise in collective refl ection on institutional matters.