Ten Things You Might Not Know About the Lisbon Treaty
The following are excerpts from another perceptive source about the real nature of the EU. Written by Anthony Coughlan, a professor and senior lecturer emeritus in social policy at Trinity College Dublin, this article, aptly titled “These Boots Are Gonna Walk All Over You,” details the 10 most important things the Lisbon Treaty does. It was published on the Brussels Journal last month (emphasis ours throughout).
1. The Lisbon Treaty establishes a legally quite new European Union. This is a Union in the constitutional form of a supranational European state:
The
treaty gives this new Union a state constitution, which is
identical in its legal effects to the EU constitution that French
and Dutch voters rejected in their 2005 referendums. …
The provision of the Lisbon Treaty that “The Union shall
replace and succeed the European Community” (Art.1.3,
amended teu) makes absolutely clear that the post-Lisbon Union
will be quite a new entity, as the European Community of which
our countries are all currently members ceases to exist.
2. The treaty empowers this new European Union to act as a state vis-a-vis other states and its own citizens:
To
understand the change introduced by the Lisbon Treaty, one needs
to understand that what we call the European Union today is not a
state. It is not even a legal or corporate entity in its own
right, for it does not have legal personality. The name
“European Union” at present is a descriptive term for
all the relations between its 27 member states. …
The Lisbon Treaty changes this situation by creating a
constitutionally and legally quite new EU, while retaining the
same name, the “Union.” Unlike the present European
Union, this legally new EU will be separate from and superior
to its member states ….
This new European Union can sign treaties with other states in
all areas of its competence and conduct itself as a state in the
international community of states. It can speak at the United
Nations on agreed foreign-policy positions of its member states
….
The Lisbon Treaty also gives the EU a political president, a
foreign minister—to be called a high representative—a
diplomatic corps and a public prosecutor. The new EU will accede
to the European Convention on Human Rights, as all other European
states have already done, including those outside the EU.
The treaty also sets out the principle of the primacy of the
laws of the new Union over the laws of its member states
(Declaration 27). The new EU makes the majority of laws for
its member states each year and under the Lisbon Treaty the new
Union, which will replace the European Community, gets further
power to make laws or take decisions by qualified majority vote
in relation to some 68 new policy areas or matters where member
states currently have a veto.
3. The treaty makes us all real citizens of this new European Union for the first time, instead of our being notional or honorary European “citizens” as at present:
A state
must have citizens and one can only be a citizen of a state.
Citizenship of the European Union at present is stated to
“complement” national citizenship, the latter being
clearly primary, not least because the present EU is not a state.
…
By transforming the legal character of the Union, the Lisbon
Treaty transforms the meaning of Union citizenship. Article.17b.1
tec/tfu replace the word “complement” in the
sentence “Citizenship of the Union shall complement
national citizenship,” so that the new sentence reads:
“Citizenship of the Union shall be in addition to national
citizenship.” This gives the 500 million inhabitants of
the present EU member states a real separate citizenship from
citizenship of their national states for the first time. … The
rights and duties attaching to this citizenship of the new Union
are [to] be superior to those attaching to
citizenship of one’s own national state in any case of
conflict between the two, because of the superiority of EU law
over national law and constitutions. …
Although we will be given rights as EU citizens, we should not
forget that as real citizens of the new European Union, we also
owe it the normal citizens’ duty of obedience to its laws
and loyalty to its authority, which will be a higher authority
than that of our national states and constitutions.
Member states retain their national constitutions, but they are
subordinate to the new Union Constitution. …
4. To hide the enormity of the change, the same name—European Union—will be kept, while the Lisbon Treaty changes fundamentally the legal and constitutional nature of the Union. By this means, the importance of the proposed change is kept hidden from the people:
The
change in the constitutional nature of both the Union and its
member states will be made in three legal steps that are set out
in the treaty:
a) It establishes a European Union with an entire legal
personality and independent corporate existence in all Union
areas for the first time, so that it can function as a state
vis-a-vis other states and in relation to its own citizens
(Art.32, amended teu);
b) This new European Union replaces the existing European
Community and takes over all of its powers and institutions. It
takes over as well the “intergovernmental” powers over
foreign policy and crime, justice and home affairs which at
present are outside the scope of European law, leaving only the
Common Foreign and Security Policy outside the scope of its
supranational power (Art.11.1, amended teu). …
c) It makes us all real citizens of the new federal union which
the treaty establishes, with all the implications of that for
downgrading our present personal status as citizens of sovereign
nation states and superseding it by citizenship of a
supranational European Federation.
5. It creates a Union Parliament for the Union’s new citizens:
The Lisbon Treaty/EU constitution makes members of the European Parliament, who at present are “representatives of the peoples of the member states,” into “representatives of the Union’s citizens” (Art.9a, amended teu). This illustrates the constitutional shift the treaty makes from the present European Union of national states and peoples to the new federal Union of European citizens and their national states—the latter henceforth reduced constitutionally and politically to provincial or regional status.
6. It creates a cabinet government of the new Union:
The
treaty turns the European Council, the quarterly
“summit” meetings of member state heads of state or
government, into an institution of the new Union, so that its
acts and failures to act will, like all other Union institutions,
be subject to legal review by the EU Court of Justice.
Legally speaking these summit meetings of the European Council
will no longer be “intergovernmental” gatherings of
prime ministers and presidents outside supranational European
structures. As part of the new EU´s institutional framework,
they will instead be constitutionally required to “promote
the Union’s values, advance its objectives, serve its
interests” and “ensure the consistency,
effectiveness and continuity of its policies and actions”
(Art.9, amended teu). They will also “define the general
political direction and priorities thereof” (Art.9b).
The European Council thus becomes in effect the cabinet
government of the new federal EU, and its individual members will
be primarily obliged to represent the Union to their member
states rather than their member states to the Union.
7. It creates a new Union political president:
The
federalist character of the European Council “summit”
meetings in the proposed new Union structure is further
underlined by the provision which gives the European Council a
permanent political president for up to five years (2½ years
renewable once) (Art.9b).
There is no gathering of heads of state or government in any
other international context which maintains the same chairman or
president for several years while individual national prime
ministers and prime ministers come and go. …
8. It creates a civil rights code for the new Union’s citizens:
All
states have codes setting out the rights of their citizens. The
EU Charter of Fundamental Rights will be that. It will be made
legally binding by the new treaty and will be an essential part
of the new Union’s constitutional structure (Art.6, amended teu).
The charter is stated to be binding on the Union’s own
institutions and on member states in implementing Union law. This
limitation to EU law and to the EU institutions is unrealistic
however, because:
a) The principles of primacy and uniformity of Union law mean
that member states will not only be bound by the Fundamental
Rights Charter when implementing EU law, but also through the
“interpretation and application of their national laws in
conformity with Union laws” (v. ecj judgments in the Factortame,
Simmenthal and other law cases); and because
b) The Charter sets out fundamental rights in areas in which the
Union has currently no competence, e.g. outlawing the death
penalty, asserting citizens’ rights in criminal proceedings
and various other areas.
This gives a new and extensive human and civil rights
jurisdiction to the EU Court of Justice and makes that court the
final body to decide what people’s rights are in the vast
area covered by European law, as against national supreme
courts and the Court of Human Rights in Strasbourg—the
latter court serving all other European states, not just the EU
members—which are our final fundamental rights courts today.
…
9. It makes national parliaments subordinate to the new Union:
The
treaty underlines the subordinate role of national parliaments in
the constitutional structure of the new Union by stating that
“National parliaments shall contribute actively to the
good functioning of the Union” by various means set out
in Article 8c, amended teu. The imperative “shall”
implies an obligation on national parliaments to further the
interests of the new Union.
National parliaments have in any case already lost most of their
law-making powers to the EC/EU. The citizens who elect them have
lost their powers to decide these laws too.
The provision of the treaty that if one third of the national
parliaments object to a Commission proposal, the Commission must
reconsider it but not necessarily abandon it, is small
compensation for the loss of democracy involved by the loss of 68
vetoes by national parliaments as a result of other changes
proposed by the Lisbon Treaty.
10. It gives the new Union self-empowerment powers:
These
are shown by:
a) the enlarged scope of the Flexibility Clause (Art.308 tec/tfu),
whereby if the treaty does not provide the necessary powers to
enable the new Union [to] attain its very wide objectives, the
Council may take appropriate measures by unanimity. The Lisbon
Treaty extends this provision from the area of operation of the
common market to all of the new Union’s policies directed at
attaining its much wider objectives. The Flexibility Clause has
been widely used to extend EU law-making over the years;
b) the proposed “Simplified Treaty Revision Procedure”
which permits the prime ministers and presidents on the European
Council to shift Union decision-taking from unanimity to
qualified majority voting in the “Treaty on the
Functioning of the Union” (Art.33.6, amended teu), where
the population size of certain member states is likely to be
decisive; and
c) the several “ratchet-clauses” or
“passerelles” which would allow the European Council to
switch from unanimity to majority voting in certain specified
areas such as judicial cooperation in civil matters
(Art.69d.3.2), in criminal matters (Art.69f.2), in relation to
the EU public prosecutor (69i.4), and in a number of other areas.
Professor Coughlan concluded his analysis:
It
is hard to think of any major function of a state which the new
European Union will not have once the Lisbon Treaty is ratified.
The main one seems to be the power to make its member states go
to war against their will. The treaty does provide that the EU
may go to war while individual member states may
“constructively abstain.”
The obligation on the Union to “provide itself with the
means necessary to attain its objectives and carry through its
policies” (Art. tec/tfu 269a), which means raising its
“own resources” to finance them, may be regarded as
conferring on it wide taxation and revenue-raising powers,
although these will require unanimity to exercise. …
However the new European Union will have its own government, with
a legislative, executive and judicial arm, its own political
president, its own citizens and citizenship, its own human and
civil rights code, its own currency, economic policy and revenue,
its own international treaty-making powers, foreign policy,
foreign minister, diplomatic corps and United Nations voice, its
own crime and justice code and public prosecutor. It already
possesses such normal state symbols as its own flag, anthem,
motto and annual official holiday.
As regards the state authority of the new Union, it is embodied
in the Union’ s own executive, legislative and judicial
institutions: the European Council, Council of Ministers,
Commission, Parliament and Court of Justice. It is also embodied
in the member states and their authorities as they implement and
apply EU law and interpret and apply national law in conformity
with Union law. Member states will be constitutionally required
to do this under the Lisbon Treaty. Thus EU “state
authorities” as represented for example by soldiers and
policemen in EU uniforms on our streets are not needed as such.
Allowing for the special features of each case, all the classical
federal states which have been formed on the basis of power being
surrendered by lower constituent states to a higher federal
authority have developed in a gradual way, just as has happened
in the case of the European Union. Nineteenth-century Germany,
the usa, Canada and Australia are classical examples. Indeed the
EU has accumulated its powers much more rapidly than some of
these federal states—in the short historical time span of
some 60 years.
The key difference between these classical federations and the
new European Union is that the former, once their people had
settled, share a common language, history, culture and national
solidarity that gave them a democratic basis and made their state
authority popularly legitimate and acceptable. All stable states
are founded on such communities where people speak a common
language and mutually identify with one another as one
people—a “we.” In the EU however there is no
European people or “demos,” except
statistically. The Lisbon Treaty is an attempt to construct a
highly centralized European federation artificially, from the top
down, out of Europe’s many nations, peoples and states,
without their free consent and knowledge.
If there were to be a European federation that is democratic and
acceptable, the minimum constitutional requirement for it would
be that its laws would be initiated and approved by the directly
elected representatives of the people either in the European
Parliament or the national parliaments. Unfortunately, neither
the Lisbon Treaty nor the EU constitution it establishes contain
any such proposal.
By giving a constitution indirectly rather than directly to the
new European Union which it will establish, the Lisbon Treaty
sets in place what Belgian Prime Minister Guy Verhofstadt has
called the “capstone of a European federal state.”
For the Euro-federalist political elites who have been driving
this process over decades this is the culmination of what
started nearly 60 years ago when the 1950 Schuman Declaration,
which is commemorated annually on May 9, Europe Day, proclaimed
the European Coal and Steel Community to be the “first step
in the federation of Europe.”
The Lisbon Treaty is available from the European Journal.