1.  The Treaty of Lisbon is a revamped form of the European Union Constitution which was originally embodied in the Treaty Establishing A Constitution for Europe that was rejected by the voters of France and the Netherlands in referendums in 2005. It is quite different from previous European Treaties, for it gives the EU its own Federal-style Constitution. It establishes a legally new European Union in the constitutional form of a supranational Federation, thereby revolutionizing the constitutional and political order of the EU itself and of its Member States. 

 

The Treaty of Lisbon came into force on 1 December 2009. Ireland was the only one of the 27 EU Member States whose citizens were permitted to hold a referendum on it. They had two referendums in fact. In October 2009 they agreed to ratify exactly the same Treaty as they had rejected in June 2008. They did so by voting to approve an amendment to Ireland’s written Constitution permitting the Irish State to become a member of “the European Union established by virtue of that Treaty” - namely the Treaty of Lisbon. Implicit in these words is the fact that the Lisbon Treaty established a constitutionally new European Union which differs legally and politically from what was known as the European Union before Lisbon came into force - that Union having derived from the 1992 Maastricht Treaty on European Union .

 

The “European Union established by virtue of that Treaty”, namely the Lisbon Treaty, corresponds to the Union which was referred to in the first sentence of Article I-1 of the Treaty Establishing a Constitution for Europe, which French and Dutch voters rejected in 2005. That sentence read: “This Constitution establishes the European Union.” That sentence in turn corresponds to the following sentences in Article 1 of the amended Treaty on European Union which was inserted by the Treaty of Lisbon on its coming into force: "By this treaty the High Contracting Parties establish among themselves a European Union, hereinafter called 'the Union', on which the Member States confer competences to attain objectives they have in common ... The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the Union (hereinafter referred to as 'the Treaties'). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community."

Both the 2004 EU Constitutional Treaty and the Treaty of Lisbon which succeeded it aimed to give the constitutional form of a supranational Federation to the new European Union which they each aimed to establish. Ratification of the Lisbon Treaty therefore ushered in a constitutional and political revolution in the European Union itself and in the national constitutional order of the EU's Member States.

 

Most people and media commentators across the EU are unaware of this revolution, largely because they did not have popular referendums in which the issues might have been publicly discussed. Explaining the constitutional and political difference between the post-Lisbon Union and the pre-Lisbon Union is also made difficult by the fact that the same name, “The European Union”, is used for two entities, the pre-Lisbon EU and the post-Lisbon EU, which are constitutionally and politically profoundly different from one another.  

 

The Lisbon Treaty implemented this constitutional revolution by amending fundamentally the two existing European Treaties, the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC). The former kept the same name, while Lisbon renamed the latter the Treaty on the Functioning of the European Union (TFEU). These two amended Treaties then became the de facto Constitution of the post-Lisbon European Union which they constituted or established, although the word Constitution was not used. The EU was thus given a Constitution indirectly rather than directly - the latter course having been proposed in the original Treaty Establishing a Constitution for Europe.

 

The 1992 Maastricht Treaty from which the pre-Lisbon European Union stemmed was titled the Treaty on European Union, not "of " Union, for Maastricht did not establish an entity with legal personality which could properly be called a “Union”. By contrast the Consolidated Treaties as amended by Lisbon did establish a real European Union, so that the Lisbon Treaty may be regarded as effectively the “Treaty of European Union”.

 

In international politics the word Union always applies to a State, as the federalists were assuredly aware who inspired the nominal European Union of the Maastricht Treaty and who welcomed its subsequent transformation into a real Union founded on its own Constitution by means of the Lisbon Treaty. A "Union" of of states has connotations of sovereignty, self-determination and centralisation of power that are qualitatively different from those attaching to such groupings of States as a Community, Confederation, Alliance, Commonwealth or Common Market.

 

The provision of the Lisbon Treaty that "The Union shall replace and succeed the European Community" (Art.1, amended TEU) makes clear that the post-Lisbon Union is quite a new entity, as the European Community which the 27 States had previously been members of ceased to exist, its functions and institutions being transferred to the post-Lisbon Union by the Lisbon Treaty.

 

The European Community was one of the “European Communities” which existed pre-Lisbon, the other being the European Atomic Energy Community (EURATOM). The latter still continues legally in being alongside the EU and administered by the EU’s institutions. Energy in general becomes a shared Union competence under Lisbon and this includes nuclear energy (Arts.4 and 194 TFEU). Declaration 54 attached to Lisbon states the view of Germany and some other countries that the core provisions of the EURATOM Treaty need to be brought up to date. The European Coal and Steel Community, the third of the three original European Communities, went out of existence in 2002 when the 50-year life of its founding Treaty came to an end, its functions being taken over by the then European Community.

 

Member States still retain their national Constitutions post-Lisbon, but these are subordinate to the new European Union Constitution in all policy areas covered by Treaties, as the second of the two sentences quoted above from Ireland’s constitutional amendment makes clear. As such the Member State Constitutions are no longer constitutions of sovereign States, just as the various local states of the USA retain their constitutions although they are subordinate to the Federal USA Constitution.

The new European Union's powers are conferred on it by its 27 Member States, for the latter have voluntarily agreed to obey the EU's superior authority in the policy areas surrendered. These nowadays cover much the greater part of government. Where else after all could the new Union obtain its powers if not from its Member States? This so-called “principle of conferral” is normal in all classical “bottom-up” Federations, such as the USA, 19th Century Germany, Switzerland, Canada and Australia, where States that were originally sovereign agreed to surrender their sovereignty to a higher federal authority. These contrast with Federations which have been established by unitary States assuming federal form, for example post-World War 2 Germany, Russia, India, Nigeria etc., which might be regarded as “top-down” Federations.  

 

The provision of the Treaty of Lisbon that permits a Member State to leave the EU (Art.50, amended TEU) also occurs in some Federal constitutions. Joseph Stalin’s Constitution of the federal USSR contained such a provision for instance. The remaining powers of government, which have mainly to do with the traditional social services and the taxation needed to finance these, remain with the Member States post-Lisbon. The State sovereignty of the new post-Lisbon European Union is therefore divided between the federal level and the local national state levels, as is normal in Federations of the classical type. 

 

The metamorphosis of the pre-Lisbon European Union into a post-Lisbon Union with the same name but of fundamentally different constitutional and political character, is reflected in changes in the formal structure of the amended Treaties which have become the new Union's Constitution. The two treaties, the TEU and TFEU, are stated to have the same legal value (Art.1, amended TEU). Prior to Lisbon Article 47 TEU had determined that the Treaty on European Union was subsidiary to the Treaty Establishing the European Community (TEC), which Lisbon renamed The Treaty on the Functioning of the European Union (TFEU). Post-Lisbon, this Article 47 TEU has been replaced by Article 40, amended TEU, which stipulates the subsidiarity of the Common Foreign and Security Policy (CFSP) only, as against the other competences set out in the treaties. Moreover the Lisbon Treaty inserted the new Title III on the institutions of the new Union into the Treaty on European Union, the primary treaty, and removed them from the Treaty on the Functioning of the Union, formerly the TEC, where they had previously been set out.  

 

2. The Lisbon Treaty empowers the post-Lisbon European Union to act as a State vis-a-vis other States

 

To understand the dramatic constitutional change which has been introduced by the Lisbon Treaty one needs to appreciate that what was previously called the European Union was clearly not a State. It was not even a distinct legal or corporate entity in its own right, for it did not have legal personality, although some writers have suggested that it had a form of embryonic personality. It was not constitutionally separable from, but was rather coterminous with, its 27 Member States. The name "European Union" pre-Lisbon was the descriptive legal term for the totality of relations between its 27 Member States and their peoples. Article 1 of the pre-Lisbon Treaty on European Union, deriving from the 1992 Maastricht Treaty which established it, made this clear when it stated that “the Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organize, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.”

 

These relations appertained both to the "European Community" area, where supranational European law was operative, and the "intergovernmental" areas of foreign and security policy on the one hand and justice and home affairs on the other, where Member States cooperated freely with one another on the basis of retaining their State sovereignty and where European laws did not apply. These different areas - or “pillars” in EU terminology - taken together constituted what was called the European Union prior to Lisbon.

 

The Lisbon Treaty changed this situation fundamentally by creating a constitutionally and politically new Union, while retaining the same name, “The European Union”. Unlike the pre-Lisbon European

Union, this constitutionally new Union is legally separate from and superior to its Member States, just as the USA is constitutionally separate from and superior to Massachussetts, Kansas etc. or as Federal Germany is to the various German Länder.

 

The new post-Lisbon European Union can sign treaties with other States in all areas of its powers and can conduct itself as a virtual State in the international community of States. It can speak at the United Nations on agreed foreign policy positions, just as in the days of the Soviet Union the USSR had a UN seat while some of its component states, Ukraine and Byelorussia for example, had UN seats too. The Treaty of Lisbon obliges Member States to support the Union's foreign and security policy “actively and unreservedly in a spirit of loyalty and mutual solidarity”(Art.24.3, amended TEU). The word “loyalty” makes clear the constitutional relation involved. 

 

The Lisbon Treaty also gives the new post-Lisbon European Union a political President, a Foreign Minister – titled the High Representative for Foreign and Security Policy - a diplomatic corps, called the EU External Action Service, and a Public Prosecutor. The Treaty envisages the post-Lisbon Union acceding to the European Convention on Human Rights (ECHR), as its Member States have already done, as well as other European States outside the EU.

 

This post-Lisbon European Union now makes the greater part of the laws for its 500 million citizens. In pre-Lisbon days it was the European Community, not the European Union, which made supranational European laws. Strictly speaking therefore there was no such thing as “EU” law prior to the Lishon Treaty, only “EC” law. This changed once Lisbon was ratified, for the Treaty abolished the European Community and replaced it with the new Union, whose laws were stated to be superior to national law in any cases of conflict between the two.

 

The principle of the primacy and superiority of European law over the law of its Member States has not been stated in a European Treaty before. Whereas Article I-6 of the abandoned 2004 Treaty Establishing a Constitution for Europe did state this explicitly, the Lisbon Treaty does so by referring in Declaration 17 concerning Primacy to the case-law of the European Court of Justice. Over the years this has asserted the principles of (a) the superiority of EU law over national law, (b) its direct effect in the territory of its Member States even if it has not been formally put through their National Parliaments, and (c) the constitutional character of the legal order from which European law emanates.

 

Following the ratification of Lisbon European law and national law deal with different areas and matters, as is normal in Federal States where laws are made at both the federal and the provincial or regional state levels. The Treaty also gives the post-Lisbon Union the power to make supranational laws binding on Member States and their citizens in some 30 new areas and removed that power from national Parliaments and from the citizens who elected those Parliaments. The post-Lisbon Union was also given new powers to take decisions in relation to as many specific issues. Altogether there are some 68 areas or issues in relation to which individual Member States decided matters pre-Lisbon but which under Lisbon they lost their veto or their right to decide.

 

3. The enormity of the constitutional change proposed by Lisbon has not been generally appreciated because the same name, “The European Union”, was used before and after the Treaty came into force and because the notion of EU “citizenship” had already been introduced by the 1992 Maastricht Treaty. The Lisbon Treaty changed fundamentally the constitutional nature of the Union itself, its Member States and the character and implications of EU citizenship.   

 

The change in the constitutional and political nature of the Union, its Member States and their citizens was made in four logical legal steps that are set out in the Treaty:-

 

(a) Lisbon established a European Union with legal personality and a fully independent corporate existence in all Union areas for the first time, so that the post-Lisbon Union is able to function as a supranational Federal-style State vis-a-vis other States and in relation to its own citizens (Art. 47, amended TEU; cf. Art.281 TEC);

 

(b)  This new European Union replaced the previously existing European Community and took over all of its powers and institutions (Art.1, amended TEU). It took over as well the "intergovernmental" powers in relation to crime, justice and home affairs, as well as foreign policy and security, which previously were outside the scope of European law-making, leaving only aspects of the Common Foreign, Security and Defence Policy outside the scope of its supranational power (Title V, amended TEU; Title 1 TFEU).

 

(c) Lisbon thereby gave a unified constitutional structure to the new Union which the Treaty constituted or established. The European Community legally ceased to exist and all spheres of public policy came within the scope of supranational EU law-making either actually or potentially, as in any constitutionally unified Federation (Art.4.1 and Art.5, amended TEU, and Arts.1-6 TFEU). One says "potentially" because further inter-State treaties would be required to transfer the minority of law-making powers still remaining with the Member States to the new Union in the future, or to shift powers back from the supranational level to the Member States, something that has so far never happened. Under Lisbon supranational legislative acts may not yet be adopted in the sphere of Common Foreign and Security Policy and a new treaty would be needed to change that. However the European Commission, a key supranational body, through the High Representative proposed in the Lisbon Treaty gains the right of initiative in the foreign policy field, so that even in the light of Art. 31.2, amended TEU, a de facto “supranationality" is attained there.

 

(d) Lisbon then made 500 million Europeans into real citizens of the new Federal Union which the Treaty established (Arts.9, amended TEU and 20 TFEU), with all the implications of that for downgrading their previous personal status as citizens of sovereign Nation States and superseding it by citizenship of the component member states of a supranational European Federation of which they would henceforth become citizens also. The citizens of the 27 Member States were thus endowed with a real dual citizenship post-Lisbon, as in the classical Federations mentioned.  

 

One can only be a citizen of a State and all States must have citizens. A State is a legal person or actor separate from its citizens, and in the case of a Federation it must also be separate from, and constitutionally superior to, its component member states. In the pre-Lisbon situation citizenship of the European Union was stated to “complement” national citizenship (Art.17 TEC), the latter being clearly primary, not least because the pre-Lisbon EU was not a State or even a corporate entity with legal personality such that it could have individuals as members. The “complementary” European citizenship which people were stated to have in the pre-Lisbon EU was therefore essentially notional, symbolical or honorary.  It was legally inseparable from national citizenship and was not a distinct citizenship in its own right, with associated rights and duties.

  

By transforming the legal character of the European Union, the Lisbon Treaty simultaneously transformed the meaning of Union citizenship. The Treaty deleted the word “complement” in the sentence,“Citizenship of the Union shall complement national citizenship”, so that the amended sentence read: "Citizenship of the Union shall be additional to national citizenship" (Arts.9, amended TEU and 20 TFEU; emphasis added). This did not replace national citizenship, but for the first time made citizens of the Member States into real citizens of a real European Union in addition to their national citizenship.   

 

This is a real dual citizenship - not of two different States, but of two different levels of one State - as is normal in Federations which are established from the bottom up by constituent states surrendering their sovereignty to a superior federal entity, as occurred historically with the USA, 19th Century Germany, Switzerland, Canada and Australia. This development has for the first time given the 500 million inhabitants of the EU Member States a real citizenship that is distinct and separate from citizenship of their national States. It gives a triple citizenship to citizens of the individual Länder within Federal Germany. In constitutional terms it gives the post-Lisbon Union a new source of democratic legitimacy.

 

The rights and duties attaching to this citizenship of the new Union are necessarily superior to those attaching to citizenship of the individual Member States in any case of conflict between the two, because of the superiority of EU law over national law and national Constitutions.

 

The Preamble to the Treaty on European Union refers to the aim of “establishing a citizenship common to nationals of their countries”. As most States recognize that people can only have a single citizenship internationally, it is possible that over time one’s European Union citizenship will tend to be regarded by other countries as one's primary and internationally definitive citizenship rather than one's national citizenship, especially if a network of EU embassies and an EU diplomatic service are established to deal with citizenship issues internationally, as the Lisbon Treaty envisages. 

 

An important federalist feature of the post-Lisbon European Union is that its laws are to be made primarily on the basis of aggregate population size, as in any unified State with a common citizenry, rather than on the basis of the weighted votes of the Member States as was the case in the half century between the Treaty of Rome and the Lisbon Treaty. Prior to Lisbon European laws were made by a qualified or weighted majority of Member States - 255 votes out of 345 in the 27 Member Union - with each State having so many votes, and so long as a simple majority of States voted in favour. Under the Lisbon Treaty from 2014 onward EU laws are to be made by 15 Member States or more out of 27, so long as together they comprise 65% of the aggregate Union population (Art.16.4, amended TEU).

 

The number of EU citizens presumed to be for or against an EU law will thus become the primary determining factor in adopting it or not, although the votes will be cast by Government Ministers on the EU Council of Ministers rather than by the citizens themselves or their directly elected representatives. In power-political terms this is the most important change the Treaty of Lisbon brings about. Germany and France between them contain nearly one-third the EU's population, so that this citizen-population criterion will significantly increase the relative weight of these and other big Member States in EU law-making, while it will significantly diminish the weight of smaller States.  Thus under Lisbon Germany’s relative voting weight in EU law-making after 2014 will go from its pre-Lisbon 8% to 17%, while Ireland’s weight will halve from 2% to 0.8%.        

 

The Lisbon Treaty inserts a new Article 10 into the amended Treaty on European Union: “The functioning of the Union shall be founded on representative democracy. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments …”  This provision purports to set up an alternative source of democratic legitimacy which challenges the right of national governments to be the prime representatives of their electorates in the EU. Contrast this Lisbon Treaty formulation with what was stated to be the foundation of the Maastricht Treaty-based European Union (Art.6 TEU): “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

 

It seems fair to say that the Lisbon Treaty marks a qualitatively new stage in the gradual evolution of the EU’s institutional structure away from Europe's Nation States, which slowly but surely emphasises the idea of democratic legitimacy being developed independently of the Member States by EU-level institutions. 

 

The concept of a direct democratic citizens' mandate for the new post-Lisbon European Union is reinforced by the encouragement which the same Article gives to the development of European-level political parties that would be partly funded by the EU Commission. These are stated to “contribute to forming European political awareness and to expressing the will of citizens of the Union.”(Art.10.4, amended TEU). It is also emphasised by the obligation imposed on the EU Commission to bypass national governments and “maintain an open, transparent and regular dialogue with representative associations and civil society”(Art.11.2, amended TEU).    

 

4. Lisbon creates a new Union Parliament for the Union's new citizens

 

The Lisbon Treaty makes Members of the European Parliament, who under the previous treaties were "representatives of the peoples of the States brought together in the Community"(Art.189 TEC) into "representatives of the Union's citizens" (Art.14.2, amended TEU). This illustrates clearly the constitutional shift which the Treaty has made from the pre-Lisbon European Union of Nation States and peoples to the new Federal Union of European citizens and their national states - the latter being henceforth reduced constitutionally and politically to quasi-provincial or regional status within the post-Lisbon Union.

 

The role of the European Parliament, which was first introduced as a modest check on the supranational Executive and was styled an "Assembly" rather than a Parliament under the 1957 Treaty of Rome, has been elevated in successive European Treaties. Its MEPs, direct representatives of EU citizens, now have co-decision-making powers that put the EU Parliament on virtually equal terms with the Member Nation States in ever more areas - including electing the President of the Commission as presented to it by the European Council. The shift of EU authority as arising directly from EU citizens rather than from the Member Nation States is reflected in the Lisbon Treaty when it states unequivocally that: “The Commission, as a body, shall be responsible to the European Parliament” (Art.17.8, amended TEU). The European Parliament approves the Commission members en bloc and may force their collective resignation by a vote of censure.

 

By contrast, the Council of Ministers - consisting of representatives of the Member Nation States - has shifted over time from being the directing authority of a European cooperation in which the Member States acted largely by unanimous agreement, to being a “second chamber” of national representatives casting votes on a qualified majority basis on European legislation proposed by the Commission. At the same time the Lisbon Treaty gives the new Union’s Prime Ministers and Presidents, collectively termed “The European Council”, more political control over the post-Lisbon Union.     

 

5. Lisbon creates a political Government of the new Union

 

The Lisbon Treaty turns the European Council of Prime Ministers and Presidents into an “institution” of the new Union (Art.13, amended TEU), so that its acts or its “failing to act” would, like the other Union institutions, be subject to legal review by the EU Court of Justice (Arts.263-265, TFEU).

 

In legal terms the regular summit meetings of the European Council in the post-Lisbon Union are no longer "intergovernmental" gatherings of Prime Ministers and Presidents outside supranational European structures, as they were in pre-Lisbon days. As part of the new EU´s institutional framework, the Prime Ministers and Presidents are now constitutionally required to "promote the Union's values, advance its objectives, serve its interests” and "ensure the consistency, effectiveness and continuity of its policies and actions" (Art. 13.1, amended TEU). They also "define the general political direction and priorities thereof" (Art.15.1, amended TEU).

 

Under Lisbon the European Council becomes in effect the Cabinet Government of the post-Lisbon Federal EU. In constitutional terms, as set out in the Treaties, its individual members are obliged to represent the Union to their Member States as well as their Member States to the Union, with the former function having legal primacy in any case of conflict between the two. Symbolical of the change in the constitutional character of the European Council made by Lisbon was the fact that Foreign Ministers were not invited to attend the first meeting of this body after the Treaty came into force in December 2009, whereas previously they had accompanied their respective Prime Ministers or Presidents at all such meetings.

 

As an Institution of the new Union, the European Council of Prime Ministers and Presidents is now in principle open to exhortation or direction from the European Court of Justice to initiate such policy steps as harmonising indirect taxes if they constitute a “distortion of competition”, something that requires unanimity under the Treaty, if they are slow or reluctant to do this (Art.113 TFEU). Or they may be directed to act if they fail to take steps to ensure that the new Union's “own resources” are adequate to meet its objectives under Article 311 TFEU. 

 

6. The federalist character of the new Union’s political President

 

The federalist character of the European Council "summit" meetings in the post-Lisbon institutional structure is further underlined by the Treaty provision which gives the European Council a permanent political President for up to five years - two and a half years renewable once (Art.15.5, amended TEU). The first such President is Belgium’s Herman Van Rompuy.

 

There is no gathering of Heads of State or Government in any other international context which maintains the same chairman or president for several years, while individual national Prime Ministers and Presidents come and go. The federalist character of the new President’s position is emphasised also by the Treaty provision which forbids that person from holding any national office and which lays down that he or she shall "ensure the external representation of the Union"(Art.15.6, amended TEU).

 

It is part of the federalist evolution of the Union that the President of the European Council, the quarterly "summit" meetings of Member State Heads of State or Government, is no longer to be a rotating national Prime Minister or President, but a permanent EU official. If the European Council President plays this role effectively - including setting the agenda for legislation and representing the EU on the international stage - he or she is bound to assume increasing status and importance. If this happens it would be surprising if there were not suggestions in due course that the President should be directly elected by EU citizens, as France's President Sarkozy has already urged.

 

7. The federalist character of the post-Lisbon EU Commission 

 

As regards the EU's executive arm, the Commission, the provision of the Lisbon Treaty which would reduce the number of Commissioners by one-third of its Member States (Art. 17, amended TEU) is a symbolically important move away from “intergovernmentalism”, for that required that every Member State had one of its own nationals at all times on the body which proposes European laws. Although the Prime Ministers and Presidents committed themselves not to implement this provision for the time being in order to persuade Irish voters to change their minds about ratifying the Lisbon Treaty in 2009, the provision remains and may be implemented in the future.

 

An additional move towards a federal institutional structure is the provision of the Lisbon Treaty which would remove from Member States the right to “propose” members of the Commission - which ensures that each State can insist if need be on its proposals being accepted by the others as a condition for it accepting their proposals (Art. 214 TEC) - and its replacement by a right to make “suggestions” only, for the new Commission President to decide (Art.17.7, amended TEU).

 

The Treaty provides that individual Commissioners shall be chosen on the ground of their “European commitment” amongst other criteria (Art.17.3, amended TEU). The Commission President also has the power to shuffle the portfolios of individual Commissioners and require them to resign at will (Art.17.6, amended TEU) These provisions effectively give the Commission President powers similar to those of a national Prime Minister in the post-Lisbon European Union.

 

8. Lisbon endows the citizens of the post-Lisbon Union with a code of civil rights

 

All States have codes setting out the rights of their citizens. The EU Charter of Fundamental Rights is that for the EU Federation. The Charter is made legally binding by the Lisbon Treaty, which provides that it shall “have the same legal value as the Treaties”(Art. 6.1, amended TEU). This further embeds the concept that EU citizens have rights and responsibilities defined by the EU itself which transcend those attaching to their national citizenship. Indeed it implies that the EU determines and is the guarantor of those European citizenship rights across national boundaries. 

 

The Charter is stated to be binding on the Union's own institutions and on Member States in implementing Union law (Charter of Fundamental Rights, Art. 51). This limitation to EU law and to the EU institutions is unrealistic however because (a) the principles of the primacy and uniformity of Union law mean that Member States would not only be bound by the Fundamental Rights Charter when implementing EU law, but also through the “interpretation and application of their national laws in conformity with Union laws” (v. ECJ judgements in the Factortame, Simmenthal and other law cases); and (b) the Charter sets out the fundamental rights of EU citizens in areas where the Union has currently no competence, e.g. outlawing the death penalty, asserting citizens' rights in criminal proceedings etc. Now that Lisbon has been ratified, Union law requires that the rights set out in the Charter of Fundamental Rights are guaranteed for 500 million Europeans in their capacity as real EU citizens for the first time. They are part of their EU citizens' entitlements. There would be little point to the Charter otherwise. In implementing EU law post-Lisbon Member States are required to implement peoples’ rights as EU citizens side by side with their rights as national citizens.

 

The EU has already got a human rights competence in that the Court of Justice can adjudicate on such rights as equality and non-discrimination under the existing Treaties. Therefore making the Charter legally binding does not extend the powers or competence of the Union as such, as stated in Art.6.1, amended TEU. What Lisbon does is to give the ECJ a much wider range of human and civil rights to interpret and decide on. These go far beyond the rights set out in the European Convention on Human Rights and Fundamental Freedoms that are adjudicated on by the Court of Human Rights in Strasbourg, which of course is not an EU institution.

 

In the post-Lisbon Union it is only realistic to expect that in time the EU Commission will come to propose European laws to ensure the uniform implementation and guarantee of the EU citizens' rights provisions of the Charter throughout the Member States. Citizens of the new Union or lobby groups purporting to act on their behalf are bound to demand no less. American constitutional history provides ample evidence of the radical “federalizing” potential of the fundamental rights jurisdiction of the US Supreme Court. Things are likely to be no different in the post-Lisbon European Union.    

 

9. Lisbon makes National Parliaments formally subordinate to the new Union

 

The Lisbon Treaty underlines the implicitly subordinate role of National Parliaments in the institutional structure of the post-Lisbon Union by stating that "National Parliaments contribute actively to the good functioning of the Union" by various means which are set out in Article 12, amended TEU.

 

Under the pretext of enhancing the role of National Parliaments, the Lisbon Treaty would seem to institutionalise their constitutional subservience by defining such a limited role for them in the new Union's structures. National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third or more of Parliaments object, the Commission may then decide to continue with the legislation unamended, with its decision being confirmed by the normal QMV procedures (Protocol on Subsidiarity and Proportionality, Article.7.2).

 

Ultimately it is the EU itself, through the Court of Justice, which has the final right to arbitrate on claims of subsidiarity infringement (idem, Art.8). This provision of the Lisbon Treaty permitting National Parliaments in effect to complain to the Commission about some proposal, is small compensation for the diminution of democracy involved by the loss of some 68 vetoes by National Parliaments as a result of other changes proposed by the Treaty. National Parliaments have in any case already lost the greater part of their law-making powers to the EC/EU. The citizens who elect them have lost their powers to decide these laws also.

 

10. Lisbon gives the new Union self-empowerment powers

 

       These are shown by:

 

(a) the enlarged scope of the Flexibility Clause (Art.352 TFEU), whereby if the Treaty does not provide the necessary powers to enable the Union attain its very wide objectives, the Council may take appropriate measures by unanimity. Lisbon extends this provision from the area of operation of the Common Market to all of the new Union's policies directed at attaining its much wider post-Lisbon objectives. The Flexibility Clause has been widely used to extend EU law-making over the years and that tendency will have much greater scope under Lisbon;

 

2. the Simplified Treaty Revision Procedure (Art.48, amended TEU), which permits the Prime Ministers and Presidents on the European Council unanimously to shift Union decision-taking from unanimity to qualified majority voting in the Treaty on the Functioning of the Union; and 

 

2. the several "passerelles" or "ratchet-clauses", which allow the European Council to switch from unanimity to majority voting in certain specified areas such as judicial cooperation in civil matters (Art.81.3 TFEU), in criminal matters (Art.83.1 TFEU), in relation to the EU Public Prosecutor (Art.86.4 TFEU) and the Multiannual financial framework (Art.312.2 TFEU), as long as this is unanimously agreed.

 

Conclusion: A supranational Federation without democracy

 

It is hard to think of any area of national law which would be unaffected by European law in the post-Lisbon European Union. It is hard to point to any major function of a sovereign State which the new Union would not possess. The principal one would seem to be the power to make its Member States go to war against their will. The Treaty does however provide that the EU may go to war while individual Member States may "constructively abstain" (Arts.42-46, amended TEU).

 

The Treaty also contains a mutual defence clause (Art.42.7, amended TEU), which was so characterised by Commission President J.M.Barroso in a speech on the Treaty on 4 December 2007. This commitment to an EU “mutual defence” is to be distinguished from an obligation to participate in an EU“common defence”, viz. a common European army, which Art.42.2, amended TEU lays down that the “progressive framing of a common Union defence policy… will lead to".

 

The obligation on the Union to “provide itself with the means necessary to attain its objectives and carry through its policies”(Art. 311 TFEU), which means raising its "own resources" to finance them, may be regarded as conferring on it wide taxation and revenue-raising powers. This Article empowers the post-Lisbon Union to “establish new categories of own resources” and in effect to endow itself by means of any tax, so long as the Council of Ministers agrees that unanimously and it is approved by National Parliaments if that is constitutionally required in the states in question. No further treaties or referendums are now required to permit the post-Lisbon Union to impose its own taxes. Currently public expenditure and the taxation measures needed to finance that remain overwhelmingly at National State level. This is because such social services as health, education, social security and public housing, as well as policing and public transport - the government functions which cost most money - are still mainly provided at this level. That too is normal in Federal States such as the USA, Germany etc.

 

In his book, The Constitution for Europe: A Legal Analysis (Cambridge UP, 2006, p.192), Jean-Claude Piris, Director-General of the Legal Service of the Council of Ministers, refers to the post-Lisbon EU as a “partially federal Union”. It is perhaps better characterised as a “substantially federal Union”. Piris contends that because it is only partially federal, it is not a federal State. One could say rather that the EU is just like the classical Federations previously mentioned, which have evolved over time and which gradually acquired the characteristics of full statehood, and that the European Union post-Lisbon possesses virtually all the constitutional features of a fully-developed State. As former Danish MEP Jens-Peter Bonde, author of The Lisbon Treaty:the Readable Version, has put it: “From the inside it looks like an arrangement based on Treaties between States; from the outside it looks like a State itself” (see euabc.com).     

 

The Lisbon Treaty shifts power away from voters in all EU countries and from small and middle-sized countries to the largest ones. The post-Lisbon European Union has its own government, with a legislative, executive and judicial arm, its own political President, its own citizens and citizenship, its own human and civil rights code, its own currency, economic policy and revenue, its own international treaty-making powers, foreign policy, foreign minister, diplomatic corps and United Nations voice, its own crime and justice code and Public Prosecutor’s office. It already possesses such State symbols as its own flag, anthem, motto and annual official holiday, Europe Day - 9 May - when it commemorates the 1950 Schumann Declaration proposing the European Coal and Steel Community as "the first step in the federation of Europe", although these symbols are still without a formal legal basis in the Treaties. That is one small difference between the 2004 Constitutional Treaty and the Lisbon Treaty.

 

As regards the State authority of the new Union, this is embodied in the Union's own executive, legislative and judicial institutions: the European Council, Council of Ministers, Commission, Parliament and Court of Justice. It is embodied also in the Member States and their authorities as they implement and apply EU law and interpret and apply national law in conformity with Union law. Member States are constitutionally required to do this under the Lisbon Treaty. Thus EU "State authorities" as represented for example by EU soldiers and policemen patrolling Europe’s streets in EU uniforms, are not needed as such. 

 

Allowing for the special features of each case, all the classical Federal States which have been formed on the basis of power being surrendered by lower constituent states to a higher Federal authority have developed in a gradual way, just as has happened with the European Union. The USA, 19th century Germany, Switzerland, Canada and Australia are the best-known examples. None of these came into the world as fully-fledged sovereign States. Indeed the EU has accumulated its powers much more rapidly than some of these Federations - in the short historical time-span of some fifty years.

 

However, the key difference between these classical Federations and the new post-Lisbon European Union is that the former, once their people had settled, share a common language, history, culture and national solidarity which gave them a democratic basis and made their State authority popularly legitimate and acceptable.

 

All stable and long-lasting States are founded on such communities, where people speak a common language and can identify with one another as one people - a collective "We". Because of that mutual identification, solidarity and community feeling, minorities are willing freely to obey majority rule because they regard the majority as “their” majority. Likewise majorities are willing to respect minority rights because they attach to “their” minority. That gives these States a democratic basis., which ensures their longterm legitimacy and stability. In the European Union however there is no European people or “demos” of this kind and it is impossible to construct such an entity by fiat. The Treaty of Lisbon, like the EU Constitution before it, is an attempt to construct a highly centralised European Federation artificially, from the top down, out of Europe's many nations, peoples and States, without their free consent and knowledge, in the interest of the elites of the Big States which can be expected to dominate its policy-making.  Such a misguided venture is inevitably doomed.

 

If there were to be a European Federation that is democratically acceptable and politically legitimate, the minimum constitutional requirement for it would be that its laws would be initiated and approved by the directly elected representatives of the people either in the European Parliament or the National Parliaments. However, the Lisbon Treaty and the EU Constitution which it embodies contains no such proposal.

 

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Acknowledgements: This document has been drafted by Anthony Coughlan, President of the Foundation for EU Democracy, Brussels, and Director of the National Platform EU Research and Information Centre, Dublin; Tel.: 00-353-1-8305792. It has drawn on a number of different sources and the advice of a number of continental and Irish lawyers is acknowledged.

 

Two Books: The Lisbon Treaty: the Readable Version shows the deletions and additions which the Treaty of Lisbon would make in the two Consolidated EU Treaties: The Treaty on European Union and The Treaty on the Functioning of the European Union. This valuable Consolidated Edition may be downloaded from euabc.com. It has been edited by former Danish MEP Jens-Peter Bonde with the assistance of a team of legal advisers and is published by the Foundation for EU Democracy, Brussels. It contains a detailed Index to the topics people may be interested in, showing how the Lisbon Treaty affects them. Mr Bonde, who was a member of the Convention on the Future of Europe which drew up the original EU Constitution of which Lisbon is a revamped version, has also written a short book analysing the Lisbon Treaty and telling the story of how it came into being: From EU Constitution to Lisbon Treaty. This is also published by the Foundation for EU Democracy and is downloadable from euabc.com.
 

March 2010