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Explanatory Memorandum on the Treaty of Lisbon
Title of the Treaty:
The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community.
Command Paper Number: 7294
INTRODUCTION
1. The Treaty of Lisbon is an amending Treaty, in the tradition of previous amending Treaties such as the Treaties of Nice, Amsterdam and Maastricht. It amends the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), which it renames as the Treaty on the Functioning of the European Union (TFEU). It also makes consequential amendments to the Euratom Treaty.
THE TREATY
2. The aim of the Treaty of Lisbon is to reform and streamline the enlarged EU’s institutions and decision-making. The preamble to the Treaty states that the Member States have drawn up this Treaty in order to:
'complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action'.
3. Ratification will allow the EU to move on from debates about institutions to creating the outward-facing, flexible Europe needed to meet the fundamental challenges of globalisation.
4. The Government set out its principles for a new Treaty in the then Minister for Europe’s Written Ministerial Statement of 5 December 2006. These principles were:
- pursuing British interests;
- modernisation and effectiveness;
- consensus;
- subsidiarity;
- use of existing Treaties; and
- openness.
5. The Treaty provides for institutional reforms, in particular: an end to the six-monthly rotation of the Presidency of the European Council; the merger of the two current posts of High Representative for Common Foreign and Security Policy and the Commissioner for External Affairs to create a High Representative of the Union for Foreign and Security Policy; a simplified voting system in the Council; a smaller Commission; new powers for national Parliaments to ensure that subsidiarity is respected; and streamlined decision-making through Qualified Majority Voting (QMV).
6. At the same time, the Government secured protections to safeguard our national interests. Ahead of the June 2007 European Council, the Government set out four conditions (“red lines”) which any new Treaty would have to fully reflect. These were:
- Protection of our existing labour and social legislation;
- Protection of our common law system, and our police and judicial processes;
- Maintenance of our independent foreign and defence policy; and
- Protection of our tax and social security system.
7. The Treaty of Lisbon fully respects these red lines.
CHANGES MADE BY THE TREATY OF LISBON
Full-time President of the European Council
8. Under the current Treaties, the President of the European Council is a rotating, six-month post held by the Head of State or Government of the Presidency country. The Treaty makes this a full-time post, with a two and half year term (renewable once).
9. The Treaty provides that the President of the European Council will be appointed by qualified majority voting by the members of the European Council (national Heads of State and Government). The President will be accountable to them. This will bring greater coherence and consistency to the strategic direction of the enlarged EU and provide Member States, through the European Council, much greater capacity to give direction and momentum to the EU’s agenda.
The Presidency system
10. The Treaty provides for a ‘Team Presidency’ system. Teams of three successive Member State Presidencies will chair the sectoral Councils over an 18-month period. Separate arrangements will apply to the Foreign Affairs Council (which will be chaired by the High Representative). An 18-month Presidency system is already effectively in operation; Germany, Portugal and Slovenia have been delivering an 18-month programme since January 2007. The new Team Presidency system provides a longer-term, more stable perspective to help deliver policy outcomes through the sectoral Councils.
A smaller Commission
11. The Treaty streamlines the Commission from 2014. The number of Commissioners will be reduced to two-thirds of the number of Member States, selected from all Member States on a basis of equal rotation. In an enlarged EU, a smaller Commission will allow for stronger and more effective decision-making.
European Parliament
12. The Treaty strengthens the role of the European Parliament, primarily by increasing the number of policy areas subject to co-decision and so requiring the agreement of both the Council and the European Parliament. The Treaty also limits the size of the European Parliament. The number of MEPs decreases from 785 currently to 751. The UK currently has 78 MEPs and will have 73 under the new Treaty.
New powers for national parliaments
13. National parliaments are given a direct say in the EU’s law-making for the first time. The Treaty gives national parliaments the new power to send proposed EU legislation back for review if they consider that it is not in line with the principle of subsidiarity.
14. Under the new mechanism, all national parliaments will be notified by the EU of proposed EU legislation and provided with the power to challenge them. If one-third of them consider that a proposal would breach the principle of subsidiarity, the EU institutions would have to reconsider and decide whether to maintain, amend or withdraw their proposal. If a majority of national parliaments object, and the Council and European Parliament agree, the proposal falls.
15. Under the Treaty national parliaments have the right, but are not obliged, to contribute to the work of the Union.
Qualified Majority Voting
16. The Treaty extends qualified majority voting (QMV) in a total of 50 articles. A full list is attached. 16 of these do not apply to the UK or only apply if the UK agrees. 20 offer faster decision-making in areas where the UK wants to see much more effective EU action, for example: energy; providing aid to third countries; and strengthening the EU’s research and innovation capacity through establishing a European Research Area. Other areas, including CFSP, remain based on decision-making by unanimity. The other moves are essentially technical.
17. Overall, the impact of QMV under the Treaty is significantly less than, for example, under the Single European Act and the UK will retain ultimate control in key areas of justice and home affairs, social security, tax, foreign policy and defence.
A simpler voting system
18. The Treaty will also introduce a new, simpler voting system for calculating Qualified Majority Voting (QMV). The new system of Double Majority Voting (DMV) will make agreement to EU legislation more representative of MemberState populations. Under DMV, 55% of Member States (i.e. currently 15 out of 27 Member States) representing 65% of the EU’s population will need to support a proposed law in order for it to pass. However, if Member States representing at least three-quarters of either of those figures indicate their opposition to a proposal, the Council must delay a decision and do all in its power to reach a satisfactory solution.
19. DMV will become fully operational between 2014 and 2017. DMV will be a clearer, simpler and more democratic voting system. This should lead to greater transparency and more effective decision-making. The UK’s share of votes in the Council of Ministers will increase.
Common Foreign and Security Policy
20. The Treaty strengthens the EU’s ability to deliver foreign policy messages where we have agreed a policy with the rest of the EU. The Treaty does this in particular by creating a ‘High Representative of the Union for Foreign Affairs and Security Policy’.
21. He or she will be appointed by the European Council by qualified majority voting and will carry out the Union’s CFSP 'as mandated by the Council' (Article 9E TEU[1]). This new role merges the two existing roles of High Representative for the Common Foreign and Security Policy and the External Relations Commissioner.
22. The High Representative will be supported by a European External Action Service. The service will be established in line with a unanimous Council decision on its composition and functioning.
23. Maintenance of our independent foreign and defence policy is a UK red line. The Treaty (Articles 10c to 28E TEU) sets out the scope of CFSP in the same terms as are already used under the earlier Treaties. It reiterates that all areas of foreign policy and matters relating to the Union’s security continue to fall within the intergovernmental provisions of CFSP. CFSP continues to be defined and implemented in accordance with the Treaty on European Union and as such is kept distinct from other EU policies which are contained in the Treaty on the Functioning on the European Union. The distinct character of CFSP is reinforced against encroachment by non-CFSP matters by the improved provisions of Article 25b TEU. This new overarching provision sets out explicitly the distinctive legal and procedural character of CFSP. It sets out the separate framework within which the CFSP is carried out, emphasising its distinctive intergovernmental nature and the fact that there is limited Commission and European Parliament participation. In particular, it is clear that legislative acts cannot be adopted, and that ECJ jurisdiction is excluded, other than in two defined areas.
24. The Treaty confirms that CFSP remains defined by Member States and that unanimity in decision-making will remain the norm. Two Declarations confirm that all 27 Member States agree that provisions on CFSP will not affect the responsibilities of the Member States, as they currently exist.
25. The Treaty meets UK objectives on the development of a flexible, militarily robust and NATO-friendly European Security and Defence Policy (ESDP). The Treaty preserves the principle of unanimity (and therefore the UK veto) for ESDP policy decisions and for initiating missions, and fully maintains the prerogatives of Member States for defence and security issues (in the same way as it does for foreign policy). Article 28A TEU sets this out clearly.
26. The Treaty recognises the provision in the UN Charter that Member States may come to each other’s assistance in the face of armed aggression. The Treaty introduces ‘Permanent Structured Cooperation’, which will provide for an inclusive process focused exclusively on the development of military capabilities, a key UK objective. The requirement for a unanimous Council decision to trigger enhanced cooperation in this area ensures that the UK will always be able to protect its interests.
Justice and Home Affairs
27. The Treaty brings the provisions on police and judicial cooperation in criminal matters (currently ‘third pillar measures’) into the Treaty on the Functioning of the European Union. As a consequence of this change, Qualified Majority Voting and co-decision will apply as the general rule to Justice and Home Affairs.
28. However, the Government was clear that protecting our common law system and police and judicial processes is a UK red line.
29. The UK’s current opt-in arrangements for cooperation in asylum, immigration and civil justice will be extended to the areas of police and criminal judicial cooperation, giving the UK the right to choose whether to opt-in to any Justice and Home Affairs measures on a case by case basis. The amendments to the Protocol on the position of the UK and Ireland extend the UK’s existing Title IV opt-in Protocol to cover all justice and home affairs matters.
30. The Treaty Protocol on transitional provisions sets out the legal arrangements for measures agreed under the existing third pillar following the entry into force of the Treaty. Article 10 confirms that if in future existing third pillar legislation is amended, full ECJ jurisdiction along with the right for the Commission to initiate infraction proceedings will apply. However, in the case of amendments to existing legislation the UK’s opt-in would apply, so we would be able to choose whether to accept the amended proposal with ECJ jurisdiction and Commission powers. The Article allows the UK to decide to opt out en bloc of all remaining 'third pillar' measures that are unamended (i.e. have not been repealed and replaced or amended) at any time up to six months before the end of the five year transitional period. Where the UK decides to opt out, the remaining third pillar measures will cease to apply to the UK once the five-year transitional period has ended.
31. The amendments to the Protocol integrating the Schengen acquis into the framework of the European Union guarantee that the UK has the right to decide whether or not to participate in a Schengen building measure. This safeguards the UK’s red line by ensuring that the UK should not be automatically bound to participate in any measure proposed as part of the Schengen acquis.
32. The Treaty will also enable certain proposals for laws in criminal matters to be referred to the European Council for decision if they would affect fundamental aspects of a MemberState’s legal system (the so-called ‘emergency brake’).
Charter of Fundamental Rights
33. The Treaty (Article 6(1) TEU) will make the Charter of Fundamental Rights, with the additional safeguards agreed in 2004, legally binding on the EU and on Member States when implementing EU legislation.
34. The Charter records existing rights by which EU Member States, including the UK, are already bound when they implement EU law, as provided for in Article 6(2) of the present EU Treaty and as established in the case law of the European Court of Justice. The existing rights and principles recorded in the Charter will continue to have effect as they always have done for EU institutions and Member States when implementing EU law. The Charter creates no new enforceable rights, and does not extend the circumstances in which individuals can rely on those rights.
35. Protection of our existing labour and social legislation is a UK red line. The Government was determined to guarantee that nothing in the Charter of Fundamental Rights would give national or European courts any new powers to strike down or reinterpret UK law, including labour and social legislation. This will be achieved in the Treaty via a package of safeguards:
- Improved ‘horizontal’ Articles in the Charter setting out its precise scope and application;
- A clear provision in the Treaty stating that the provisions of the Charter do not extend the competences of the Union in any way;
- A clear provision in the Treaty stating that courts, including the ECJ, must have due regard to the ‘horizontal’ Articles in the Charter and to the 'Explanations' detailing the sources of the rights contained in the Charter when interpreting its provisions;
- A specific UK Protocol guarantees that the Charter does not create any greater rights than already apply in EU law, or extend the powers of any court – European or domestic – to strike down UK laws.
Tax and social security
36. Protection of our tax and social security system was a UK red line. The Government was clear that the UK should have the final say on any matters affecting important aspects of its social security system – including cost, scope, financial balance or structure. This was secured in the Treaty through a strengthened ‘brake’ mechanism. Under the terms of the provision, where any Member State assesses that it would affect important aspects of its social security system (including cost, scope, financial balance or structure) it may refer the proposal to the European Council. In that case the legislative procedure is suspended. The European Council then takes a decision by consensus on how to proceed. If no action is taken within four months the proposal will fall. A Declaration to the Treaty (agreed by all Member States) confirms that any decision taken by the European Council under the brake must be by consensus. So, once the brake is activated, any MemberState can block a proposal and it falls – effectively therefore it amounts to a veto power.
Simplified Treaty revision
37. Procedures to revise the Treaties without an Intergovernmental Conference already exist, and can be found in the Single European Act and the Treaties of Maastricht, Amsterdam and Nice.
38. The Treaty will extend these amending provisions including to allow for changes from unanimity to qualified majority voting, or from other legislative procedures to co-decision, or for changes to the details of EU policies in certain areas, without a formal IGC. Any such moves will require unanimity (i.e. the UK has a veto).
39. In particular, the Treaty introduces new general amending provisions that allow for simplified Treaty revision procedures. Each provision requires unanimity and are subject either to approval in line with national constitutional arrangements, or to a veto by national parliaments.
Exit clause
40. The Treaty recognises a MemberState’s right to withdraw from the European Union and sets out procedures providing for such an eventuality.
Legal personality
41. The Treaty explicitly provides for the European Union to have legal personality. The Treaty will allow the EU to act in the international arena in a more coherent way. This should lead to streamlined procedures for negotiating agreements through the EU.
42. This will be simpler than the existing situation whereby two parts of the EU – the European Community and Euratom – already have express legal personality. In particular, this enables them to act at the international level, including the capacity to make treaties. The EU, when it acts in respect of CFSP and JHA, currently has a degree of ‘functional’ legal personality by virtue of its power to make international agreements (as does the United Nations, for example). On this basis, the EC and the EU already conclude numerous agreements with third countries in a wide range of areas (such as trade and development).
43. Member States currently decide the negotiating mandate by unanimity or QMV, depending on the policy area in question, and approve any agreement on the same basis. The method of tasking the EU to negotiate on behalf of the Member States does not change under the Treaty. Nor will legal personality create any new powers for the EU or impact on the independence of Member States’ foreign policies.
44. There is also a Declaration by all Member States setting out that legal personality will not authorise the Union to legislate or act beyond the competences conferred upon it by Member States in the Treaties.
Definition of competences
45. The Treaty includes a definition of the Union’s competences, setting out where the EU can and cannot act. The Treaty explicitly provides that the EU has only those competences conferred on it by the Member States and recognises that competences can be transferred back to Member States. The Treaty provides for specific new competences for EU action in areas including space policy (measures to promote joint initiatives and research), energy, tourism, civil protection and administrative cooperation.
Accession to the European Convention on Human Rights
46. The Treaty provides for the EU to accede to the European Convention on Human Right (ECHR). EU accession to the ECHR would have to be approved by all Member States and ratified by all national parliaments.
National Security
47. The Treaty explicitly provides that national security remains the sole responsibility of each MemberState.
Enhanced cooperation
48. The Treaty revises the existing procedures for ‘enhanced cooperation’ which allow a group of Member States to work together without affecting those that do not want to. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it.
49. Enhanced cooperation must work towards the EU’s objectives, in a way that does not undermine the single market. Those countries undertaking cooperation in this way must also be open to others who want to join in at any time. Unanimity is still required for any such cooperation in the fields of foreign policy or defence.
Simplification of Treaty numbering
50. The Treaty provides for a comprehensive simplification of the numbering of Treaty articles, as the Treaty of Amsterdam did.
RATIFICATION
51. The Treaty of Lisbon must be ratified by all 27 Member States in accordance with their respective constitutional requirements before it can enter into force. Before the UK can ratify the Treaty, legislation is required to give effect to the Treaty in UK law.
PROTOCOLS
52. There are 11 Protocols to the Treaty of Lisbon which will be annexed to, and are an integral part of, the existing Treaties. Two other Protocols amend the existing Protocols to the Treaties.
DECLARATIONS
53. There are 65 Declarations attached to the Final Act of the Intergovernmental Conference. 50 Declarations have been made unanimously and represent the political commitment of all Member States. There are also 15 Declarations made by some, or one, States. Declarations are not part of the Treaty itself. They represent a political commitment on the part of those making them and in some cases are relevant for the purposes of interpreting the Treaty.
CONCLUSION
54. The Government set out its objectives for the Intergovernmental Conference and the Treaty of Lisbon in a White Paper on 23 July 2007. The Treaty marked changes to allow the enlarged EU of 27 Member States – and beyond – to work more effectively.
55. There will not be a transfer of power away from the UK on issues of fundamental importance to our sovereignty. The Treaty ensures that our existing labour and social legislation remains intact; protects our common law system, police and judicial processes, as well as our tax and social security systems; and preserves our independent foreign and defence policy.
MINISTERIAL RESPONSIBILITY
56. The Secretary of State for Foreign and Commonwealth Affairs has overall responsibility for matters relating to the European Union.
FINANCIAL IMPLICATIONS
57. The amendments to the EU Treaties resulting from the Treaty of Lisbon will not fundamentally change the objectives and activities of the European Union and will not, therefore, have significant implications for the EU budget. There will be no substantive change in the EU budgetary system, and no commitment to the provision of new resources.
RESERVATIONS AND DECLARATIONS
58. The United Kingdom made three unilateral Declarations, on citizenship, Gibraltar and the franchise for European Parliament elections.
TERRITORIAL
59. The Treaty extends to the whole of the United Kingdom.
SUBSIDIARITY
60. The Treaty significantly strengthens subsidiarity through new powers for national parliaments. See paragraphs 13 to 15 above.
Presented to Parliament:December 2007
ANNEX
MOVES TO QUALIFIED MAJORITY VOTING IN THE TREATY
The Treaty extends qualified majority voting in a total of 50 articles of the Treaty establishing the European Community and the Treaty on European Union. 16 of these do not apply to the UK or only apply if the UK agrees. 20 offer faster decision-making in areas where the UK wants to see much more effective EU action.
The full list is as set out below.
1. Immigration and frontier controls (UK opt-in)
2. Judicial co-operation in criminal matters (UK opt-in)
3. Minimum rules for criminal offences and sanctions (UK opt-in)
4. Eurojust (structure, operation, field of action and tasks) (UK opt-in)
5. Police co-operation (data sharing and training) (UK opt-in)
6. Europol (structure, operation, field of action and tasks) (UK opt-in)
7. Social security (measures to facilitate free movement of workers) (emergency brake including a veto power)
8. Co-ordination of provisions for self-employed persons (measures to facilitate self-employment in other Member States)
9. Transport (removes existing limited derogation)
10. Culture (incentive measures to promote cultural awareness and diversity)
11. Appointment of European Central Bank (ECB) executive board (UK opt-out)
12. Comitology (rules enabling Member States to oversee the Commission’s exercise of its implementing powers)
13. Financial regulations (rules on budgetary and accounting procedures)
14. Specialised courts (establishment of specialised first instance courts)
15. European Court of Justice (ECJ) statute
16. Amendments to certain parts of the statute of the European System of Central Banks
17. Presidency of Council configurations (arrangements for rotation)
18. Use of the euro (UK opt-out)
19. Measures relating to the broad economic guidelines and excessive deficit procedure (applicable only to eurozone members) (UK opt-out)
20. Border checks (establishment of integrated management system for external borders) (UK opt-in)
21. Mechanism for peer review of Member States’ implementation of policies in the Justice and Home Affairs (JHA) area (UK opt-in)
22. Crime prevention (UK opt-in)
23. Implementation of own resources decisions
24. Provisions enabling repeal of the aspects of an Article related to state aids policy and the effect of the past division of Germany
25. Procedure for entry into the euro
26. Provisions enabling repeal of an Article on transport policy as it affects areas of Germany affected by its past division
27. Authorisation, co-ordination and supervision of intellectual property rights protection
28. Services of general economic interest (clarification of EU rules/principles applying public services)
29. Diplomatic and consular protection
30. Humanitarian aid operations
31. Energy (measures on energy markets, energy security and energy saving)
32. Tourism (promotion of competitiveness and best practice)
33. Civil protection (assistance to prevent or protect against natural or man-made disasters)
34. Implementation of solidarity clause (assistance, if requested, in the event of a natural or man-made disaster)
35. Urgent financing of Common Foreign and Security Policy (CFSP) measures (start up measures for ‘Petersberg’ tasks)
36. Urgent aid to third countries
37. Aspects of the Common Commercial Policy (definition of general framework for its implementation)
38. European Research Area (removal of barriers to free flow of research)
39. Space policy (measures to promote joint initiatives and R&D)
40. Sport (incentive measures to promote sport)
41. Administrative co-operation (capacity building measures)
42. Membership of structured co-operation in defence (procedural issues relating to its establishment)
43. Election of European Council President
44. Appointment of High Representative of the Union for Foreign Affairs and Security Policy
45. Council review of general rules on composition of the Committee of the Regions and European Economic and Social Committee
46. Citizens’ initiatives (petition procedure)
47. Principles of European administration (staff regulation measures)
48. Negotiation of withdrawal agreement
49. Judicial appointments panel (composition and operation)
50. Role of the High Representative of the Union for Foreign Affairs and Security Policy in CFSP implementing measures (measures proposed by the High Representative following a specific request from the European Council)
[1] This memorandum uses the numbers of articles in the TEU and the TEC as they appear in the text of the articles of the Treaty of Lisbon. The numbers are to be renumbered in accordance with Article 5 and the Annex to the Treaty.