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2.5.  The Treaty of Lisbon: a Constitution without title

    The Treaty of Nice was conceived by the governments of the Fifteen as a transitory Treaty, allowing the European Community/Union (EC/EU) to function temporarily after the accession of ten new members. They did not want through this provisional Treaty to allow the EC/EU to advance on the way of its integration. Wanting, however, to push ahead the process of integration by a substantial reform of the institutional framework of the enlarged Union, the European Council of Nice convened a new intergovernmental Conference (IGC) to propose a new and broader amendment of the Treaties. To ensure a good preparation of the upcoming IGC, the European Council of Laeken (14-15 December 2001) decided to convene a Convention on the future of Europe, with the former President of the French Republic, Mr. Giscard d'Estaing as chairman. The Convention brought together representatives of the governments and national parliaments of the Member States as well as representatives of all the European institutions. It is the Convention which decided to call the treaty that it prepared "Treaty establishing a Constitution for Europe".

    The IGC, which began its work in Rome on October 2003 with the participation of representatives of twenty-five States, broadly took the proposals of the Convention on board and presented the draft of the Constitutional Treaty to the European Council, which adopted it with minor changes on 18 June 2004. The twenty-five heads of state or government of the enlarged Union signed the Constitutional Treaty on 29 October 2004, in Rome (venue chosen in commemoration of the original Treaty establishing the EEC). The Treaty establishing a Constitution for Europe made provision to come into force two years after its signature, anticipating its ratification by the twenty-five Member States during this time. However, the referendum announced by the British Prime Minister in April 2004 made this coming into force more than doubtful, since all the opinion polls predicted a vast majority for the "no" of the British people. Thus, the negative referendums in France and in the Netherlands, in 29 May 29 and 1 June 2005, simply confirmed the announced death of the Constitutional Treaty. Eurosceptics rejoiced then that with the Constitution would die also the idea of European unification, which they abhorred. Once again the political leadership of Europe, aware of the common interest as well as of their national interests, disenchanted them, putting an end to the crisis caused to the EU by the Constitutional Treaty.

    The Treaty of Lisbon, signed by the heads of State or government of  the 27 Member States, on 13 December 2007, maintained all the important elements of the stillborn constitutional Treaty, setting aside certain secondary or emblematic elements, which bothered particularly eurosceptics: the title of "Constitution" that for some concealed the transformation of the Union into a Super-State; the reference to the symbols of unification, such as the flag with the twelve stars, the ode to joy of Beethoven that has already been established as the anthem of Europe; 9 May as the day of Europe in commemoration of  the declaration of R. Schuman. ''European laws'' and ''European framework laws'' will not replace the actual ''regulations'' and ''directives'', as it was proposed by the Constitution, but in any case the proposed change of names of the legal instruments would have had no effect on the European legal system [see section 3.3]. The Charter of Fundamental Rights is not incorporated into the Treaty of Lisbon as it was in the Constitution, but its provisions are given a binding legal force, except for the UK and Poland [see section 9.2 and introduction to chapter 13].

    The most important reforms proposed by the defunct Constitution are taken over by the Treaty of Lisbon. First of all, the European Union absorbed the European Community, which ceased to exist as of the coming into force of the new treaty, the 1st December 2009. Under the name of the city where they were signed, we still find two Treaties having the same rank: the Treaty on the European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU), which replaced the Treaty establishing the European Community (TEC), thus ending the confusion between ''the Community'' and the ''Union''. The merge of the Community and the Union, did away with the absurd notion of the ''three pillars'' of the Union: the European Community (EC), the common foreign and security policy (CFSP) and justice and home affairs (JHA). Henceforth we speak only of the European Union, but we necessarily refer to the European Community concerning all legislation enacted on its basis. The European Union now has a single legal personality under which it can negotiate, sign and implement all its external commitments, policies and activities, including trade, aid to development, representation in third countries and in international organisations and foreign and security policy. Both from the interior (its citizens) and from the exterior (third countries) the Union will, thus, be seen as a strong organism rather than as two Siamese frail and precarious (the one named Community and the other Union).

    Under the new Treaty, the European Union becomes more democratic. The powers of the European Parliament are increased considerably [see section 4.1.3]. The ''codecision procedure'' of the Parliament and the Council is renamed ''ordinary legislative procedure'' (Article 294 TFEU, ex Article 251 TEC) [see section 4.3] and is extended to several new fields, including justice and home affairs, some aspects of the common trade and agricultural policies, as well as the EU budget (Article 14 TEU = article I-20, Constitution). Thus, the Parliament now has the functions of a lower chamber, representing the citizens of the Union, while the Council plays the role of a Senate, representing the governments of the Member States. The Parliament and the Council have equal powers concerning the whole budget, which instead of ''budget of the European Communities'' is called ''Union budget'' (Article 41 TEU = article I-53, Constitution) [see section 3.4]. The Parliament's assent is required for all international agreements in fields governed by the ordinary legislative procedure.

    Copying the Constitution, the Treaty of Lisbon contains many other elements aiming at the further democratisation of the functioning of the Union. It defines, for the first time, the democratic foundations of the Union, which are based on three principles: those of democratic equality, representative democracy and participatory democracy [see section 9.5]. It gives the national parliaments greater scope to participate alongside the European institutions in the work of the Union, clearly setting out their rights to information, to mechanisms for evaluating policy in the field of freedom, security and justice, to procedures for reforming the treaties and, most importantly, to monitor that the Union only acts where its action is more effective than an action undertaken at the national level (subsidiarity) [see sections 3.2 and 9.5]. It invites citizens to participate in the policies of the Union thanks to the citizens' initiative, whereby one million citizens, from a number of member countries, are able to ask the Commission to present a proposal in any of the EU's areas of responsibility (Articles 10 and 11 TEU = Articles I-46 and I-47, Constitution) [see section 9.5]. It emphasises the voluntary nature of the integration process [see section 1.1.2], by explicitly recognising the possibility for a Member State to withdraw from the Union (Article 50 TEU = Article I-60, Constitution).

    The reforms of the European institutions brought about by the Treaty of Lisbon are also practically the same as the ones that was proposing the Constitution. In parallel with its strengthened role, the composition of the European Parliament is also adapted to the new circumstances of the enlarged Union. The number of MEPs is capped at 751 (750 plus the president of the Parliament) and Seats will be distributed among countries according to “degressive proportionality”, i.e. MEPs from more populous countries will each represent more people than those from smaller countries (Article 14 TEU = Article I-20, Constitution) [see section 4.1.3]. The Parliament swears in the President of the Commission on the proposal of the European Council, "taking the European Parliament elections into account", thus lending the President of the Commission greater democratic legitimacy, since he or she should belong to the political group, which carried the European elections(Article 17 (7) TEU = Article I-27, Constitution). The European Council is now headed by a permanent president, elected by the European Council for two and a half years (Article 15 TEU = Article I-22, Constitution) [see section 4.1.1]. The European Commission has a new role to play in external relations, since its vice-president, responsible for external relations is the EU high representative for foreign and security policy and chairs the ''foreign affairs Council'' (Article 18 TEU = Article I-28, Constitution) [see section 4.1.2].

    The standard system of voting in the Council of Ministers is now ''qualified majority voting'', which, from 2014, will be based on the double majority of States and population. Decisions in the Council of Ministers will need the support of 55% of Member States representing a minimum of 65% of the EU's population, thus facilitating decision-making in the enlarged Union (Article 238 TFEU = Article I-25, Constitution) [see sections 4.1.4 and 4.3]. Following the path of the Constitutional Treaty; the Treaty of Lisbon extends the ordinary legislative procedure to practically all the field of justice and home affairs (JHA), renamed ''area of freedom, security and justice'' (AFSJ), thus abolishing the so-called third pillar of the Union [see section 8.1].

    Like the draft Constitution, the Treaty of Lisbon does not extend qualified majority voting to the common foreign and security policy (CFSP). Unanimity will continue to be the rule for decision-making on CFSP matters, thus preventing this policy from becoming really common and effective (article 24 TEU) [see section 8.2.1]. Nevertheless, the fact that the new High Representative for Foreign Affairs and Security Policy is Vice-President of the Commission will help the EU work more effectively and consistently on the world scene. The High Representative - assisted by a new European external action service, composed of officials from the Council, Commission and national diplomatic services - should give the EU a clearer voice in relations with partner countries and organisations worldwide, connecting different strands of EU external policy, such as diplomacy, security, trade, aid to development, humanitarian aid and international negotiations [see section 4.1.2]. In addition, the Treaty of Lisbon (like the draft Constitutional Treaty) strengthens the Common Security and Defence Policy (CSDP), increasing the so-called Petersberg tasks by joint disarmament operations, humanitarian and rescue tasks, conflict prevention and peace-keeping tasks (Article 43 TEU). In addition, the new treaty allows Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area to establish permanent structured cooperation within the Union framework (Article 42 TEU = Articles I-41.6 and III-312, Constitution) [see section 8.2.3].

    The treaty of Lisbon was initially rejected by the Irish electorate in a referendum held on 12 June 2008, a verdict reversed by a second referendum held on 2 October 2009, the Irish experience proving once again the inaptitude of referendums for the ratification of treaties [see sections 1.5.3 and 9.5]. Thus the treaty of Lisbon entered into force a year later than planned, on 1 December 2009.

    Europedia presents the numbering of the Articles of the new treaties adopted in Lisbon. It refers to the Articles of the treaty on the European Union (TEU) and of the Treaty on the functioning of the EU (TFEU), juxtaposing the numbers of the Articles of the latter with those of the treaty establishing the European Community (TEC), which it replaced. The student of European integration may thus evaluate the progress achieved by the treaty of Lisbon, in comparison with the treaty of Nice, on the various common policies of the EU.

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