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.