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The Law of the Lisbon Treaty

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  1. The Law of the Lisbon Treaty

  2. The Institutional Side of the Treaty of Lisbon: an Irish Perspective Dr. Gavin Barrett School of Law, University College Dublin

  3. Treaty of Lisbon Reforms • Institutional Reforms • Reforms Relating to Democracy and Human Rights • Reforms relating to the CFSP and to Justice and Home Affairs • ‘Other’ Reforms

  4. Preliminary Observations • Post-Lisbon Two Treaties • Effectively, Two Pillars: because CFSP • In a Separate Treaty • Unanimity predominates • Competence to adopt legislation expressly excluded (Article 24 TEU) • Special role for High Representative • Marginal Influence for Commission and European Parliament • Virtual Exclusion of European Court of Justice • Flexibility Clause Can Not Be Deployed

  5. The Institutions at Present Article 7 EC Treaty (current) “1. The tasks entrusted to the Community shall be carried out by the following institutions: — a EUROPEAN PARLIAMENT, — a COUNCIL, — a COMMISSION, — a COURT OF JUSTICE, — a COURT OF AUDITORS.”

  6. Two Further Institutions Post-Lisbon • European Council • European Central Bank

  7. Main Points of Interest (1) The Commission and the Treaty of Lisbon (2) The Council and the Treaty of Lisbon (3) The European Council and the Treaty of Lisbon (4) The European Parliament and the Treaty of Lisbon (5) The European Court of Justice and the Treaty of Lisbon (6) High Representative for Foreign Affairs and Security Policy (7) National parliaments and the Treaty of Lisbon

  8. The Commission Article 213 of the present EC Treaty (as substituted by Article 4(2) of the Protocol on the enlargement of the European Union) Provides that at the time of the appointment of the next Commission (i.e., next November) “The number of Members of the Commission shall be less than the number of Member States.The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously. The number of Members of the Commission shall be set by the Council, acting unanimously.”

  9. Article 17 of the Treaty on European Union (post Lisbon) “4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State… 5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number. The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.”

  10. Brussels European Council, 11-12 December 2008 Presidency Conclusions, Paragraph I(2). “On the composition of the Commission, the European Council recalls that the Treaties currently in force require that the number of Commissioners be reduced in 2009. The European Council agrees that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each Member State.”

  11. Election of the Commission President Article 17(7) of the Treaty on European Union (post Lisbon) “Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.”

  12. Council of the European Union Present ‘triple jump’ voting system in the Council: Article 205 EC Treaty “2. …Acts of the Council shall require for their adoption at least [255] votes in favour cast by a majority of the members where this Treaty requires them to be adopted on a proposal from the Commission…. …4. When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.”

  13. Post Lisbon Period 1 lasts until 31 October, 2014  Current ‘triple jump’ procedure applies Period 2 lasts until 31 March 2017. New definition of QMV+ current triple jump procedure exist together. New definition of QMV in Article 16(4) of the Treaty on European Union “As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.” Period 3 from 1 April 2017  New definition of QMV applies alone.

  14. Lawmaking in Public “8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.”

  15. European Council • Gains institutional status • Gains decision making powers in relation to a number of ‘quasi-constitutional’ functions • Gains an individual President

  16. Article 15 “5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.”

  17. “6. The President of the European Council: (a) shall chair it and drive forward its work; (b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council; (c) shall endeavour to facilitate cohesion and consensus within the European Council; (d) shall present a report to the European Parliament after each of the meetings of the European Council. The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy. The President of the European Council shall not hold a national office.”

  18. European Parliament • Number of MEPs  Principle of Degressive Proportionality • Benefits e.g., via Extension of Ordinary Legislative Procedure Increased Budgetary Powers

  19. European Court of Justice • Renamed: Article 19 of the Treaty on European Union (post Lisbon) “1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.” • New Appointments Procedure • Extension of Court’s jurisdiction in JHA matters

  20. High Representative for Foreign Affairs and Security Policy • Intended to provide continuity and cohesion • Double-hatted role Vice-President of the Commission  Presiding over the Foreign Affairs Council • Possible overlap with role of President of European Council

  21. National Parliaments and the Treaty of Lisbon Four specified rights: • The right to police the so-called ‘subsidiarity’ principle • Formal role in drafting any future foundational Treaties • A direct right to veto certain future Treaty amendments • Information rights

  22. Brussels European Council, 11-12 December 2008Presidency Conclusions, Paragraph I(2). 3. The European Council has carefully noted the other concerns of the Irish people presented by the Taoiseach as set out in Annex 1 relating to taxation policy, family, social and ethical issues, and Common Security and Defence Policy (CSDP) with regard to Ireland's traditional policy of neutrality. The European Council agrees that, provided Ireland makes the commitment in paragraph 4, all of the concerns set out in the said statement shall be addressed to the mutual satisfaction of Ireland and the other Member States. The necessary legal guarantees will be given on the following three points:. • nothing in the Treaty of Lisbon makes any change of any kind, for any Member State, to the extent or operation of the Union's competences in relation to taxation; • the Treaty of Lisbon does not prejudice the security and defence policy of Member States, including Ireland's traditional policy of neutrality, and the obligations of most other Member States; • a guarantee that the provisions of the Irish Constitution in relation to the right to life,education and the family are not in any way affected by the fact that the Treaty of Lisbon attributes legal status to the EU Charter of Fundamental Rights or by the justice and home affairs provisions of the said Treaty. In addition, the high importance attached to the issues, including workers' rights, set out in paragraph (d) of Annex 1 will be confirmed. 4. In the light of the above commitments by the European Council, and conditional on the satisfactory completion of the detailed follow-on work by mid-2009 and on presumption of their satisfactory implementation, the Irish Government is committed to seeking ratification of the Treaty of Lisbon by the end of the term of the current Commission.

  23. The Law of the Lisbon Treaty