Briefing on Lisbon Treaty

We have publshed a briefing on the Lisbon Treaty. We offer this briefing as a contribution to the current debate as people inform themselves on the issues in preparation to vote in the Referendum on June 12, 2008.

The Lisbon Treaty Briefing on Lisbon Treaty Pdf

On June 12th, 2008 Irish people will again have their say on a European Treaty. Ireland is the only country of the 27 Member States in the EU holding a referendum on this Treaty.

This Policy Briefing on the Lisbon Treaty seeks to provide a short summary of the key proposals contained in the 271-page treaty.
In response to requests from our members CORI Justice is continuing its tradition of publishing a briefing in advance of the referendum as was done on each of the European Treaties. We offer this Briefing as a contribution to the current debate as people inform themselves on the issues in preparation to vote.

We never recommend how people should cast their vote but we strongly believe that people should vote.

The Lisbon Treaty is the latest in a series of treaties stretching back to the Treaty of Rome in 1957 that established the European Community.

The Merger Treaty came into force on July 1, 1967 and provided for a single Commission and a single Council of the then three European Communities.

The Single European Act came into force on July 1 1987and provided for the adjustments required to achieve the internal market.

This was followed by the Maastricht Treaty which came into force on November 1, 1993. It changed the title to the European Community and introduced new forms of co-operation between the Member States.

Next up was the Amsterdam Treaty which came into force on May 1, 1999. It amended the EU and EC Treaties and produced consolidated versions of the EU and EC Treaties.

Finally the Nice Treaty came into force on February 1, 2003. It reformed the European institutions so that the EU could function efficiently after its enlargement from 15 member states.

The Lisbon Treaty (also called the EU Reform Treaty) was agreed by European Heads of State and Government at a meeting in Lisbon on October 18-19, 2007.

This treaty represents the latest updating of the EU's basic legal documentation.

The text of the Treaty is very difficult to follow since it requires constant cross-referencing to the current treaties.

However, a wide range of bodies have produced detailed and often lengthy outlines of what the treaty proposes to do. The most useful sources for further information are the Forum on Europe and the Referendum Commission (contact details on page 6). A wide range of viewpoints have been articulated on the Treaty - some very positive, others very negative.

For this Treaty to come into effect it must be ratified by all 27 Member States. Ireland is the only country holding a referendum on the issue.

The issues addressed in this Treaty are important and they will have implications for Ireland.

Consequently it is important that all those eligible to vote familiarise ourselves with the Treaty and exercise our franchise.

How the Lisbon Treaty was developed

The fundamental rules and institutions of the European Union are set out in various treaties that have been agreed among the member states. The most recent of these was the Nice Treaty which preceded the accession of ten new Member States during Ireland's presidency of the Union in 2004.

The member states established a Convention on the Future of Europe made up of 205 members. This body contained one Government representative and two parliamentary representatives from each Member state as well as representatives from the European Commission and the European Parliament. The Irish Government's representative was Dick Roche TD. The Oireachtas was represented by John Bruton TD and Proinsias De Rossa, TD. MEP. The alternates were Bobby McDonagh (Department of Foreign Affairs), John Gormley TD and Pat Carey TD.

The Convention completed its work in 2003 when it presented its 'Draft Treaty establishing a Constitution for Europe' to the Council of Ministers. The subsequent Inter-Governmental Conference proposed an agreed European Constitution. This sought to consolidate the previous treaties into a single text. The Constitution was defeated in referendums in France (May 2005) and the Netherlands (June 2005).
A new Inter-Governmental Conference was mandated to develop a new Treaty based on the previous Treaties but not having 'constitutional characteristics'. The finalised the text of the current Treaty was agreed on the fringes of the European Council in Lisbon on October 18-19 2007 (hence the title Lisbon Treaty). It will not come into force until it is ratified by all 27 Member States.

Structure of the Lisbon Treaty

Currently there are two key treaties that embody the EU's fundamental rules. These are:

• The Treaty on European Union (TEU) i.e. the Maastricht Treaty (1992) as it has been amended.
• The Treaty establishing the European Community i.e. the Treaty of Rome (1957) as amended. This treaty's title will change to the Treaty on the Functioning of the European Union (TEFU).

The Lisbon Treaty (officially called The EU Reform Treaty) will change the format of both of these existing Treaties.

New format of TEU
If the Lisbon Treaty is approved the Treaty on European Union (TEU) will have six parts:
Title I - Common Provisions
Title II - Democratic Principles
Title III - Institutions
Title IV - Enhanced Cooperation
Title V - External Actions and Common Foreign and Security Policy
Title VI - Final Provisions

Title II on Democratic Principles and Title III on Institutions are new, although many of their provisions reflect existing rules, and the provisions on Freedom, Security and Justice have been moved to the Treaty on the Functioning of the European Union.

New format of TFEU
The Treaty on the Functioning of the European Union (TFEU), which will contain the detailed rules on the workings of the EU, will have the following format:

Part One - Principles
Part Two - Non-discrimination and citizenship of the Union
Part Three - Union Policies and Internal Actions
Parts Four - Overseas Countries and Territories
Part Five - External Action by the Union
Part Six - Institutional and Budgetary Provisions
Part Seven - General and Final Provisions

The bulk of the Treaty is contained in Part Three and Part Six. A notable change in the Treaty's structure is the addition of Part Five dealing with the EU's external action, which is linked to Title V of the Treaty on European Union (TEU).

Protocols and Declarations
The Lisbon (Reform) Treaty also contains a series of Protocols and a number of Declarations have been made regarding the Treaty.
A number of these protocols and declarations are directly relevant to Ireland, particularly the protocol and declaration relating to the Irish and UK opt-out on judicial cooperation in criminal matters and police cooperation.

Moving Beyond Three Pillars
Currently the EU's structure has three 'Pillars':

• First Pillar: The Single Market
• Second Pillar: Common Foreign and Security Policy
• Third Pillar: Police and Judicial Cooperation in criminal matters.

The Lisbon Treaty would abolish this inter-governmental pillar system but would retain special voting procedures for the Common Foreign and Security Policy.

It also provides the European Union with a single legal personality which has treaty-making powers.

Values and objectives in the Lisbon Treaty

The Lisbon Treaty sets out the values on which the EU is founded and which are common to its member states. For the first time it includes a reference to "the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of inviolable and inalienable rights of the human person, freedom democracy equality and the rule of law" (article 1.1a).

This is the only paragraph of the preamble to the Constitutional Treaty which has been retained and added to the existing preamble to the Treaty on European Union.

In article 1.3 the Lisbon Treaty spells out the core values and ethos of the EU stating that the Union is founded on the values of:

• Respect for human dignity
• Freedom
• Democracy
• Equality
• The rule of law
• Respect of human rights, including the rights of persons belonging to minorities.

It goes on to state that "These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail".

The Treaty then states that "The Union's aim is to promote peace, its values and the well-being of its peoples" (article 1.4.1).

This article goes on to state that the Union "shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child" (article 1.4.3).

EU institutions

The Treaty adds both the European Council and the European Central Bank to the existing institutions of the European Union.
These institutions are meant to promote the EU's values, and to advance its objectives, and interests. The EU will therefore be served by the following seven institutions working in co-operation:

• The European Parliament
• The European Council
• The Council
• The European Commission
• The Court of Justice of the European Union
• The European Central Bank
• The Court of Auditors.

For details on the Parliament and the European Council cf. below.

The Council is made up of one Government Minister from every Member State. It takes different formations e.g. agriculture, environment etc. Decisions on what the council formations should be will in future be made by the European Council. It will continue to be the key decision-making body along with the European Parliament.

From 2009 the Commission will be made up of one member from each Member State. From 2014 only two thirds of Member States will have seats on the Commission at any given time. There will be strict rotation so Ireland will have a Commissioner for 10 out of every 15-year cycle.

The other institutions will continue more or less as they do at present with some minor adjustments.

Ireland will have 12 seats in the European Parliament - one less than at present if this Treaty is ratified.

The European Parliament

The new Treaty gives the European Parliament a significantly enhanced role. The Parliament will exercise legislative and budgetary powers jointly with the Council and it will exercise functions of political control and consultation as laid down in the Treaties.

The Parliament will elect the President of the Commission (at present, its assent is required for this appointment). It will have a maximum of 750 members plus its President (compared to 732 normally at present). Each Member State will have at least six Members of the European Parliament (MEPs) and no Member State will have more than 96. Within these limits, national representation will be broadly in proportion to population but with more favourable treatment for the smaller Member States.

The European Council

The European Council gives the EU its political direction and sets its priorities. It is made up of the most senior political representatives of the Member States - Prime Ministers and Presidents with executive powers. The President of the European Commission is also a member of the European Council. The European Council, which does not have power to make laws, normally makes its decisions by unanimity.

This Treaty creates a new position of 'President of the European Council who will chair its meetings, drive forward its work and represent the EU abroad at the highest level. The initiative will put an end to the rotating presidency process which saw Member States taking responsibility for the presidency for a 6-month period.

How Lisbon Treaty will impact on EU decision-making

The Lisbon Treaty makes clear that it is the Member States who confer powers (competences) on the EU in order to attain objectives which they have in common . Powers not conferred upon the EU remain with the Member States and the new Treaty strengthens controls on actions which could better be taken at the level of the Member States.

Powers (competences)
The EU has exclusive competence in some areas (i.e. only the EU may legislate). These include: customs union, competition rules necessary for the internal market; monetary policy for countries whose currency is the euro; conservation under the common fisheries policy and common commercial policy.

The EU will have shared competence with the Member States in a wide range of other areas. In these areas the Member States may take action if the EU does not act. If the EU takes action on some particular elements of the area then the Member States are free to take action on other elements of that area. The areas where shared competence applies include: internal market; social policy for the aspects defined in the Lisbon Treaty; economic, social and territorial cohesion; environment, consumer protection; transport; trans-European networks; energy and common safety concerns in public health matters, for the aspects defined in the Lisbon Treaty.
In addition to areas where the EU has exclusive or shared competence, the EU will have competence to support, coordinate or supplement the actions of the Member States in the areas of : protection and improvement of human health; industry; culture; tourism; education, vocational training, youth and sport; civil protection; administrative cooperation.

Decision-making
If the Lisbon Treaty is ratified then the general rule concerning decision-making will be that European legislation will be decided by the Council and the European Parliament interacting on an equal footing, on the basis of proposals made by the Commission. In the great majority of areas, only the Commission could put forward proposals. These arrangements are termed, in the new Treaty, the Ordinary Legislative Procedure.

There are a small number of exceptions. Foreign policy is one such area where separate, specific decision-making procedures will apply.

Other important exceptions relate to the areas of:

• judicial cooperation in criminal matters;
• police cooperation.

In these areas, legislative proposals can be made by Member States numbering at least one-quarter of the total (currently, seven Member States).

The new Treaty also changes the procedures under which the EU budget will be adopted by the European Parliament and the Council.

Subsidiarity and proportionality
The use of EU powers is governed by the principles of subsidiarity and proportionality. Under the principle of subsidiarity, the EU acts only where its objectives could not be sufficiently achieved by the Member States, whether at central, regional or local level, but could be better achieved at EU level.

This principle does not relate to a situation where the EU has exclusive powers.

Under the principle of proportionality the type and substance of EU action should not go any further than what is necessary to achieve the aims of the treaties. For example, a regulation should not be proposed where a recommendation would suffice. If a regulation is needed, it should only cover what is strictly necessary.

National Parliaments are given new functions in the Lisbon Treaty in certain areas, particularly to ensure respect for 'subsidiarity' and in future revisions of the Treaties. They will be given at least eight weeks in which to consider any proposed EU legislation before it is put to the Council and will be free to issue a 'reasoned opinion' on the proposal.

Provision is also made for Citizens Initiatives.

Parliament, Council, Co-decision and QMV

The European Parliament is given co-decision powers in many additional areas. The voting system in the Council will also change from unanimity to qualified majority voting (QMV) in more areas.

The Treaty also creates special procedures which would extend QMV and/or co-decision under the Treaty if the European Council so decides unanimously.

From November 1, 2014 a new definition of QMV would come into operation. From then on a qualified majority, also known as 'double majority' would be defined as 55% of the members of the EU comprising at least 15 Member States representing 65% of the population of the EU.

On the other hand, a proposal could be blocked if it was opposed by at least four Member States (a blocking minority).

This new way of calculating a QMV or 'double majority' means that where this applies support would be required from:

• 15 of the 27 Member States. And
• These Member States must represent a total population of at least 322 million out of an EU total of 495 million.

Areas such as taxation, social security and common defence will still be governed by unanimity.

A full list of the Articles in the Lisbon Treaty which either involve some change from unanimity to QMV or which are new and in regard to which QMV would be the standard decision-making method are listed in Annex B of the Government's White Paper on the Lisbon Treaty pp.96-98.

The EU Charter of Fundamental Rights

The EU Charter of Fundamental Rights sets out the political, economic, social and civil rights recognised by the EU.
The rights contained in the charter are divided into 54 Articles organised into eight chapters. These chapters cover rights related to dignity, freedoms, equality, solidarity, citizens' rights, justice and a chapter of general provisions.

This Charter was developed in a special Convention during 1999 and 2000. It was revised to clarify its scope and its limits and was proclaimed by the EU institutions (Parliament, Council and Commission) on December 12, 2007.

The content of the Charter is broader than that of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (EHCR). It draws on previous European Social Charters developed by the EU and the Council of Europe. While the ECHR is limited to civil and political rights, the Charter of Fundamental Rights also includes social and economic rights thus following the movement towards recognition of social, economic and cultural rights which has been strongly advocated by many organisations and groups in recent decades.

The text of the Charter is not contained within the Treaty. However through Article 1.8 of the Lisbon Treaty, this Charter will take effect, with the same legal value as the Treaties, if the Lisbon Treaty is ratified.

Rights contained in the Charter of Fundamental Rights

Chapter I: Dignity, which includes:
- human dignity;
- the right to life;
- the right to the integrity of the person;
- prohibition of torture and inhuman or degrading treatment or punishment;
- prohibition of slavery and forced labour.

Chapter II: Freedoms, which include:
- the right to liberty and security;
- respect for private and family life, protection of personal data;
- the right to marry and found a family;
- freedom of thought, conscience and religion;
- freedom of expression and information;
- freedom of assembly and association;
- freedom of the arts and sciences;
- the right to education;
- freedom to choose an occupation and the right to engage in work, freedom to conduct a business;
- the right to property;
- the right to asylum, and protection in the event of removal, expulsion or extradition.

Chapter III: Equality, which includes:
- equality before the law;
- non-discrimination;
- cultural, religious and linguistic diversity;
- equality between men and women;
- the rights of the child;
- the rights of the elderly;
- integration of persons with disabilities.

Chapter IV: Solidarity, which includes:
- workers' right to information and consultation within the undertaking;
- the right of collective bargaining and action;
- the right of access to placement services;
- protection in the event of unjustified dismissal;
- fair and just working conditions;
- prohibition of child labour and protection of young people at work;
- protection regarding the family and professional life;
- social security and social assistance;
- health care;
- access to services of general economic interest;
- environmental protection;
- consumer protection.

Chapter V: Citizens' Rights, which include:
- the right to vote and stand as a candidate at elections to the European Parliament;
- the right to vote and stand as a candidate at municipal elections;
- the right to good administration;
- the right of access to documents;
- Right of reference to the EU Ombudsman;
- the right to petition the European Parliament;
- Freedom of movement and residence;
- diplomatic and consular protection.

Chapter VI: Justice, which includes:
- the right to an effective remedy and a fair trial;
- the presumption of innocence and the right of defence;
- principles of legality and proportionality of criminal offences and penalties, the right not to be tried or punished twice in criminal proceedings for the same criminal offence.

Chapter VII: General provisions

Common Foreign, Security and Defence Policy

If the Lisbon Treaty is ratified then Common Foreign and Security Policy (CFSP) will have special decision-making rules. The EU's action in the wider world will be guided by a set of principles which include democracy, the rule of law and respect for the UN Charter. Decisions in regard to the Common Foreign and Security Policy would, in general, continue to be made by unanimity.

However, there would be two exceptions. Firstly, the Treaty specifically provides for the possibility of QMV where a particular decision relates to a policy previously decided at summit level or, alternatively, to details of implementation. But, even in these cases, a Member State could, for vital and stated reasons of national policy, veto any resort to decision by QMV.

Secondly, there is a general clause, under which the European Council could decide unanimously to transfer decisions from unanimity to the QMV category in any Common Foreign and Security Policy domain, other than military and defence aspects (detailed below).

Common Security and Defence Policy (CSDP)
The Common Foreign and Security Policy would enable the EU to draw on civil and military resources provided by the Member States to take part in missions outside its borders.

These would be: joint disarmament operations; humanitarian and rescue tasks; military advice and assistance tasks; conflict prevention; peace-keeping; tasks of combat forces in crisis management (including peacemaking and post-conflict stabilisation); to strengthen international security, in line with the principles of the United Nations Charter.

Such missions would only be authorised by a unanimous vote of the Council on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or a Member State.

Enhanced Co-operation

Enhanced co-operation is a set of arrangements which could have effect where some Member States, but not all, want to co-operate more closely in a particular area. Enhanced co-operation, which currently requires one-third of Member States, will require at least nine Member States under this Treaty and:

• would have to be open, then and later, to all Member States;
• where it related to internal EU matters, external economic relations and humanitarian aid, would have to get the backing of the Commission, be approved by the Council and be accepted by the European Parliament;
• where it related to common foreign and security policy, would have to be approved by the Council acting unanimously;
• could only be a last resort (where it is clear that the objectives in view could not be achieved by the EU as a whole within a reasonable timeframe);
• cannot be used with respect to areas of exclusive competence.

It would also have to

• Avoid undermining the single market or regional policy in the EU;
• Avoid being a barrier to, or lead to discrimination in trade between, Member States;
• Avoid distorting competition.

Under the new Treaty, the previous ban on enhanced cooperation being used in the security and defence area no longer applies. The Treaty allows for members with bigger military capabilities to commit to taking part together in the most demanding missions within the external tasks listed above under CSPD. This will be called structured co-operation.

General Clauses

A short series of articles seeks to ensure that wider EU objectives are taken fully into account when defining and implementing each specific policy of the EU.

These objectives include: gender equality, opposition to discrimination on multiple grounds, protection of the environment, the fight against social exclusion, consumer protection, reduction of regional disparities and widespread access to services of general economic interest.

Provision is also made in the Treaty for the adoption of legislative measures if and as necessary, to combat discrimination on any of a range of grounds.

Further information

CORI Justice is glad to acknowledge a wide range of sources which were of assistance in preparing this Briefing. We wish to acknowledge in particular the excellent guide to the Treaty of Lisbon prepared by the Forum on Europe (published in January 2008 - available at www.forumoneurope.ie).

Other websites you may find of interest include:
The Government's White Paper on the EU Reform Treaty (published April 2008 - available at www.reformtreaty.ie).
The Referendum Commission is also providing substantial material explaining the Treaty at www.lisbontreaty2008.ie

Freedom, Security and Justice

The European Union defines itself as an area of freedom, security and justice.

In a Europe where people move freely across borders, police and judicial cooperation is required to protect people from terrorism and serious crime.

The Lisbon Treaty sets out to do this by including provisions that would

• give the EU more powers in the Justice and Home Affairs area;
• enhance the EU's effectiveness in fields where it has already been active - external border control, visas, asylum and immigration, judicial cooperation in criminal matters and police cooperation;
• extend the EU's field of action in the fight against serious cross-border crime, police co-operation, mutual recognition of decisions by courts and judges and the creation of a EU public prosecutor, with functions in defined areas.

The Lisbon Treaty goes on to state that the EU would among other things:

• ensure the absence of border controls inside the EU;
• frame a common policy, including passing legislation on asylum, immigration and control at the EU's outside borders based on solidarity, financial and otherwise, between Member States and also fairness to the people of countries outside the EU;
• promote and take measures to prevent and fight crime, racism and hatred of foreigners.

Police and Judicial Co-operation
Under the Lisbon Treaty, the handling of the areas of police co-operation and judicial co-operation would be more in line with normal EU procedures, where the Commission makes proposals, the European Parliament and Council co-legislate on an equal footing (including qualified majority voting in the Council).

The legislation adopted will be subject to greater scrutiny by the Court of Justice. One special feature: a quarter of Member States could propose a measure, in the same way as the Commission.

Ireland's Opt Out/Opt In
Ireland and the UK have special opt-out/ opt-in arrangements in this field. The provisions of this Treaty in the areas of criminal law and police cooperation are based on the proposals in the European Constitution. However, during the negotiations leading to the Treaty of Lisbon, the UK decided to exercise an opt-out in this area which created important implications for Ireland's position, particularly as Ireland and Britain both have common law systems which are quite distinct from other European legal systems. In a situation where the UK has opted-out, Ireland would be acting alone in seeking to shape proposals to take account of our legal practice and tradition. The opt-out arrangement includes a provision which allows Ireland (and the UK) to opt into future measures on a case-by-case basis.

In a separate Declaration on these arrangements, Ireland has indicated its intention to opt-in to all such measures to the maximum extent it deems possible. Ireland also declared its intention to review the operation of these arrangements within three years (i.e. as early as 1 January 2012).

Acting on Budget Deficits?

The Treaty proposes to strengthen the powers given to the European Commission where Member States have excessive budget deficits. In the future, the Council would only be able to diverge from a Commission proposal concerning the existence of an excessive deficit, by unanimous vote, as opposed to the present situation where the Commission makes a recommendation which Finance Ministers do not have to accept.

The proposals also include a new set of articles specific to Member States which are part of the Euro area. A related protocol is annexed to the Treaty, under which, among other things: (1) provision is proposed for specific economic policy guidelines for those Member States; and (2) provision is made for the Eurozone Ministers to settle common positions on matters arising in international financial institutions and conferences that are relevant to the euro and its management.

A Protocol is included on 'Services of General Interest' which makes clear that the competence of Member States is not affected by the Treaty.

Future Amendments?

The Treaty of Lisbon sets out two procedures for amending the EU Treaties, the 'Ordinary Revision Procedure' which is equivalent to the traditional procedures, and the 'Simplified Revision Procedures' which are limited in scope.

The 'Ordinary Revision Procedure' would see proposals being considered by the European Council. If, after consulting the European Parliament the European Council voted in favour of proceeding, then an Inter-Governmental Conference could be convened or, alternatively, a Convention along the lines of the Convention that produced the European Constitution would take the matter forward. If one or more countries had difficulties in ratifying such an amendment the matter would revert to the European Council.

The 'Simplified Revision Procedures' relate to specific, limited aspects of the Treaties. Amendments to Part III of the TFEU (EU Policies and Internal Actions) could be decided by the European Council, approved by all Member States.

However, any national parliament could block such a change within six months.

Key Changes introduced in the Lisbon Treaty

If the Lisbon Treaty is ratified the following will be the key changes:

• Qualified majority voting (QMV) will become the normal rule for the Council of Ministers. National vetoes will be removed in many areas.
• Decisions by qualified majority (QMV) will require a 'double majority' in the Council (55 per cent of Member States representing 65 per cent of the EU's population);
• The European Parliament will gain co-decision powers in many policy areas;
• A European Council President will chair the European Council for up to five years;
• A High Representative of the Union for Foreign Affairs and Security Policy will combine two existing jobs - Vice-President of the Commission and High Representative for Foreign and Security Policy;
• The number of Commissioners will be reduced (each Member State would have a Commissioner for ten out of every fifteen years);
• The number of MEPs is set at a maximum of 750, plus the Parliament's President (with a minimum of six and a maximum of 96 MEPs per country);
• National parliaments get the right to raise objections against draft EU legislation where national or local action would be more effective;
• The EU is given a single legal personality;
• An exit clause provides procedures for Member States wishing to leave;
• Asylum, immigration, police and judicial cooperation will no longer have a separate status but Ireland, with the UK, will have an opt-out/opt-in;
• Foreign and Security Policy will be integrated with other areas of the EU but special procedures still apply, including unanimity for policy decisions;
• The Treaty will maintain full respect for Ireland's policy of military neutrality. It mandates Member States to increase their own military capabilities with a view to increasing the capabilities available for the EU's Common Security and Defence Policy;
• New challenges, such as climate change and energy solidarity, will be recognised;
• A Protocol will be added on services of general interest, including economic services of general interest;
• The EU will be given additional tools to curb Member States with excessive budget deficits;
• The Charter of Fundamental Rights is given Treaty status.