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Published: Fri, 02 Feb 2018
The Lisbon Treaty is in essence the constitution of Europe under a different guise, discuss. An example European Law Essay
The Treaty of Lisbon1 is essentially one of the most important documents underpinning the existence and smooth functionality of the European Union (EU). Over the last few decades, the EU has evolved from merely functioning as a European Economic Community to a supranational body politic whose functions carry pronounced political, legal, social and cultural effects on its members. A keystone of this evolution entails successive enlargements of the EU’s membership, to include new members. Given that the membership had swelled to 27 states, it had become crucial for proper reforms of the EU’s institutions, policies and decision-making processes. This is where the Lisbon Treaty fits in – it is a treaty which seeks to reform the EU’s institutions, reform the internal policies of the EU and strengthen the external policies of the EU.
Given that the Treaty of Lisbon was drafted in replacement of the Treaty Establishing a Constitution for Europe2 (TECE), and given that the Lisbon Treaty reforms some of the most fundamental constitutional elements of the EU, it has become necessary to analyse whether the Lisbon Treaty essentially serves as the constitution of the EU. It is important to establish at this juncture that the form of constitution at contention here is not the 19th century constitutionalist understanding of a nation state3 but rather one of a supranational body transcending national borders4. The main conclusion of this paper is that the Lisbon Treaty is not the constitution of the EU but rather is one of the principal documents making up the constitution.
Definition(s) of a constitution
The Oxford Dictionary defines constitution as “a body of fundamental principles or established precedents according to which a state or other organisation is acknowledged to be governed”5. While this covers the physical notion of a constitution, a constitution also carries political and social elements. Consequently, scholars have claimed that a constitution is one which both displays formal characteristics and is also publicly recognisable6.
Essentially, this means that the constitution has to serve as a mega-structure upon which the entire social and political functions of the order have to depend upon. Thus, the first principal element of a constitution would be to regulate the existence, ambits and exercise of the political power within a stated body. Its second principal element would be to encapsulate the fundamentals of society within that body.
Lisbon Treaty: The Constitution of Europe
The Libson Treaty is by far one of the most constitutionally powerful and imperative treaties of the EU to date. It seeks to significantly amend the founding treaties of the EU – the Treaty on European Union and the Treaty on the Functioning of the EU. The reforms and objectives of the treaty carry far-reaching impacts on several vital EU institutions and seek to alter/empower their functioning.
One of the fundamental reforms brought forth by the Lisbon Treaty is the expansion of the powers of central EU institutions – the European Parliament and the Court of Justice of the European Union (CJEU). The European Parliament’s ordinary legislative procedure has been amended in order to expand its ambits and play a more central role in the implementation of legislation. In the case of the CJEU, it has been endowed with greater power via extension of its jurisdiction to include justice and home affairs issues, by combining the third pillar with the first.
Another defining feature of the Lisbon Treaty is that it expressively enhances the protection of human rights in the EU. For starters, the Charter of Fundamental Rights of the EU has been made legally binding by the treaty 7. Though this does not introduce any new rights into the regime, the codification of the rights has substantially increased the profile of the protected rights8. Additionally, the Lisbon Treaty makes provision for accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms, thus ensuring consistency between these two regimes of human rights, by subjecting them to the jurisdiction of the European Court of Human Rights9.
Some of the other monumental reforms rendered by the Lisbon Treaty include the granting of a legal personality to the EU10. This carries notable ramifications for the external policies of the EU. The EU is now able to negotiate and officially be a party to international treaties. Thus, its foreign policy has been rendered more coherent by the Lisbon Treaty. The treaty also has endeavoured to successfully streamline the decision-making process within the Council, whereby it has abolished the old system of weighted voting and has replaced it with qualified majority voting for taking important decisions. Finally, the treaty also restates the democratic principles which form the foundation of the EU11.
Hence, given the aforementioned points, it can hardly be disputed that the Lisbon Treaty carries significant importance in the constitutional realm of the EU. Since it establishes and regulates the principal organs of the EU, their structure and powers, the treaty is qualified to be christened as the constitution of Europe12. And if one were to apply the definitions enumerated in the previous section to the Lisbon Treaty, one would construe that the treaty indeed regulates the extent and implementation of political power within the EU and also regulates the social make-up of the institution (democratic nature and foreign policy). Thus it does seem fair, from one vantage point, that the Lisbon Treaty is treated as the constitution of Europe, under a new form.
However, given the depth of the topic, it warrants further investigation of the Lisbon Treaty before drawing a final conclusion.
Lisbon Treaty: Only a Constitutional Document
The Lisbon Treaty carries within itself several features which firmly indicate that it is not meant to be construed as a formal/defining document of constitution of the EU.
Firstly, the word ‘constitution’ does not appear even in a single place in the entirety of the treaty. Whilst some may dismiss this as mere wordplay, it is definitely far more symbolic in nature than that. The fact that it replaced the TECE and yet deliberately avoids employing the word constitution serves to be strong indication to the fact that the drafters and legislators did not want this to be perceived as the constitution of the EU13. Secondly, adding on to the symbolism point, the Lisbon Treaty makes no mention of any forms of unification of the member states in terms of a single flag, single anthem or a day of Europe (unlike the TECE). This indicates that even on a social level, the treaty does not intend to work as a constitution.
Thirdly, the mode of implementation of the Lisbon Treaty by member states serves as strong evidence that the treaty is not the Constitution of Europe. In most of the member states of the EU, the treaty was implemented nationally through normal means of ratification of any international treaty – parliamentary ratification. Even Netherlands and France, which had directly led to the abortion of the TECE, ratified the Lisbon Treaty through parliamentary ratification. This serves as strong indication that this treaty is no different from any other international treaty adopted by a country, and it is most certainly not a formal constitution. The implication is that the treaty can be repealed in the same manner, with the same amount of ease, as it was implemented.
A comparison with the constitutional amendment procedures in other constitutions would further help illustrate this definitive point. The constitution of the United States of America exists as a single written text and can only be amended through a special legislative procedure14 which is distinct from the ordinary legislative procedures. In other words, the constitution can only be amended by the exertion of special interest and force. However, with the Lisbon Treaty, states could easily repeal it without any special procedures. When a country or a supranational body is governed by a constitution, the constitution tends to exist in a written form which is either unchangeable or only changeable with considerable difficulty15. Where the constitution is subject to revision as easily as the national laws, there no longer exists a single entity of laws which seeks to regulate the body/state. Thus, this serves to validate the claim that the Lisbon Treaty is only an important treaty and is not the constitution unto itself.
The Lisbon Treaty and the British Constitution
Having established that the Lisbon Treaty is clearly not the constitution of Europe, its constitutional status would be better comprehended if one compares the British Constitution to that of the EU.
The United Kingdom does not have a formal, written constitution. Instead, it derives its constitution from its common-law system and the concept of parliamentary supremac16y. According to this theory, the parliament possesses the legal sovereignty to pass any laws as it sees fit17. The only real check on this power is the electorate. All checks on this power, including the electoral and judicial checks, do not carry potency to invalidate the laws of the parliament. In terms of the composition of the constitution, it is made up of both written and unwritten elements18, whereby the written elements include legislative pieces such as the Parliament Act 1911, the European Communities Act 1972, the Human Rights Act 1998 and the Scotland Act 1998.
In a similar vein, the EU too does not possess a single piece of constitutional text from which all its constitutional principles could be derived. Instead, the EU too has several texts19 which form the fundamental principles underpinning the institution. Thus, just as the Parliament is the supreme constitutional entity in the UK, the Member states are the masters of the treaties (and therefore the constitution) of the EU20. In this grand scheme of politics and law, the Lisbon Treaty is but one important constitutional text, similar to the Parliament Act 1911 or the Human Rights Act 1998. This is the place of the treaty and it would be a far stretch to brand it as the Constitution of Europe.
Summing up, the Lisbon Treaty is indeed one of the most prominent treaties implemented by the EU. The reforms which it embodies carry far-reaching impacts in the political, social and legal spectres of the EU. However, upon closer investigation of the Lisbon Treaty – the form of the document and the mode of implementation of the document – it has become clear that the treaty only serves to be a part of the EU constitution, and is by no means the singular defining document of the EU constitution.
1Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community  OJ C306/1.
2Treaty Establishing a Constitution for Europe  OJ C316/1.
3D. Castiglione, ‘The Political Theory of the Constitution’ in R. Bellamy and D. Castiglione(eds), Constitutionalism in Transformation: European and Theoretical Perspectives, (Blackwell Publishers, Oxford 1996).
4N. Tsagourias, ‘Constitutionalism: a Theoretical Roadmap’ in N. Tsagourias (ed), Transnational Constitutionalism, (CUP, Cambridge 2007).
5Oxford Dictionaries, http://www.oxforddictionaries.com/definition/english/constitution?searchDictCode=all last accessed on 5 Dec 2014.
6T. Paine, Political Writings, (CUP, Cambridge 1989), at p. 81.
7Article 6 TEU (as amended by the Lisbon Treaty).
8K. Lenaerts & E. De Smijter, ‘A “Bill of Rights” for the European Union’  38(2) Common Market Law Review 273.
9S. Douglas-Scott, ‘A tale of two courts: Luxembourg, Strasbourg and the growing European human rights acquis’  CMLR 43, 629-665.
10Article 47 TEU (As inserted by the Lisbon Treaty).
11Article 2 TEU (as amended by the Lisbon Treaty).
12J. Raz, ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L. Alexander (ed.) Constitutionalism: Philosophical Foundations (CUP, Cambridge, 1998), at page 153; A. King, The British Constitution (Oxford University Press, Oxford, 2007), at page 3.
13G. DeBúrca, ‘Reflections on the EU’s Path from the Constitutional Treaty to the Lisbon Treaty’, available at SSRN: http://papers.ssrn.com/ (accessed 4 Dec 2014).
14Article V of the U.S. Constitution
15A. V. Dicey, Introduction to the Study of the Laws of the Constitution, (10th ed, Macmillan, London 1965), at page 90.
16W. Blackstone, Commentaries on the Laws of England, (Portland 1807).
17G. Winterton, ‘The British Grundnorm: Parliamentary Supremacy Re-examined’ (1976) 92 Law Q. Rev. 591
18R.H. Fallon, Implementing the Constitution, (Harvard University Press, Cambridge MA 2001).
19Such as the Treaty on European Union and the Treaty establishing the European Community
20Brunner  1 CMLR 57 (German Maastricht Decision).
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