EUROPE AFTER LISBON - April 17, 2008

When the celebrated Constitutional Treaty was rejected by two separate referenda the dream of a constitutionally united Europe died with it. The wounded European ideal took some time to heal from the blow served by its own people and, realizing that a firm solution out of the impasse was imperative, planned its next move meticulously. The moment to jump-start Europe’s stalling development came when the Portuguese Presidency took over on 1st of July 2007. A flurry of activities prior to and during the term of this Presidency, significant though they were, were largely under-played to the public considering that placing Europe’s next move into the spotlight as the glorified solution to the problems created by the rejection of the Constitution might cause the public to be skeptical towards the new initiative by inevitably associating it with the Constitutional Treaty (CT). On December 13th 2007 the Treaty of Lisbon was signed with hopes for it to be successfully ratified by individual Member States before the end of 2008.

  
After the unprecedented defeat of the CT, the

united Europe ideal had received a massive blow.

While the people of Europe supported the Union,

they were reluctant to hand over their national

sovereignty to faceless Institutions in blind faith.

Surveys, long before Laeken, indicated that the

people were increasingly skeptical when it came

to the European Institutions and they regarded

them as inefficient, slow, detached from reality

and definitely lacking transparency. Considering

the above it really isn’t a big surprise that the

Lisbon initiative was from the onset less

extravagant and pompous than its doomed

predecessor, but the question remains: is Lisbon

really the awaited component which will finally

allow Europe to take a further step forwards? Critics claim that the CT is not dead and buried as the vote of the people demanded but instead renamed and refined and served again under a different name and with different pretences. The obvious reluctance of European sources and governments alike to even say the dreaded word “referendum” points towards that direction indicating that even now, the content of the new Treaty might not be able to stand public scrutiny or much less the pressure of another public judgment, a negative outcome of which will inevitably lead to a much deeper crisis for Europe to cope with. On the other hand, supporters claim that the Treaty of Lisbon addresses the concerns that led to the rejection of the Constitution as such. Nevertheless, it runs the risk of being too closely associated with the negativity surrounding the previous attempt, making it easier for it to fall pray to unjust prejudice simply because it replaced the rejected Constitution as it was essentially designed to address the same issues and cover the same areas. If that is the case one can definitely comprehend the reluctance to put the new document to the test via referenda which might be influenced by negative feelings and overly zealous reaction to what was before.

  
Clearly the best way to determine which one of the two diametrically opposite views is closer to the truth is to compare the two documents in their essence and to determine whether the innovations claimed to have been introduced by the Treaty of Lisbon are indeed of importance or whether they have simply been designed to distract attention from the reality of a Constitution being sneaked into our lives through the back door.

 
Perhaps the most significant change in the Treaty of Lisbon is the fact that the modus operandi it proposes is not different than that of any other Treaty with the exception of the Constitutional one. It does not repeal nor does it replace the existing documents as the Constitutional Treaty attempted to do with Article IV-437 but it merely complements and amends them, the same way Amsterdam and Nice have done in the past. That can be seen as a safeguard against blindly abandoning what is considered to be the foundation of legal history of the Union in favor of a single piece of legislation. However, while this is a significant departure from the “Constitutional” agenda does it really make the Lisbon Treaty any more reliable? It can be argued that in reality this step backwards practically abandons one of Europe’s recently adopted core aspirations, the codification of the baffling legislation and simplification of the complex rules that govern the Union. Designing the Treaty of Lisbon to not deviate from the tried and tested formula of the past may be a reassuring factor to the collective European psyche who clearly believe that the Constitution as it appeared in front of them was trying to introduce too much too soon but it leaves the serious issue of complex proceedings and massive amounts of legislation untouched. Europe appears thus to be making a much needed step forward by retreating to its reliable past. It will certainly however be called to address the crippling problems caused by a legislative basis spreading among various valid documents in the near future, and it will be called to do so without a specific framework as this has been expressly rejected.

  
Slight but important changes have also been introduced in the area of CFSP, Common Foreign and Security Policy, previously known as the second “pillar” of the European Union reflecting collective pressures by individual Member States. Just like the CT, Lisbon effectively abolishes the traditional “three pillar” system of the Union and moves towards a more uniform, policy related framework of action as can be seen throughout the relevant provisions. Unlike the CT, however, the Treaty of Lisbon maintains considerable safeguards concerning decision making policies in the area of CFSP explicitly stating in article 11 (1) that this area will be subject to “special” provisions governed by “specific rules and procedures”. Moreover, the new Treaty continues to make two additional Declarations in order to emphasize that the innovations are neither trivial nor an elaborate play with words. The Commission is thus not to be vested with additional powers nor is the Parliament’s role to be upgraded as estimated. These innovations can also be seen in conjunction with the new article 8, a major difference between the two Treaties, which strengthens further the position of National Parliaments. The express reference in the principles of Subsidiarity and Proportionality has already been annexed to the CT but the Treaty of Lisbon, perhaps recognizing the formerly adopted position as one of the weaknesses that contributed to the CT’s demise, went one step further, implementing the so called “orange card” procedure by which 1/3 of the National Parliaments can challenge the Commission on a breach of the above mentioned principles and block a proposed action. Should the Commission decide to proceed with the said action in spite of objections, the initiative can be blocked by either a 55% of the Member States or 50% of the votes of the Parliament. This way, Member States are awarded with a powerful tool, an emergency way of blocking legislation. These innovations appear to be making much more sense practically than the retreat to the formula of an “amending” Treaty as they seem to be attacking existing problems and to be offering tangible solutions opposite Member States concerns. Although it is largely accepted that the structure that became known as the second pillar will be preserved as a fact by the special provisions in the Treaty of Lisbon even though the pillar system itself will be a thing of the past with the Treaty’s ratification, perhaps this is not a negative trait altogether but a necessary compromise by which Member States can embark upon a new future for Europe without additional concerns when it comes to the overly sensitive area of security. Indeed, while some States have been more vocal than others, CFSP is often where red lines, of varying intensity make their appearance. The natural drawback of these provisions is the effect that it is to have upon Foreign policy as reaching a consensus whereby Europe could present a uniform front towards the International Community would not always be feasible. This might weaken Europe’s position in the field of international diplomacy, it would, however, be even less effective to try to force closer integration among States on all aspects at a time when the States are clearly not ready for this degree of unity.

  
Perhaps amending the provisions inserted into the CT concerning the double-majority is the most important step in the right direction. The safeguards and transitional implementation time-lines the new Treaty provides can go a long way, not only ensuring that individual member states can hold on to some of their leverage on Community decisions, but also pre-paving the way which could lead to further integration in the future. So, while the core principles of the double majority voting system that appeared in the CT remain intact, a number of amendments helped reach a compromise that approaches the Nice formula and could be accepted by smaller Member States far easier than the previous set of rules. So, two elements of equal weigh would then come into play, each country will count as one vote, regardless of its size and population and each country will count according to its size and population. In practice it means that according to article 9c, a majority is reached with 55% of Member States representing 65% of the total population. Moreover, the new voting system will not come into force until 2014 and even after the day it is implemented, any Member State would still have the right to invoke the Nice principles if it feels this would serve its national interests and the proposal could that way have been blocked, throughout the transitional period between 2014 and 2017, when differences are estimated to have been ironed out. To make the amendment even more alluring to individual Member States, the new Treaty makes provisions for the preservation of a version of the Ioannina compromise, which describes a blocking majority as either 75% of Member States or 75% of the general population before a matter is directed back to the Council for further discussion, in one of its popular Declarations (after 2017 the required blocking majority will decrease to 55%).

  
Perhaps the change that has been mostly advertized is the complete abolition of any mention of the symbols that had been such a prominent characteristic of the CT. While it is true that the Treaty of Lisbon appears to be a pretty dry document, focused solely on the technicalities it was entrusted to deal with and devoid of all emotion that might link it in any way to the “Constitutional” ideal, it is highly doubtful that symbols were the reason why the referenda produced the results that they did. In short, while a romantic idea, the unity of the peoples in Europe in a way more or less similar to the United States of America was not entirely appealing. While the underlying cause for concern was once again the loss of national sovereignty, Europe’s uniqueness comes from its diversity and, so the argument goes, the feeling that the Constitution would attempt to replace historic anthems and symbols linked with centuries of European history, which are very close to people’s hearts instead of complimenting them would immediately undermine the true purpose of the Constitution. In short, while the anthem and the flag was not the real problem with the Constitution, giving additional emphasis to the importance of a “complete” Union probably did not do the CT any favors. On the other hand, the Treaty of Lisbon has since been accused of being just the product of the endless bureaucracy and dry technical mentality which has forced the European Union into a defensive corner in the first place. The abolition of symbols could be seen as a final attempt strip the Treaty of Lisbon of any Constitution-like features and to shift the focus away from claims that it is nothing short of a Constitution in disguise. Whether or not this attempt will be successful remains to be seen as the ratification process remains open.

 
Removing the Charter of Human Rights from the core body of the Treaty was another attempt to distinguish the new from the old. The CT had explicitly attempted to insert the Charter into the Constitution itself, ensuring that individual rights would have direct effect and would be deemed as “constitutional” but even that led to objections. In a bid to avoid anything that would remotely resemble a Constitution, the Treaty of Lisbon proceeded to remove the Charter from the main body. Nevertheless, this is also a change of little importance as, functionally, article 6 of the Treaty of Lisbon makes a direct reference to the Charter, recognizing it as a valid piece of legislation to carry the same weight as the Treaties themselves and, as such, it is to be considered legally binding, the same way it would have been had the CT not met such an untimely end (only two countries, Poland and the UK, specifically opted out from the ratification of the Charter). The motivation behind this slight alteration is the obvious bid to differentiate the two Treaties, like mentioned before, in order to ensure their fate would be different and that the dreaded referenda would be avoided.
 

In general, those are the major differences between the two Treaties. Slight changes can be seen throughout the document as the Lisbon Initiative attempts to appear more mellow and more sensitive towards individual Member States’ concerns but is that really enough to keep the dissenting voices that have all but named the new Treaty an understated Trojan Horse through which the Constitution and all the features that were rejected would sneak into Community life? Is baptizing the Foreign Minister of the CT with a different name really making any difference? Is there any doubt as to what the Aquis Communautaire dictates, even without expressly mentioning European Law’s sovereignty over national law? When it comes to “enhanced co-operation”, article 10 (2) of the Treaty of Lisbon demands the participation of at least 9 States instead of the 1/3 of Member States stipulated in the CT. So, Europe’s national anthem is an optional feature to our European future and now each country needs at least eight more in order to co-operate in an enhanced manner but are those changes really enough to distinguish the Treaty of Lisbon as an separate entity than the doomed CT?

 
It is obvious that the rest of the Treaty of Lisbon is strikingly familiar. From the Institutions of the Union (Title III) and their functions, to awarding Institution status to bodies such as the European Central Bank, despite concerns on the Bank’s independence issue considering the obligation for “mutual cooperation” implied in article 9 (2). From establishing a permanent European Council Presidency renewable once every 2 ½ years stated in article 9 b, to making provisions for the election of the European Commission President. From reducing the seats in the European Parliament and the College of Commissioners while making explicit provisions to ensure just and equal participation by all Member States, to stating the democratic principles that should characterize the Union and to coordinating the defense mechanism of the Union; everything of real value seems to derive straight from the CT.

 
Academics, experts and think tanks alike agree that perhaps the Treaty of Lisbon will be successfully kept safely away from the critical votes of the French and Dutch public but while the ratification process of the new Treaty has not been completed yet, surprises of the unpleasant kind might still be in store. The political cost governments risk by blatantly going against public opinion is still likely to influence the course of events. The future of the European Union after the death of the over-ambitious Constitution was once uncertain as Europe seemed reluctant and unsure of which way to go. The message the failure of the CT communicated has multiple layers. It suggests that the people of Europe are not likely to be “conned” into blindly accepting anything at all. It also demonstrated clearly that Europe is not really ready for closer integration. The States already committed to the degree they could at the present time and under the present circumstances. Perhaps European enthusiasts should pause for a second and realize that when the fruit is not yet ripe, any forced bonding would not be effective to begin with. The European Union has a lot to assimilate, especially with the two latest Enlargements and all the additional complications they entail. Taking the time necessary to formulate a new identity might be the only way forward but the idea of a tight-knit political union might be to soon to pursue, no matter how alluring it might be. It is true that unless Europe manages to unite politically as well as economically it will never achieve its real potential for greatness; however solid foundations are needed and those are built and can not be rushed or forced. The Treaty of Lisbon seems to have learned from past mistakes but its similarities with the CT are likely to influence its success. It offers sound proposals on pressing practical issues and avoids making a case for complete unification of Europe or dreaded federalism, but, while it appears to be harmless enough it still remains loyal to the core of the CT and will probably need to face the consequences of this choice. One thing is for sure, Europe needs a positive step forward in order to escape the gloomy reality of a forced stand-still and, despite the obvious problems with it, perhaps The Treaty of Lisbon can be just that given the chance.
 

Faye Karavasili

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Author of the article holds LL.B. and LL.M. degrees in law from the University of Sussex, United Kingdom. She is an attorney practicing in Thessaloniki, Greece, and in Brussels, Belgium. She specializes in European Union law and criminal litigation.

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