Archive for category Lisbon Treaty Title by Title
Part 6 & 7 of the TFEU and the Protocols
Posted by Michael in Lisbon Treaty Title by Title on September 30th, 2009
Title I sets out some of the more technical features of the institutions bearing in mind the TEU has described them generally. The new double majority voting procedure is set out with 55% of countries and 65% of population. The no side only represent one side of this equation of course…could this be deliberate. With the need for a majority of states Ireland effectively has the same number of votes at the Council as the largest members. Of course QMV is rarely used and the new double majority may make it easier to pass a limited number of proposals. Similarly Ireland tends to be on the “winning side” in QMV votes more often than not.
More detail is provided on the legal acts of the EU and the different legislative procedures. Generally these are simplified. Much of what already exists is formalised and codified. Again provisions on advisory bodies is codified.
Title II covers financial provisions. This covers budgeting, own resources and combating fraud. There is little new in it
Title III covers enhanced co-operation. This sets out in more detail the provisions covered in the TEU
Part 7 covers general and final provisions such as staffing, overseas territories and languages, it is quite technical and there is little new in it.
Protocols
These are an important area of the treaty and can be seen as appendices with the same legal power, usually giving more detail on a specific area.
The Role of National Parliaments receives a full protocol and sets out how national parliaments are to have a greater involvement in the legislative process. Much of this is new or at least developed. Similarly the Protocol On The Application Of The Principles Of Subsidiarity And Proportionality is changed and developed. This covers the so called yellow card procedure for national parliaments.
A Protocol on the Euro Group provides for informal meetings of those countries whose currency is the Euro. There is a significant Protocol on integrating the Schengen Acquis (rules) into the treaty. Ireland has an opt out/in in this area as it does in the Protocol on Art 22a and 26 of the TEU covering the Common Travel Area and another on the Area of Freedom Security and Justice relating to police and judicial co-operation.
There is another Protocol on Permanent Structured Co-operation this covers the form of enhanced co-operation used in security and defence matters, it is similar but with more safeguards built in due to the sensitivity. There is also a specific Protocol on Acceding to the European Charter of Human Rights and on The Internal Market And Competition
The UK and Poland have a specific Protocol on the Charter of Fundamental Rights that they seemed to think was necessary and a Protocol on Shared Competencies
There is a new Protocol emphasising the importance of Services of General Economic Interest and the introduction of the New System of QMV and Transitional Provisions
A number of protocols contain only the most basic changes in terms of name of minor issues these are protocols on; The ECJ, The ECB, The European Investment Bank, The Location and Seats of Institutions!, Privileges and Immunities, Excessive Deficits, Convergence Criteria for the Euro, The UK and the Euro, Denmark and the Euro, Other opt outs for Denmark, Currency in French Overseas Territories, Crossing external borders, Asylum, Co-operation with the WEU, The Netherlands Antilles, Property in Denmark, Public Broadcasting, treatment of certain social security benefits, on economic, and social and territorial cohesion, Greenland, abortion in Ireland, The European Coal and Steel Community
Part Five of the Treaty on the Functioning of the EU
Posted by Michael in Lisbon Treaty Title by Title on September 29th, 2009
Part Five of the Treaty on the Functioning of the European Union covers the Unions external actions. These are governed by the principals set out in the Treaty on European Union as amended
Title II covers the common commercial policy the process whereby the EU acts internationally in the economic sphere. Again this is to be consistent with the original TEU principles. There is some extension of QMV but notably not to all areas for example sensitive agreements on social, education and health services are excluded. The European Parliament is also given an enhanced role.
Title III covers cooperation with third countries and humanitarian aid. Again the principles earlier outlined govern this area. Development policy is to have as it’s main objective “the reduction and, in the long term, the eradication of poverty. Again there is some extension of QMV.
Title IV covers restrictive actions, effectively sanctions and Title V allows the EU enter in to international agreements (not a new provision)
Title VI covers relations with international organisations such as the U.N., third countries and EU delegations.
Title VII outlines the new solidarity clause; this is effectively a political declaration that member states will assist each other in the even of a natural disaster or terrorist attack. This is also covered by one of the legal guarantees in Brussels in June which makes clear member states themselves decide how this will be made operational.
Treaty on the Functioning of the EU, Parts 1,2, 3 & 4
Posted by Michael in Lisbon Treaty Title by Title on September 20th, 2009
The Treaty on the Functioning of the EU is the new name for the Treaty Establishing the EC, effectively the amended version of the original Treaty of Rome. This is really the historic meat of European integration emerging form the establishment of the single market. Given many of these articles have existed for a long time they tend to arise in debate even though often there is no substantial change to what has existed.
Part One gives equal value to the two treaties
Title I sets out the categories and areas of competence of the EU. This is a simplification and clarification of this area. The respective competences of the member state and the Union are set out including exclusive competences of both and shared competences. This is quite a useful check list and of course is legally enforceable by the ECJ.
Areas where policies are co-ordinated are set out and areas where the Union can support, co-ordinate and supplement member states actions
Title II covers provisions having general application, these are effectively cross cutting provisions which shadow and govern other parts of the treaty. These include consistency, equality, a high level of employment, social protection, combating discrimination, environmental protection, consumer protection, animal welfare. There is specific provision on services of general economic interest (public services). Openness of decision making, access to documents, holding meetings in public, personal data. Recognition of national approaches to churches and a dialogue with churches is provided for.
Part two covers non discrimination and citizenship.
There are robust provisions on anti-discrimination. European citizenship is restated and continues to be additional to citizenship of member states, their rights and duties are clearly set out, including free movement, voting, diplomatic protection, citizens initiative, European ombudsman, languages,
Part Three covers Union Policies and internal actions
Title I specifically covers the Internal Market. This has been a cornerstone of the EC/EEC since its foundation.
Title II restates provisions on free movement of goods and customs union. Possibly exemptions are provided for in Article 37. There is very little change here.
Title III restates much of the provision on agriculture and fisheries, the objectives of the CAP are clearly set out. There is little change here but the European Parliament is brought in to the legislative process.
Title IV covers free movement of persons, services and capital. There are no major changes except some extension of QMV
Title V of Part 3 Covers The Area of Freedom, Security and Justice
Many of these provisions were originally introduced at the Treaty of Amsterdam to enhance the notions of freedom of movement. Much of the common provisions represent recodifying of language. One of the new provisions relates to combating the financial side of terrorism. Ireland has secured an opt out or more accurately the right to opt in in much of police and judicial co-operation, immigration and asylum along with continuing an opt out on the schengen passport free travel area. The main difference here is Ireland has expressed a willingness to be part of these arrangements if it can. The opt out gives the Government and the Oireachtas the right to decide and this is contained in the wording.
Much of this area comes in to the “community method” i.e. with a role for the parliament and the ECJ as opposed to the previous intergovernmental method. In fact this is the main change in this whole area
Title VI concerning transport contains no major changes bar some moves to QMV
Title VII covers taxation and competition again there are very few substantive changes here bar one or two moves to QMV, Ireland has also received a legal guarantee on taxation remaining a national competence
Title VIII on economic and monetary policy again contains few changes except moves to QMV
Titles IX, X, XI, XII, XIII on employment, social policy, the ESF, youth sport, education and culture contain no major changes bar some moves to QMV
Similarly Titles XIV, XV, XVI, XVII, XVIII, XIX Public Health, Consumer Protection, Trans European Networks, Industry, economic, social and territorial cohesion, research and technological development and space follow the same pattern
Title XX sees an additional aim of combating climate change added to the treaties. Title XXI and XXII provides for greater co-operation in the area of energy policy and tourism
Title XXIII covers civil protection in areas such as natural disastrous where member state actions will be assisted in a speedy fashion
Title XXIV covers administrative co-operation
Part Four of the Treaty covers association of the overseas countries and territories, there are no major changes
Title by Title: Enhanced Co-operation and External Action
Posted by Michael in Lisbon Treaty Title by Title on September 14th, 2009
Title IV of the Treaty on European Union contains only Article 20 on enhanced co-operation. This is a system whereby a certain number of member states can go ahead and co-operate in certain areas. Safeguards are laid down with the details set out later in the TFEU and a full protocol is also included. It has existed since 1996 but has never been used. However it is reasonable to say it may become more common if Lisbon is not ratified by all states.
Title V contains the general provisions on the External Action of the Union. Even with this new title the reality is very little has changed on this area although one would hardly think so from the debate.
Article 21 sets out the principles governing the external actions of the EU, notably democracy, human rights, the rule of law and the U.N. Charter
Article 22 provides for the EU to define it’s interests and objectives in this area on the basis of the values in the previous article and this is done unanimously by the European Council
Article 23 in specifically defining a common and security policy reiterates that this must be consistent with the earlier values
Article 24 sets out the aim of a common defence policy and the possibility of a common defence, the later is prohibited by the Irish Constitution and the June Guarantees also say these matters are for Ireland alone to decide. Unanimity is set out as the normal decision making process for the most important decisions and generally the European Parliament and the ECJ do not have a role as these are seen as the most sensitive areas where national positions are respected. The role of the High Representative is reaffirmed as members are expected to support the policies agreed. This has been seen as a sensitive area for Ireland and there are several safeguards such as unanimity in decision making, the principles which govern the external action, the provisions of our constitution and the Brussels Guarantees.
Article 25 provides some of the detailed mechanisms for the common foreign and security policy
Article 26 sets out the role of the European Council in this area
Article 27 sets out the role of the High Rep. in leading the common and security policy and an external action service
Article 28 provides for decision making in the area for operations
Article 29 provides for thematic and geographic positions which member states should support having adopted
Article 30 provides for bringing items to the Council and the calling of meetings
Article 31 re-iterates unanimity as the decision making method for the most important decisions and set out the areas where it will not apply these are generally in the area of implementation and a member state can prevent QMV here if it is seen as a vital national interest
Article 32 provides that members should consult each other about actions they may take and keep each other informed
Article 33 allows for the appointment of special representatives
Article 34 provides for co-operation and co-ordination in other international organisations
Article 35 provides for co-operation between the diplomatic and consular services of member states
Article 36 sets out the role of the European Parliament in the Common Foreign and Security Policy
Article 37 allows the Union to conclude international agreements
Article 38 outlines the role and function of the Political and Security Committee, a specialist committee in this area
Article 39 provides for action in the area of data protection consistent with the TFEU
Article 40 provides that the CFSP does not affect the division of powers between the Union and member states set out in the TFEU
Article 41 sets out who pays for what in this area
The European Security and Defence Policy has existed since 2003 and in all nearly 30 missions have been or are being undertaken. It is hard to locate any of those which would be inconsistent with Irish foreign policy values and indeed Ireland has been a prominent participant in many missions. A simple examination of the missions illustrates this http://www.isis-europe.org/pdf/2009_artrel_253_esr43-esdp-mission-update.pdf
Article 42 sets out the CSDP as a part of the CFSP. It sets out the role of the CSDP as being the operational side of the CFSP, common defence can only come about by unanimity. It is also set out that it will not prejudice the specific defence characteristics of member states a phrase Ireland originally had inserted in to the treaties. It provides for making forces available for missions and that members will improve heir capabilities. Despite claims there is no provision for extra defence spending and such a commitment could be met by refocussing or re-organising defences. Indeed much of this area is an exhortation rather than an enforceable commitment. Ireland has undergone much re-organising of defence forces and will probably continue to do so. Unanimity in all decisions on operations is once more reaffirmed. Assistance to other member states is provided for but must be consistent with member states policies. NATO membership is also respected in this area.
Article 43 sets out the types of tasks involved. These were originally known as the Petersberg Tasks and are largely in the area of peace-keeping and crisis management.
Article 44 allows for the entrustment of agreed tasks to specific member states or groups of member states
Article 45 covers the European Defence Agency (see earlier post). This is the provision of a Treaty basis for the agency which already exists.
Article 46 provides for structured co-operation a form of enhanced co-operation in this area but with different rules. It can be established by QMV but only for the missions established by unanimity and for the values set out earlier and consistent with the Petersberg Tasks
Article 47 says the Union has legal personality, in other words it can enter into agreements. While stated more clearly here this is not a new provision for example in the area of trade.
Article 48 has been debated a lot in both campaigns with the allegation that somehow the treaty becomes “self amending” notwithstanding the peculiar nature of this idea the concept has been less common in Lisbon II presumably because people have read the provisions. Indeed they were ably covered by Justice Frank Clarke on Morning Ireland. The Article effectively outlines two methods for amending the treaty one involving an Inter Governmental Conference and one which does not. Both methods however require ratification by member states in accordance with their own constitutional traditions. This effectively means referendums for major changes in Ireland.
No campaigners have said that some minor changes or the change to QMV in some areas can be done without a referendum. However the key is this can be done at the moment. Several minor changes can be made to treaties, the perfect example being accession treaties which Ireland currently ratifies without referendums. The Crotty case already has said moving to QMV was not a matter requiring a referendum but was covered by the 1973 accession referendum.
Title II: Democratic Principles. Title III: Institutions
Posted by Michael in Lisbon Treaty Title by Title on September 6th, 2009
For years the European project has struggled with the idea that there is a democratic deficit a it’s heart. From the outset I must say I don’t go along with this and I think it’s yet another example of those who favour European integration conceding far to much in debate to those who do not. The EU has the only existing multi-national directly elected parliament in the world and moreover it functions primarily along party rather than national lines. Fortunately those who argued it lacked any real power know that argument has been simply redundant for many years.
To cut a long story short I tend to go along with the German Constitutional court, anyone who expects a replica of a nation state’s democracy in the EU will be inevitably disappointed but anyone comparing it to other international organisations will be overwhelmed. The institutional balance between the European interest (Commission), Member State (Council) and Citizen (Parliament) is central to how Europe works.
Anyhow politics being what it is the Convention which drafted much of Lisbon and it’s precursor put a lot of work into addressing the perceived democratic deficit and much of the result can be seen in the new title two of the Treaty of European Union
Article 9 is a basic statement of citizenship and equality indicating that European citizenship which has existed since Maastricht is additional to national citizenship
Article 10 set’s out clearly the EU’s commitment to representative democracy and how the institutions represent citizens
Article 11 commits the Commission to consulting civil society and introduces the citizens initiative where one million citizens can petition the Commission, a new concept in the EU
Article 12 sets out the role of national parliaments. This was an area which received a lot of attention from the Convention as it was seen to be a major element in addressing the perceived democratic deficit and in reconnecting the EU with it’s citizens. This is further added to in different roles in different policy areas and with a specific protocol on National Parliaments
Most of the provisions of this Title are new
Title III: Institutions
Article 13 serves to outline directly and simply the different institutions of the EU and that they can only act within the powers conferred on them
Article 14 sets out a basic description of the Parliament and it’s role and function
Article 15 sets out the role and function of the European Council (heads of state and Government) including the new provision for a more permanent president
Article 16 sets out the role and function of the Council of Ministers including the new QMV regime worth quoting in full
“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.
The other arrangements governing the qualified majority are laid down in Article
205(2) of the Treaty on the Functioning of the European Union.”
This provision has given rise to key claims by the no side in the campaign, however like many of the so called “complex” aspects of the Treaty the wording is relatively straightforward. This whole area will be the subject of another entry but for now some basic points should be noted. There are two (well technically three) aspects to QMV, not one. Anybody concentrating on one only is fibbing. The Convention was asked to simplify this area and simplify it did. The previous system was apples and this is oranges so it is practically impossible to compare them…as I say more anon.
Article 17 covers the role and function of the Commission, including it’s president and the way it is selected (notably allowing for a reversion to one Commissioner per member state as decided at the June Brussels Summit
Article 18 provides for the new High Representative on Foreign Policy, this position is already provided for however the Treaty makes some changes principally the idea of “double hatting” i.e. the High Representative will be a member of both Council and Commission effectively becoming the EU’s chief diplomat. This brings together what are currently disparate areas such as intergovernmental decisions on foreign policy and aid policy for example.
Article 19 sets out the role and function of the European Court of Justice
Again much of this text is new
From the Start…Title I
Posted by Michael in Lisbon Treaty Title by Title on September 1st, 2009
There must be tonnes of newsprint and trillions of gigabytes published on the Lisbon Treaty yet it is hard to find anywhere a blow by blow explanatory guide of the treaty. The Yes and No groups, the Government and the Referendum Commission all produce guides and summaries but in each instance they are selecting what is and isn’t important. They also in my view cow tow to the idea that the whole thing is way to complex for the ordinary person. It’s not. Once you have a copy of the consolidated text you can read the whole thing. The annotated version available online shows the changes aswell. Playing the complexity card strengthens the idea that this is impenetrable stuff.
Very few groups, certainly in the online sphere, have produced an article by article guide. This is important as a huge number of questions in the referenda debates relate to things already agreed or not even agreed. So the idea here in a few short weeks is to produce such a guide in hopefully understandable terms, with some commentary and an idea of what has changed and what has not. All this of course is from a Yes perspective so log off now if that offends you. Of course my view is that any reasonable and objective step by step analysis of the Treaty inevitably leads to support for it.
In most cases nobody would disagree with what are the important issues. However the way debate goes all sorts of things are dragged in to the debate, things which aren’t in the Treaty and often not even in the realm of the powers of the EU. So just looking at the Treaty itself is not always enough, some history and context are required. As always the numbering is that used by the IIEA which is effectively the numbering which will apply if they treaty is passed.
The structure of the treaties is fairly straightforward. The original treaty of Rome founded the coal and steel communities and EEC. Maastricht established the EU which developed areas such as foreign policy, the single currency and the idea of EU action in the field of justice and home affairs. The core of the EU for many years was the single market and things which derived from it. More integrated decision making also developed in this area. Since Maastricht two treaties have existed side by side and one of the major changes from the idea of an EU constitution is to maintain this approach rather than collapsing everything in to one document and approach effectively scrapped after the French and Dutch No votes.
The Treaty of European Union (TEU) originally signed at Maastricht is substantially amended and the Treaty of Rome in renamed the Treaty on the Functioning of the European Union (TFEU). The Treaty of European Union is about 40 pages. Many of the changes proposed originated in the convention on Europe which consisted of elected representatives, this followed the Laeken Declaration which sought to simplify and make relevant the EU and its structures. Ironically it was the No Votes in Holland and France which heralded a return to a relatively more cumbersome structure.
The Treaty on the Functioning of the European Union is longer at xx pages but largely contains most of the historic legal basis of the old EC in the fields of the single market and associated measures. It I reasonable then to ask anybody quoting form these sections wether the provision they are referring to is actually new or has existed for a long period of time and has effectively been endorsed by the people in a previous referendum. This is a fair question to those who reassure is they are not opposed to the EU but just the way Lisbon is bringing it.
The preamble has been changed in the TEU, this was somewhat controversial as a large lobby to have specific reference to Christianity was resisted with a compromise text inserted referring to “religious and humanist heritage”
The first substantial section (Title I) in the new TEU is entitled Common Provisions. This emerged form a desire in the Convention and amongst leaders to set out clearly the role and functions of the EU. These opening articles are important as they are effectively available to the ECJ in interpreting other aspects of the Treaty texts.
Article One effectively announces the foundation of the European Union which now covers the two treaties. It sets out the need to have open decision making close to the people, this as a common provision applies to the rest of the text.
Article Two sets out the values the EU is founded on including respect for human rights, non discrimination, tolerance and equality between men and women. For those who would dismiss these as flights of rhetoric we must again bear in mind the important legal role of the common provisions. This is a new statement
Article Three summarises some of the main aims of the union in terms of promoting peace, the internal market, combating social exclusion, the Euro and principals in it’s relations with the world which are consistent with the UN Charter. These articles emphasise the need for subsidiarily (decision making as close to the people as possible) and conferral where the EU can only do what it’s member states require of it.
Article Four helpfully sets out what the EU does and what the member states do and how the EU must respect member states and their roles. States must also implement policies agreed together in the Union
Article Five elaborates on the concepts of conferral and subsidiarity. A Protocol is also attached to the treaty on subsidiarity and National Parliaments
Article Six commits the EU to the Charter of Fundamental Rights and also sets out it’s limitations, it also provides for the EU to accede to the European Convention on Human Rights which will apply to the EU and it’s institutions as well as all the member states who have signed it
Article Seven provides for a mechanism to deal with member states who transgress the fundamental values of the EU. This is a new provision and arises form the controversy over the Freedom Party in Austria several years ago. The provisions have a number of safeguards and effectively require a 4/5 majority of member states.
Article Eight provides for relationships with the EU’s neighbours and sets out the values that govern these.
Much of this is new or replaces articles largely arising from the work of the Convention which sought to simplify and consolidate the text and the functions of the EU