Abstract
This chapter assesses the need for a revision of the Treaty of Lisbon. I start out by arguing that a revision should address economic, institutional, and constitutional issues. I then analyse the different revision instruments introduced by the Lisbon Treaty. This will make it possible to understand what procedures may be required to amend the existing Treaties in crucial areas. Finally, I explore the possibility of revisions on a smaller scale, as a means of differential integration.
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Notes
- 1.
Under Article 51 TEU, the Protocols annexed to the Treaties have the same legal status as the Treaties themselves; therefore, the Protocols can be modified only through the same procedures established for revising the Treaties. See the Protocol Amending the Protocol on Transitional Provisions annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty Establishing the European Atomic Energy Community, OJ 2010C 263/1. The Protocol allowing 18 additional members to join the European Parliament has recently entered into force: http://www.europarl.europa.eu/sides/getDoc.do?type=IM-PRESS&reference=20100223BKG69359&language=EN (accessed 31 July 2013). See also the Protocol on the concerns of the Irish people on the Treaty of Lisbon, OJ 2013 L 60/131, which confines itself to clarifying the interpretation of some provisions the Lisbon Treaty contains on EU competences.
- 2.
See the European Council Decision of 25 March 2011 amending Article 136 of the Treaty on the Functioning of the European Union with regard to a stability mechanism for Member States whose currency is the euro, OJ 2011 L 91/1. The Treaties have also been amended by effect of Croatia’s Accession Treaty, signed on 9 December 2011 (OJ 2012 L 112/10).
- 3.
In 2012, David Cameron announced that the EU would have needed a new revision within the following five years. The need to revise the Lisbon Treaty has been a subject of considerable debate in Germany. See Germany’s plans for Treaty change—and what they mean for Britain, Centre for European Reform, 28 March 2013, http://www.cer.org.uk/insights/germany’s-plans-treaty-change-–-and-what-they-mean-britain (accessed 31 July 2013). More recently, the Spinelli Group started drafting a project for a new constitution for the EU. Among the politicians most actively pressing for a constitutional reform of the EU is Andrew Duff. See Now is the time for a new fundamental law of the European Union, http://blogs.lse.ac.uk/europpblog/2013/01/14/new-fundamental-law-of-the-european-union/ (accessed 31 July 2013).
- 4.
See Article 2(5) TFEU. For a comprehensive review of the competences of the European Union and its Member States after Lisbon see Rossi (2012a).
- 5.
See Article 15 TEU.
- 6.
The idea, introduced in 2007 by Jo Leinen, had previously been backed by politicians like Tony Blair, Guy Verhofstadt, Wolfgang Schaeuble, and Guido Westerwelle.
- 7.
The proposal has also found several opponents, such as Herman Van Rompuy (see http://www.euractiv.com/future-eu/van-rompuy-opposes-direct-electi-news-516360; accessed 31 July 2013), and more recently Angela Merkel.
- 8.
ECJ, Case 26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen [1963] ECR 1. See Pescatore 2010, de Witte 2010, Mayer 2010, and Halberstam 2010. As regards the still-significant impact of that judgment, see the Editorial Comments (2013a), and Bailleux (2013), p. 359, where the author, as is pointed out in the Editorial Comments just mentioned, argues that the Van Gend en Loos case should be ‘fully understood as the result of a mobilization strategy led by the Legal Department of the European Executives to secure the advent of the future United States of Europe’.
- 9.
See Rossi (1999).
- 10.
Whereas the nature of Parts I and II of the Treaty establishing a Constitution for Europe was clearly constitutional, there is overlap between the Treaty on European Union—which could have been (but is not) designed as a constitutional treaty—and the Treaty on the functioning of the EU, which by contrast contains some typical ‘constitutional’ provisions, such as the rules on competences and those on EU citizenship.
- 11.
- 12.
In the Declaration, the Conference ‘recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.’ Attached to this Declaration is an opinion of the Council Legal Service (dated 22 June 2007), which reads as follows: ‘It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/64) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.’
- 13.
This expression was first used by the French Conseil Constitutionnel in its judgment on the Constitutional Treaty: decision No 2004-505 DC, 19 November 2004, http://www.conseil-constitutionnel.fr/conseil-constitutionnel/francais/les-decisions/acces-par-date/decisions-depuis-1959/2004/2004-505-dc/decision-n-2004-505-dc-du-19-novembre-2004.888.html (accessed 31 July 2013).
- 14.
German Federal Constitutional Court (BVerfGE), 2 BvE 2/08, 30 June 2009, http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html (accessed 31 July 2009); Polish Constitutional Tribunal, Ref. No K 32/09, 24 November 2010, http://www.trybunal.gov.pl/eng/summaries/documents/K_32_09_EN.pdf (accessed 31 July 2013).
- 15.
ECJ, Case C-399/09 Marie Landtová v Česká správa socialního zabezpečení [2011] ECR I-05573.
- 16.
Constitutional Court of the Czech Republic, Pl. ÚS 5/12, 31 January 2012, http://www.usoud.cz/en/decisions/?tx_ttnews%5Btt_news%5D=37&cHash=911a315c9c22ea1989d19a3a848724e2 (accessed 31 July 2013). The Constitutional Court, drawing inspiration from the doctrine of the Federal Constitutional Court of Germany, stressed that constitutional courts maintain their role as supreme guardians of constitutionality even in the realms of the EU and even against potential excesses by EU bodies. In the view of the Constitutional Court, the Court of Justice of the EU overlooked the specific situation stemming from the breakup of the Czechoslovak federation: had the latter Court instead taken that situation into account, it would have concluded that European law was not applicable to the case at hand.
- 17.
Portuguese Constitutional Court, Acórdão No 187/2013, 5 April 2013, available at http://www.tribunalconstitucional.pt/tc/acordaos/20130187.html?impressao=1 (accessed 31 July 2013). On this judicial decision, see Watson (2013), where the author considers the failings of the EU’s current economic strategy.
- 18.
See Case C-617/10 Åklagaren v Hans Åkerberg Fransson [2013] nyr.
- 19.
BVerfGE, 1 BvR 1215/07, 24 April 2013, para 2, available at http://www.bundesverfassungsgericht.de/en/press/bvg13-031en.html (accessed 31 July 2013). See also Editorial Comments (2013b).
- 20.
Article 4(2) TEU reads as follows: ‘The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government’.
- 21.
The preamble reads as follows: ‘The Union contributes to the preservation and to the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe as well as the national identities of the Member States’.
- 22.
ECJ, Case C-51/08 Commission v Luxembourg [2011] ECR I-04231, and ECJ, Case C-208/09 Sayn-Wittgenstein [2010] ECR I-13693.
- 23.
See ECJ, Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della Provincia autonoma di Bolzano (IPES) and Others [2012] nyr. The issue in this case was whether, under EU law, a national or regional law may allocate funds for housing benefits on a differential basis, depending on whether the beneficiary is a third-country national or a national of the Member State of residence: the ECJ said no, on the ground that housing benefits fall within one of the three fields covered by the principle of equal treatment, and that under the directive on the status of third-country nationals who are long-term residents, housing benefits are a core benefit (and are thus subject to equal treatment). See also ECJ, Case C-399/11, Stefano Melloni v Ministerio Fiscal [2013] nyr, paras 58–60, where in regard to Article 53 of the Charter, the ECJ held that ‘the principle of primacy of EU law, which is an essential feature of the EU legal order’ (as is pointed out in Opinion 1/91 [1991] ECR I-69079, para 21, and in Opinion 1/09 [2011] ECR I-1137, para 65), states that national law, even of a constitutional order, cannot be allowed to jeopardise the so-called effet utile of EU law. On this last point, see also ECJ, Case 11/70 Internationale Handelsgesellschaft [1970] ECR 1125, para 3, and ECJ, Case C-409/06 Winner Wetten [2010] ECR I-8015, para 61.
- 24.
Chalmers (2013).
- 25.
See, in this volume, Chap. 5, by Casolari.
- 26.
See supra n. 8.
- 27.
See ECJ, Case 104/81 Hauptzollamt Mainz v Kupferberg [1982] ECR 3641; ECJ, Case 12/86 Demirel v Stadt Schwabisch Gmund [1987] ECR 2719; and ECJ, Case C-469/93 Amministrazione delle Finanze dello Stato v Chiquita Italia Spa [1995] ECR I-4533. For an overview of the topic, see Eeckhout 2011, 323, and Mendez (2013).
- 28.
See ECJ, Case 33/70 SACE v Finance Minister of the Italian Republic [1970] ECR 01213; ECJ, Case 41/74 Van Duyn v Home Office [1974] ECR 1337; ECJ, Case 148/78 Criminal Proceedings against Ratti [1979] ECR 1629; ECJ, Case 8/81 Becker v Finanzamt Munster Innenstadt [1982] ECR 53; and ECJ, Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy [1991] ECR I-5357. The possibility of directives having horizontal direct effect is a solution that has been argued by several advocate generals: see opinion of Advocate General Lenz in Case C-91/92 Faccini Dori v Recreb [1994] ECR I-3340. See also opinion of Advocate General Jacobs in Case C-316/93 Vaneetveld [1994] ECR I-769, and opinion of Advocate General Van Gerven in Case C-271/91 Marshall v Southampton and South West Hampshire Area Health Authority [1993] ECR I-4387. However, the ECJ has consistently rejected that solution.
- 29.
ECJ, Joined Cases C-402/05 and C-415/05 Kadi and Al Barakaat International Foundation v Council [2008] ECR I-6351, paras 281–285, where the ECJ held that the obligations imposed by international agreements cannot jeopardise the constitutional principles of the Treaties. The Court also underlined that the EU legal order is autonomous and that its allocation of powers cannot be affected by an international agreement.
- 30.
- 31.
See supra n. 1.
- 32.
See de Witte (2011).
- 33.
Decision 2011/199/EU, OJ 2011 L 91/1. The new paragraph reads as follows: ‘The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.’
- 34.
The Treaty on the Stability Mechanism made it almost unscathed through the review of both the German Federal Constitutional Court, on 12 September 2012 (see also infra), and the Estonian Constitutional Court on 12 July 2012 See Fahey and Bardutzky (2013).
- 35.
ECJ, Case C-370/12 Thomas Pringle v Government of Ireland, Ireland and the Attorney General [2012] nyr. See de Witte and Beukers 2013, noting that Pringle represents the first case, in EU law, of judicial scrutiny of a constitutional change (ibid., 826).
- 36.
- 37.
BVerGE, 2 BvR 1390/12, 2 BvR 1421/12, 2 BvR 1438/12, 2 BvR 1439/12, 2 BvR 1440/12, 2 BvE 6/12, 12 September 2012, available at https://www.bundesverfassungsgericht.de/en/press/bvg12-067en.html (accessed 31 July 2013).
- 38.
However, Article 48(7) TEU carves out an exception for defence policy as falling outside the scope of the passerelles.
- 39.
See Articles 81(2) and 153(2–3) TFEU.
- 40.
On the Protocols, see supra n. 1.
- 41.
On 22 May 2013, following the proposal of Andrew Duff, the European Parliament called on the European Council to reject a request to amend the Treaty of Lisbon in order to extend the Anglo-Polish Protocol to the Czech Republic.
- 42.
According to Peers 2012, 49, ‘if Article 49 were used for Treaty amendments that were not “entailed” by accession, then the procedural requirements of Article 48 (notably the prima facie requirement to hold a Convention, including the EP’s power to insist on holding one) would be circumvented.’
- 43.
See http://www.spinelligroup.eu/it/article/spinelli-proposals-whats-next (accessed 31 July 2013). See also Dinan (2012).
- 44.
See also Declaration No 18, annexed to the Final Act of the Intergovernmental Conference which adopted the Treaty of Lisbon (OJ 2007C 306/256).
- 45.
See also, in this regard, the Commission Communication ‘A blueprint for a deep and genuine economic and monetary union—Launching a European Debate’, COM (2012) 777, 30 November 2012.
- 46.
See ‘Towards a genuine economic and monetary union’, Report by President of the European Council Herman van Rompuy (in close cooperation with the Presidents of the Commission, the Eurogroup, and the European Central Bank), 5 December 2012, and ‘Towards a genuine economic and monetary union’, Interim Report by President of the European Council Herman van Rompuy (in close cooperation with the Presidents of the Commission, the Eurogroup, and the European Central Bank), 12 October 2012.
- 47.
See esp. Rossolillo (2013), p. 31.
- 48.
On the different circles of integration in monetary matters, see Rossi (2012b).
- 49.
European Resolution of 4 July 2013 on improving the practical arrangements for the holding of European elections in 2014 (P7_TA-PROV(2013)0323).
- 50.
Peers (2012), p. 18.
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Rossi, L.S. (2014). A New Revision of the EU Treaties After Lisbon?. In: Rossi, L., Casolari, F. (eds) The EU after Lisbon. Springer, Cham. https://doi.org/10.1007/978-3-319-04591-7_1
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