The Treaty of Lisbon

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Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

Type of treaty Amender of previous treaties

Signed 13 December 2007 Location Lisbon , Portugal

Sealed 18 December 2007

Effective 1 December 2009

Signatories EU Member States

Depositary Government of Italy

Languages 23 EU languages

The long process of ratification

This investigation provides a short introduction to the long process of ratification and all the obstacles that the Union had to face before the Lisbon Treaty, signed on 13 December 2007, rejected by Ireland in 2008 1 and finally approved on 2 October 2009, could finally come into force;

1 In Italy the Senate had already approved the Lisbon Treaty on 24 July 2008 (288 votes in favour) and on 31 July 2008 the Chamber of Deputies unanimously approved its ratification. In the UK the parliamentary ratification was held on 11 March in the House of Commons: 346 votes in favour, 206 against, and on 18 June 2008 in the House of Lords (by an undetailed oral vote). 1 it provides also a reference to the Treaty establishing a Constitution for Europe (2004), hereafter called the EU Constitution for the sake of convenience, rejected by France and the Netherlands in 2005 2. The two new figures that the Treaty creates are here introduced. The Treaties usually take their name after the city where they were signed: a few years usually elapse between this date and the date of ratification (if any). Under current law, unanimity is required for these documents to be ratified, therefore the process is usually long. For the ratification of the Lisbon Treaty, for example, the process proved to be extremely arduous: it entered into force on 1 December 2009 but it was signed on 13 December 2007 in Lisbon (as Portugal held the EU Council’s Presidency at the time), and was planned to have been ratified in all member States by the end of 2008, so that it could come into force before the 2009 European elections. 26 member States voted “Yes”, albeit in different periods 3, but for several reasons 4 the Irish electorate on 12 June 2008 voted against it (the proposal was defeated by 53.4% of votes to 46.6%, with a turnout of 53.1%). Abstention was high, and it is usually divided into two categories: voluntary and circumstantial. Voluntary abstention is the main reason for not voting: the main element of this was a lack of knowledge or understanding of the Treaty. Some people, when asked why they did not go to the polls, replied “Even if you want to inform yourself and try and get educated on it, you’d still need a dictionary to try and explain some of the words in it”. Admittedly, the language of the Lisbon Treaty, just like any other European document, is unreadable for the average person and appears to be written more for a handful of civil servants rather than Europe’s 500 million citizens (Hari 2005). One criticism frequently made of the EU Constitution, for example, was that it is “unreadable”, with disparaging remarks across the political spectrum: “A Constitution should be readable and accessible to the population. It should not be a document of 480 pages, with some 400 more pages of appendixes and declarations. That’s really crazy” (Argentieri 2005). The EU Constitution was supposed to simplify and synthesize previous treaties within a single, ‘clear’, foundational document for the EU. President Delors urged Commission staff “to write with a lighter pen” and President Santer’s dictum was that we should do “less but better”. In an interview from The Economist in 2002, Jack Straw, Britain’s Foreign Secretary, declared: “The Constitution of the world's most complex international organization — the United Nations — fits easily into my jacket pocket. The Constitution of one of the world's oldest and most successful democracies — the United States — would fit neatly into the other pocket. I do not have a pocket big enough for what passes as the Constitution — “the consolidated Treaties” — of the European Union. Size is important. The smaller the better when it comes to Constitutions. The best bits in both Constitutions are their Preambles, in ringing declaratory prose. The UN’s covers a small page; the

2 When the Constitution was rejected in the French and Dutch referenda (respectively on 29 May and 1 June), 18 member states had already ratified the Treaty, either by parliamentary procedures or by referendum. The Italian Chamber of Deputies (436 Yes, 28 No, 5 abstentions) and the Italian Senate (217 Yes, 16 No) had already approved it, on 25 January and on 6 April 2005. In the United Kingdom plans to organize a referendum were suspended, and ratification in Ireland, which would have also been subject to a referendum, was postponed. Bulgaria and Romania, which entered the EU in January 2007, already ratified the Constitution before accession.

3 Dates of ratification: Austria: 13 May 2008, Belgium: 15 October 2008, Bulgaria: 28 April 2008, Cyprus: 26 August 2008, Denmark: 29 May 2008 , Estonia: 23 September 2008, Finland: 30 September 2008, France: 14 February 2008, Greece: 12 August 2008, Hungary: 6 February 2008, Italy: 8 August 2008, Latvia: 16 June 2008, Lithuania: 26 August 2008, Luxembourg:, 21 July 2008, Malta: 6 February 2008, Netherlands: 11 September 2008, Portugal: 17 June 2008, Romania: 11 March 2008, Slovakia: 24 June 2008, Slovenia: 24 April 2008, Spain: 8 October 2008, Sweden: 10, December 2008, United Kingdom: 16 July 2008.

4 A week later Eurobarometer conducted hours after the Irish vote was released, indicating why the electorate voted as they did. Those respondents who voted "no" in the referendum were asked to give the reasons why they voted "no" to the treaty, most said that they did not know enough about the Treaty and would not want to vote for something they were not familiar with, and that their negative vote aimed at protecting Irish identity.

US Constitution’s Preamble covers just four lines. With the European Constitution Mr. Giscard D’Estaing’s original plan was to come up with something as inspiring and memorable as the Preamble of the American Constitution. Yet, its Preamble counted 244 words, and the whole text counted 66,647 words. The Lisbon Treaty is indeed even longer, in that if we consider both the first and second part, the protocols, the annexes and the declarations the total words amount to 123,000 words, almost twice the size of the failed Constitution. The two treaties alone count approximately 65,000 words, leaving out the EU Charter of Fundamental Rights, which in the Treaty of Lisbon is made legally binding. Indeed, Article 6 of the Treaty on European Union (the first part of the Lisbon Treaty) reads as follows: Article 6 (ex Article 6 TEU)

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007, which shall have the same legal value as the Treaties. The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties. The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union's competences as defined in the Treaties.

3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.

The three texts, TEC, TFEU and the EU Charter of Fundamental Rights, have equal legal value and combined constitute the European Union’s legal basis.

The Irish are the only people in the EU who were offered a referendum on Lisbon, in addition to a parliamentary vote, in that the Irish Constitution requires a vote on any treaty that transfers any power at all to the European level. There were unsuccessful calls to governments to hold referendums in some other member States, and it is generally assumed that referendums would have been lost in many other countries had their people been given a say. Ratification of the Treaty in all other member States was decided upon by the states’ national parliaments. The UK had already ratified the Treaty on 16 June 2008, but it cannot be denied the knock-on effect that the Irish referendum had on the anti-EU sentiment in the UK, which was further strengthened by the negative result of the Irish electorate. The Conservative Party would have liked to sabotage the treaty, but they wisely dropped the promise of a referendum, because the leader of the party, David Cameron, had great ambitions and was wise enough to avoid a row that could have wrecked his government. In fact, in the general elections held in May 2010, the Labour Party lost the elections, and after ten years of Tony Blair and five years of Gordon Brown, the Tories have now won the elections. The great change is the new coalition between the Conservative David Cameron and the Liberal Democrat Nick Clegg: as Conservative prime minister and Liberal Democrat deputy prime minister, they now run the first coalition government that Britain has seen since 1945. The world-weary view of Britain’s new coalition government is that it cannot last: Conservatives and Liberal Democrats are too hostile to each other. Plus, there is certainly disagreements between them on European integration: it is well known, the Tories have always been against Europe, whereas the Lib Dems are passionate about their pro-Europeanism.

Even in 2001 the Irish turned down the Nice treaty, but the Danes started this game when they voted against the Maastricht treaty in 1992. Just like in 2001, Ireland was offered the possibility of another referendum, with clarification of the key issues that concerned the Irish electorate. A further rejection by the Irish people would have 3 created a sort of "semi-detached" member of the EU. Turnout on 2 October 2009 in the three- million electorate was 58%. According to final results, 67.1% of Irish voters approved it, while 32.9% voted "No". All of the republic's major parties campaigned for a "Yes" vote except the nationalist Sinn Fein: the party believed rejecting the treaty would have meant a more democratic EU. Irish Prime Minister Brian Cowen hailed a “clear and resounding” endorsement; the president of the European Commission, José Manuel Barroso, said it was a great day for Europe. The legally binding “guarantees” state that Lisbon will not affect key areas of Irish sovereignty, such as taxation, military neutrality and family matters such as abortion – significant issues in the 2008’s campaign in Ireland. But they have not yet been attached to the treaty. After the Irish “Yes”, Poland and the Czech Republic followed, depositing their instruments of ratification in Rome. This last formal step gave the green light to the Lisbon Treaty to take effect on 1 December 2009, since treaties come into force on the first day of the month after the last Member State has handed in the instrument of ratification. The ratification of the Lisbon Treaty, finally completed by the reluctant signature of the Czech President, Vaclav Klaus, has been dispiriting. The treaty does little to make the European Union any simpler or more transparent, two supposed goals when the negotiations began eight years earlier, and it was admittedly being forced through, after voters rejected the overall project in France, the Netherlands and (first time round) Ireland. The Lisbon Treaty became law on 1 December 2009: the occasion was marked by a ceremony in the city of Lisbon, organized jointly by the Portuguese Government, the Swedish Presidency and the European Commission. It was a blessed relief to many in the European Union, a halt to eight years of haggling, to the repeated rejection of a European constitution and to an obsession with the union’s internal works. To get to this point, EU leaders pushed the Irish to vote on the reform treaty twice, ignored all rejections of an earlier EU constitution and railroaded the Czech president into agreeing to the treaty despite strong opposition.

The two new figures of the Union

The Lisbon Treaty creates two new posts: a new High Representative for Foreign Affairs and an EU president of the European Council, in place of the six-month rotating one. This gives the union a more public face, given that at present Europe is a weak actor on a stage dominated by America and China, with India and Brazil in the wings. This new job of a semi-permanent president of the council seemed to interest Britain’s former Prime Minister, Tony Blair (who actually had never publicly said he was in the running for the job, despite vocal support from Gordon Brown); among the favourites there was also Britain’s foreign

4 secretary, David Miliband, who for a while appeared tempted, but eventually decided to stay in British politics and focus on domestic ambitions, rumoured to include the leadership of the Labour Party. Italy’s Massimo D’Alema seemed also one of the favourites for the foreign-policy post, together with José Manuel Barroso, Jacques Chirac, Bertie Ahern, among others. The UK was divided by the idea of a President Blair: the Labours argued that the job needed a heavyweight figure who could “stop the traffic” in Beijing or Washington, DC; the Conservatives were already cross that the Lisbon treaty would enter into force without the British public being able to vote on it in a referendum. It would have been difficult for Britons to stomach the prospect of Mr Blair “suddenly pupating into an intergalactic spokesman for Europe”, in the phrase of London’s Tory mayor, Boris Johnson. Besides objecting to Blair over Iraq, smaller EU nations expressed the desire of a president from a country that uses the EU's common euro currency and participates in its passport-free travel zone and Britain has opted out of those EU projects. Plus, federalists muttered that this job could not go to anybody from Britain, which refuses to join the borderless Schengen area and always fights to keep its special rebate from the EU budget. Indeed, it cannot be denied that Britain is normally seen as an awkward customer in EU affairs. For the first time the president will be a permanent figure in Brussels. Both choices, the President of the European Council and the High Representative for Foreign Affairs, are made by majority vote. Small countries dislike the European Council, an inter-governmental body in which the biggest countries rule and smaller struggle to be heard. Fredrik Reinfeldt, the Swedish Prime Minister, whose small country held the rotating EU presidency from July to December 2009, said he didn’t like the term “president” to describe the new job, and that the term “chairman” would have been more appropriate. On 6 October 2009 the Benelux countries sent other governments a joint paper saying that the new job should go to someone who “listens to the member states” and is “sensitive” to the union’s “institutional balance”: i.e., is nice to tiddlers and respects the European Commission, the bit of the EU machine in which all members are equal, at least in theory. Downing Street abandoned its campaign to put Tony Blair in the prestige job after it was clear that there was scant support for him. Thus, on 19 November 2009, it was decided to give the council presidency to someone from the centre right and the foreign-policy job to the centre left: Belgian Prime Minister Herman Van Rompuy and British Catherine Ashton were named as the EU's first full-time president and foreign policy chief. In a surprise move, Labour peer Baroness Catherine Ashton (formerly leader of the House of Lords) was appointed to the new role of EU foreign affairs chief (and also vice-president of the Commission): this certainly reinforces the UK’s place “at the heart of Europe”, and ensures, in Gordon Brown’s words, that “Britain's voice is very loud and clear”. Baroness Catherine Ashton, 53 years old, represents the EU on the world stage. Herman Van Rompuy 5, a 62-year-old Christian Democrat, who has been Belgian Prime Minister for less than a year, is the EU's new president. He said climate change and Europe’s high unemployment will be key concerns in the years ahead.

5 Van Roupmy, a soft-spoken technocrat who shuns the public eye and has written haikus about European unity, created his biggest stir on the EU stage to date by reading one of his haikus at a press conference in October 2009. "Three waves. Roll into port together. The trio is home," read the poem, whose subject matter was policy cooperation among Belgium, Spain and Hungary in 2010.

Compared to the Constitutional Treaty (2004) , most of the institutional innovations that were agreed upon in the European Constitution are kept in the Treaty of Lisbon. The most prominent difference is arguably that the Treaty of Lisbon amends existing EU treaties, rather than re-founding the EU by replacing old texts with a single document with the status of a constitution. Other differences include: - The Union Minister for Foreign Affairs has been renamed High representative of the Union for Foreign Affairs and Security Policy. - EU symbols like the flag, the motto and the anthem, are not made legally binding in the Treaty of Lisbon. All of them are however already in use; e.g. the flag was adopted in the 1980s. Sixteen EU-countries have declared their allegiance to these symbols in the new treaty, although the annexed declaration is not legally binding. - In line with eliminating all ‘state-like’ terminology and symbols, new names for various types of EU legislation have been dropped, in particular the proposal to rename EU regulations and EU directives as EU ‘laws’ and ‘framework laws’. - Three EU Member States (UK, Ireland and Poland) have negotiated additional opt-outs from certain areas of policy, particularly the UK (to safeguard the common law legal system). - Due to Poland's pressure during the June Council in 2007, the new voting system (double majority) will not enter into force before 2014. - Combating climate-change is explicitly stated as an objective of EU institutions in the Treaty of Lisbon. - The EU Constitution would have laid down as an objective of the EU the encouraging of "free and undistorted competition". Due to pressure from the French government, this phrase was not included in the Lisbon Treaty. Instead, the text relating to free and undistorted competition in Article 3 of the EC Treaty is kept and moved to Protocol 6 ("On the Internal Market and Competition"). There has been some debate over whether this will have an impact on EU Competition policy in future. Whilst French President Nicolas Sarkozy declared "We have obtained a major reorientation of the union's objectives", EU commissioner Neelie Kroes has refuted such claims, stating "putting it in a Protocol on the internal market clarifies that one cannot exist without the other. They have moved the furniture round, but the house is still there. The Protocol is of equivalent status to the Treaty."

Thus, Art. 8 of the 2004 European Constitution, which read as follows:

ARTICLE I-8 The symbols of the Union The flag of the Union shall be a circle of twelve golden stars on a blue background. The anthem of the Union shall be based on the "Ode to Joy" from the Ninth Symphony by Ludwig van Beethoven.

The motto of the Union shall be: "United in diversity". The currency of the Union shall be the euro. Europe day shall be celebrated on 9 May throughout the Union. has been repealed in the Consolidated Version of the Treaty on European Union. Nevertheless, reference to these symbols appears in the Declaration of the Member States session, and it reads as follows:

Belgium, Bulgaria, Germany, Greece, Spain, Italy, Cyprus, Lithuania, Luxemburg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and the Slovak Republic declare that the flag with a circle of twelve golden stars on a blue background, the anthem based on the "Ode to Joy" from the Ninth Symphony by Ludwig van Beethoven, the motto "United in diversity", the euro as the currency of the European Union and Europe Day on 9 May will for them continue as symbols to express the sense of community of the people in the European Union and their allegiance to it.

The Treaty of Lisbon explicitly recognizes for the first time the possibility for a Member State to withdraw from the Union, as we read in Art. 50:

Article 50

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

The Treaty of Lisbon provides for a more efficient Europe, with simplified working methods and voting rules. For legislation which does not require unanimous decisions, there will be a new voting procedure. From 2014 on, the calculation of qualified majority will be based on the double majority of Member States and people, thus representing the dual legitimacy of the Union. A double majority will be achieved when a decision is taken by 55% of the Member States representing at least 65% of the Union’s population.

Members of Parliament in the UK criticized that during the first few days of drafting the Reform Treaty only a French version was available, which they claim prevented proper scrutiny of the new European Union treaty by failing to provide the House of Commons with an English version. The European Scrutiny Committee of the House of Commons asserted in October 2007 that the Reform Treaty is "substantially equivalent" to the old European Constitution treaty. Valéry Giscard D’Estaing has stated that there is hardly any difference between the failed Constitution and the Lisbon Treaty and has gone even further saying that this is more unreadable than the previous one. The Euro-skeptic think-tank “Openeurope”, after an in-depth analysis, has asserted that the Reform Treaty is 96% identical to the European Constitution.