Institutional reforms

The Treaty of Lisbon (2008) has introduced some changes to the EU foreign policy as to the institutional structure, the actors involved, instruments and decision-making. One of the main objectives of the Lisbon Treaty is to increase the coherence and the efficiency of the EU’s

5 See Human Development Reports.

6 See Human Development Report 2007/2008: Fighting climate change: human solidarity in a divided world.

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external action. It brings the external community policies together in a more comprehensive manner. All elements of the EU’s external action are now covered by the same principles and objectives. These include inter alia human rights, good governance, environmental protection and sustainable development. What are the main provisions?

A Single Union

The Union is given a single legal personality. Before Lisbon, the European Community and the European Union had different statutes and did not operate using the same decision-making rules. This is one of the main simplifications introduced by the new treaty. This innovation has a significant impact on the Union’s external action. The Lisbon Treaty allows the Union to act more effectively, coherently and credibly in its relations with the rest of the world. A Union with a single legal personality allows it to conclude international agreements and become a member of international organisations in its own right.

The EU’s institutional framework has been adapted to the now 27 member states in general and external relations-specific terms. The Lisbon Treaty creates an enhanced institutional architecture and offers better opportunities for strengthened collective action. The innovations however do not challenge the essential inter-governmental nature of foreign and security policy decision-making. It remains a distinctive intergovernmental regime. It proposes a reorganising of the existing institutional framework and rationalises the EU actor competences in the field of external affairs. The following are the main institutional changes:

A more unitary European Union replaces the former three-pillar structure. Under the previous approach, the European Community was responsible mainly for the internal market and external trade relations (the “first pillar”) while common foreign and security policy (the

“second pillar”) and police and judicial cooperation in criminal matters (the “third pillar”) were dealt with by intergovernmental cooperation between EU member states. New provisions added to the former EC Treaty enumerate the policy areas in which the EU has exclusive, shared or supporting competence, together with its member states. The EU is responsible both internally and externally for all of these areas of EU policy, within the limits of its degree of competence, and has a single legal personality.

A decision-making process

Although the essential intergovernmental nature of decision-making in relation to CFSP and CSDP prevails, there are new provisions to facilitate that process in a Union of now 28 member states. By granting the Union a legal personality for the first time, the Lisbon Treaty

enables it to sign treaties or international agreements. Nonetheless, the CFSP is still governed by specific decision-making procedures.

However, it facilitates decision-making procedures by allowing for a qualified majority in some CFSP-related issues (e.g. the “passerelle”

provision, constructive abstention).

The procedure has been simplified and made more democratic in order to enhance the EU’s ability to act. Qualified majority voting in the Council of the EU has been extended to many new areas of policy. The general use of the co-decision procedure with the European Parliament makes decisions even more legitimate. Qualified majority voting, which is becoming the rule, has been redefined. It is based on the principle of double majority: in order to be adopted, Council decisions need the support of 55% of the member states, representing 65% of the European population. At least four member states are needed to form a blocking minority. This system will enter into force in November 2014. The number of areas in which the Council of the European Union decides by qualified majority has been extended to around 40 new policy fields, including police and judicial cooperation. The risk of stalemates is thus to be decreased.

The current system for the weighting of votes continues to apply until 1 November 2014. During a transitional period until 31 March 2017, it is still be possible for a member state to request that the system of weighting under the current treaty be applied. Lastly, these arrangements are complemented by a mechanism that allows a group of member states with less than the required blocking minority to suspend decision-making for a limited period. In certain cases, decisions continue to be taken unanimously. This is the case for defence and tax matters in particular.

The Lisbon Treaty also brings the co-decision procedure into general use, thus giving the European Parliament the power to legislate jointly on an equal footing with the European Council. By way of this procedure, the decision-making of the European Union is based on the double legitimacy of citizens and member states.

Strengthening the role of the European Parliament and National Parliaments

The European Parliament and the national parliaments see their roles reinforced in the context of European decision-making. The European Parliament becomes the co-equal legislator with the European Council in almost all policy areas. Thus, the legislative process of co-decision is substantially extended and becomes the standard legislative procedure.

It is extended to new policy fields, such as the areas of freedom, security and justice. This innovation reinforces the legislative power of the

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European Parliament. The European Parliament’s powers are also stepped up in the area of the budget (i.e. approval of the multiannual financial framework, co-decision arrangement for laying down all obligatory and non-obligatory expenditure) and in the adoption of international agreements. The Lisbon Treaty creates a direct link between the results of elections to the European Parliament and the choice by the European Council of the candidate for President of the Commission. The voting system in the council will become simpler and better reflect the relative size of a member state’s population within the EU. After a phase-in period from 2014 to 2017, a decision can be approved if voted for by council members representing 55% of member states, accounting for 65% of the EU’s population, i.e. a double majority rule is introduced.

For the first time in the history of the European treaties, the national parliaments are directly involved in the European decision-making process. This reinforces the democratic legitimacy of the Union’s decision-making. The Lisbon Treaty clearly lays down the rights and obligations of the national parliaments in the context of the European Union, including those relating to information, the monitoring of subsidiarity, the evaluation mechanisms in the area of freedom, security and justice, and the revision of the treaties.

The national parliaments will check whether European legislative proposals are in line with the subsidiarity principle. Using an early warning system, any national parliament is able to send reasoned opinion to the European institutions within eight weeks of communication of a European legislative proposal, explaining the reasons why it considers that the proposal is not in line with the principle of subsidiarity. If this reasoned opinion represents at least a third of the votes attributed to the national parliaments, the drafter of the proposal (usually the European Commission) will have to re-examine the text, and will then have to decide whether to retain, amend or withdraw it. If the legislative proposal is contested by a simple majority of votes attributed to the national parliaments and the European Commission decides to retain it nevertheless, a specific procedure will be launched. The European Commission has to argue, in a reasoned opinion, why it considers that the principle of subsidiarity has been respected. This will be brought to the attention of the legislator together with the reasoned opinions of the national parliaments. The legislator may then decide not to pursue the legislative procedure.

An expanded jurisdiction of the European Courts is also important.

The European Court of Justice now has jurisdiction over all areas of EU activity, with the exception of foreign and security policy. Notably, this extends the European Court’s jurisdiction to the police and judicial

cooperation in criminal matters. National courts and tribunals will be able to refer questions relating to immigration, asylum, internal security and criminal law to the European Court. Acting unanimously, the European Council can further expand the European Court’s jurisdiction to disputes arising under treaties that establish European intellectual property rights.

Institutional changes

The European Council has become a separate institution, headed by a president who is elected for two and a half years, renewable once. This permanent Presidency of the European Council is intended to lend greater consistency and continuity to the Union’s actions and to increase its visibility. The President is responsible for ensuring the preparation and continuity of work, and for achieving a consensus. The European Council President also represents the Union on the world stage in matters relating to the common foreign and security policy (CFSP). This replaces the current system of a rotating presidency every six months among the EU Heads of State. Former Belgian Prime Minister Herman Van Rompuy was appointed the first President of the European Council, for a two and a half year term, renewable once; his second mandate expires at the end of 2014. This new position has given better visibility and stability in “the preparation and the continuity of the work of the European Council” and the external representation of the Union on the CFSP, certainly in the management of the ongoing financial and economic crisis.

The creation of the post of High Representative of the Union for Foreign and Security Policy is one of the major institutional innovations of the Lisbon Treaty. The combined post of High Representative of the EU for Foreign Affairs and Security Policy and External Relations Commissioner, currently held by Catherine Ashton, reinforces the visibility of the institutional actors involved in EU foreign affairs.

Essentially, the purpose is to achieve greater coherence across the first and second pillars within the EU, combining the roles of the High Representative for CFSP in the Council and the Commissioner for External Relations in the Commission. This new expanded role for the High Representative has not only an increased role within the European Council, but also becomes a Vice-President of the Commission. It chairs the new External Relations Council, represents the EU externally, ensures consistency of the EU external policies, and is responsible for coordination of all external relations policies. The High Representative is assisted by the creation of a European External Action Service (EEAS), a diplomatic corps that has the objective of developing a genuinely European foreign policy. It was launched on December 1st 2010. The EEAS comprises of staff from the European Commission,

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European Council secretariat and from EU member states. In short, it seeks to streamline the EU external services by combining all those involved in foreign affairs. Article 27(3) TEU constitutes the legal basis for the European Council decision on the organisation and functioning of the EEAS.

Clarification of competences

A complex institutional design is set up to confine powers and competences for the European Commission and the European Parliament in the sensitive area of CSFP: “the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament”. Whereas the rotating presidency-in-office chaired all meetings of the General Affairs and External Relations Council, under the Lisbon Treaty, the council is split up into an External Relations Council chaired by the new High Representative, and the General Affairs Council, which continues to be chaired by the rotating presidency-in-office. Nevertheless, the European Parliament acquires a degree of additional democratic control over the new High Representative in her role as a commissioner. Through its creation of a new High Representative, the Lisbon Treaty has elevated the European Commission’s voice in CFSP. However, the European Commission no longer has the right to submit proposals to the European Council.

The definition of the European Union’s competences clarifies its relations with its member states. The European Union has at its disposal only those competences expressly conferred on it by its member states (the principle of conferral of competences). The Lisbon Treaty clarifies and categorises them as described below.

– Exclusive competences. In the following fields in particular, the Union is the only party with the power to act on behalf of all its member states: the customs union, the establishment of competition rules necessary for the functioning of the internal market, the monetary policy of the Euro area, the common commercial policy and the conservation of fishery resources.

– Shared competences. Here, the Union intervenes to support the action of its member states in the following areas in particular: the internal market, social policy, agriculture, consumer protection, the environment, transport, energy, and the area of freedom, security and justice.

– Competence to take supporting, coordinating or complementary action. Here, member states have a wide freedom of action and have primary responsibility. The Union acts only to coordinate or complement the action undertaken by member states. This is the case,

for example, in the fields of health, sport, civil protection, industry, tourism, education and culture. It should be noted that the European Council takes decisions unanimously in the fields of culture, social services, education and health.

The Lisbon Treaty maintains a certain degree of flexibility, which is one of the keys of the Union’s success. It allows the Union to take action where this is necessary to achieve one of its objectives, even if the treaties have not specifically provided for powers to that effect. In such cases, the European Council has to make decisions unanimously with the approval of the European Parliament.

Enhanced cooperation

Enhanced cooperation allows a group of member states to act together in the context of the Union. The Union is able to act without all member states necessarily participating. This mechanism allows the interests of all member states to be respected. The Lisbon Treaty retains the possibility of enhanced cooperation in specific policy fields and facilitates the implementation of this mechanism. This form of cooperation improves the Union’s ability to act by permitting at least nine member states to move forward without the others, while leaving open the possibility for others to join in at a later stage. In this way, the EU can act without all 27 member states having to participate. At the same time, it allows member states to remain outside any enhanced cooperation initiative which they do not wish to join, without stopping other member states from acting together.