Failed European Constitution

The Nice declaration on the future of the European Union called for a deeper and wider debate about the future of the European Union and established a process for further constitutional review. Further treaty revision was seen to be necessary or at least desirable in the context of the greatly increased membership of the European Union (going from 15 in 2004 to 27 in 2008).

In 2001, the task of preparing a single revised constitution for the European Union was conferred on a convention shared by former French President, Giscard d’Estaing.  It included representatives of governments, parliaments, candidate states, the European Union and other entities. The convention was given the task of considering the key issues arising for the union’s future development and try to identify the various possible responses. It was requested to draw up a final document which would evolve into a constitutional treaty.

The draft European Constitution was presented to the European Council in 2003. An inter-governmental conference followed which made significant changes and agreed a final draft version. The constitutional treaty required ratification in several states. However, it was rejected in referenda in France and the Netherlands in 2005 and the treaty was abandoned. After a period of reflection, the European Council decide (after two years of uncertainty over the Union’s Treaty reform process) that the time had come to resolve the issue and for the union to move on.

The EU Council called an intergovernmental conference for the purpose of drawing up a reform treaty amending the existing treaties with a view to enhancing the efficiency and democratic legitimacy of the enlarged union as well as the coherence of its external action.

The Treaty of Lisbon grew out of the failed European Constitution. In many respects, its provisions were very similar to those of the European constitution without being dressed up as such. The Lisbon Treaty was approved by the European Council in December 2007.

Because the Lisbon Treaty was considered to be an amending treaty, referendums were not considered necessary in any country other than Ireland. Irish voters rejected the Lisbon Treaty in June 2008 with a 53% vote against. The EU Council gave certain guarantees and confirmations that the treaty could not affect Ireland’s traditional policy of neutrality Ireland’s sovereignty in taxation matters and the constitutional rights to life family and education. It was agreed that the Commission would continue to include one national of each member state. In October 2009 Irish voters passed the referendum to adopt the Lisbon treaty with a 67% vote in favour, on a slightly higher turnout.

The Lisbon Treaty

The Lisbon Treaty reforms amended the existing treaties.  To a significant extent, it follows the principles of the failed European Constitution. The treaties create the European Union as a single entity with a legal identity / personality. Although there are two treaties, there is one organisation, the European Union. To some extent, the division in two treaties reflects the repackaging of the existing treaties.

The treaty built on the European Communities based on the Treaty of Rome and the Treaty on European Union based on the Treaty of Maastricht. Following the Lisbon treaty amendments, there are two constitutional treaties, the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU).

The treaties represented a further step in the direction of a political union. They declare that the functioning of the Union shall be founded on representative democracy and that European citizens are directly represented at Union level in the EU Parliament. The treaty declares that the Union is based on common principles of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.  If a state breaches or threatens to breach these principles, the EU can take steps against the state concerned.

The EU’s objectives are restated and updated. The overriding objectives of the EU are listed as the promotion of peace EU values and the well-being of its people. The specific objectives include the creation of an area of freedom, security, and justice.

The Lisbon treaty abolishes the pillars of the Maastricht treaty. The second pillar in relation to common foreign and security policy is integrated into the Treaty on European Union. The Lisbon treaty transfers the police and judicial cooperation in criminal matters pillar into the first pillar. Therefore, the European institutions, including the Court of Justice, has power over matters covered by justice and home affairs cooperation.  The courts do not have jurisdiction to review matters of foreign policy.

Member states may decide to join specific areas on a case-by-case basis.  These areas are subject to the pooled sovereignty of the Community rather than the intergovernmental arrangement.

The establishment of the internal market is stated as a specific objective.  At this stage in its development, the emphasis is on the proper functioning of the market. It is required that the market should ensure sustainable development while not eroding the European social model and protecting the quality of the environment. The economic and monetary union is confirmed.

The treaties define the areas in which the EU has exclusive competence.  They include

  • customs,
  • common commercial policy
  • the monetary policy of the Eurozone,
  • common agricultural policy,
  • common fisheries policy,
  • certain international matters /agreements.

The areas of shared competences between the European Union and states are set out.  Once the European Union legislates, it may occupy the field and member states may be longer competent to legislate.

Reform of the institutions

A key objective of the Lisbon Treaty was to make the provisions in relation to law-making more streamlined in order to accommodate the enlarged membership. The definition of qualified majority changed so that it applies when 55% of all member states comprising 65% of its citizens vote in favour of the proposal. When the Council of ministers is acting neither on a proposal of the Commission nor one of the high representatives, the qualified majority voting requires 72% of the member states while the population requirement remains the same.  A blocking minority must comprise at least four countries. The new voting arrangements were introduced over a transitional period.

The principle of subsidiarity is re-emphasised.  Where areas do not fall under the exclusive competence of the EU, the EU should only act in so far as the objectives of the legislation cannot be sufficiently achieved by the members states either at central, regional or local level or of because of the scale, the matter is better achieved at the European Union level.

The national parliaments are given an enhanced role.  National parliaments must be given proposals for legislation. All consultation documents in respect of proposed legislation are to be circulated to the national parliaments.   National parliaments have eight weeks from the receipt of the legislation or any amendment to give a reasoned opinion as to why they believe that the principle of subsidiarity is not complied with.

They may vote against the proposal.  Each parliament has two votes. If there are two houses, then each may have one vote.  If at least one-third of the parliaments decide by vote that the principle of subsidiarity has not been complied with, the relevant act must be reviewed to decide whether to withdraw, amend or keep it. In the case of acts affecting freedom, justice, and security, the procedure is applicable if one-quarter of national parliaments disagree.

The Commission (or another initiating party) may maintain the proposal but must issue a reasoned opinion why it considers the proposal conforms with the principle of subsidiarity.  The reasoned opinion, together with the opinions on national parliament, are forwarded to the EU parliament and Council.  If the Council by a majority of 55 per cent of its members or the European Parliament by a majority rejects the proposal, it is terminated.

The legislative power of the European Parliament is increased. Co-decision between the Council and Parliament is extended to almost all areas. This is the ordinary legislative procedure. In a small number of remaining cases, a special legislative procedure applies. Parliament either has the right to consent to a Council measure or vice versa except in a small number of cases where the council need only consult Parliament before voting on the Commission proposal.

There is a simplified provision for revision of the treaties.    National parliaments also have a more formal role in revisions of the treaties. They may block an amendment under the revised treaties.

New EU Offices

The Lisbon Treaty provides for a High Representative for Foreign Affairs and Security Policy to coordinate and promote the foreign policy of the EU.  The role is effectively that of the foreign minister of the EU. He or she is appointed by the Council acting by a qualified majority.

The holder of the post is a member of the Commission (Vice-president) and is responsible for external relations and certain aspects of the common foreign and security policy.  The common foreign security policy is made unanimously.

There is a full-time President of the European Council.  This replaces the previous arrangements under which the presidency of the Council rotated every six months.

The European Council is formalised under the Lisbon Treaty as a distinct body.  It is made up of the heads of government (head of state in the case of France), the President of the Commission and the High Representative for Foreign Affairs.  The Council allows for the heads of state or government to be assisted by a minister and for the President of the Commission to be assisted by a Commissioner.

Treaty of Lisbon Charter of Fundamental Rights

The European Charter of Fundamental Rights became part of the treaties and is binding on the European institutions and the member states, in the context of EU law and practice.  The Charter corresponds in many respects with the European Convention on Human Rights. In some respects, it goes further much than it.

The EU itself is to become a party to the European Convention on Human Rights, although the process is stalled at present. This would mean that for the first time, the European Court of Human Rights may scrutinise the laws and actions of the European institution.  The European Court of Human Rights could, in principle, override the European Court of justice in respect of human rights matters, if accession is completed.

Although not a full opt-out, the United Kingdom secured a protocol which clarified how the Charter of Fundamental Rights of the European Union, a part of the Treaty of Lisbon, would interact with national law in the UK.


The Lisbon Treaty introduces a provision for exiting the European Union. Article 50 of the Treaty on European Union is the provision for exit. This procedure was invoked by the United Kingdom to give effect to the referendum which decided to leave the European Union.

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