[Previous posts on The Lisbon Treaty can be located here.]

So far, all of the Lisbon Treaty posts have been concerned with the amendments made to the TFEU, the Treaty on the Functioning of the European Union. That is the second of the existing EU Treaties which generally provide for how the EU is to be run.

The TEU, the Treaty on European Union, is more broad in its terms than the TFEU, and deals more with the over-arching principles and objectives of the EU, and the EU’s purpose and its reasons for existing. Basically speaking, the TFEU and everything in it must be read and interpreted in light of what’s contained in the TEU.

I’ll go through the amendments made by Lisbon to the TEU, followed by a few of the Protocols attached to the Lisbon Treaty that may be of interest.

(To be very honest, it worth reading the TEU as it is amended by Lisbon in full and, if you can, the Protocols to the Lisbon Treaty. The TEU is not a very long document, and it’s generally quite readable. The Protocols that are relevant to Ireland or which may be of interest; most are very brief, and all are fairly understandable.)

So, first: amendments to the TEU.

The parts of the TEU are broken down into:

• Common Provisions
• Provisions on Democratic Principles
• Provisions on the Institutions
• Provisions on Enhanced Cooperation
• General Provisions on the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy
• Final Provisions

The first amendment to the TEU is to add a new paragraph to the preamble:

DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law

The next amendment re-states the fact that the EU is based on both of these Treaties, and states that the “European Union” replaces and succeeds the “European Community”.

common provisions

A new article is included into the TEU, which states:

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

Further amendments state the EU’s aim as being “to promote peace, its values and the well-being of its peoples”. An area of freedom, security and justice is established, with the accompanying freedom of movement of persons and immigration and asylum objectives to be attained.

The internal market is established (again, if you will!), and in doing so the EU is committed – among other things – to combating social exclusion and discrimination, and to promoting social justice and protection, “equality between men and women, solidarity between generations and protection of the rights of the child”.

The common monetary union is established, whose currency is the euro.

5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.

Competences not conferred on the EU remain with the member states.

2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.

In the next article inserted by Lisbon, the following important statements are made clear:

1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.

2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.

3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.

The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol.

4. Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.

That’s a fair amount of text to read through, but it confirms the distinctive roles, resonsibilities and capacities applicable to the EU and its member states, respectively.

Some discussion may have been going to and fro in the debate around the Lisbon Treaty and the effect of the Charter of Fundamental Rights if Lisbon is passed in Ireland’s referendum. The next article introduced by the Lisbon Treaty is quite clear:

1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on
12 December 2007, which shall have the same legal value as the Treaties.

The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.

The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.

The EU “accedes” to the European Convention on Human Rights as a result of Lisbon, and again it is stated that this accession “does not extend in any way the competences of the Union as defined in the Treaties”.

The Lisbon Treaty amendments also commit the EU to ” develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation”.

provisions on democratic principles

Lisbon adds a series of new articles to this section. The first one states:

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.

The next article sets out the provisions on representation in and election to the European Parliament. Among others, a commitment is made that the EU institutions “shall maintain an open, transparent and regular dialogue with representative associations and civil society”.

The much-mentioned “citizens’ initiative” is established in the following terms:

4. Not less than one million citizens who are nationals of a significant number of
Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

The role of national parliaments in actively contributing to the good functioning of the EU is acknowledged, with a list of those activities included.

provisions on the institutions

This entire section is replaced by new wording inserted by the Lisbon treaty.

The EU institutions are listed, and their functions and limits broadly outlined, with a reference to the detail of the TFEU included. The functions of the institutions are elaborated in the amended TEU, and they are worth reading in full. I’ll just include the first paragraph concerning some of the institutions, below.

The European Parliament is fleshed out first, with the initial provision stating:

1. The European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties. It shall elect the President of the Commission.

The European Council (heads of state of the member states) is next, and its functions are outlined in the following terms:

1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.

Then we have the Council (ministers from member states):

1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.

After that, we have the Commission:

1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union’s external representation. It shall initiate the Union’s annualinterinstitutional agreements.

Also, just to clarify the issue about “our” Commissioner and all that nonsense, the amended TEU states (and this does not differ substantially from the existing rules for Commissioners):

The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.

In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.

Provisions on Enhanced Cooperation

Enhanced co-operation is like an optional extra: Member states “which wish” to establish enhanced co-operation between themselves can do so, within certain limitations and under certain conditions.

General Provisions on the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy

Under the first sub-heading, “General Provisions on the Unions External Action“, the principles guiding the EU shall guide this policy: “democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the UN Charter and international law”.

The articles under the second sub-heading, “Specific Provisions on the Common Foreign and Security Policy“, have been the source of some controversy.

The same principles mentioned applying to External Action apply to this area. A European External Action Service is (EAS) established to assist the High Representative. The EAS “shall work in cooperation with the diplomatic services of the Member States”, and its organisation and functioning shall be determined by the Council.

Here come the controversial bits: provisions on the common security and defence policy. Such a policy will be “integral” to the EU’s foreign and security policy. The EU must act in accordance with the UN Charter. A common defence is proposed, if the EU heads of state in the European Council unanimously agree. This agreed proposal may only be adopted “in accordance with the constitutional requirements” of the member states. This means Ireland would require a referendum. Moreover, this common security and defence policy “shall not prejudice the specific character of the security and defence policy of certain Member States”.

Member states are required to “make civilian and military capabilities available” to the EU, and they are required to “undertake progressively to improve their military capabilities”.

Another provision states:

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.

There is also an option for “Member States which wish” to participate in “the permanent structured cooperation”. This option is available to “Member States whose military capabilities fulfill a higher criteria and whcih have made more binding commitments to one another in this area with a view to the most demanding missions”. Member States may join at a later stage, or those which are participating may withdraw.

Final Provisions

This section seems also to have prompted some controversy. I presume, at least: this may be the section to which some people refer when they describe the Lisbon Treaty as “self-amending”, but that is incorrect.

This section provides two revision procedures in relation to the EU Treaties (TEU and TFEU): “Ordinary revision procedure” and “simplified revision procedure”.

Each of these, in different ways, allow proposals to amend the Treaties to be made by a national government, the European Parliament or the Commission. Each procedure goes through a number of steps, but each step requires member states to ratify the proposals “in accordance with their respective constitutional requirements”. In Ireland, that means a referendum is required.

That’s the end of the first EU Treaty, the Treaty on European Union. Hooray!

Finally, we take note of some of the Protocols to the Lisbon Treaty which may be of interest:

The first Protocol “On the Role of National Parliaments in the European Union” sets out the ways in which the various EU proposals and laws must, if Lisbon is ratified, be forwarded to the parliaments of the EU member states. The procedures for the parliaments to send to the European Parliament, the Council and the Commission its “reasoned opinion on whether a draft legislative act complies with the principle of subsidiarity” (see the TEU, above, and Protocol No. 2) and the consequent actions to be taken are also set out.

“Interparliamentary cooperation” is also permitted under this protocol, between the European Parliament and the national parliaments.

Protocol 20 recognises the “special travel arrangements” between the UK and Ireland, in the context of freedom of movement of persons within the EU. The Protocol states that the UK and Ireland may exercise controls over persons entering their respective territories. Nothing in the EU Treaties “shall prejudice the right of the United Kingdom or Ireland to adopt or exercise any such controls”. The UK and Ireland may continue to make arrangements between themselves relating to the movement of persons between their territories (“the Common Travel Area”).

Protocol 21 states that, unless they want to, “the United Kingdom and Ireland shall not take part in the adoption by the Council of proposed measures” pursuant to the area of freedom, security and justice. Nothing “shall be binding upon or applicable in the United Kingdom or Ireland” nor “in any way affect the competences, rights and obligations of those States”.

Protocol 35 deals with Article 40.3.3 of the Irish consitiution (the right to life of the unborn, etc.). It states nothing – at all – shall affect the application in Ireland of Article 40.3.3 of the Constitution of Ireland. (This protocol existed prior to the agreed “guarantees” after the Lisbon Treaty was rejected at the last referendum, and continues to exist.)

And I’m done. Finished! Finito! Críochnaithe!!

Personally, regardless of tomorrow’s outcome, I never want to see, read or hear about the Lisbon Treaty ever again. I’ve formed my own views on it, but aside from what they may be, I hate it! It and it’s Consolidated Treaties cousin! (I think I need to have a lie down.) Oh, the papercuts I’ve endured over the past few weeks..

I hope it’s all been worth it, and that in some way, this series of articles may have helped inform you as a voter. G’luck tomorrow, whatever your inclination!

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