| At more than 300 pages of articles, protocols,
annexes and preambles, the Lisbon Treaty is not an easy read, even for the specialist
in EU affairs. Below is a guide to the main elements of the Lisbon Treaty, and
an explanation of the main changes it will introduce if it comes into force. What
is the Treaty?
What does Lisbon do?
Key
features of the Treaty - A ‘division
of competences’ meaning more and more power for the EU
- Making
it easier to change the EU treaties in the future
- A
‘self-amending’ Treaty
- Far fewer powers
for national parliaments
- Majority voting in foreign
policy and moves towards a common defence
- New
EU powers over justice and home affairs
- Charter
of Fundamental Rights becomes legally binding
- New
EU powers in many policy areas including health & social security
What
the Treaty fails to do For a briefer look at the
issues surrounding the Treaty, see the ‘Why we
say no’, and ‘FAQs’ sections.
A
carbon copy of the rejected EU Constitution Back in December 2001,
EU leaders admitted that citizens “feel that deals are all too often cut out
of their sight and they want better democratic scrutiny” and agreed that a way
needed to be found to stop the “creeping expansion of the competence of the
Union”. The so-called ‘Laeken declaration’ called for “better responses
to practical issues and not a European superstate or European institutions inveigling
their way into every nook and cranny of life.” The political leaders also talked
about “restoring tasks to the Member States,” and said that powers could be
returned back to the national and local level. A so-called Convention on
the Future of Europe was convened in order to draft a new Treaty which would reflect
these principles. However, former French President Valery Giscard d’Estaing
was appointed its President and instead of reform and decentralisation, the group
drafted a new Constitutional Treaty, which proposed to hand important new powers
to the EU, without sufficient compensation for national parliaments. Because
the Treaty was deemed to be so important, many EU governments initially promised
their people a referendum on the text. However, in 2005, the electorates of
two of the EU’s founding member states – France and the Netherlands – said
‘no’ to the Constitution. In France, 55 percent of people voted no, with
a turnout of 69 percent, and in the Netherlands, 62 percent of people voted no,
with a turnout of 63 percent. But instead of respecting these votes, EU
leaders decided to press ahead with the Treaty regardless. In what became one
of the biggest cons in recent political history, EU officials changed the appearance
of the text and renamed it the Lisbon Treaty. 96% of the content of the
Treaty remains exactly the same as the Constitution rejected by France and the
Netherlands four years ago. Of the few changes there are, none are of any real
significance – for example, the new version no longer mentions the symbols of
the Union, like its flag and anthem. However, of course these symbols already
exist in reality. Virtually every EU Government has admitted that the Lisbon
Treaty maintains the substance of the Constitution.
The author of the
Constitution, Valery Giscard d’Estaing, said: “All the earlier proposals will
be in the new text, but will be hidden and disguised in some way.” The
Spanish Prime Minister Jose Zapatero admitted: “We have not let a single substantial
point of the Constitutional Treaty go… It is, without a doubt, much more than
a treaty. This is a project of foundational character, a treaty for a new Europe.”
The German Chancellor Angela Merkel said: “The substance of the Constitution
is preserved. That is a fact.” But despite this, several EU leaders decided
that no more referendums should be held, except in Ireland, which is the only
country which is constitutionally bound to hold referendums on such Treaties.
Despite cries for politicians to keep their promises to let the people have a
say in many countries, the promises were forgotten, the people ignored, and the
Treaty was pushed through parliaments across Europe – in most cases with minimum,
if any, debate. This is in spite of the fact that according to the only
independent poll of voters in all 27 EU countries, conducted in 2007, 75% of people
across the EU, and a majority in every single country, said they wanted to be
consulted on any new Treaty which proposes to give more powers to the EU. When
the only country that was allowed a referendum on the Treaty – Ireland – said
‘no’ in a clear vote in June 2008, the decision was once again ignored and
now Irish people are being asked to vote again on exactly the same text. Once
again, some politicians are pretending that the Treaty has changed since last
time, but the reality is that Irish people will be voting on exactly the same
text they have already rejected. The good intentions of Laeken have been
well and truly forgotten. Instead of allowing decisions to be taken as close
to the citizen as possible, EU leaders decided to favour ‘integration by stealth’
– pushing through closer EU cooperation without consulting the voters. And
where the voters have had a say, in Ireland, they have been ignored. Unless this
undemocratic approach is challenged now, it will become the norm for decades to
come. “This
treaty is the tipping point. It is the point at which we will begin to adopt the
European Community method on most matters, apart from tax and social security,
and in a number of respects—perhaps most of them—in common foreign and security
policy. In most other things, we will move into a situation where we will have
QMV [Qualified Majority Voting], where the Commission will administrate and where
the European Court of Justice will judge.”
Michael Connarty,
Chairman of the UK’s cross-party Commons European Scrutiny Committee, House
of Commons, 21 January 2008 Some people try to claim that the Lisbon
Treaty is just a ‘tidying up’ exercise. However, EU politicians themselves
admit that this is not the case: “This is a big change from the basic
concept of nation states. It’s a change of centuries of history.” (Former
Italian Prime Minister Romano Prodi) “It is a birth of a political
union, not only an economic and social union; an event unique in the history of
our Continent, a turning point in the history of humanity.” (Former Italian
President Carlo Azeglio Ciampi) "The Constitution is the capstone
of a European Federal State." (Former Belgian Prime
Minister Guy Verhofstadt) “The EU Constitution is the birth certificate
of the United States of Europe. The Constitution is not the end point of integration,
but the framework for – as it says in the preamble – an ever closer union.”
(Former German Europe Minister Hans Martin Bury) Indeed the Lisbon
Treaty is very important and represents a turning point in the development of
the EU. To name just a few things, it creates several big new EU institutions,
ends the national veto in 60 areas of policy, and makes it easier for the EU to
change the rules of the game in the future. This means it will be able to take
on more powers without even less national parliamentary scrutiny than we have
at present. It represents a huge step backwards for democracy in Europe. Weakens
Ireland’s power to block legislation by 40% Changes to the system
by which votes in the EU Council are taken will mean that almost all member states
would find it more difficult to block legislation under the Lisbon Treaty. According
to academics at the London School of Economics, out of all 27 member states, Malta
is the only country which stands to gain in its power to block EU legislation
it disagrees with. The net effect of this change is that it will become easier
for the EU pass law, which means more regulation at a time when many people, including
small businesses, feel there is already far too much regulation. Ireland
will be one of the biggest losers under the new arrangements. Under the Lisbon
Treaty Ireland will lose more than 40 percent of its power to block EU legislation
it disagrees with in the Council. This means Ireland is likely to be outvoted
far more often under the Lisbon Treaty, and end up having to implement laws it
does not necessarily agree with. This is a dilution of democracy. National
vetoes scrapped in 60 areas The Treaty introduces 60 new areas
where qualified majority voting applies. This would be the largest number of vetoes
given up in any of the EU treaties to date. The veto is given up in all kinds
of significant areas: the powers of Europol and Eurojust, immigration and border
controls, energy, transport, employment policy, the ECB’s powers over financial
regulation, the appointment of the EU President, and many areas of foreign policy. For
the first time, majority voting is made officially the norm in EU politics, and
described as the “ordinary legislative procedure”. The few remaining exceptions
to majority voting are described as being decided under a “special legislative
procedure”. Controversially, the Treaty also says that any remaining
vetoes can in future be abolished without the need for a further treaty, using
the ‘simplified revision procedure’ found in Article 46 TEU (see below). New
unaccountable and distant EU institutions The Lisbon Treaty creates
powerful new positions and institutions in Brussels, and will make existing EU
institutions more powerful in relation to the member states. Setting up new institutions
like an EU President, an EU Foreign Minister, and an EU diplomatic service would
mean a major shift of power from EU member states, and they are also likely to
grow in strength over time. An EU President
The
Lisbon Treaty would create a powerful new EU President, whose exact role is yet
to be determined. It is thought he or she will be paid the same as the (appointed)
European Commission President, who currently earns the same basic salary as the
democratically-elected President of the United States. Currently, EU member
states take it in turns to be President of the EU for six months at a time.
While not perfect, this system does at least ensure that the smaller member states
like Ireland get to set the agenda in Europe on an equal basis with the larger
countries. It also means that the democratically elected prime ministers
and presidents of EU member states set the agenda in Europe and represent the
EU on the world stage. Under the Lisbon Treaty, the President of the EU will
be nominated, not by the people but by the European Council, by a qualified majority
vote and without consultation with national parliaments. He or she will sit
for terms of two and a half years. The likelihood is that the post will
go to an ex-prime minister or president of Europe. This means that whoever is
appointed is likely to have lost the support of their own electorate at home –
such as Tony Blair, who is currently being touted as a future EU President. During
negotiations on the Treaty, the Irish government was strongly opposed to the creation
of a permanent EU President. Irish Europe Minister Dick Roche appealed to the
Convention drawing up the Treaty to stick to the status quo, whereby EU member
states take it in turns to be President of the EU for six months at a time.
This system ensures that the smaller member states like Ireland get to set the
agenda in Europe on an equal basis with the larger countries. However,
his suggestion was ignored. An EU Foreign Minister
The
Lisbon Treaty creates a new post of High Representative of the Union for Foreign
Affairs and Security Policy, widely referred to as the EU Foreign Minister, as
was originally intended under the EU Constitution. The Foreign Minister
will also be a Vice-President of the European Commission, giving the supranational
body a role in foreign policy for the first time. He or she will be appointed
by a qualified majority vote in the European Council, and when the Council asks
the Foreign Minister for a proposal on a particular subject, once he or she has
made that proposal it will be subject to majority voting. The Foreign Minister
will also Chair the meetings of EU Foreign Ministers. During negotiations on
the text of the treaty, the Irish government was opposed to this idea, but its
objections and suggested amendments were ignored. His or her exact role, payment
and tasks remain to be decided. An EU diplomatic service
The
Lisbon Treaty would set up a new “European External Action Service”, combining
national officials with hundreds of staff who work in the European Commission’s
DG External Relations department. (Article 27 TEU) Decisions relating to the creation
of the diplomatic service will be taken by majority vote on a proposal from the
EU Foreign Minister. Spanish Prime Minister Jose Luis Zapatero has said
that as a result of this: “We will undoubtedly see European embassies
in the world, not ones from each country, with European diplomats and a European
foreign service.” (AP, 17 February 2005) Prominent Swedish
author and journalist Nathan Shachar recently argued that common EU embassies
could be detrimental for human rights. He said: “If the Lisbon Treaty is ratified
and we submit our diplomacy to the EU, our ability to promote a dissenting view
and to put up resistance when commercial interests and ideological complacency
are attempting to trick us out of our ethical foreign policy will cease”. (Dagens
Nyheter, 31 July 2009) The Lisbon Treaty was
supposed to set out a clear division of powers between the member states and Brussels,
to stop the gradual drift of powers from member states to the EU. However, it
does the opposite - it defines most powers as “shared”, and says that where
powers are “shared” the member states can only act if the EU has chosen not
to. (Article 2 TFEU) Indeed
it is often claimed by supporters of the Treaty that it will help to end legal
uncertainty on the issue of member states’ relations with the Union. Nothing
could be further from the truth. Aside from the specific new powers which
the Treaty creates for the EU, it is also a legal toolbox which provides activist
EU institutions (particularly the notoriously expansionary European Court of Justice)
with the means to incrementally build on existing powers and expand into new areas.
The Treaty provides for EU action in virtually every policy area – from health
to defence – and can be used as a basis for radical future developments in Union
policies. There are a large number of important ‘unanswered questions’
relating to how the new arrangements would work in practice. A confidential strategy
paper prepared by the Slovenian EU Presidency for Heads of Governments identified
31 such areas of the Lisbon Treaty. A few examples of these include: the
structure, operation and field of action of Europol; the new powers and operation
of Eurojust; the rules governing the European Public Prosecutor and its functions;
the "organisation and functioning" of the EU External Action Service
(diplomatic service); the role and powers of the EU Foreign Minister; and arrangements
for the implementation of the Defence "Solidarity Clause." The leaked
Presidency paper noted that these tough negotiations will only take place after
ratification in "difficult" countries, such as Ireland. The widening
in the jurisdiction of the European Court of Justice to almost all areas of policy
is particularly significant in this respect. The new legal force given to the
Charter of Fundamental Rights is also likely to amplify this effect further. The
Charter is a sprawling agglomeration of rights and obligations – it is both
vague and wide-ranging, and is likely to provide a rich resource for the expansion
of Union power through the judicial avenue. The
Lisbon Treaty would effectively make the EU treaties self-amending for the first
time. Several articles found in the Lisbon Treaty would allow EU leaders
to change the treaties incrementally, without the need for a new treaty and the
parliamentary and public scrutiny that currently goes with that process. At
present, the treaties on which the EU is based can be amended only by the convening
of an Intergovernmental Conference (IGC) such as the one that agreed the original
text of the Lisbon Treaty. Any amendments must be agreed unanimously by all governments
and then ratified in the member states according to their Constitutional traditions,
i.e. by referendum or by parliamentary vote. In the past, changes
have been made all at once and made into ‘package deals’. This is a process
that has hitherto sparked public interest and debate – such as the one we now
see in Ireland on the Lisbon Treaty, or the debates on the Nice, Amsterdam or
Maastricht Treaties. By contrast, under the Lisbon Treaty, EU leaders would
be able to gradually alter the treaties on which the EU is based, which would
be likely to dramatically reduce the level of public scrutiny of future changes
to the treaties. In future, changes to the treaties, even where they give more
powers to the EU, could go unnoticed by the public and many MPs. Several
articles in the Lisbon Treaty allow for future changes to be made more easily
and with less democratic participation: A ‘simplified revision
procedure’
Article 48 (6) TEU allows the Council to vote by unanimity
to change any of the text of part three of the Treaty on the Functioning of the
Union (which deals with the detail of all the EU’s internal policies). The
German Constitutional Court recently noted that this clause would give the European
Council “a broad scope of action for amendments of primary law” which is insufficiently
predictable for German MPs. It said: “The implications
of the authorisation to amend provisions of Part Three of the Treaty on the Functioning
of the European Union can only be determined to a limited extent; as regards substance,
they are hardly predictable for the German legislature. Article 48.6 TEU Lisbon
opens up to the European Council a broad scope of action for amendments of primary
law.” (Paragraph 311) A ‘bridging clause’ which allows
the Council to abolish remaining vetoes without giving national parliaments a
say
Article 48 (7) of the Lisbon Treaty is referred to as the ‘general
bridging clause’, or passerelle, from the French word for ‘bridging’.
This will allow the Council to decide to move a policy area from unanimous voting
to qualified majority voting in the future. For the first time, such changes
will not need to be ratified by national parliaments. National parliaments must
only be “notified”, and the proposal automatically goes through unless a Government
allows parliament time to vote on it and the parliament then makes known its opposition
within six months. The “consent” of a majority of the members of the
European Parliament must also be given. The German court marked the distinction
between this and the current arrangements, when it said: “To the extent
that the general bridging procedure pursuant to Article 48.7(3) TEU Lisbon and
the special bridging clause pursuant to Article 81.3(3) TFEU grant the national
parliaments a right to make known their opposition, this is not a sufficient equivalent
to the requirement of ratification.” (Paragraph 414)
A
much-extended ‘flexibility’ clause, and no say for national parliaments
Under the current EU treaties, Article 308 allows the EU to take on new
powers which are not currently provided for in the Treaty, if it proves necessary
to attain one of the objectives of the European Community. However, this is
currently restricted to actions in the course of the operation of the internal
market. As it currently stands, Article 308 has given rise several controversial
decisions, including the establishment of a European Agency for Fundamental Rights,
to administer the Charter of Fundamental Rights even before it becomes legally-binding. Article
352 TFEU of the Lisbon Treaty extends the current ‘flexibility clause’ to
include all policies in the EU treaties, so that it can apply to anything
(with the exception of the common foreign and security policy) – not just decisions
related to the internal market as is currently the case. The Commission
will only be obliged to “draw national parliaments’ attention” to future
proposals based on that article. As noted by the German Constitutional Court: “The
provision can thus serve to create a competence which makes action on the European
level possible in almost the entire area of application of the primary law…
The approval by the Member States in accordance with their respective constitutional
requirements is not a requirement for the decision entering into force.”
(Paragraph 327) It continued: “The provision meets with constitutional
objections because the newly worded provision makes it possible to substantially
amend Treaty foundations of the European Union without the mandatory participation
of legislative bodies beyond the Member States’ executive powers… The duty
to inform the national parliaments set out in Article 352.2 TFEU does not alter
this; for the Commission need only draw the national Parliaments’ attention
to a corresponding lawmaking proposal.” (Paragraph 328) On the basis
of these significant new provisions for future treaty change, the German Court
ruled that a German Minister will not be allowed to agree to such changes without
the express prior permission of both houses of the German Parliament through a
similar act of parliament as is currently required for any changes to the EU treaties.
This is a far cry from the virtually non-existent role for national parliaments
envisaged in the Lisbon Treaty. Some countries, including Britain and
Ireland, have made some provision for giving national parliaments a say
over these future decisions, but they do not amount to the same safeguards that
parliaments currently have over Treaty change, and fall short of what the German
Constitutional Court said should happen in Germany. For instance, while
the British government has allowed for some future uses of the passerelle
or the ‘simplified revision procedure’ (but not the ‘flexibility’)
clauses to be approved by parliament, it refused to specify that an Act of Parliament
(i.e. a new law, which demands maximum parliamentary scrutiny) will be necessary,
despite the attempts of some MPs. The Government also refused to make clear
that if the parliament did object to such a proposal, then the Government would
be obliged to vote against it. Similarly, in Ireland, it is almost certain
that the current requirement for referendums on major EU treaty change will be
circumvented by these provisions. Indeed
it is a common myth that the Lisbon Treaty brings greater powers for national
parliaments. In fact, the combination of the loss of policymaking powers to
the EU level, the loss of the national veto brought by the increase in the use
of majority voting, and the new arrangements for amending the treaties detailed
above means that national parliaments will have less influence on policymaking
than ever before. As the German Constitutional Court recently pointed out: “The
status of national parliaments is considerably curtailed by the reduction of decisions
requiring unanimity and the supranationalisation of police and judicial cooperation
in criminal matters.” (Court ruling, Paragraph 293) The Treaty pays
lip-service to involving national parliaments, but a close look at the text shows
that the provisions are so minimal as to be meaningless. A protocol attached
to the Lisbon Treaty says that, if, in the unlikely event that a third of national
parliaments in the EU (that’s 9), within eight weeks of seeing a draft EU law,
object to it on the specific grounds that it does not comply with the principle
of subsidiarity (the idea that the EU should only act in areas where it can add
value), then the European Commission will have to “review” it. After
this “review”, the Commission is free to decide to override national parliaments
and maintain the law as long as it gives reasons for its decision. This is exactly
what happened the very first time the mechanism was given a ‘trial run’ several
years ago. If, however, a majority of parliaments object to the draft law
(that’s 14), again on the narrow grounds of ‘subsidiarity’ and again within
a short 8-week window, and the Commission decides to maintain the proposal after
review, then in order to the draft law to actually be scrapped, a majority in
the Council or the European Parliament must agree with the 14 national parliaments
that the proposal does not comply with the subsidiarity principle. There
are several severe (and deliberate) problems with this text. The thresholds
for getting the Commission to “review” a proposal, let alone scrap it, are
set unfeasibly high. Indeed, MEP Andrew Duff, who was involved in the
drafting of the Treaty, has admitted that: “It was understood by
those of us involved in its drafting and, then, re-drafting that the mechanism,
although a necessary addition to the system of governance of the Union, was
not really intended to be used.” 8 weeks is a very short
window for a national parliament to receive a proposal, consider it, and then
indicate its objection to it. Especially bearing in mind that many national
parliaments take long recess periods several times a year. The protocol makes
no allowance for the fact that national parliaments may not even be sitting during
all or part of those 8 weeks. Another problem is the fact that national
parliaments may only object to proposals on the grounds of ‘subsidiarity’,
and not just because they do not like the proposal. Crucially,
it will still be up to the EU institutions to decide whether a proposal conflicts
with ‘subsidiarity’. The UK Parliament’s cross-party EU
Scrutiny Committee concluded that “we doubt the significance of the 'greater
opportunities' for national parliaments to be involved in any meaningful manner
in the workings of the EU.” Such proposals are actively damaging, because
they give the impression of accountability without the reality, and are used to
fob off proposals for real democracy in Europe. Controversially,
the Lisbon Treaty introduces majority voting into eleven areas of foreign policy
– meaning smaller countries will find it much more difficult to make themselves
heard on important decisions. 1. Proposals from the EU Foreign Minister
2. The design of the EU diplomatic service
3. Setting up an inner core in
defence
4. Terrorism and mutual defence
5. Urgent financial aid
6. Humanitarian aid
7. The election of the EU Foreign Minister
8.
Civil protection
9. Terrorist financing controls
10. The new EU Foreign
Policy Fund
11. Consular issues Article 42 TEU states that "The
common security and defence policy shall include the progressive framing of a
common Union defence policy. This will lead to a common defence, when
the European Council, acting unanimously, so decides.” The Irish government
objected to this, wanting to change the word “will” to “might”. However,
it failed. Article
42 also states that, “If a Member State is the victim of armed aggression on
its territory, the other Member States shall have towards it an obligation of
aid and assistance by all the means in their power, in accordance with Article
51 of the United Nations Charter. This shall not prejudice the specific character
of the security and defence policy of certain Member States.” This is essentially
a mutual defence commitment, and some argue that it constitutes a threat to Irish
neutrality. Polling shows that concerns about the Lisbon Treaty’s impact
on Ireland’s policy of neutrality were among the most prominent of reasons for
voting no the first time around. In a series of articles for the Irish
Times in November and December in 2008, Dr. Karen
Devine, expert in Irish
neutrality and researcher at Dublin City University, warned that “A neutral
state cannot legally or politically sign up to the Lisbon Treaty mutual assistance
clause because it violates neutrality.” However, despite agreeing some
warm words on this subject, Ireland secured no exemption from this clause at the
EU summit in June this year. Experts argue that
this would be the only
way to guarantee that the Treaty does not threaten Ireland’s neutrality. Article
32 TEU contains a requirement for a Member State to consult other Member States
before taking foreign policy action: “Before undertaking any action
on the international scene or any commitment which could affect the Union's interests,
each Member State shall consult the others within the European Council or the
Council. Member States shall ensure, through the convergence of their actions,
that the Union is able to assert its interests and values on the international
scene. Member States shall show mutual solidarity.” Article 222 TFEU states that “Should
a Member State be the object of a terrorist attack or the victim of a natural
or man-made disaster, the other Member States shall assist it at the request of
its political authorities” and adds that “The Union shall mobilise all the
instruments at its disposal, including the military resources made available by
the Member States.” The Irish government wanted to insert important changes
to this article, including a line that “the other Member States shall provide
such assistance as they each deem necessary and as would be consistent with international
law.” This would explicitly allow Ireland to respond using assistance other
than military. Dick Roche also wanted to clarify that “such assistance
may involve the deployment of all the instruments at the Union’s deployment”,
instead of the more certain language that the “Union shall mobilise”,
as above. Thirdly, the Irish government also wanted to insert a line which
said: “Deployment of military capabilities for the purposes set out in this
Article shall be limited to the territory of the Union.” Dick Roche argued:
“The deployment of military capabilities under the terms
of this provision should be confined to the territory of the Union.” However,
all of these failed to make it to the final text. New articles allow the EU
to set common rules concerning legal procedures in criminal cases. EU rules, decided
by qualified majority voting, could determine the rights of criminal suspects
and control the admissibility of evidence in Court. There is also a provision
for EU rules to cover “any other specific aspects” of legal procedure if EU
leaders so decide. (Article 82 TFEU) As the German Constitutional Court
recently ruled: “The Treaty of Lisbon considerably extends
the European Union’s competences in the area of the administration of criminal
law.” (Paragraph 352) One problem with this proposal is that it
would no longer be possible for voters in individual member states to alter the
balance of the legal system between the rights of victims and suspects’ rights.
For example, if EU rules were to set the balance in such a way as to favour protection
for suspects, voters in any one member state would not be able to vote for a policy
which would make it easier to secure convictions. The rules could only be changed
subsequently if the majority of other EU members agreed. During negotiations
on the Treaty, the Irish government opposed many of the Treaty’s proposals relating
to civil and criminal law and legal procedures, and in particular the introduction
of majority voting. Dick Roche said: “Given the sensitivity of the matters
involved, and the diversity of Member States’ legal systems, unanimity is the
appropriate decision-making procedure.” The government tried several
times to get these provisions changed, but failed. The Treaty allows the EU to set
up a Common European Asylum system (Article 78 TFEU). This becomes a treaty objective
for the first time, and will lead to the laying down of uniform standards on how
asylum applications are processed and the benefits asylum seekers will receive
while their cases are being considered. The Treaty requires that any new asylum
policies should be governed by the principle of solidarity and fair sharing. This
paves the way for what the Commission has called “corrective” burden sharing
(i.e. transferring successful asylum seekers from one member state to another).
Indeed, the Commission has already proposed to amend existing EU asylum legislation
in order to build in burden sharing. The Treaty allows
the EU to set “rules concerning the definition of criminal offences and sanctions”
and lists the types of crimes over which the EU can harmonise sentences. These
include drug trafficking, people smuggling and money laundering. The list was
supposed to limit the EU to dealing with cross-border crimes. But the list of
crimes over which the EU can rule includes vaguely-defined categories such as
“organised crime” and “corruption”, which is likely to enable the EU to
rule over a wide variety of offences. The list of offences is also designed to
be expanded over time, as a clause allows EU leaders to add to the list of crimes
on which the EU can legislate. During negotiations on the Treaty, the Irish
government opposed many of the Treaty’s proposals, “Given the sensitivity
of the issues involved.” In particular, the government did not want such
rules to be set by majority voting, and wanted to make it clear in the treaty
that the prosecution, trial and punishment of offenders would remain a matter
within the exclusive competence of member states. However, it failed. The
Treaty gives the European prosecutors’ network “Eurojust” sweeping new powers.
The relevant article states that the tasks of Eurojust, to be defined by qualified
majority voting in the EU Council, “may include the initiation of criminal investigations”.
(Article 85 TFEU) Again, the Irish government strongly opposed these new
provisions, attempting to delete this language and arguing that “Eurojust should
not have a direct role in prosecutions”, and that the tasks of Eurojust be determined
by unanimous vote. Again, it failed. The new Treaty states that: “In
order to combat crimes affecting the financial interests of the Union, the Council,
by means of a regulation adopted in accordance with a special legislative procedure,
may establish a European Public Prosecutor's Office from Eurojust.” The
Irish government strongly opposed the creation of European Public Prosecutor,
saying “the proposed arrangements do not respect the different legal traditions
of Member States.” However, it was ignored.
Back
to top The Charter is likely
to affect national law and give the European Court of Justice substantial new
powers. While the debate in some countries has focused on the effect of the Charter
on business, it does, in fact, cover a very wide range of topics. The Court
will have substantial new powers to review and change national laws. But how
the Court will use these powers is difficult to predict. The net result of giving
the Court greater power through the Charter is unlikely to be a clear “left”
or “right” outcome. It would, however, mean that the small group of judges
on the Court of Justice would be called upon to make contentious and essentially
political judgements in a wide range of areas. Provisions
of the Treaty would put the EU in charge of standards for pharmaceuticals, medical
equipment and medical products like blood and tissue. The EU would also be given
the power to legislate by QMV on any “serious cross border threats to health”.
(Article 168 TFEU) The
Treaty states that: “The Union may take initiatives to ensure coordination of
Member States' social policies”. It also allows the Commission to establish
“guidelines and indicators” for social policies. (Articles 5, 156 TFEU) Social
security rights for migrant workers are shifted to majority voting, something
which the Irish government originally opposed. While an ‘emergency brake’
applies to this area, EU policy in this area has traditionally been driven forward
by European Court of Justice, with EU legislation ‘catching-up’ with Court
rulings. The Lisbon Treaty abolishes the veto on employment
law relating to self employed workers. (Article 53 TFEU) This covers everything
from whether plumbers, electricians and other self-employed service providers
have their qualifications recognised in other countries, health and safety questions
and their rights at work. The Treaty states that: “The
Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these
policies.” (Article 5 TFEU) The European
Commission notes that the Treaty “will extend the scope of the trade policy
to include all foreign direct investments and makes it clearly an exclusive competence
of the Union.” Under current arrangements, in some fields both the member
states and the EU can negotiate trade deals, allowing member states to have their
own trade agreements alongside those of the EU as a whole. For example, EU member
states have signed a number of Bilateral Investment Treaties with other countries
around the world. Exclusive competence in this area would make such bilateral
agreements impossible. The Lisbon Treaty deletes the clause in the existing treaty
(Article 133.5 TEC) which states that EU trade policies “shall not affect the
rights of the Member States to maintain and conclude agreements with third countries”. As
noted by the German Constitutional Court, under the Lisbon Treaty: “the
Union shall have exclusive competence for the conclusion and the ratification
of international agreements in the context of the common commercial policy…
the necessity and the possibility an agreement being concluded (also) by the Member
States and the participation of the national parliaments in accordance with their
respective constitutional requirements… cease to exist.” (Paragraph 373)
It continues:
“With the exclusive competence presented,
the Union attains the sole power of disposition of international trade agreements
which may result in essential reorganisations of the internal order of the Member
States. The shift of competences by the Treaty of Lisbon that has been presented
concerns the Member States beyond the loss of their competence for concluding
international trade agreements - and the elimination of the legislative participation
of the Bundestag and the Bundesrat [German Parliament]… also to the extent that
it might reduce the status of the Member States’ membership in the World Trade
Organization to a merely formal one. The right to vote in the bodies of the World
Trade Organization could solely be exercised by the European Union. Furthermore,
the Member States would lose their formal entitlement to be a party in the dispute
settlement procedures of the World Trade Organization. Additionally, the Member
States would be excluded from the global negotiations on new or amended agreements
in the context of the extended common commercial policy, the so-called rounds
of world trade talks.” (Paragraph 374)
Trade in health and education
services, currently decided by unanimity, would also be affected – under the
new treaty the EU would have the same powers over these issues that it has over
trade in goods. The Irish government strongly objected to the inclusion
of “foreign direct investment” in this article, and attempted to get it deleted. Does
nothing to solve corruption and waste
The new Treaty has no provisions
to sort out the EU’s chronic problems with fraud and waste. According to its
own figures, the EU loses £1 million every working day to fraud. Its budget has
not been signed off by its own auditors for fourteen years in a row. The
EU now has 63,000 civil servants working full-time churning out new laws. EU
officials, MEPs and Commissioners have been criticised for the excessive amounts
of expenses and perks they receive on top of their basic salary. The European
Parliament spends £200 million a year just ferrying euro-MPs back and forth between
its two buildings in Strasbourg and Brussels every month. All of this will remain
unchanged under the new Treaty, and with more powerful institutions, it may prove
even more difficult to reform these things in the future. No power
to improve failing environmental policies
Supporters of the Treaty
claim that the Treaty is essential to enable the EU to ‘take action’ on important
transnational issues like the environment. However, in fact, the Treaty makes
almost no changes to the EU’s capacities in this respect, merely adding a few
words to emphasise the importance of the objective fighting climate change. In
reality, the EU currently has (and already exercises) plenty of power over environmental
policy, but has simply failed to use it effectively due to flawed policies and
lack of political will. The EU Emissions Trading Scheme has failed to cut emissions
and has been converted by politically powerful corporate interest groups into
a means of covert industrial subsidy. Additionally, EU renewables targets
will push investment away from more cost effective options for reducing carbon
emissions – this is a misallocation of limited resources in the fight against
climate change. | 
