Lisbon Treaty and EU Constitution

To what extent do the reforms enshrined by the Lisbon Treaty enhance the legitimacy of the European Union?

The European Court of Justice (ECJ) in the Van Gend en Loos- case pointed out that he European Union (EU) is and remains a ‘new legal order of international law’.[1] Therefore we cannot achieve legitimacy in the same way as nation states, where concepts such as a collective identity and a constitution are present. The EU is sui generis – of its own kind, peculiar and unique in the world, fundamentals like supremacy, direct and indirect effect, and state liability are present – so neither the way in which other international organisations derive their legitimacy is suitable in the case of the EU.[2] Throughout my readings I found out that there are many theories, and difference of opinions of what legitimacy in the context of the EU would involve because of its complex internal structure and way of functioning. I shall aim to explore why legitimacy in the context of the EU is so sufficient and how, from a legal perspective, this is been reached by the Lisbon Treaty.

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The integration of the EU from the beginning of the 1950’s when the Treaty of Paris was signed, especially the increasing of EU competence since 1992, till the current Treaty of Nice, has been developed so far that the member states share its decision-making powers with the EU as well as accept policies coming from the EU. When a system has decision-making powers in a wide range of policy competence it is important that it possess legitimacy.[3]The failed Constitutional Treaty referenda in France and the Netherlands in 2005 were an unexpected event that had damaging effect to the plans of the EU for its integration and prior to this the citizens for instance of Denmark (Treaty of Maastricht 1992), Ireland (2001Treaty of Nice) and Sweden (EMU 2003) had also voted negatively which had the effect that developments for EU citizens gave the image that the EU institutions are inefficient, not transparent and unaccountable.[4] This and the fact that the EU keeps reforming its Treaties, especially since 1986 Single European Act, presumes a legitimacy crisis.[5]

Amongst scientists many theories developed to attempt to justify the ‘legitimacy’ of the EU.[6] There has been a tendency to combine the concepts of ‘democratic deficit’ and ‘legitimacy crisis’.[7] Democratic deficit is that where decisions are moved from national Parliaments and the citizens; where decisions are taken by civil servants behind closed doors and laws are made via agreements between all member states whereby it is impossible for an individual country, acting alone, to make or change an EU law; where citizens vote and influence at national level has no guaranteed effect upon what occurs at EU level.[8] Its remarkable that most scientists could not agree on the existence of a democratic deficit despite the concern of EU officials and national politicians. In 2001 the Commission published its seminal White Paper on European Governance in which it based its sweeping proposals for EU institutional reform on “principles of good governance,” including openness, participation and accountability. [9] These principles were described as the underpinning of democracy, not only for the Member States, but also for the Union. Also in this year the Laeken Declaration on the future of the EU was adopted which noted that the EU “derives its legitimacy from the democratic values it projects, the aims it pursues and the powers and instruments it possesses” as well as from its “democratic, transparent and efficient institutions.”[10] Nevertheless, the document set forth a lengthy list of questions illustrating the need to “increase the democratic legitimacy” of the EU’s institutions.[11] The Member States recognized ‘the need to improve and to monitor the democratic legitimacy and transparency of the Union and its institutions, in order to bring them closer to the citizens of the Member States’.[12] They agreed to convene a new intergovernmental conference (IGC) in 2004 in order to agree the necessary changes in the Treaties.[13]

According to Sharpf, a political scientist who is basically in the for front of European studies and who’s concepts are often used in literature when legitimacy is discussed, legitimacy is the relation between the ruler and the ruled. ‘Citizens’ values must be reflected and incorporated in the decision-making system’.[14] Political systems can only reach legitimacy when they have the competence or the power to decide how it will be governed, which guarantees that the government is of the people, by the people and for the people.[15] Sharpf thus has identified three important types of legitimisation with regard to the EU. ‘Output legitimacy’ refers to government for the people where support is granted on the basis of improved efficiency in provision of goods and services, as well as an increased European problem-solving capacity and where the legitimacy is derived from interest of the people.[16] ‘Input legitimacy’ refers to government by the people with main features like direct legitimation through the elected European Parliament; citizens’ participation and consultation; and better transparency in taking decisions so where policies and choices must be a reflection of the will of people.[17] ‘Borrowed’ legitimacy refers to government of the people where indirect legitimation through the member states and their democratic representatives operating at different levels.[18] The ‘borrowed’ and the ‘output’ theories are difficult to justify legitimacy in the light of the EU though there are scientist who disagree, as we will see later on.[19] And from the above mentioned we can draw among others a conclusion that more emphasis to decrease ‘democratic deficit’ will increase the legitimacy of the EU. Therefore a need for a greater ‘input’ legitimacy which is related to increased citizen participation, better representation, improved accountability and efficient and transparent decision-making procedures has been viewed as one possible solution.

The EU can be divided into two parts. An intergovernmental structure[20] which includes the European Council and the Council of Ministers and the regulatory structure[21] which includes the European Parliament, European Central Bank (ECB) and the ECJ. Moravcsik and Majone emphasizing that effectiveness is one of the proper means to legitimise the EU, so the ‘output’ legitimacy is the best way to do this.[22]

An intergovernmental component, where international features dominate (European Council, Council of Ministers, and the second and third ‘pillars’ of the TEU), and a communitarian component where supranational features are most evident (European Parliament and Courts, Commission, and the policies and activities included in the first ‘pillar’ of the TEU).

Now, even if it is true that the democratic character of the Member States is According to Moravcsik the EU does not deal with democratic deficit in the intergovernmental part[23] simply because of its distinctive objectives where the preferences and the power of the states are important, where the policies are the result of states’ bargaining and where supranational elements are of less importance to policy outcomes. The EU is either a state nor a federation or a confederation and it avoids any risk of becoming a ‘technocratic superstate’.[24] That makes the outlook and requirement of legitimacy different. The legitimacy of the EU system is derived from ‘indirect accountability’ of the nation state where ‘indirect democracy’ is enforced through the ratification from the treaties by democratically accountable governments.[25] ‘Constitutional checks and balances, indirect democratic control by national governments, and the increasing powers of the European Parliament are sufficient to ensure that the EU policymaking is, in nearly all cases, clean, transparent, effective and politically responsive to demands of European citizens’.[26]

Moreover because of its simple and limited organisation, EU does not need the ‘input’ legitimacy to become legitimate. ‘The EU, broadly speaking, does not tax, spend, implement, coerce or, in most areas, monopolistic public authority. It has no army, police, and intelligence capacity, and a miniscule tax base’.[27] Yet the EU enjoys sufficient democratic support. The institutions are supported by either direct or indirect accountability. The European Parliament is comprised by directly elected representatives and it is increasingly taking over powers from the Commission. Moreover it can control the legislative proposals from the Commission, by rejecting or proposing amendments to the Council. The Council of Ministers, which is more powerful, also enjoys democratic accountability and responsibility for policy outputs. Commissioners and the judges of the European Court of Justice are chosen by directly elected national governments. The power is also vertically divided between the Commission, Council, Parliament and Court, and then horizontally between local, national and transnational levels. Thereby a concurrent majority is necessary for any action to be initialised. The ability of the EU to operate within the areas of its competence is also constrained. The powers of the executive, legislative and judiciary are separate in order to prevent abuse of power. The multi-level construction of decision-making and the plurality of executives all constitute checks and balances established to prevent arbitrary actions. The democratic deficit discussion has only emerged because of applying idealistic views of input dimensions of democracy on the EU. The legitimacy is sufficient in the current situation because of member states’ democratic legitimacy and the numerous procedures installed to prevent the EU from bolting away to become a technocracy.

There are however elements that are not supported by indirect democracy. The regulatory element of the EU refers to these institutions.

According to Majone the regulatory element achieves legitimacy by non-majoritarian forms of democracy. This model has to do with protecting minorities from the majority by distributing the powers between institutions instead of placing it in the hands of the majority. The European regulators neither seek nor take instructions from any Government. They are independent from direct democratic control simply because they are not elected and have little or no direct accountability. Although this implies a democratic deficit it still can be legitimate. National governments, which has power for a specific period, focus on short term problems which usually do not bring long term effect. The energy to produce the best policies lacks because of the time aspect. This causes credibility problems within the member states, hence it was better that decision-making powers have been delegated to independent institutions of the EU. The areas where the powers have been delegated to these institutions, are the same areas as on national level. At the same time, acts of government can be perceived as legitimate for what they achieve which is called the ‘substantive’ legitimacy. ‘Independent agencies can produce legitimate decisions as long as they create welfare for all, whilst only elected officials can make legitimate decisions where welfare is re-distributed’.

F. Scharpf, Governing in Europe Effective and Democratic? (Oxford 1999)

IN LIBRARY Adam Smith Library Politics F100 SCHAR

A. Arnull, Introduction: the EU’s Accountability and Legitimacy Deficit’ in A. Arnull & D. Winscott, Accountability and Legitimacy in the EU (Oxford, 2002),

D. Chalmers et al., European Union Law: Text and Materials (Cambridge, 2006),

D. Chalmers & G. Monti, European Union Law: Updating Supplement (Cambridge, 2008),

P. Craig & G. de Burca, EU Law: Text, Cases and Materials 4th edn. (Oxford, 2007),

A. Moravcsik, ‘In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the EU’ (2002) 40 Journal of Common Market Studies 603.

Majone, G. (1998) ‘Europe’s Democratic Deficit’. European Law Journal, Vol. 4, No. 1, pp. 5-28.

Scharpf, Fritz (1994) “Community and Autonomy: Multilevel Policy-Making in the European Union”, Journal of European Public Policy 1(2): 219-42

Scharpf, Fritz (1997) “Economic Integration, Democracy and the Welfare State”, Journal of European Public Policy, 4(1): 18-36

Obradovic, Daniela (1996) “Policy Legitimacy and the European Union”, Journal of Common Market Studies 34(2): 191-221

Roles in the legislative and executive processes need to be clearer; Eu institutions and all those involved in developing and implementing EU policy at whatever level must explain and take responsibility for what it does in Europe; it implies that institutional and decision-making structures should be kept as simple as possible: see

A. Arnull, Introduction: the EU’s Accountability and Legitimacy Deficit’ in A. Arnull & D. Winscott, Accountability and Legitimacy in the EU (Oxford, 2002), 2-3.

Efficiency (institutions):

Easier decision-making

Use of qualified majority voting (QMV) is extended to new areas, and becomes the general rule which means an increasing decision-making of the Union.[28] Redefined as 55% of member states, comprising at least fifteen of them, representing 65% of the population and a blocking minority must include four Member States.[29] This new QMV will not become effective before 2014, and Member States may continue to have recourse to the Nice voting rules until 2017.[30] However, the ‘Ioannina compromise’ applies, and ‘emergency brakes’ are made available in selected areas.[31] This means member states’ right of veto despite the application of the co-decision procedure, for instance in relation to the coordination of national social security systems: a Member State may refer the matter to the European Council where important aspects of its social security system would be affected by a legislative draft.[32]

One Union

The Lisbon Treaty confers legal personality expressly on the EU, giving it the capacity to enter into legal relationships with other parties in its own right. But the European Community (in relation to the first pillar) has always had express legal personality and the EU implicitly has had legal personality to the extent that it has the power to enter into international agreements under articles 24 and 38 of the current TEU. Conferring legal personality expressly on the Union will have the effect that the other attributes such status, such as the ability to join international organisations or to take, or be subject to, proceedings in international tribunals, will apply to the EU in the areas currently covered by the second and third pillar.[33]

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Enhanced cooperation

Already exists under the current Treaties were it is possible for a group of Member States to harmonise law and integrate further than all of the member states as a collective group.[34] The most important changes in the Lisbon Treaty which are reflections of changes already made in other contexts, namely the fact that the rules on enhanced cooperation are consolidated in the TFEU (instead of having a specific set of rules for enhanced cooperation in each pillar), is due to the fact that the pillars are absorbed into the EU.[35] Regarding the role of the institutions in the procedure for enhanced cooperation, it can be said that the Commission and the European Parliament gain powers, especially in the field of PJCCM (consent of the EP instead of mere consultation). However, a separate procedure remains in place for the CFSP. [36] A truly new element is the ‘emergency exit’ procedure in the area of PJCCM.[37]

European Council

Is a newcomer in the list of formal EU institutions.[38]

The President of the Council is elected for 2.5 years (renewable once) by the European Council on QMV.[39] The President chairs the European Council, ‘drive(s) forward’ and ensures the preparation and continuity of its work.[40] ‘At his level and in that capacity’, s/he ensures the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.[41]

Commission

Ensures the Union’s external representation, ‘with the exception of the common foreign and security policy, and other cases provided for in the Treaties’.[42] President is elected by European Parliament, and nominated by the European Council by QMV taking account of the result of parliamentary elections.[43] The number of Commissioners will be reduced to two-thirds of the number of Member States after 2014, unless the European Council decides otherwise.[44] The college includes the New High Representative for Foreign Affairs and Security Policy (HR CFSP) as one of Commission’ Vice President (VP).[45] The HR CFSP/ VP of the Commission is double-hatted. It combines functions of current HR for CFSP and Commissioner for External Relations, though his/her exact portfolio remains to be clarified, both within the Commission and the Council, and in relation to the presidents of the Commission and the European Council, respectively.[46] HR is head of the new European External Action Service whose activities remain to be determined by a specific Council decision.[47]

Parliaments:

National Parliaments

Become ‘guardians’ of the subsidiarity principle. It may force the Commission to reconsider a legislative proposal on the grounds of a breach of subsidiarity (‘yellow card’).[48] The matter may end up being referred to the Council and Parliament (‘orange card’), and may even lead to proceedings before the Court of Justice[49]

Involved in the scrutiny of Europol’s activities and the evaluation of Eurojust’s activities[50]

European Parliament

Expanded legislative powers thanks to the extension of the co-decision procedure and through enhanced influence in a renewed budgetary procedure.[51] It has a decisive role in electing the President of the European Commission and also installs the whole Commission, including the HR CFSP/ VP.[52] Its composition is 750 members maximum + 1 president. Revised distribution of seats which entails a degressive proportionality, minimum threshold of six MEPs per Member State, and maximum of ninety-six seats.[53] Exact distribution to be decided by the European Council[54]

Accountability:

Clarification of competences

The Lisbon Treaty is much more explicit in attributing competences. Arts. 4(1) and 5 TEU state the fundamental principles relating to competences. In addition, it is stated (twice!) that competences not given to the EU remain with the Member States. The TFEU contains a special title on ‘Categories and areas of Union Competence’.[55] This title mentions, and defines, different types of competences and it lists the (most) relevant areas. Like the present Treaties, the Lisbon Treaty does not provide a list of negative competences, i.e. of areas where EU law can never have any influence.[56]

Simplification of the Union’s instrument

The main changes provided for in the Lisbon Treaty are on the one hand, the various legal instruments that are used in the present 2nd and 3rd pillars are abolished, while on the other hand, a distinction is made between legislative and non legislative acts.[57] The instruments are listed in Art. 288 TFEU ‘regulations, directives, decisions, recommendations and opinions’ were only the definition of ‘decision’ is amended.

Citizen values:

Citizens’ rights in elections

The only change made to Art. 19 EC consists of the fact that the words ‘acting unanimously on a proposal from the Commission’ are replaced by ‘acting unanimously in accordance with a special legislative procedure’.[58]

Citizens’ initiative

The following picture emerges from a comparison between the current article 21 EC and its equivalent in the TEU and TFEU:

Art. 21 EC:

‘Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 194. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 195. Every citizen of the Union may write to any of the institutions or bodies referred to in this Article or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.’

Art. 11(4) TEU:

‘No less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.’

Art. 24 TFEU:

‘The European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions required for a citizens’ initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come. Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 227 TFEU. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 228 TFEU. Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 13 of the Treaty of European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language.’

Transparency:

A new Title II of the TEU concerns democratic principles.[59] It requires the EU institutions to give ‘citizens and representative associations the opportunity to make known and publicly exchange their views’ regarding ‘all areas of EU action’.[60] It expressly requires an ‘open, transparent and regular dialogue with representative associations and civil society’.[61]It requires also, among other things, that the Commission shall carry out consultations with parties in order to ensure that EU actions are ‘transparent’.[62]

As for the institutions, it requires the Council to ‘meet in public when it deliberates and votes on a draft legislative act’, with no exceptions provided for.[63]

Article 15 of the TFEU which replace Article 255 of the current EC Treaty, would deal in more detail with the issue of openness. First of all, all of the ‘institutions, bodies, offices and agencies’ of the EU has to ‘conduct their work as openly as possible’, ‘in order to promote good governance and ensure the participation of civil society’.[64] The European Parliament has to meet in public, as well as the Council when considering and voting on legislative acts.[65] The rules concerning the adoption of legislation on access to documents will now apply to all EU institutions, bodies, offices and agencies, instead of just the Council, Commission and European Parliament.[66] The current article 286 EC Treaty which requires the European Parliament and the Council to adopt data protection legislation applying to the EU institutions within the scope of the ‘first pillar’ only applies now to the current ‘third pillar’ as well, along with the public authorities of Member States.[67] However, the new Treaty Article does not apply to the adoption of legislation governing the private sector.

The new Article 298 TFEU would provide first of all that EU ‘institutions, offices, bodies and agencies… shall have the support of an open, efficient and independent European administration’. Next, there is a new legal power to adopt regulations to that end.

This could be a legal base to adopt rules on access to EU information as distinct from access to EU documents, and to adopt rules relating to other aspects of the EU’s current ‘Transparency Initiative’, including rules on the regulation of lobbyists and on consultations. Some of these issues are addressed in the European Ombudsman’s proposed Code of Conduct on good administration, which has been approved in some form by some EU bodies and institutions already.

Finally, the Treaty of Lisbon would specify that the EU’s Charter of Rights will have the same legal value’ as the Treaties (Article 6 TEU). The Charter includes the right of access to documents, the right to good administration (which arguably encompasses the right to open administration, including access to information) and the right of data protection.

This could possibly enhance the enforceability of those rights within the EU legal system.

1. C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR1.
2. D. Chalmers et al., European Union Law: Text and Materials (Cambridge, 2006), 52
3. Obradovic, Daniela (1996) “Policy Legitimacy and the European Union”, Journal of Common Market Studies 34(2): 193
4. Obradovic, Daniela (1996) “Policy Legitimacy and the European Union”, Journal of Common Market Studies 34(2): 192-193
5. 1951/52 Paris, 1957/58 Rome, 1986/87 SEA, 1992/93 Maastricht, 1997/99 Amsterdam, 2001/03 Nice, 2007/09 Lisbon
6. D. Chalmers et al., European Union Law: Text and Materials (Cambridge, 2006), bekijk dit ff
7. Obradovic, Daniela (1996) “Policy Legitimacy and the European Union”, Journal of Common Market Studies 34(2): 191-221
8. Een van de boeken dat uitlegd wat democratic deficit is (majone 14/15)
9. European Commission (2001a) European Governance: a White Paper, COM (2001) 428 final
10. Laeken Declaration (2001) “Laeken Declaration on the Future of the European Union”, 15 December 2001, SN 300/01

ADD1

1. ibid
2. P 9 of accountability
3. sharp
4. sharp
5. sharp
6. sharp
7. sharp
8. expert agencies that are independent of direct political control
9. where international features dominate (European Council, Council of Ministers, and the second and third ‘pillars’ of the TEU),
10. P 605 Moravcik
11. Article 16(3) TEU, Article 294 TFEU
12. D. Chalmers and G. Monti, European Union Law: Updating Supplement (Cambridge University Press, 2008) 27.
13. Article 16 TEU, Protocol No 36 on transitional provisions, Articles 3 and 4.
14. Declaration No 7 on Article 48 TFEU. Article 48 TFEU.
15. By Great Britain: European Union Committee, The Treaty of Lisbon: an impact assessment (10th report 2007-08 Volume 1: Report), 33.
16. See above n. 31, p 6
17. Article 20 TEU referring to Articles 326-334 TFEU.
18. Articles 82(3), 83(3), 86(1), 87(3) TFEU.
19. Article 15 TEU, Articles 235 and 236 TFEU.
20. Article 27(3) TEU.
21. Article 15(6) TEU.
22. ibid
23. (Art. 17(1) TEU)
24. Article 17(7) TEU, Declarations No 6 and 11.
25. (Art 17(5) TEU, Declaration No 10)
26. ibid
27. Article 18 TEU, Declarations No 6 and 12
28. Article 27(3) TEU.
29. Art. 12(b) TEU):
30. Art. 8 of Protocol No 2 on the application of the principles of subsidiarity and proportionality.
31. Articles 88(2) and 85(1) TFEU respectively.
32. (Art. 314 TFEU);
33. TEU; Declarations No 6 and 11
34. See above n. 31, p 28
35. 14(2) TEU; Declaration No 4
36. (Arts. 2-6). TFEU
37. Articles 288, 289 and 290 TFEU.
38. Art. 22 TFEU
39. See above 31, p6
40. Article 11(1)TEU
41. Article 11(2) TEU
42. Article 11(3) TEU
43. Article 16(8) TEU
44. Article 15(1) TFEU
45. Article 15(2) TFEU, Article 16(8) TEU
46. Article 15(3) TFEU
47. Article 16 of the TFEU