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Client Alert: Treaty of Lisbon Enters Into Force 01 December 2009

Date: Dec 01, 2009

The Treaty of Lisbon was signed on 13 December 2007 and has now been ratified by all Member States (MS) of the European Union. It enters into force December 1, 2009. The Treaty amends the existing Treaty on the European Union (TEU) and the Treaty establishing the European Community (TEC), and the latter is also renamed as the "Treaty on the Functioning of the European Union" (TFEU). Both the TEU and the TFEU (hereinafter "the Treaties") will have equal legal standing. The European Union will have a single legal personality replacing the European Community.

The purpose of the TFEU is to organize the functioning of the European Union. The key changes introduced by the Treaty are summarized below.

  • Primacy of EU Law: New article 4 TEU sets the principles of equality of MS before the Treaties, the principle of sincere cooperation between the EU and the MS, and the duty of MS to take any appropriate measures to ensure the fulfilment of the obligations arising form the Treaties or the acts of the institutions. Declaration No.17 was also included in the Treaty as a way to recall the principle of primacy of EU law over the law of the MS, as had already been settled by the case law of the European Court of Justice (ECJ).

  • Distribution of Powers: The Lisbon Treaty streamlines the competences between the European Union and the MS. This distribution of competences is established under Article 5 of the TEU, according to which the delimitation of competences of the EU is based on three principles: conferral, subsidiarity and proportionality. Under the principle of conferral, the Union will act only within the limits of the competences conferred upon it by the Treaties in order to attain the objectives of the Treaties. The principle of subsidiarity involves that in areas which do not fall under the exclusive competence of the EU, it shall only act if the objectives of the proposed action cannot be sufficiently achieved by the MS, but rather can be better achieved at the EU level. According to the principle of proportionality, the EU actions must not exceed what is necessary to achieve the objectives of the Treaties.

Protocol No.2 establishes the conditions for the application of both principles of subsidiarity and proportionality, and a monitoring system according to which the National Parliaments must be consulted about draft legislative acts (see infra).

  • Fundamental Rights: Article 6 of the TEU makes the Charter of Fundamental Rights of the European Union of 7 December 2000 legally binding on the EU Institutions and the MS when implementing EU legislation. Among the rights guaranteed are: protection of personal data, right to property, non-discrimination, workers' right, environmental protection and consumer protection, right to good administration, right to effective remedy and to a fair trial. However, the United Kingdom and Poland have requested an opt-out from this provision.

In addition, the fundamental rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms will now have the status of general principles of EU law.

  • Role of National Parliaments within the EU: National parliaments will have a say during the early stages of the Community legislative process in order to guarantee the correct application of the principle of subsidiarity. Commission consultation documents (green and white papers and communications) as well as draft legislative acts will be forwarded to the national parliaments which will be able to adopt reasoned opinions if they deem that the draft legislative does not fall under the competences of the Union. Furthermore, the outcome of the meetings of the Council will be also forwarded to the national parliaments.

If one third of the national parliaments adopt a reasoned opinion, then the draft legislative act will have to be reviewed by the EU Institution proposing the draft legislation. If the national parliaments opposing a draft legislative act represents simple majority, then the draft act will be reviewed by the Commission which may decide to maintain, amend or withdraw the proposal. Protocols No.1 and No.2 apply to the role of national parliaments in the EU affairs. We anticipate that this procedure might significantly delay the early stages of the legislative process, especially in areas of EU law that cause a lot of controversy among MS (i.e. GMOs).

  • The European Court of justice (ECJ): The jurisdiction of the ECJ is extended to the law of the EU, including freedom, security and justice, and the charter of fundamental rights. The common foreign and security policy will be subject to specific procedures.
    • Preliminary Rulings: this procedure can now be invoked to determine the validity and interpretation of acts of the bodies, offices or agencies of the Union, in addition to its already existing jurisdiction on acts of the institutions. (Art. 267 TFEU)
    • Actions brought by Individuals: any natural or legal person may now institute proceedings against a regulatory act which is of direct concern to them but does not entail implementing measures. Also, the acts setting up bodies, offices and agencies of the Union may now lay down specific conditions and arrangements concerning actions brought by natural or legal persons against acts of these bodies, offices or agencies intended to produce legal effects in relation to them. (Art.263)

  • Citizen's Legislative Initiative: European citizens will be able to ask the Commission to propose a draft legislative act upon a petition signed by at least one million EU citizens from a significant number of Member States.

  • New Voting System at the Council: The Lisbon Treaty redefines the qualified majority voting within the Council and it extends its use to new areas. As from 1st November 2014, Council decisions will need the support of 55% of the Members of the Council, representing at least 65% of the EU population. A blocking minority will include a number of Council Members representing 35% of the EU population. This qualified majority is known as the double majority and will apply to the following policy areas: climate change, energy security, humanitarian aid, asylum, immigration, police cooperation and judicial co-operation in criminal matters, among others.

Futhermore, during the first three years after the entry into force of the double qualified majority (from 2014-2017), a MS may request that an act be adopted using the qualified majority described in the Treaty of Nice (normal qualified majority).

  • Institutional Changes: The Treaty introduces two new positions: the High Representative for Foreign and Security Policy which at the same time will be the Vice-president of the European Commission; and the President of the European Council.
    The High Representative for Foreign and Security Policy will replace the current EU High Representative for Foreign Affairs and the External relations Commissioner. It will have the role of representing the Union's position internationally and will have under its command the External Action Service, also created under the Lisbon Treaty. The High Representative will also chair the Council of Foreign Ministers. Baroness Catherine Ashton, form the United Kingdom, has been elected as the first High Representative.
President of the European Council will chair the Council meetings (or EU Summits composed of the Head of State of each MS) and represent the EU internationally at the highest level. It is appointed for a term of two years and a half with the possibility of extending the mandate once. Herman Van Rompuy, from Belgium, will be the first President of the European Council.
The Treaty will limit the number of members of the European Parliament (MEPs) to a maximum of 751 members (minimum 6 and maximum 96 MEPs per MS). In addition, more power is given to the Parliament by making the co-decision procedure the ordinary legislative procedure, which means that Parliament and Council will jointly participate in the decision making process.
For additional questions concerning the entry into force of the Lisbon Treaty please contact Jean Savigny at savigny@khlaw.be.