REPORT on the Treaty of Lisbon

on the Treaty of Lisbon

(2007/0000(INI))

The European Parliament,

–   having regard to the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed on 13 December 2007,

–   having regard to the Treaty on the European Union and the Treaty establishing the European Community as amended by the Single European Act and the Treaties of Maastricht, Amsterdam and Nice,

–   having regard to the Charter of Fundamental Rights of 12 December 2007[1],

–   having regard to the Laeken Declaration of 15 December 2001 on the Future of the Union[2],

–   having regard to the Treaty establishing a Constitution for Europe signed in Rome on 29 October 2004,

–   having regard to its resolution of 7 June 2007 on the roadmap for the European Union's constitutional process[3], and to its resolution of 11 July 2007 on the convening of the Intergovernmental Conference[4],

–   having regard to Rule 45 of its Rules of Procedure,

–   having regard to the report of the Committee on Constitutional Affairs and the opinions of the Committee on Regional Development, the Committee on Foreign Affairs, the Committee on Development, the Committee on International Trade, the Committee on Budgets, the Committee on Industry, Research and Energy and the Committee on Civil Liberties, Justice and Home Affairs (A6‑0013/2008),

Whereas:

A. Throughout the last 50 years the development of the European Union has been fundamental in establishing an area of peace and stability in a continent previously ravaged by war, in consolidating democracy, freedom and citizens' rights, in enhancing prosperity, solidarity and welfare through the creation of the world's largest single market with common rules for social standards, environmental and consumer protection, and fair competition and with an economic and monetary union, in enabling Member States to work together to address issues that transcend national borders and in giving Europe a stronger voice in world affairs,

B.  There is a recognised need to reform and strengthen the structures of the Union in order to consolidate these achievements and to improve the capacity of a Union of twenty-seven, and potentially more, Member States to function effectively so as to enable it to face common new challenges and to be subject to greater democratic accountability,

C. This need was the origin of the successive reforms that, since the Treaty of Maastricht - which marked a shift in European integration, with the creation of an economic and monetary union and the passage from an essentially economic community to a political union - have tried to settle the institutional structure of the Union and led to the Declaration of Laeken, which also opened the way to a different process for reform based on the Convention method, and no longer based exclusively on intergovernmental conferences,

D. The Treaty establishing a Constitution for Europe was drafted by a Convention, composed of two representatives from every national parliament, sixteen MEPs, two representatives of the European Commission and a representative of every national government, who prepared a draft in public deliberation, producing a consensus which was left essentially unchanged by the 2004 Intergovernmental Conference, while the subsequent Treaty of Lisbon, which dropped some of the features of the Constitution, resulted from more traditional intergovernmental working methods, albeit with the full participation of three representatives of the European Parliament,

E.  The previous effort to reform the Union by means of replacing the Treaties with a Constitution was endorsed by a very large majority of the elected representatives of European citizens in the European Parliament[5] and was ratified by 2/3 of the Member States but was rejected by two (France and the Netherlands) and, after a period of reflection in which it became clear that the necessary approval by all Member States could not be attained, this approach was abandoned in favour of amending the pre-existing Treaties instead,

F.  This shift in method and process, while retaining in a new form many of the practical adjustments to the institutional structure of the Union that it envisaged, implied a lowering of the ambition and the abandonment of several features of the Constitution, the postponement of the entry into force of some of its new mechanisms and the incorporation in the Treaties of particular measures specific to various Member States,

G. None the less, the agreement to the Treaty of every single national government in the Union demonstrates that the elected governments of Member States all consider that this compromise is the basis on which they wish to work together in the future and will require each of them to demonstrate maximum political commitment to ensuring ratification before 1 January 2009,

H. It is desirable that the Treaty of Lisbon be ratified by all Member States by the end of 2008, in order to allow citizens to vote in the 2009 elections in full knowledge of the new institutional framework of the Union,

A positive step for the future of the Union

1.  Concludes that, taken as a whole, the Treaty of Lisbon is a substantial improvement on the existing Treaties, which will bring more democratic accountability to the Union and enhance its decision-making (through a strengthening of the roles of the European Parliament and the national parliaments), enhance the rights of European citizens vis-à-vis the Union and ameliorate the effective functioning of the Union's institutions;

More democratic accountability

2.  Welcomes the fact that democratic accountability and decision-making powers will be enhanced, allowing citizens to have greater control over the Union's action, notably due to the following improvements:

(a)  the adoption of all European Union legislation will be subject to a level of parliamentary scrutiny that exists in no other supranational or international structure:

–  all European legislation will, with a few exceptions, be submitted to the dual approval, in equal terms, of the Council (composed of national ministers accountable to their parliaments) and of the European Parliament (composed of directly elected MEPs);

–  the prior scrutiny by national parliaments of all legislation of the Union will be reinforced as they will receive all European legislative proposals in good time to discuss them with their ministers before the Council adopts a position and will also gain the right to demand a fresh scrutiny of a proposal if they feel it does not respect the principle of subsidiarity;

(b)  the President of the Commission will be elected by the European Parliament, on a proposal of the European Council taking into account the elections to the European Parliament;

(c)  the High Representative of the Union for Foreign Affairs and Security Policy will be appointed by both the European Council and the President of the Commission and, as a member of the Commission, must undergo the same investiture procedure in Parliament as any other Commissioner;

(d)  a new, simpler and more democratic budgetary procedure with a single reading is established: the distinction between compulsory and non‑compulsory expenditure is abolished, thus ensuring full parity between Parliament and Council as regards approval of the whole annual budget, while Parliament is also granted the right of consent to the legally binding Multiannual Financial Framework;

(e)  democratic control in relation to the legislative powers delegated to the Commission will be reinforced through a new system of supervision in which the European Parliament or the Council may either call back Commission decisions or revoke the delegation of such powers;

(f)   the consent of the European Parliament will be required for the approval of a wide range of international agreements signed by the Union, including those concerning domains subject to the ordinary legislative procedure in the internal sphere of the Union;

(g)  the Council will meet in public when deliberating or voting on draft legislative acts, thus allowing citizens to see how their governments act in the Council;

(h)  agencies, notably Europol and Eurojust, will be subject to greater parliamentary scrutiny;

(i)   the Committee of the Regions will be able to bring cases before the Court of Justice, its members' term of office will be increased to five years and its relations with the European Parliament will be defined more clearly;

(j)   the procedure for revising the Treaties will be, in future, more open and democratic, as the European Parliament will also acquire the power to submit proposals to that end, the scrutiny of any proposed revision must be carried out by a Convention which will include representatives of national parliaments and of the European Parliament, unless Parliament agrees that this is not necessary, while new simplified revision procedures are introduced for amending, by unanimous decision, certain provisions of the Treaty, with the approval of the national parliaments;

Affirming values, strengthening rights of citizens, improving clarity

3.  Welcomes the fact that the rights of citizens will be strengthened as a result of the following improvements:

(a)  the EU Charter of Fundamental Rights, setting out a complete list of up-to-date civil, political, economic and social rights, will become legally binding; it will give the citizens of the Union legal certainty, ensuring that all provisions of EU law, and all action taken by the EU institutions or based on EU law, will have to comply with those standards, while respecting the principle of subsidiarity;

(b)  the Union is to apply to accede to the European Convention on Human Rights, which will make the Union subject to the same external review as regards the obligation to respect citizens' rights, as its Member States;

(c)  new provisions will facilitate participation by citizens and representative associations of civil society in the deliberations of the Union; dialogue with social partners and dialogue with churches, religious communities and non-confessional organisations will be encouraged;

(d)  the introduction of an EU citizens' initiative will enable citizens to submit proposals on matters where they consider that a legal act of the Union is required for the purpose of implementing the Treaties;

(e)  judicial protection of citizens will be enhanced, since the jurisdiction of the Court of Justice of the European Union will extend to matters relating to freedom, security and justice as well as to acts of the European Council, the European Central Bank and agencies of the Union, while provision will also be made to facilitate access for natural and legal persons to proceedings of the court;

4.  Welcomes the fact that the Treaty establishes in a clearer and more visible way the values, common to all Member States, on which the Union is founded, as well as the objectives of the Union and the principles governing its action and its relations with Member States:

(a)  a clear delimitation of the competences of the Union vis-à-vis Member States is established, under the principle that all competences that are not conferred on the Union by the Treaties remain with the Member States;

(b)  there is a greater emphasis on policies that visibly benefit citizens: there are new provisions of general application concerning the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, a high level of education, training and health, the elimination of all kinds of discrimination and the promotion of equality between women and men; new provisions enhance the promotion of sustainable development and protection of the environment, including fighting climate change, and the respect of services of general interest; economic, social and territorial cohesion is reaffirmed as an objective of the Union;

(c)  the confusion between the “European Community” and “European Union” will end as the European Union becomes one single legal entity and structure;

(d)  a solidarity clause between Member States provides citizens with an expectation of receiving support from all parts of the Union in the event of a terrorist attack or a natural or man-made disaster;

(e)  it confirms the specificity of the institutional organisation of the Union, to which Member States entrust certain of their competences that they consider to be better exerted through common mechanisms, while providing, for the avoidance of any doubts, sufficient guarantees that the Union will not become a centralised all-powerful superstate:

–  the obligation to respect the national identities of Member States, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government, as well as their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security;

–  the principles of conferred powers (whereby the Union's only competences are those conferred on it by the Member States), subsidiarity and proportionality;

–  the participation of the Member States themselves in the Union's decision-making system and in agreeing any changes to it;

–  recognition of the right of any Member State that wishes to do so to leave the Union;

Greater effectiveness

5.  Welcomes the fact that the new Treaty will strengthen the capacity of the Union's institutions to carry out their tasks more effectively, notably because:

(a)  the areas in which the governments meeting in the Council decide by qualified majority voting rather than by unanimity will increase substantially, thus enabling the Union of twenty-seven Member States to function in more areas without being blocked by vetoes;

(b)  a new system of double majority voting will facilitate reaching decisions in the Council;

(c)  the European Council will become a fully-fledged institution of the European Union, and its six-month rotating presidency will be replaced by a President elected by its members for a two-and-a-half-year term, thus allowing for more coherence in the preparation and continuity of its work;

(d)  the number of members of the Commission will be reduced, as of 2014, to 2/3 of the number of Member States, thus making it easier for the Commission to act and making it even clearer that Commissioners are representatives of European interests and not of those of their countries of origin, while a rotation system will continue to ensure equal participation of all Member States;

(e)  the Union's visibility and capacity as a global actor will be significantly enhanced:

–  the Union's Foreign policy High Representative and the Commissioner for External Relations - two posts causing duplication and confusion - will be merged, creating a Vice President of the Commission/High Representative for Foreign Affairs and Security Policy who will chair the Foreign Affairs Council, and be able to speak for the Union on those subjects where the latter has a common position, thus ensuring more coherence in the external action of the Union;

–  there will be a single external action service composed of civil servants of the Commission and the Council and of the national diplomatic services, which can be established by the Council only with the assent of the Commission and after consulting Parliament; this external service will be headed by the High Representative and is intended to ensure greater consistency in the development and implementation of the Union's foreign policy;

–  the Union's capacity to develop common structures in the field of security and defence policy will be reinforced, inter alia by the insertion of a clause providing for mutual aid and assistance in the event of armed aggression, thereby enhancing citizens' sense of security, while ensuring the necessary flexibility to cater for differing approaches of Member States to such matters;

(f)   the distinction between legislative and executive instruments will be clarified, and a new definition of delegated acts will make it possible to simplify and streamline the legislation of the Union;

(g)  the pillars structure is abandoned, allowing for unity of action in the different fields of activity of the Union with simplified mechanisms and instruments, although the specific nature of foreign and security policy implies specific procedures in these domains;

(h)  action in the area of freedom, security and justice will have more ambitious goals and more effective procedures, no longer using separate intergovernmental instruments and procedures, and will be subject to judicial review, thus promising tangible progress with regard to justice, security and immigration issues;

(i)   the Union’s objectives and competencies in the fields of climate change, children’s rights, European Neighbourhood Policy, humanitarian aid, energy (including a reference in the Treaty to solidarity between Member States in this domain), space, research, tourism, sport, public health and civil protection are defined in a clearer way; common commercial policy is recognised as an exclusive competence of the Union;

(j)   for a number of other matters, it will become possible to apply more efficient methods of decision-making as soon as there is the political will to do so;

(k)  there is more room for flexible arrangements when not all Member States are willing or able to go ahead with certain policies at the same time;

Concerns

6.  Is aware of the widespread regrets that, following the results of the referendums in France and the Netherlands, it was necessary, in order to secure a fresh agreement amongst the 27 Member States, to:

–    abandon the constitutional approach and certain of its features, such as the notion of a Union based on the will of its citizens and Member States, a single and structured text, the clearer terminology to designate legislative instruments, the anchoring in the Treaty of the flag and the anthem and the use of the title “Foreign Minister” instead of “High Representative”;

–    postpone the implementation of important elements of the new Treaty, such as the entry into force of the new voting system in the Council (accompanied by special provisions for postponing votes known as the “Ioannina compromise”), and add restrictive mechanisms like “emergency brakes” to the ordinary legislative procedure in some areas of competence;

–    incorporate into the Treaty measures specific to particular individual Member States, such as the extension of the opt-in arrangements in relation to cooperation in police and criminal matters for two Member States, the protocol limiting the effect of the Charter on the domestic law of two Member States and the extra parliamentary seat attributed to a Member State in derogation of the principle of degressive proportionality;

–    modify the wording of several passages of the Treaty, or of the protocols and declarations annexed to it, entailing an unjustified shift to a negative tone, which gives an impression of mistrust vis-à-vis the Union and its institutions and thus sends a wrong signal to the public;

Conclusions

7.  Endorses the Treaty and stresses the need for all Member States of the Union to achieve its ratification in good time for its entry into force on 1 January 2009;

8.  Believes that the Treaty of Lisbon will provide a stable framework which will allow further development of the Union in future;

9.  Is aware that an amending treaty is inevitably less clear and readable than a codified treaty; calls, therefore, for the rapid publication of the consolidated Treaties as revised by the Treaty of Lisbon, which would provide citizens with a clearer basic text of the Union;

10. Reiterates its request that all possible efforts be deployed, both by EU institutions and national authorities in accordance with the principle of sincere cooperation, in order to inform European citizens clearly and objectively about the content of the Treaty;

11. Instructs its committee responsible to prepare the necessary changes to its Rules of Procedure and to assess the needs for further implementing measures;

12. Instructs its President to forward this resolution and the report of the Committee on Constitutional Affairs to the national parliaments of the Member States, to the Council, to the Commission and to the former Members of the Convention on the Future of Europe, and to ensure that Parliament's services, including its external offices, provide ample information about Parliament's position on the Treaty.

• [1]  Charter of Fundamental Rights of the European Union of 7 December 2000, as proclaimed in Strasbourg on the 12 December 2007.
• [2]  Laeken European Council, Laeken declaration on the future of the Union, SN 273/01, 15.12.2001.
• [3]  Texts Adopted, P6_TA(2007)0234.
• [4]  Texts Adopted, P6_TA(2007)0328.
• [5]  By 500 votes in favour, 137 against and 40 abstentions [European Parliament resolution of 12 January 2005 on the Treaty establishing a Constitution for Europe (Corbett/Méndez de Vigo report), OJ C 247 E, 6.10.2005, p. 88].

There is a tide in the affairs of men,

Which, taken at the flood, leads on to fortune;

Omitted, all the voyage of their life

Is bound in shallows and in miseries.

On such a full sea are we now afloat;

And we must take the current when it serves,

Or lose our ventures.

William Shakespeare. Julius Caesar.

I.    Background

1.   The European integration process is anything but plain sailing. In 2004 we co-rapporteurs had the privilege of drafting Parliament's report on the Treaty establishing a Constitution for Europe and now, three years later, we have been given the same responsibility for the Lisbon Treaty that has taken its place.

We thus find ourselves in the singular position of having to answer the age-old question of whether one can step into the same river twice. And the answer must be 'yes', as this is the only way that we will be able to provide Parliament with guidance in how, in the words of William Shakespeare, to 'take the current when it serves', so as not to 'lose our ventures'.

The task entrusted to the co-rapporteurs is necessarily didactic in nature: as we did in 2004, we now propose to compare the Treaties currently in force with the Treaty signed in Lisbon on 13 December 2007, which is currently undergoing ratification in the 27 Member States.

In order to know where we are going, it is a good idea to consider where we are coming from: more than half a century ago, the Schuman Declaration set in train an ambitious undertaking: that of uniting Europeans, who had been divided for centuries by fratricidal conflicts, around a common project.

Since the first European Community (Coal and Steel: Paris Treaty of 18 April 1951[1]), which brought together six Western European countries[2], was established, the European integration process has been extended to embrace 27 European States[3] and has seen its scope expand to cover new areas through the establishment of the Economic Community and the Atomic Energy Community/Euratom (Treaties of Rome of 25 March 1957[4]) and, subsequently, the European Union (Maastricht Treaty of 7 February 1992).

2. Ever since the first European elections by universal suffrage in 1979, Parliament has consistently sought to democratise and make more effective and transparent the workings of what was to become the European Union. By adopting, on 14 February 1984, the first draft Treaty establishing the European Union (known as the ‘Spinelli’ draft, after its rapporteur), Parliament initiated a reform process which was to continue for the following 20 years and lead to the drafting of the Single European Act[5], the Maastricht Treaty[6], the Treaty of Amsterdam[7], the Treaty of Nice[8], the Treaty establishing a Constitution for Europe[9] and, now, the Treaty of Lisbon[10].

At each stage, with the Committee on Institutional Affairs, which in 1999 became the Committee on Constitutional Affairs, providing the driving force, Parliament played an active part in the preparatory talks and assessed the outcome of the various Intergovernmental Conferences (IGCs)[11].

Right from the start of this process, it advocated clarifying and enhancing the constitutional basis for the European Union, a need which became more and more acute under the pressure of successive enlargements, given their capacity to jeopardise the political dimension of the integration process.

Three distinct but related objectives have been pursued by Parliament to this end:

First, it has sought to clarify and where necessary strengthen the competences and responsibilities of the European Union itself. Parliament has consistently argued that powers should be attributed to, and exercised by, the Union on the basis of the ‘principle of subsidiarity’, i.e. it should exercise those responsibilities - but only those responsibilities - that can be carried out more effectively by common policies than by the Member States acting separately.

Second, it has argued that responsibilities exercised at European level should be carried out more effectively. Parliament was particularly critical of the practice of unanimity in the Council, arguing that, where agreement has been reached to run a policy jointly, it makes no sense to give a blocking power to each of the component States of the Union. It has also pleaded for a stronger role to be given to the Commission in carrying out policies once they have been agreed, subject to proper scrutiny and control.

Third, it has made the case for better democratic control and accountability at European level. Those responsibilities which national parliaments, in ratifying the Treaties, have transferred to the Union should not be exercised by the Council (i.e. national ministers) alone. The loss of parliamentary powers at the national level should be offset by an increase in parliamentary power at European level.

In the light of the mixed and clearly inadequate results achieved by the Treaties of Amsterdam and Nice, when set against the challenge posed by the doubling in the number of Member States, but also that of the further deepening of the Union, it became more and more apparent that the established method of revising the Treaties was no longer able to provide genuine responses to the issues raised by the development of Europe.

Parliament had already reached that conclusion, and outlined it clearly, in its resolution of 19 November 1997 (based on the report by Íñigo Méndez de Vigo and Dimitris Tsatsos, see footnote 8 above) which marked the real starting point of the political review process which was to culminate, in 1999, in the establishment, at the instigation of the German Council Presidency, of the Convention model, one first employed in connection with the drafting of the Charter of Fundamental Rights of the European Union.

The signatories to the Treaty of Nice, being aware of its imperfections, in fact annexed to it a Declaration No 23 'on the future of the Union'[12] which paved the way for further reform of the Treaties, originally scheduled for 2004. This reform was to be prepared for by 'wide-ranging discussions with all interested parties: representatives of national parliaments and all those reflecting public opinion (...) representatives of civil society, etc.', which was to take place in 2001 with a view to the adoption of a declaration 'containing appropriate initiatives for the continuation of this process' at the European Council in Laeken.

3. Parliament, for its part, after having sought to work in partnership with the national parliaments during the preparations for successive IGCs[13], was the first to propose[14], on the basis of the precedent set when the Charter of Fundamental Rights of the European Union was drawn up[15], the convening of a Convention comprising representatives of the Heads of State and Government of the Member States, the national parliaments and the European Parliament and the Commission and with the involvement, as full members, of representatives of the governments and parliaments of the applicant States.

The Convention on the Charter of Fundamental Rights demonstrated that a body of this kind was able to prepare a draft text likely to secure the approval of the Heads of State or Government. The open and transparent nature of the Convention and the quality of its debates had also facilitated efforts to achieve a consensus by giving every representative the opportunity, first of all, to express his or her own views, and, subsequently, to understand those of the other representatives.

The Laeken European Council of 14 and 15 December 2001, by adopting the 'Laeken declaration on the future of European Union'[16], followed up this initiative by setting out the organisational arrangements for the work of the Convention and, above all, defining its terms of reference and the issues that it would be called upon to discuss. Thus, the Convention on the Future of Europe (chairman: Valéry Giscard d’Estaing; vice-chairmen: Giuliano Amato and Jean-Luc Dehaene) was given the task of drawing up a preliminary draft Constitution to serve as the basis for the work of the IGC which was to follow.

The outcome of the Convention confirmed that the choice of this method had been a wise one, since it led to the presentation, after 16 months’ work, of a consensus-based text informed by intense debates which also drew on close dialogue with civil society.

For its part, Parliament, through the work of its Committee on Constitutional Affairs, exerted a major influence on the draft Constitutional Treaty[17], only a very few provisions of which would be modified by the IGC. At that IGC, for the first time Parliament was fully involved in the proceedings, in the persons of its President, Pat Cox, and its two representatives, Íñigo Méndez de Vigo, subsequently replaced by Elmar Brok, and Klaus Hänsch.

Unfortunately, the ratification procedure took an unexpected turn: the ‘no’ votes in the referendums in France and the Netherlands forced a rethink.

The European Council held in June 2005 ordered a period of reflection, to last at least one year, which was to be used to enable a broad debate to be held in all the Member States 'involving citizens, civil society, social partners, national parliaments and political parties'. The European institutions were also invited to make their contribution. In the meantime, further ratifications have been carried out, some by means of referendums.  

5. For its part, Parliament has fulfilled all its responsibilities in this area. From the outset, it supported the idea of initiating an in-depth public debate at European level on the main issues at stake in the European integration process and rejected any attempt to push through the selective implementation of the Constitutional Treaty (cherry picking). Parliament made its own particular contribution to the public debate by proposing that ‘interparliamentary forums’ should be held to discuss issues fundamental to the future of Europe. A total of three forums were held in the period leading up to the June 2007 European Council at which the decision was taken to reconvene the IGC[18]. These forums helped to strengthen, among the elected representatives of the citizens of all the Member States, the conviction that the problems to which the Constitutional Treaty was intended as a response had not simply disappeared following the failure of the ratification process and that, although perhaps in a different form, the institutional changes it incorporated were overall still vitally needed in order to enable the Union to address the challenges awaiting it in an ever more globalised world.

The German Presidency saw institutional issues return to the top of the Union agenda. The procedure employed inevitably disappointed those who had experienced the atmosphere of dialogue and transparency which had marked the Convention, an atmosphere which had spilled over to the 2004 IGC, moreover. In an effort to guarantee real chances of success, the discussions on the relaunching of the reform of the Treaties were initially held bilaterally, between the Presidency and each of the Member States. It should be noted that the EP was involved in the consultations from the outset through the work of the 'sherpas'[19] and was thus able to make its contribution to the drafting of the mandate which the German Presidency submitted to the June 2007 European Council. Since those 'sherpas' were appointed directly by the President of Parliament from among the staff of the Secretariat, an ad hoc information/consultation procedure was established involving the President, the chairman of the Committee on Constitutional Affairs and the political group coordinators from that committee.

6. This preparatory work enabled the June 2007 European Council to convene a new IGC to resume the process of reforming the Treaties and also to lay down a very clear, precise and detailed remit, on the basis of which the Portuguese Presidency was able to conduct the proceedings of the IGC quickly and effectively.

The IGC, which opened on 23 July 2007, at the meeting of the General Affairs Council, essentially operated on two levels: at ministerial level, with Parliament represented by three Members – Elmar Brok, Enrique Barón Crespo and Andrew Duff; and at the level of the group of legal experts, whose work had been prepared by the Council Legal Service and on which Parliament and the Commission were also represented.

The work of the group of legal experts proved decisive in helping the IGC reach an agreement so quickly. At political level, although the IGC met only three times prior to the Lisbon European Council it nevertheless resolved or excluded from discussion a large number of sensitive issues – the Portuguese Presidency having successfully imposed the rule that the remit would be changed only to deal with matters on which there was unanimous agreement among the Member States – so that in Lisbon the Heads of State or Government were left with negotiations on no more than two fundamental issues, only one of which derived from the Treaty itself: the definition of the new qualified-majority voting system in the Council, in the light of Poland's persistent dissatisfaction not only with the agreement reached in 2004, but also with the compromise laboriously thrashed out at the June 2007 European Council in Brussels. The other key unresolved matter was the composition of the EP as from the parliamentary term starting in 2009, an issue which, although not deriving directly from the Treaty, had become one of the main obstacles to the conclusion of an agreement, since Italy was fiercely opposed to the proposal for a decision drawn up by the EP at the request of the European Council.

The other issues still under discussion – the British and Irish opt-outs/opt-ins on matters previously covered by the third pillar, the safeguarding of the EP's role in the appointment of the Vice-President/High Representative for Foreign Affairs and Security Policy, etc. – had practically all been dealt with in the final days leading up to the European Council, in particular at the meeting of the IGC at ministerial level held during the General Affairs Council which took place on 15 October 2007 in Luxembourg.

In Lisbon the Heads of State or Government were thus able to reach an agreement quickly: the IGC came to an end towards 01.00 on Friday, 19 October 2007.

In the second part of this explanatory statement, we propose to consider the implications and the merits (or drawbacks) of the Treaty of Lisbon, which was officially signed on 13 December 2007 in Lisbon.

II.       How does the new Treaty represent a step forward by comparison with the Treaties in force?

The Treaty of Lisbon incorporates a large number of significant reforms and improvements to the current Treaties. It is, of course, a compromise and one which, in Parliament’s eyes, regrettably abandons some important provisions of the Constitution, delays the entry into force of other provisions and contains specific measures introduced to satisfy the demands of some Member States. This was the political price to be paid in order to end the crisis into which the 'no' votes in the French and Dutch referendums had plunged the Union.

1.        The return to the traditional approach of revising Treaties and the abandonment of the idea of a Constitution

1.1.     The return to the traditional method of revising the Treaties, through the adoption of a new Treaty amending the current Treaties, which themselves remain in force, implies the abandonment of the Constitution as a single, consolidated Treaty which would replace the current Treaties in their entirety. As a result, the question which has proved so controversial, that of whether the document was really a Constitution or a Treaty, is no longer relevant. A sterile debate on an issue which is nothing more than a red herring has thus been avoided: there was never any doubt that, in formal terms, the document was a Treaty which would have to be adopted and ratified in accordance with the rules in force governing the revision of Treaties. There was no other possible procedure. However, it is also true that, by virtue of its nature and substance, the Constitutional Treaty established a more recognisable ‘constitution’. The return to the traditional method involves the abandonment of the very term 'Constitution', so that the controversy has been settled politically.

           This approach also involves a splitting of the text and a rejection of the very idea of a single text of a constitutional nature, one which some regarded as being too close to State practice to be applicable to the Union.

1.2.     However, the new Treaty substantially clarifies the definition of the values, principles and objectives which guide the actions of the European Union (EU); it describes the Union’s competences; it lays down what institutions the EU will have, outlines its decision-making procedures, and stipulates what form its acts will take; it defines citizens' rights vis-à-vis the EU; it lays down the rules governing its own revision, etc. In that respect, it could be said that the Treaties on which the Union is founded in some way establish its 'constitution', taking the word 'constitution' in its material sense. After all, the role of a constitution is precisely that of laying down the conditions governing, and the limits to, the exercise of power in the context of a political entity and safeguarding citizens’ rights, something which the new Treaty does. However, the very fact that the attempt to give that material concept practical form was rejected signifies that there was no desire to endow the Union with a ‘Constitution’ in the formal sense, i.e. the most commonly used political sense, of the term. This represents a difference by comparison with the Constitutional Treaty.

1.3.     In fact, in the existing Treaties the Union effectively already has its 'Constitution', deriving from the Treaties which brought it into being, just like any other political entity. By simplifying those Treaties, by giving them a more readily comprehensible structure, a vital step has been taken towards clarifying the system and making it more transparent and understandable for the public. However, the method chosen – a Treaty containing amendments to the two Treaties in force – makes the text unreadable for ordinary citizens. A consolidated version is now a necessity.

1.4.     It is clear, therefore, that the Member States wanted to dispel any fear, however unfounded, that endowing the Union with a Constitution would represent the first step towards the creation of a centralised 'superstate' which would inevitably sound the death knell for national States and change the nature of the European Union. Parliament, which has been campaigning from the start of the process for the 'constitutionalisation' of the Union, is aware of the fact that this fear fails to take proper account of the significance of a constitution as a fundamental act governing the exercise of power in a political entity (unless the aim is to deny the 'political' nature of the Union). Moreover, there are many examples of international organisations whose constituent act is rightly termed a constitution, including the International Labour Organisation (ILO), the World Health Organisation (WHO), or the Universal Postal Union (UPU). Seen in this way, a 'constitution' could even be said to offer the Member States and Union citizens formal safeguards against unwelcome Union action. On that basis, whilst acknowledging that the political situation in the Member States made such a step the only way out of the institutional impasse which had been reached, the EP can only regret the abandonment of the constitutional approach.

1.5.     By the same token, your co-rapporteurs can only deplore the fact that the new Treaty makes no reference to symbols of the Union – the flag, the anthem, the motto, the euro, and Europe Day – as the Constitutional Treaty did. Although this does not mean that these symbols no longer exist – they had already existed for a long time without ever being mentioned as such in the Treaties and will continue to exist in the same way – it would only be logical for texts which define the legal and political status of the Union to refer to them. This abandonment of the symbols was forced through by certain Member States on the pretext that recognising them in the Treaties would enable people to claim erroneously that the Union was in fact a 'State-like' structure. That this viewpoint is by no means unanimously held seems to be borne out by the declaration on the symbols of the Union which 16 Member States have annexed to the Treaty (Declaration No 52 on the symbols of the Union) reiterating that in their view the symbols mentioned continue 'to express the sense of community of the people in the European Union and their allegiance to it'. Accordingly, your co-rapporteurs can only welcome with enthusiasm the initiative taken by the Committee on Constitutional Affairs, which is in the process of preparing a report on the use of the Union's symbols which will propose changes to Parliament's Rules of Procedure designed to ensure that Parliament makes more systematic use of those symbols[20].

2.       One single entity: the European Union

2.1.     Despite the retention of two separate Treaties, a crucial step forward, in terms of transparency and understanding by citizens of the nature of the European project, has been taken by merging several overlapping entities (European Union, European Community) into a single entity, the European Union[21], endowed with legal personality. This will also increase the effectiveness and visibility of Union action in the international arena, bringing an end to a confusing situation in which the European Union is universally recognised as the common entity, whereas it is the European Community, which covers only some of the Union's functions, which has explicit legal personality[22].

2.2.     A further result is that the Treaty establishing the European Community now becomes the Treaty on the Functioning of the European Union (TFEU). The two Treaties thus now serve the same political entity: the European Union. The first focuses on the principles, values and fundamental organisational aspects of the Union. The second deals with the nuts and bolts of organisation and functioning of the Union and the definition of the principles and objectives which guide Union action in the area of each of its sectoral policies, specifying in detail the scope of and limits to the Union's competences in each of its areas of action. The exception, which represents a major break with the logic of the separation between the two Treaties, stems from the fact that the TEU contains an entire title dealing with the Union's external action, which deals in detail with every aspect of the common foreign and security policy.

2.3.     This merger into a single entity has been accompanied by the abolition of the three-pillar structure [common foreign and security policy (CFSP), justice and home affairs (JHA) and European Community]; all three have been merged into the single corpus of the Union, with a single institutional framework and the across-the-board application of the Community method, the sole exception being the area of the CFSP (including defence), where specific decision-making procedures remain in force, as warranted by the particular nature of that policy area.

3.        A clear definition of the Union’s values, principles and objectives

           The new Treaty provides that the TEU will open with articles defining the nature of the Union and the values and principles on which it is founded and the objectives which it is supposed to pursue by means of its action.

3.1.     The very first article of the amended TEU lays down the basis on which the European integration process is founded: it defines the EU as a Union established by the Member States ‘on which the Member States confer competences to attain objectives they have in common’. This definition departs from that set out in the Constitution, which enshrined the dual legitimacy of the Union reflecting the will of the citizens and States of Europe. However, although that formal recognition of the Union’s dual legitimacy has disappeared, practical expressions of that legitimacy appear at various points in the text of the Treaties, in keeping with a development which has been continuing at least since the election of the European Parliament by universal suffrage.

3.2.     This European Union must be firmly anchored to the values on which it is founded and which guide every action taken by its institutions.

           In accordance with Article 2 of the revised TEU, these values, on which the entire European integration process is founded, are respect for human dignity, freedom, democracy, equality, the rule of law, and respect for human rights, including the rights of persons belonging to minorities. Moreover, these values represent the reference criteria governing future accessions to the Union and may serve as the basis for imposing sanctions on any Member States which violate them on a serious, persistent basis.

           This article also defines the principles which guide the Union’s action: pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men.

           In this respect, the Treaty of Lisbon closely mirrors the Constitutional Treaty, given that there is a fairly broad consensus among the Member States regarding the set of common values on which the Union is founded, a consensus which was not seriously challenged at any stage in the discussions on the future of the Union.

3.3.     In the new Treaty, the definition of the Union’s objectives, which is at present split between Article 2 of the TEU and Article 3 of the TEC, is brought together in the TEU, immediately after the enumeration of the values on which the Union is founded. That definition has been amended slightly by comparison with the Constitution, so that in accordance with the new Article 3 of the TEU the Union is to pursue political objectives, which justify its existence and which can be summarised as follows: the promotion of peace, the Union’s values and the well-being of its peoples. They are fleshed out, in Article 3 of the TEU, in political, economic and social objectives to be pursued within the Union and in the sphere of external relations.

           Accordingly, at an internal level the Union is to offer its citizens an area of freedom, security and justice, in which the free movement of persons is guaranteed, a freedom which is to be accompanied by appropriate measures concerning checks at external borders, asylum, immigration and the prevention of and fight against crime. It is to establish an internal market[23]. It is to work for the sustainable development of Europe, on the basis of balanced economic growth and price stability; to develop a highly competitive social market economy aiming at full employment and social progress; and to secure a high level of protection and improvement of the quality of the environment. It is to promote scientific and technological advance. It is to combat social exclusion and all forms of discrimination and is to promote social justice and protection, equality between men and women, solidarity between generations and the protection of the rights of the child. It is to promote economic, social and territorial cohesion and solidarity among the Member States. It is to respect its rich cultural and linguistic diversity and ensures that Europe's cultural heritage is safeguarded and enhanced. Finally, it is to establish an economic and monetary union, whose currency is the euro.

In the international arena, where it is to promote its values and interests, the Union is to contribute to peace and security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, the eradication of poverty and the protection of human rights, in particular the rights of the child, and to strict observance and the development of international law, in particular the United Nations Charter.

These objectives thus make up a basic political programme which was the well-spring for the establishment of the Union. It is incumbent on the Union to pursue these objectives by appropriate means, using the competences conferred on it in the Treaties.

3.4.     The principles governing relations between the Union and the Member States are also set out in the first articles of the amended TEU: the Union undertakes to respect the national identity of the Member States, i.e. the fundamental elements of their political and constitutional structures; it respects the decisions which each Member State may take regarding the territorial distribution of power - from the fixing of its borders to regional or local autonomy - the maintenance of law and order and the safeguarding of national security. Moreover, the agreement reached in Lisbon emphasises that ‘national security remains the sole responsibility of each Member State’[24]. Finally, in that same article the amended TEU also lays down the principle of sincere cooperation between the Union and the Member States with a view to the achievement of their shared objectives.

In its introductory provisions the amended TEU also lays down the principle of the conferral of competences (the Union has only those competences which are conferred on it by the Member States in the Treaties) and the principles of subsidiarity and proportionality, the principles which govern the exercise of the Union's competences, even though the chapter dealing with the definition of the Union's competences has been incorporated into the TFEU.

In order to placate certain Member States primarily concerned to demonstrate that the amending Treaty is not simply a Constitution by another name, a statement of the principle of the primacy of Union law over national law has regrettably not been retained in a prominent position in the Treaties, but is the subject of a declaration (Declaration No 17), which draws attention to the settled case law of the Court of Justice concerning the primacy of Union law and incorporates an opinion of the Council Legal Service which states that this principle is a cornerstone principle of Community law and that 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’.

3.5.     The values and principles outlined in the preceding paragraphs thus represent the ethical foundation of the Union, a foundation which is given practical form in the Charter of Fundamental Rights. That Charter is not incorporated into the Treaties, as it was into the Constitution, but is the subject of a provision which makes it legally binding by acknowledging that it has the same legal value as the Treaties themselves.

           The objectives assigned to the Union justify its existence and are the reason behind the Member States' decision to establish the Union. They govern its action in all areas. Although the values, principles and objectives defined in these articles are not entirely new, some of them had never previously been clearly stated and had never previously been systematised. This represents an important step towards providing citizens with a clear, highly symbolic insight into precisely what the Union signifies.

4.        Citizens at the heart of the European integration process: European citizenship and the new status of the Charter of Fundamental Rights

           In its opening provisions, the TEU also recognises European citizenship, which complements, but does not replace, citizenship of each Member State (in fact, national citizenship is the basis for recognition of European citizenship). However, the articles dealing with the practical substance of European citizens’ rights are relegated to the TFEU[25]. However, this regrettable physical separation in no way alters the fact that the Treaties increasingly place individuals at the heart of the European integration process, that is to say the men and women who have rights and obligations, who are Union citizens because they are citizens of a Member State and who, by virtue of that fact, enjoy all the additional rights conferred on them by European citizenship.

4.1.     The Constitution incorporated the Charter of Fundamental Rights into its Part II. That arrangement, fervently advocated by Parliament, represented full acknowledgement of the fact that people are at the heart of the European integration process. At the 2007 IGC, in the face of opposition from some Member States, the decision to incorporate the Charter into the Treaty had to be reversed. However, most Member States joined Parliament in making agreement to that concession contingent on recognition in the Treaties of the binding legal force of the Charter. This is precisely what Article 6 of the new TEU does, stating that ‘the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties’. As a result of this formal recognition, the Charter has acquired a binding legal force and the same legal value as the Treaties (the only way, moreover, in which it could serve as a parameter by which to judge the validity of Union acts): it is thus binding both on the European institutions, acting in the framework of their respective competences, and on the Member States, but only when they act as implementers of Community law. It thus offers citizens a further guarantee of the protection of fundamental rights vis-à-vis the Union.

4.2.     This in no way signifies that the protection of the fundamental rights guaranteed to citizens, vis-à-vis their States, under national law is being called into question, or that competences are being surreptitiously conferred on the Union, despite the claims made by some critics that the Union could in this way impose economic and social policy guidelines on the Member States. The assertion in the Charter itself that it does not extend the field of application of Community law beyond the competences conferred on the Union, does not establish any new competence or task for the Union and does not modify the competences and tasks conferred on the Union in the Treaties (Article 52(2) of the Charter) is particularly clear on this subject.

4.3.     The fact that the Charter no longer forms an integral part of the Treaties led the 2007 IGC, in an effort to meet the demands of the most recalcitrant Member States, to repeat those guarantees in the same article of the TEU which recognises the Charter.

           However, even this was not enough to convince certain Member States. Thus, at the insistence of the United Kingdom, supported late in the day by Poland, the IGC added a protocol (No 9) on the application of the Charter of Fundamental Rights to Poland and to the United Kingdom, which stipulates that the Charter does not extend the ability of the Court of Justice, or of any court or tribunal of Poland or the United Kingdom, 'to find that the laws, regulations or administrative provisions, practices or actions of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms'. With particular reference to social rights (Title IV of the Charter), the protocol specifies that the Charter does not create justiciable rights applicable to Poland or the United Kingdom except insofar as such rights are provided for in their respective national laws (which is, anyway, the general rule as regards this title of the Charter).

           Its provisions essentially repeat principles already laid down in the Charter. However, if that turns out to be the case, the EP can only regret the fact that the citizens of two Member States may be deprived, by those States, of the full protection of fundamental rights recognised by the Charter, a document which, it should be emphasised, is primarily addressed to the Union institutions and is binding on the Member States only when they act to implement Union law.

4.4.     The rights set out in the Charter correspond, in general terms, to the common set of fundamental rights which the Union already recognised and which were drawn from the constitutional traditions of the Member States or the European Convention on Human Rights.

           The amended TEU provides for a further step towards the protection of fundamental rights at Union level by stipulating that the Union will seek accession to the European Convention for the Protection of Human Rights and Fundamental Freedoms (to which all the Member States are parties), as Parliament has long been proposing. This will entail an agreement with the Council of Europe. The decision to conclude that agreement will have to be adopted by the Council unanimously (as against the qualified majority provided for in the Constitution), after approval by Parliament.

4.5.     Moreover, further aspects of the new Treaty could be cited which strengthen citizens’ rights of participation in the European political process (such as the people’s legislative initiative, or citizens’ initiative: Article 11(4) of the amended TEU) or which help to enhance the legal protection of their rights by facilitating access to the Court of Justice.

           Parliament can only welcome these improvements.

5.        A clear and readily understandable definition of the Union’s competences

5.1.     One of the most important questions which had been posed from the start of the reform process which culminated in the Treaty of Lisbon was that of ‘who does what’ in Europe. Such clarification is essential if citizens are to grasp properly the allocation of political responsibilities at European level. It will help to make Union action more effective. It will also offer an additional safeguard to all those who fear excessive intervention on the part of the Union.

5.2.     The reform Treaty broadly retains the provisions of the Constitution concerning the delimitation of the Union’s competences, which was itself based on that laid down in the existing Treaties. However, as a result of the retention of the two current Treaties in amended form, the conceptual unity of the chapter on Union competences in Part I of the Constitution has been lost: whilst the principles governing the exercise of its competences by the Union are set out in the general provisions of the TEU, the different types of competences are detailed in the TFEU, in its Title I dealing with ‘Categories and Areas of the Union’s Competences’. Although the two Treaties have the same legal value, this approach necessarily runs counter to the objective of providing citizens with a clear text.

           The new Treaty defines the Union's competences, dividing them into three categories, each with a different legal status and each implying a different degree of Union intervention: the Union's exclusive competences; the competences it shares with the Member States; and action to support or complement that taken by the Member States. By virtue of their specific nature, the common foreign and security policy and the coordination of economic and employment policies warrant specific provisions which fall outside the three categories (cf. Annex 1).

           This definition of the Union's competences is consistent with the basic principle governing the allocation of competences, i.e. that the Union enjoys only those competences which have been conferred on it by the Member States in the Treaties with a view to achieving the objectives laid down in those documents. This principle is in itself sufficient to prevent the emergence of any kind of centralised superstate, since it implies that all competences rest with the States, except in those cases where they transfer them to the Union.

5.3.     The Treaty of Lisbon does not increase the Union’s competences: the small number of ‘new’ competences laid down correspond essentially to areas in which the Union already took action under existing articles, or even Article 308 of the EC Treaty, and for which the new text establishes a precise legal basis. The changes made in the TFEU essentially reflect the need to bring its provisions into line with the new decision-making procedures and the new legal instruments (see below, point 7).

5.4.     In addition, the Treaty of Lisbon strengthens the requirement for the Union to comply with the principles of subsidiarity and proportionality when exercising its competences; monitoring of that compliance is already a matter for the Member State governments, in the Council, and Parliament. Although the definition of these principles set out by the new Treaty corresponds to that already employed in the Treaties in force, the protocol on the principles of subsidiarity and proportionality provides for new mechanisms to guarantee compliance with those principles, in particular by substantially strengthening the role of the national parliaments.

5.5.     Above all, the latter gain the right to be informed in good time of all Commission legislative proposals, which must be duly substantiated as regards compliance with the principles of subsidiarity and proportionality. This provision will enable the national parliaments to exercise more effectively the rights they enjoy at national level and will, in particular, enhance their ability to influence the actions of their governments in the Council of Ministers. Moreover, as regards the subsidiarity principle in particular, in accordance with a protocol annexed to the Treaty[26] the national parliaments may, within eight weeks following the forwarding of the proposal, send directly to the Union institutions, which must take due account of them, opinions setting out the reasons why they take the view that a proposal is not consistent with the subsidiarity principle. An 'early warning' mechanism even requires the Commission to reconsider its proposal should one-third of the national parliaments consider that the proposal in question does not comply with the subsidiarity principle.

           The 2007 IGC supplemented this mechanism, already provided for under the Constitution, with a provision which works as follows: if, under the ordinary legislative procedure, the number of reasoned opinions on the non-compliance of a proposal for a legislative act with the principle of subsidiarity represents at least half the number of national parliaments, and if the Commission, following its review of the proposal, decides to maintain it, it must also justify that step in a reasoned opinion. All these opinions will then be forwarded to the two branches of the legislative authority, the EP and the Council, which must assess the issue of subsidiarity before the first reading. If the EP, acting by a majority of its component Members, or the Council, acting by a 55% majority of the Member States, decides to uphold the objection raised by the national parliaments, the legislative procedure is halted.

Finally, that same protocol also offers the Member States the possibility, if the national legal system allows such provision, of bringing an action before the Court of Justice, on behalf of their national parliament or one of its chambers, against a legislative act on the grounds that it violates the subsidiarity principle. The Committee of the Regions also gains the right to bring such actions against legislative acts on which, under the Treaties, it must be consulted prior to their adoption.

           These mechanisms offer further important safeguards against any potentially ill-considered exercise of Union competences and will clear the way for much more detailed democratic scrutiny of Community legislation. In particular, they also strengthen substantially the role of the national parliaments.

5.6.     It is true that in order to gain a full picture of the specific methods for implementing these competences the definition must be read in conjunction with the specific provisions set out in Parts III and IV of the TFEU. However, it is equally true that a simple reading of these provisions will give European citizens a fairly clear insight into who does what in Europe. This represents a degree of improvement in terms of transparency, but that improvement could have been greater if all the provisions concerning the Union’s competences had been brought together in a single title in the TEU, as they were in Part I of the Constitution.

5.7.     One of the further welcome features is that the new Treaty provides the system with the requisite degree of flexibility by means of a clause similar to the current Article 308 TEC (new Article 352 TFEU), which authorises the Council, should the need arise, to adopt measures in areas where the Union has no explicit competences. This flexibility clause offers the Member States full safeguards: decision-making by unanimity and clause to be used only in the context of the policies defined in the Treaties or to achieve the objectives laid down therein; the procedure to put it into effect has become more democratic, in that it is subject to approval by Parliament and the national parliaments must be notified in good time before the decision is taken. In addition, the 2007 IGC went further by making clear that measures based on that clause cannot provide for legislative harmonisation in areas where the Treaties rule this out. This article can likewise not be used with a view to achieving objectives under the common foreign and security policy.

6.      A revamped institutional framework for a stronger, more democratic and more transparent Union

One of the key questions which the new Treaty was required to resolve was that of the changes to be made to the Union institutions in order to enable them to deal with the new situation resulting from the enlargement, particularly as the Union's institutional organisation has essentially been based on the same structures for almost 50 years, even though the Union’s range of tasks has expanded substantially and the number of Member States has increased from six to 27. Despite the work of a series of Intergovernmental Conferences, the key institutional issues had remained unresolved and the solutions agreed on at Nice were not satisfactory even to some of those who had negotiated them. For its part, Parliament has repeatedly drawn the attention of the public and the leaders of the Member States to the need for a radical institutional reform to endow the Union with effective, democratic and transparent institutions, whilst safeguarding the institutional balance and the Community method: the Commission which proposes legislation, Parliament and the Council which take the decisions, and the Court of Justice which guarantees the application of the texts adopted.

   The Constitution already contained significant institutional changes which satisfied that need and which had not been fundamentally called into question during the ratification procedure.

  Apart from certain changes stemming directly from the abandonment of the idea of a constitution and the retention of the two current Treaties in amended form, and from the abandonment of symbols or vocabulary which might prompt comparisons with a State, institutional issues were not set to be a focal point of the 2007 negotiations. Not only had these issues not been at the heart of the public debates, in particular in those Member States which had voted against the Constitutional Treaty, but what is more, most Member States did not want to re-open the discussion on the institutional package, aware that any such step would call the whole agreement into question. Nevertheless, although some of these questions were central to the discussions at the 2007 IGC, the 2004 agreement was essentially left untouched.

6.1.   European Parliament

(1)        The Treaty of Lisbon substantially enhances the role of the European Parliament, the only European institution directly elected by citizens:

             -  its role as a co-legislator is fully recognised, thanks to the general application of the existing codecision procedure, which is elevated to the rank of the ordinary legislative procedure, but also thanks to an increase in Parliament's participation in special legislative procedures. In future the public will clearly be able to see that European legislative acts are adopted by the chamber which represents them and by the chamber which represents States; in parallel, in the field of international agreements its approval will also be required as a general rule;

                  -  it acquires a concurrent right of initiative for revision of the Treaties and participates in that procedure through its involvement in the Convention convened to prepare the revision (its approval is required for the Council to decide not to convene the Convention);

             -  its budgetary powers, which it shares with the Council on an equal footing, now extend to all Union expenditure;

             -  its powers of political scrutiny are enhanced, particularly by means of the election of the President of the Commission;

             -  various decisions which are of great importance in the life of the Union and which hitherto have rested solely with the Council are now also subject to approval by Parliament: the decision to initiate enhanced cooperation; the use of the flexibility clause enabling the Union to take measures not provided for in the Treaties in order to attain ends for which they do provide; decisions on the use of the general ‘bridging clauses’ (‘passerelles’) substituting qualified majority voting for unanimous voting or replacing special legislative procedures with the ordinary legislative procedure; certain decisions making it possible to extend the scope of legal bases provided for in the Treaties, such as those concerning the European Public Prosecutor's Office or judicial cooperation in criminal matters;

             -  even in the field of the common foreign and security policy, where it has no decision-making powers, the European Parliament acquires a general right to be informed and consulted.

(2)               In conclusion it may be said that, although it might have been possible to go further in certain areas, the European Parliament acquires powers of codecision in virtually all areas of Union policy. Basically, this is a matter of putting into practice the twofold legitimacy of the EU as a Union of States and of citizens, which, despite the lack of any explicit recognition of its importance in the new Treaties, is the basis for the European integration process. The Treaty of Lisbon thus undeniably represents a significant enhancement of the democratic dimension of the Union.

(3)    The number of Members of the European Parliament is limited to 751[27]. The amended TEU does not state how the seats are to be distributed among Member States, but instructs the European Council, acting on the initiative of the European Parliament and with its assent, to decide, before the 2009 elections, what its composition should be, on the basis of the principle of 'degressively proportional' representation, with a minimum of six and a maximum of 96 seats per Member State (the Convention proposed a minimum of four and no maximum). This solution will make it possible to respond more flexibly to the future development of the EU, whilst preserving the interests of each Member State, although the raising of the minimum number of seats to 6 will ultimately give rise to problems.

6.2.   European Council

The European Council is recognised as an autonomous institution whose role is to impart political impetus: the TEU expressly states that it is not to perform any legislative functions[28]. The most important innovation introduced by the Treaty of Lisbon, taking its cue, moreover, from the Constitution, is the abolition of the six-month rotating Presidency and its replacement with a President elected by the members of the European Council for a term of 30 months, which may be renewed once. The President's duties will be to prepare and direct the work of the European Council and represent the Union externally in order to raise the Union's profile and improve the continuity and consistency of its representation, both internal and external. Provisions are included to prevent the President from exercising executive powers and to avoid any conflicts with the President of the Commission or the Vice-President/High Representative for Foreign Affairs and Security Policy. Only practice will show whether these provisions are adequate.

6.3.   Council

         (1)        One of the key issues of the reform process was that of the procedure for voting within the Council when it acts by a qualified majority. The failure of the Brussels summit in December 2003 was partly due to differences of opinion between Member States on this subject. In the view of one of the rapporteurs, the introduction of population as a criterion for both the distribution of seats in the European Parliament and votes in the Council may not guarantee a balanced system, and he expressed himself in favour of the weighted votes system for the Council. However, since the Dimitrakopoulos-Leinen report[29], the European Parliament had opted by a large majority for the double majority system. This is why, since the beginning of the 2004 Intergovernmental Conference, the European Parliament had insisted that a solution could only be acceptable to it if it adhered to the principle of a double majority (of Member States and the population), in order to draw attention to the twofold legitimacy underpinning the development of the Union – that conferred by the Member States and that conferred by the citizens – and that the new procedure must make decision-making easier than the system provided for in the Nice Treaty.

 (2)    It was indeed the double majority system proposed by the Convention that was finally adopted instead of weighting of votes. It may reasonably be considered that, although the thresholds have been set higher than proposed by the Convention (the new Treaty now requiring 55% of States rather than 50%, and 65% of the population rather than 60%), the new system will make decision-making easier, as, in many combinations, the weighting system required far higher population thresholds for the adoption of a decision, and because, in many cases, the fact that at least four Member States will be required to form a blocking minority will have the effect of considerably reducing the 65% population threshold[30].

 (3)    Unfortunately, the addition of mechanisms serving to delay the entry into force of the new system and to grant supposed safeguards to certain Member States which fear that the new system will weaken their position has meant that the progress made in terms of transparency and clarity of the system, on the other hand, leaves much to be desired. Admittedly, the logic of the double majority is far easier to understand than any weighting of votes, but there is a risk that the public may regard the thresholds which have been adopted as rather arbitrary, and above all, the combination of different, complementary criteria greatly reduces the gains in terms of simplification and comprehension of the system.

 (4)    In order to overcome Poland's opposition to the introduction of the system agreed in 2004, the 2007 IGC added additional mechanisms. Firstly, the agreement reached provides for the entry into force of the system to be delayed until November 2014. Accordingly, the Nice system will continue to apply until that date. Secondly, a protocol annexed to the new Treaty stipulates that, until 31 March 2017, whenever a decision must be adopted by a qualified majority at the request of a Member State the voting system laid down in the Nice Treaty which is currently in force will still apply. Finally, the 2007 IGC also reached agreement to strengthen the kind of revised Ioannina compromise for a transitional period which had already been adopted in 2004 (Declaration No 7 to the Final Act of the IGC): under the terms of the 2004 declaration, if members of the Council representing at least three-quarters of the number of Member States or of the population required to block a decision indicate their opposition to the adoption of a Council act by a qualified majority, the Council will continue to debate the subject with a view to reaching wider agreement within a reasonable period. This agreement, which in 2004 was set to run until 2014, will now apply for the period from 1 November 2014 to 31 March 2017. As from that date, the thresholds needed to trigger the mechanism have been reduced to 55% of the Member States or the Union population necessary to block a decision. This agreement was formalised in a draft decision which the European Council approved and which will take effect on the date on which the new Treaty enters into force. In its 2004 version, this decision was to remain in force at least until 2014, when the Council could revoke it (acting by a qualified majority, which is now the general rule for Council decisions); in its 2007 version, under the terms of a new protocol, it will remain in force for an indefinite period and may only be revoked or modified following a discussion in the European Council, which must then take a favourable decision by consensus.

 (5)    Although the abandonment of the compromise arrived at by the Convention and the postponement of the implementation of the decisions taken in 2004 is regrettable, it should be borne in mind that the solution ultimately adopted was chosen after a heated discussion among the Member States, the purpose of which was not always entirely clear: the impact of a few percentage points more or less on the relative degree of influence of each Member State in the voting system obscured the fact that in reality divisions between all the 'large' Member States on the one hand and all the 'small' Member States on the other hardly ever emerge. Often, the same action was intended to pursue contradictory objectives simultaneously, such as preserving a State's own opportunities to block decisions whilst attempting to reduce the scope for others to do so. And above all, the whole of this debate was carried on without considering that ultimately the dynamics of Community negotiations are such that votes are very rarely taken. Political realities being what they are, however, Parliament can accept the agreement reached between the Heads of State and of Government, albeit without concealing its disappointments.

  (6)   Whatever the method by which decisions are taken, it must be applicable. Hence the importance of the question of the scope of qualified majority voting. The Treaty of Lisbon makes significant progress in this regard: there are some 44 new cases in which qualified majority voting is to apply in various fields (cf. Annex 2). On the other hand, unanimity is still required in 72 cases[31]. Whilst the general thrust of the changes can only be regarded as very positive, it is regrettable that the opportunity was not taken to do more in certain cases.

  (7)    Another major improvement made by the Treaty of Lisbon in terms of transparency is the requirement for meetings of the various configurations of the Council to be divided into two parts, depending on whether the Council is acting in a legislative capacity or in other ways, with the corollary that, when it deliberates or votes on legislative acts, the Council meets in public. Although the Member States did not accept the Convention's proposal that a genuinely separate Legislative Council should be created, it may be considered that the essential aspect of this proposal, which was that meetings should be held in public and that the Council's legislative work should be transparent, has been preserved.

  (8)   As regards the configurations and functioning of the Council, the main novelty is the creation of an autonomous Foreign Affairs Council, to be chaired by the High Representative. This and the General Affairs Council are the only two configurations of the Council whose existence is provided for by the new Treaty, which leaves it to the European Council to decide by a qualified majority on the creation of other configurations.

  (9)   The efforts to modify the existing system of rotating Presidencies of the Council in order to raise the profile and enhance the consistency and continuity of its work have had somewhat mixed results: the Member States departed from the Convention's proposal, ultimately adopting the principle of equal rotation within a system of team Presidencies determined by a decision of the European Council, acting by a qualified majority, and it is not possible to make out in advance exactly what the real benefits of this will be[32]. Only the Foreign Affairs Council (and the European Council) will have a stable presidency.

6.4. Commission

    (1)  Another of the institutional questions which were at the centre of debate was the composition of the Commission. The solution ultimately opted for, with its implementation deferred, departed from the Convention's proposal, but it corresponds more closely with political reality and may be considered positive: it makes it possible to respect the new Member States' aspiration to be represented in the Commission during the first years after their accession, whilst providing, after a reasonable lapse of time (2014), for the vital reduction in the number of Commissioners (to 2/3 of the number of Member States, which - in a 27-member EU - would already mean that there were fewer Commissioners than at present). Based on a rotation system which preserves equality between Member States (and which must reflect the demographic and geographical make-up of the Union), this solution will thus make it possible to keep the size of the Commission within acceptable limits. The frequency of the period when any given Member State will not be represented by a Commissioner will be once in every three terms.

  (2)   The Treaty of Lisbon also makes important progress regarding the appointment of the President of the Commission, who is in future to be elected by the European Parliament on a proposal from the European Council, acting by a qualified majority. This is a further step in the process of imparting political legitimacy to the Commission, particularly as the European Council is required to take account of the results of the elections to the European Parliament and hold ‘appropriate consultations’ before designating its candidate. Afterwards, the whole Commission, the President, the High Representative, who is appointed by means of a special procedure (see below), and the Commissioners, selected by the Council in agreement with the President-designate, will require a vote of approval en bloc by the European Parliament[33]. This procedure as a whole should make it clear to public opinion that the Commission is a political executive which needs Parliament's confidence, and not just a group of 'anonymous and unaccountable bureaucrats', as some claim.

  (3)   The enhanced role of the President of the Commission should also be noted, particularly as regards the internal organisation of the Commission and the right to demand the resignation of a Commissioner, which should improve the efficiency of the Commission.

6.5.     Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy

  (1)   One of the main institutional innovations of the Treaty of Lisbon is the creation of the post of High Representative of the Union for Foreign Affairs and Security Policy (merging in a single post the pre-existing posts of High Representative for the Common Foreign and Security Policy and Commissioner responsible for external relations). This innovation corresponds to the objective of ensuring that all the external actions of the EU are consistent and have a high profile. Institutionally, the High Representative will wear two 'hats': he or she will be responsible for conducting the EU's Common Foreign and Security Policy, for which purpose he or she will chair the Foreign Affairs Council, present proposals and implement Council decisions, while at the same time he or she will be a Vice-President of the Commission, taking on that institution's responsibilities in the field of external relations and coordinating all aspects of the EU's external action. He or she will be assisted by a European External Action Service composed of officials from the Commission, the General Secretariat of the Council of Ministers and national diplomatic services, which is to be set up by a decision of the Council after consulting the European Parliament and obtaining the approval of the Commission.  

  (2)   Thus the High Representative will be a Vice-President of the Commission, but he or she will have a special status, reflected in the procedures for his or her appointment and the possible ending of his or her tenure: he or she will be appointed by the European Council, acting by a qualified majority, with the agreement of the President of the Commission; he or she may be dismissed by the European Council using the same procedure, and must resign if the President of the Commission asks him or her to do so. As a member of the Commission, his or her appointment must also be approved by the European Parliament when it votes on the investiture of the Commission as a whole, and if the Commission resigns en bloc following a motion of censure by the European Parliament, this also applies to him or her[34].

(3)      These provisions essentially correspond to what the European Parliament had long been calling for: the High Representative will indeed be able to increase the coherence and efficiency of the Union's international action, promote the emergence of a genuine common foreign policy and raise the Union's international profile by giving it a 'face'. The threefold political accountability of the High Representative, to the European Parliament, the Council and the President of the Commission, is positive. But potential conflicts between the High Representative and the President of the Commission or the President of the European Council remain possible, and his or her hybrid status may give rise to conflicts of loyalty between the Council and Commission.

6.6.     The Court of Justice of the European Union

           The Treaty of Lisbon also enhances the role of the Union's judicial wing, which it calls the 'Court of Justice of the European Union', comprising the 'Court of Justice', the 'General Court' and possible 'specialised courts', instituted by a regulation[35]. Although there are no major changes in the composition and organisation of the Court of Justice and the General Court (Court of First Instance), a preliminary stage is introduced into the procedure for appointing judges and advocates-general: before being appointed by the Member States, the candidates nominated by the governments will be heard by a committee with a remit to assess the candidates' suitability to perform their duties. This committee will have seven members (former Members of the Court of Justice or national supreme courts and jurist with acknowledged expertise), including one proposed by Parliament.

           In future, acts of the European Council and of the agencies will be subject to judicial review to ensure their legality. The conditions for the admissibility of complaints by natural and legal persons about regulatory acts are eased. There will be no restrictions on the bringing of actions against acts adopted in the field of judicial cooperation in criminal matters and police cooperation, except as regards reviewing the validity and proportionality of police operations and the exercise by States of their responsibilities for maintaining public order and internal security. Finally, although the acts adopted in the field of the common foreign and security policy cannot in themselves be the subject of legal proceedings, the Court nonetheless has jurisdiction to consider the legality of European decisions providing for restrictive measures against legal and natural persons. It may also rule whether a measure falls within the scope of the CFSP or is covered by other Union competences.

6.7      Other institutions and advisory bodies

           (1)       The provisions concerning the European Central Bank (elevated to the rank of an institution of the Union) and the Court of Auditors remain virtually unchanged, although one innovation by comparison with the Constitution is that these two institutions now appear in the list of institutions included in the new Article 13 of the amended TEU. Moreover, it may be noted that the members of the Bank's Executive Board are in future to be appointed by the Council acting by a qualified majority and no longer unanimously.

           (2)       As regards the Committee of the Regions and the Economic and Social Committee, the Committee of the Regions acquires the right to bring an action on grounds of a violation of the principle of subsidiarity by a legislative act for the adoption of which the Treaty of Lisbon requires it to be consulted.

* * *

           It may thus be concluded that, despite certain aspects with regard to which it is not possible to judge in advance how effective the proposed changes will be, the Treaty of Lisbon succeeds in clarifying and enhancing the capacity of the institutions whilst preserving the 'Community method' and the institutional balance, which should enable the Union to respond to the new situation arising from enlargement and assert itself in the international arena.  

7.        Acts and procedures: a more coherent, precise and comprehensible system

7.1.     The new Treaty brings about significant progress in terms of simplification and rationalisation of decision-making procedures and instruments for action. The gains as regards the efficiency of procedures and their democratic legitimacy are obvious. Unfortunately, at the same time the Member States decided to abandon the changes in terminology introduced by the Constitution, which were important in order to enable citizens to understand more clearly who decides what in the Union and how. Parliament can only criticise this backward step, which entails a significant loss of transparency.

7.2      The typology of legal instruments is left essentially unchanged, with one minor simplification: five types of legal instrument are provided for: regulations, directives, decisions, recommendations and opinions.

The distinction drawn in the Constitution between legislative acts and implementing acts is retained, which is very welcome, but the terminology used in the Constitutional Treaty for legislative acts, law and framework law, has been abandoned, which runs counter to the goal of transparency. Henceforth, there will be legislative acts which are called regulations or directives or decisions, and implementing acts which are also called regulations, directives or decisions. The idea of a clear hierarchy of instruments has thus gone by the board.

The terms provided for in the Constitution were simple and clear, and the designation 'European' added to each category would have enabled the public to understand precisely what was meant, since the terms correspond to the terminology used in most Member States (a law is a set of rules emanating from parliament, a regulation is a set of rules adopted by the executive or a local administration), putting an end to the confusion and terminological imprecision which have prevailed until now. Instead, the terms regulations and directives will be retained for legislative acts, but will also be used to describe non-legislative acts, with the addition of the adjective ‘implementing’ (or ‘delegated’) to distinguish them from legislative acts. The result is thus the retention of language which is both obscure, being likely to make ordinary citizens think first of a bureaucratic, non-transparent authority, and misleading, the most glaring paradox (at least for those countries which use this terminology) being that of calling a legislative act a 'regulation'!

7.3.     Despite the terminological problems outlined above, the new Treaty also establishes a hierarchy of instruments. The supremacy of legislative acts over executive acts is clearly stipulated. And although the general rule is that implementation of European decisions is a matter for the Member States, the Commission is clearly recognised as the European executive, with the duty to take the necessary measures to implement legislative acts at European level, whilst the Council only exceptionally assumes executive responsibilities, in those cases where the new Treaty expressly so determines, or when legislative acts, stating due reasons, so specify.

7.4.     The creation of a category of delegated regulations, which involve power being delegated by the legislative authority (the European Parliament and the Council) to the Commission, will make the Union's action more efficient, as there will be no need for the legislature to concern itself with technical details which can be dealt with more quickly and appropriately by the executive; delegation of powers is accompanied by the requisite guarantees of scrutiny by the legislative authority (in particular by means of two mechanisms which make it possible either to block the adoption of a measure by the Commission or to revoke the delegation of powers), and complete equality between the European Parliament and the Council is ensured[36].

           We are thus faced with a hierarchy of instruments in which regulations, directives and decisions (not defined any more closely) are legislative acts, implementing regulations and directives are acts adopted by the executive to implement legislative acts, whilst decisions can also be either eminently political acts (the decision by the Council to use a 'bridging clause', for example) or individual implementing acts.

7.5.     The new legislative procedures: the Treaty of Lisbon clearly places the emphasis on the ordinary legislative procedure (which corresponds to the existing codecision procedure); this is the legislative procedure par excellence, to which the other types of legislative procedure are conceived as exceptions (‘special legislative procedures’) which must be explicitly provided for in the Treaties. The main features of the ordinary legislative procedure are as follows: the power of initiative rests with the Commission (except in the case of certain matters relating to the area of freedom, security and justice, where the Commission shares it with at least one-quarter of the Member States), there is codecision involving the European Parliament and the Council (some small changes which have been made to the old codecision procedure are intended precisely to stress the complete equality between the two institutions), and the Council adopts its decision by a qualified majority.

7.6.     The scope of the ordinary legislative procedure has been substantially expanded: some 50 new legal bases (bringing the total to 86), some of which are of enormous importance, such as those concerning the area of freedom, security and justice, policy on agriculture and fisheries, the European research area, the definition of implementing powers (hitherto governed by the framework decision on comitology) or the current Financial Regulation (cf. Annex 3). In all these fields, the Council can no longer decide by itself, but only in agreement with Parliament.

7.7.     Regrettably, there are still too many cases in which special legislative procedures apply, whereby one institution adopts an act with the participation of the other institution - which may range from consent to mere consultation - and in some cases it is difficult to see the choice of this type of procedure as anything but the result of concessions made during the negotiations at the Intergovernmental Conferences. There are three cases in which the European Parliament may enact legislative acts (regulations) with the consent of the Council. In contrast, there are 28 cases in which provision is made for Council legislative acts[37]. The legislative act containing the annual budget is subject to a special procedure for joint decision-making by the European Parliament and the Council (cf. point 8 below).

7.8.     Despite these exceptions, the Treaty of Lisbon undeniably represents distinct progress in terms of the efficiency and democratic legitimacy of European law-making. This progress is accompanied by similar advances regarding the adoption of the international agreements concluded by the Union, thanks to the extension of the application of the qualified majority voting procedure in the Council and the requirement that the consent of the European Parliament should be obtained (for example on agreements implementing the common commercial policy).

8.        The Union's finances

8.1.     One of the questions which gave rise to most debate, both at the Convention and at the 2004 Intergovernmental Conference, was reform of the Union's system of finance, particularly the budgetary procedure. It was a matter of institutionalising a system which in future would make it possible to finance the Union adequately, transparently and democratically, and particularly for the European Parliament to consolidate its powers as an arm of the budgetary authority by giving it a decisive say on the whole of the EU budget, including expenditure hitherto classified as 'compulsory', such as expenditure on the common agricultural policy and the common fisheries policy. The final result, although positive overall, to some extent represented a change of emphasis by the 2004 Intergovernmental Conference, which did not entirely accept the Convention's proposals. By contrast, this subject was never discussed during the 2007 negotiations.

8.2.     The Convention had proposed a three-stage model which was simple and balanced:

            -  the Council would continue to decide unanimously (with the subsequent approval of the Member States in accordance with their respective constitutional rules) on the essential features and on the own-resources ceiling[38]; the EP would only have the power to deliver an opinion;

            -  the European Parliament and the Council would decide jointly on the Financial Perspective, which would be constitutionalised under the name 'multiannual financial framework' (the Council would decide by a qualified majority as from the first financial framework after the entry into force of the Constitution);

            -  the two institutions would decide jointly on the annual budget: after a first reading in each institution, which could lead to the convening of a conciliation committee, Parliament would have the last word in the event of disagreement, provided that it could muster a very large majority in favour of its position; otherwise, the Council's position would prevail.

8.3.      This meant that the Member States would continue to hold the key to determining the amount and nature of the Union's revenue, that the two arms of the budgetary authority would have to agree on the programming of expenditure and that, in the event of disagreement on the annual budget, the European Parliament could have the last word on overall expenditure (the distinction between compulsory and non-compulsory expenditure being dropped), albeit within the limits of the ceilings imposed by the financial framework. In practice, the two institutions would thus have been strongly encouraged to reconcile their views.

8.4.      A large number of the Member States were unhappy with this balanced system, and throughout the 2004 Intergovernmental Conference proposals were submitted which in some cases even represented a serious assault on the European Parliament's existing powers in this field and ran the risk of destroying the idea of financial democracy in the Union. Thanks particularly to the efforts of the representatives of the European Parliament and the Italian and Irish Presidencies, a compromise was found which preserves Parliament's key rights in this field. This compromise was not called into question in 2007. The only changes made to this chapter stem from the regrettable decision to abandon the terminology for legislative acts provided for in the Constitution[39]:

          -   the Convention's proposals on own resources were accepted;

         -    the financial framework must always be adopted by the two institutions, but the Council will take decisions unanimously until the European Council, also acting unanimously, rules that the Council may decide by a qualified majority;

        -     the annual budget is also adopted jointly by the European Parliament and the Council, but in the event of disagreement between the two institutions the procedure must begin again with the submission by the Commission of a new draft budget[40].

8.5.     As has already been said, this solution preserves the European Parliament's most important budgetary powers: Parliament is given a decisive voice on the whole of budget, in view of the abolition of the distinction between compulsory and non-compulsory expenditure. But the retention of the unanimity requirement for the adoption of the multiannual financial framework will seriously complicate future negotiations on the subject and provide less encouragement for the budgetary conciliation between the institutions which was the rationale underlying the Convention's proposal.

9.        Progress on sectoral policies

           The provisions dealing with changes to Union policies are, with the exception of the general rules governing external action and the provisions on the CFSP, which form part of the TEU, contained in the TFEU. Part III incorporates the provisions dealing with the 'Internal policies and actions of the Union', Part IV those dealing with 'The association of the overseas countries and territories', and Part V those dealing with 'The external action of the Union'. The new Treaty essentially confines itself to incorporating procedural changes into the provisions of the current Treaties concerning the definition and implementation of sectoral policies, particularly the legal bases for the Union's action in each field. The view might perhaps be taken that many of these provisions could have been simplified or adjusted in the light of the changes which have occurred since they were drafted. But the fact is that the mandate which the European Council conferred on the Convention at the time did not empower it to revise these provisions in depth, the 2004 IGC did not undertake any such revision, and, when negotiations were resumed in 2007, the political climate was not conducive to any fresh consideration of this very complex issue.

           Accordingly, the changes made to the provisions governing Union policies are essentially the result of the structural, institutional and procedural revisions introduced by the new Treaty, concerning, for example, the abolition of the 'pillars', the definition of the Union's competences, the institutions, the decision-making procedures and legal instruments. As regards the substance of the policies per se, there are few new developments, the area of freedom, security and justice (essentially the former third pillar) and external relations, particularly the common foreign and security policy, being the fields where the changes are most sensitive. As regards the other sectoral policies, the changes mainly concern the procedures applicable and the breakdown of legal bases between legislative and non-legislative acts, which in itself may already constitute a guarantee of greater efficiency, democratic legitimacy and transparency of the Union's action in view of the positive nature of the changes which we have analysed above. It is true that, in the Constitution, some new legal bases seemed to recognise what were apparently new competencies, but these were essentially areas in which the Union was already taking action through the use of other articles, including Article 308. The main purpose of the new legal bases, therefore, was to clarify the way in which the Union exercises those competences (for example in the areas of energy, health, space, sport, tourism, etc.). These new provisions have been retained with some changes. In addition, two important innovations have been incorporated concerning the fight against climate change and energy solidarity, two areas which have a very direct bearing on the lives of European citizens and in which Union action can have a clear added value. But these are new objectives, rather than new competences. It should also be noted that an initial chapter has been introduced which lists the horizontal or cross-cutting clauses which apply across the board to all policies. We shall review the main aspects of these changes, with the aim of determining whether they enable the Union to act more efficiently and democratically in the field in question.

9.1.     Area of freedom, security and justice

(1)       In the internal policy sphere, the provisions dealing with the area of freedom, security and justice are those where the greatest changes are to be found, with, in particular, the pillar structure being discontinued and judicial cooperation in criminal matters and police cooperation (which, up to now, have come under the third pillar) being brought under the 'Community' method through the extension of the ordinary legislative procedure and qualified majority voting. This was already the case under the Constitutional Treaty, but the Treaty of Lisbon has made further substantial changes in an area which is now central to the European integration process.

           Despite the ‘Communitisation’ of the former third pillar, specific institutional arrangements nonetheless continue to apply: the strategic guidelines for legislative and operational planning are defined by the European Council (by consensus), without Parliament being involved in any way; the right of legislative initiative in connection with judicial cooperation in criminal matters and police cooperation is shared between the Commission and one-quarter of the Member States (rather than a single Member State as is currently the case); and the national parliaments are given a larger role, particularly as regards monitoring compliance with the subsidiarity principle (one-quarter of national parliaments required to trigger the early warning procedure, rather than one-third), the assessment of the implementation of Union policies in this area and scrutiny of the work of Eurojust and Europol.

(2)       The policy objectives in this area are clarified and defined more precisely. Union action is the area is explicitly made subject to respect for fundamental rights. Access to justice is enshrined as a general objective. Mutual recognition of the various systems and the approximation of laws are recognised as two parallel means of implementing policies.

           Policies on border checks, asylum and immigration are recognised as common policies of the Union, governed by the principles of solidarity and fair sharing of responsibility among Member States.

           The new Treaty also marks a major step forward in the areas of judicial cooperation in both civil and criminal matters and of police cooperation, mainly through the application of the ordinary legislative procedure.

(3)       Judicial cooperation in civil matters is extended to all matters having cross-border implications and is based on the principle of mutual recognition of judgments and decisions in extrajudicial cases, with the ordinary legislative procedure applying to any measures for the approximation of laws, with the exception of measures concerning family law, in which case unanimity is the rule (Council regulation, with Parliament merely being consulted). However, the Council may itself, after consulting Parliament, decide unanimously to extend the ordinary legislative procedure to cover some aspects of family law with cross-border implications, if no national parliament objects.

(4)       The major innovation as regards judicial cooperation in criminal matters is that the ordinary legislative procedure (qualified majority) is to be used for the approximation of laws covering both procedural matters (minimum rules to facilitate mutual recognition of judgments and judicial decisions, etc.) and substantive criminal law, with minimum rules concerning the definition of some serious crimes with cross-border dimensions listed in the TFEU and sanctions. The new Treaty even provides that the Council may, acting unanimously, with Parliament’s consent, identify other aspects of criminal laws procedure and other areas of crime to which the ordinary legislative procedure may apply.

           Some Member States were strongly opposed to this, despite the guarantee that European legislation in this area must respect the fundamental aspects of the Member States’ legal systems. Therefore, in order to secure agreement, the 2004 Intergovernmental Conference had made provision for an ‘emergency brake’ mechanism, which was reworked during the 2007 negotiations. This mechanism provides Member States which are having problems in this area with all the guarantees they require, without completely ruling out any further progress: should a Member State consider that a legislative proposal jeopardises ‘fundamental aspects of its criminal justice system’, it can ask for the matter to be referred to the European Council. That body has four months in which, to take a consensus decision to refer the matter back to the Council, so that the procedure can continue. If the dispute cannot be settled during that four-month period, enhanced cooperation will automatically be initiated in the matter concerned, on the basis of the legislative proposal in question, if nine Member States are in favour.

(5)       Parliament can also welcome the fact that the new Treaty incorporates the Convention’s proposal to establish a European Public Prosecutor’s Office, which has responsibility for combating offences damaging to the Union’s financial interests and may prosecute the perpetrators of such offences, despite strong opposition from several delegations during the 2004 IGC. The stipulation in the Constitution that the Council European regulation establishing the office must be adopted unanimously once Parliament has given its consent has been retained, but the 2007 negotiations led to the introduction of a clause symmetrical to that referred to in the previous paragraph, which might be termed an ‘emergency accelerator’: if unanimity cannot be secured in the Council, a group of at least nine Member States may ask for the proposal to be referred to the European Council; if that body reaches a consensus, it refers the proposal back to the Council so that the procedure can continue; if no consensus has emerged in the European Council after four months, a group of at least nine Member States may request the automatic transition to enhanced cooperation.

           Moreover, a 'bridging clause' ('passerelle') provides for the possible extension of the office's responsibilities to cover action to combat serious crimes with a cross-border dimension, by means of a European decision adopted unanimously by the Council after Parliament has given its consent.

(6)       Lastly, the ordinary legislative procedure has also been introduced for police cooperation, although unanimity continues to be the rule for operational cooperation and intervention by the competent authorities of one Member State on the territory of another. As in the case of the European Public Prosecutor's Office, the 2007 IGC added an 'emergency accelerator', which, in the event of an impasse, clears the way for enhanced cooperation if at least nine Member States request it.

(7)       In conclusion, it should also be borne in mind that, primarily at the instigation of the United Kingdom, whose special position in the area of Justice and Home Affairs was already recognised (as was Ireland's and, to a different extent, Denmark's[41]), special provisions consolidating that special status have been incorporated into the new Treaty by means of protocols. In return for its agreement, the United Kingdom demanded changes to the two protocols recognising the specific position of the United Kingdom and Ireland (which in some ways has no choice but to fall into line with the United Kingdom, given the substance of the specific agreements concluded between the two Member States in this area) on the development of the area of freedom, security and justice and, in particular, on the measures to build on the Schengen acquis.

           The position of these two Member States is the result of special factors: they are islands, they have no identity card system for their residents and they have a system of common law.

           As a result, the derogations already granted to the United Kingdom and Ireland in the area of immigration, asylum and visa policy and judicial cooperation in civil matters has been extended to cover judicial cooperation in criminal matters and police cooperation[42]. As regards the Schengen acquis, in which the Council had agreed that the United Kingdom and Ireland would participate on a case-by-case basis, provided that they also participated in the measures to build on the relevant parts of the acquis, the two Member States will not now be required to participate in these measures if they do not wish to. However, they may be excluded from all or part of the Schengen area in question if the Council, the European Council or, in the final analysis, the Commission so decides[43].

           Moreover, as regards the transition to the new legal arrangements governing acts under the former third pillar, in particular the stipulation that they should be subject to judicial review by the Court of Justice and scrutiny by the Commission, the United Kingdom has secured an addition to the protocol on the transitional provisions specifying that measures in the areas of cooperation on criminal matters and police cooperation adopted prior to the entry into force of the new Treaty will be exempt from that requirement for a period of up to five years (or until the acts in question are amended under new procedures). Prior to the expiry of that five-year period, the United Kingdom may go as far as to opt not to accept the new arrangements governing such acts, in which case all existing acts in the area in question will cease to apply to the United Kingdom, which may even be required to bear the direct financial consequences 'necessarily and avoidably incurred as a result of the cessation of its participation in those acts' if the Council so decides[44].

9.2. Other internal policies

(1)       Aside from the introduction of a few new legal bases for 'new' - or more clearly defined - competences, the changes which the new Treaty makes to the other sectoral policies stem mainly from the establishment of codecision (and thus qualified majority voting) as the ordinary legislative procedure and the breakdown between legislative and executive acts as now defined.

(2)       Some of the most striking changes are to be found in the fields of agricultural policy and fisheries policy, where the ordinary legislative procedure will apply for the adoption of legislative acts laying down rules for the common organisation of agricultural markets and the other provisions required for the pursuit of the common agricultural and fisheries policies (under the current arrangements, Parliament is merely consulted). This means that the shaping of the main lines of the common agricultural and fisheries policies will become a matter to be decided by Parliament as well, and no longer just by agricultural ministers. However, the setting of prices, levies, aid and quantitative limitations and the allocation of fishing quotas are to be dealt with by means of executive acts (implementing regulations or decisions) adopted by the Council.

(3)       A new strand, space policy, has been added to research and technological development policy. The framework programme will now be enacted by a legislative act adopted by a qualified majority. Parallel to that, a European research area within which researchers, scientific knowledge and technologies may move freely will be established under regulations adopted under the ordinary legislative procedure. A European space programme may also be adopted under the ordinary legislative procedure.

(4)       The objectives set out in the new title on energy include ensuring the functioning of the energy market and security of energy supply and promoting energy efficiency and the development of renewable forms of energy. The new Treaty places a limit on legislative action by the Union, which must not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply. Furthermore, although the ordinary legislative procedure and qualified majority voting are the rule in this area, the IGC stipulated that any measures primarily of a fiscal nature must be taken by means of a Council law adopted unanimously after Parliament has been consulted. However, the Council, acting unanimously, may take a decision making the ordinary legislative procedure applicable to those areas. Finally, in the light of the public debate which has been conducted over the last two years, the 2007 IGC added a specific reference to solidarity among the Member States in the area of energy, as advocated by the EP.

(5)       At the 2007 IGC, the Member States also agreed to add a specific reference to the fight against climate change, thus endowing the Union with a more specific legal basis which will enable it to enact binding measures in this area.

(6)       In the area of public health, the new Treaty adds 'early warning of and combating serious cross-border threats to health' to 'the fight against the major health scourges' among the support measures to be taken by the Union. The Union must also, among other things, lay down measures setting high standards of quality and safety for medical products and measures to protect public health in connection with tobacco and alcohol abuse. It should be emphasised that the new Treaty stipulates that Union action in this area must respect the responsibilities of the Member States for the definition of their health policy, including the management of health services and medical care and the allocation of the resources assigned to them.

(7)       It is regrettable that the text finally agreed does not contain more substantial changes in the social policy field, particularly as regards the extension of qualified majority voting (no change by comparison with the current situation). It would, however, be wrong to say that the Treaty of Lisbon represents a step backwards in this area. On the contrary, some advances can be identified. Thus, aside from classifying social policy among the shared competences and explicitly indicating that the Union can take measures to coordinate the Member States' social policies, the new Treaty achieves progress in the following areas:

           –    inclusion of 'full employment' and 'social progress' among the Union's objectives;

           –    introduction, among the 'General implementing provisions' (in Part I of the TFEU), of a general 'social clause' stipulating that, when defining and implementing all policies, the Union must take into account 'requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health';

           –    the establishment of a legal basis enabling services of general economic interest to be recognised and safeguarded; in addition, the 2007 IGC added a protocol on services of general interest which defines the specific nature of such services and makes clear that nothing in the Treaties in any way affects the competence of Member States to provide 'non-economic services of general interest', i.e. public services in the strict sense of the term;

           –    explicit recognition in the TFEU of the role played by the 'social partners', particularly the Tripartite Social Summit for Growth and Employment, which is to contribute to social dialogue.

(8)      Lastly, the ordinary legislative procedure will apply to social security measures covering employed and self-employed migrant workers' entitlement to benefits. This will be combined with another 'emergency brake' mechanism, to apply in cases where a Member State considers such measures 'would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system'. It may then request that the matter be referred to the European Council (thus automatically suspending the legislative procedure). The European Council must then within a period of four months either refer the matter back to the Council, thus enabling the procedure to continue, or ask the Commission to submit a new proposal. In that event, as in the event of a failure to act, the act originally proposed is declared not to have been adopted.

(9)      The reform Treaty likewise does not make any changes to the situation as regards taxation, where unanimity remains the general rule. The IGC failed to agree even to the relatively limited number of cases in which the Convention proposed that the ordinary legislative procedure (i.e. qualified majority voting) should apply in connection with administrative cooperation measures and action to combat tax fraud and evasion (subject to the Council unanimously establishing that the proposed measures related to these issues).

(10)    Another area that came in for much discussion, but in which the changes are relatively minor, is that of economic governance. However, the coordination of economic and employment policies has been confirmed as a Union competence (although the IGC amended the Convention text to place the emphasis on the fact that the Member States coordinate their policies according to arrangements determined within the Union), in conjunction with a slight strengthening of the Commission's position, and the provisions specific to Member States whose currency is the euro have been fleshed out. For example, the Council decision on the adoption of the euro by new Member States (proposed by the Commission) must be preceded by a recommendation from a qualified majority of the Member States whose currency is already the euro.

           Furthermore, the operating procedures of the Eurogroup are set out in a protocol attached to the new Treaty. The new Treaty also contains a Declaration on the Stability and Growth Pact. The pact was the subject of heated discussions among some delegations at the 2004 IGC, resulting in the adoption of changes to the Convention text which, inter alia, have reduced the importance of the Commission's proposed role in the excessive deficits procedure (with the recommendations addressed by the Council to the Member State concerned being adopted on the basis of a Commission recommendation, as is currently the case, rather than a proposal, as the Convention was proposing).

9.3. Common foreign and security policy

(1)      Major changes, in particular institutional changes, have also been made in the area of the Union's external action. However, this is also an area in which the Treaty of Lisbon departs substantially from the text of the Constitutional Treaty as regards its structure.

The 2004 IGC had followed the Convention in maintaining the structural unity of all the provisions governing the EU's external action, bringing them all together, with the exception of the two articles defining general principles, which were incorporated in Part I, in Title V of Part III of the Constitution, under the heading 'External action of the Union'. The Treaty of Lisbon, conversely, has brought together in Title V of the TEU the general provisions governing the external action of the Union and all the provisions governing the CFSP, including those dealing with defence, whilst incorporating in Part I of the TFEU the remaining provisions governing the other areas of external action (common commercial policy, cooperation with third countries, humanitarian aid, etc.). The fact that the two Treaties have the same legal value – as they each point out in their opening articles[45] – would seem to safeguard the progress achieved by means of the abolition of the pillar structure and minimise any reduction in the coherence of these provisions and the danger that the intergovernmental method employed in connection with the CFSP may 'contaminate' the more 'Communitised' arrangements used in other areas of external relations. However, constant efforts to interpret all the provisions of the two Treaties will be needed to safeguard this progress and ward off these dangers. Long live clarity!

In contrast, the Treaty of Lisbon has retained, if not in formal then at least in substantive terms, the main institutional innovation brought about by the Constitutional Treaty: it creates the office of High Representative for Foreign Affairs and Security Policy, replacing that of Minister of Foreign Affairs established by the Constitution, whilst retaining practically intact the relevant duties and responsibilities (see above, point 6.5.). This High Representative, who wears two institutional hats and who has the task of conducting the common foreign and security policy and coordinating all aspects of the Union's external relations, represents the new Treaty's main innovation in the area of the Union's external relations. Parliament hopes that this new post will help to make the Union's external action more coherent and effective, but much will depend on the way relations develop between the High Representative, the President of the Commission and the new, elected President of the Council.

As regards the common foreign and security policy, which is still, fundamentally, an area of intergovernmental action in which the role of the European Council is preponderant, unanimity remains the rule, with qualified majority voting applicable only to the implementation of decisions taken by the European Council (or proposals submitted by the High Representative for Foreign Affairs and Security Policy at the request of the European Council) or the Council. Even here, provision has been made for an 'emergency brake' in cases where a Member State opposes the adoption of a decision by a qualified majority on 'vital political grounds'. A number of proposals submitted at the 2004 IGC sought to broaden the application of qualified majority voting, but none, whether put forward by the Convention (qualified majority voting for proposals submitted by the High Representative with the support of the Commission), or by the Italian Presidency (qualified majority voting for all proposals from the High Representative), could overcome the opposition of a number of Member States. However, the new Treaty retains the specific CFSP 'bridging clause' provided for in the Constitution, which stipulates that the European Council, acting unanimously, may decide that qualified majority voting is to be applied in other cases (but not its decisions with military implications or in the area of defence). It is clear that there will be serious obstacles to the application of that bridging clause.

For its part, Parliament acquires an across-the-board right to be informed, and in some cases consulted, to exercise scrutiny (questions, debates) and to adopt the CFSP budget. The jurisdiction of the Court of Justice in the area of the Common Foreign and Security Policy is restricted to demarcation between the CFSP and the other areas of EU action and to judicial review of the legality of European decisions which give rise to restrictive measures vis-à-vis individuals.

In short, however regrettable it may be that no further progress has been made, in particular as regards qualified majority voting, realistically it must be borne in mind that, at the current stage of the European integration process, foreign policy is so central to the hard core of national competences that a genuine common external policy is inconceivable as long as the Member States fail to demonstrate the collective political will required to reach agreement. The major development under the new Treaty is the establishment of institutional arrangements to encourage the Member States to take concerted action in an effort to define a common approach to international problems, where this is necessary, and to consult one another before taking unilateral action which might be harmful to shared interests.

(2)      The greatest advances brought about by the new Treaty are to be found in the specific area of common security policy, where the 2004 IGC made major changes which went even further than those which had been proposed by the Convention and which were taken over, virtually en bloc, in the 2007 negotiations.

As a result, common defence, or at least the formulation of a common defence policy, the principles for which were already approved in the Maastricht Treaty - has become a more realistic prospect[46]. This common defence policy gives the Union an operational capacity based on civil and military assets. The main changes in this connection are:

           -  revision of the 'Petersberg' tasks[47];

-  establishment of a European Defence Agency ('Agency in the area of the development of defence, research, procurement and weapons capabilities')[48];

           -  the option to establish, by means of a Council decision adopted by a qualified majority, permanent structured cooperation in the defence field among Member States which have the military capability and political will to be involved (the conditions for implementing such structured cooperation are set out in a protocol annexed to the new Treaty);

           -  a mutual aid and assistance obligation under which Member States must use all means in their power to assist a Member State that is the victim of armed aggression on its territory, in accordance with the United Nations Charter and in compliance with the NATO commitments of the Member States that are members of that organisation. The new Treaty stipulates that this obligation will not prejudice the specific character of the security and defence policy of certain Member States, which is an important guarantee for those Member States which have traditionally been 'neutral';

           -  with a view to protecting the values of the Union, the Council will be able to entrust the implementation of a task to a group of Member States;

           -  establishment of a start-up fund made up of contributions from the Member States, to cover military expenditure not charged to the Union budget,

           -  laying down of a procedure for rapid access to appropriations in the Union budget.

(3)      The amended TEU also contains a solidarity clause under which the Member States must provide assistance to any Member State that is the victim of terrorist attack or natural disaster, if it so requests. The arrangements for implementing this clause will be adopted by decision of the Council, on a joint proposal from the Commission and the High Representative for Foreign Affairs and Security Policy. The Council will decide unanimously if this decision has defence implications. Parliament will be informed.

(4)      These advances are therefore significant and do not undermine the specific character of the security and defence policy of certain Member States or the commitments of the Member States that belong to NATO. Furthermore, they are not likely to transform the Union into an aggressive military bloc, as some people seem to fear. Some people would certainly have liked to go further, particularly as far as qualified majority voting is concerned. However, in view of the fact that this in an eminently intergovernmental policy area and of the current political climate in the Union, the final outcome can be regarded as relatively positive. However, during the 2007 negotiations, under pressure from certain Member States, the wording of some provisions underwent changes which reflect an effort to provide guarantees – even where this is entirely superfluous – that in the area of the CFSP the Union will confine itself to exercising only those competences conferred on it by the Treaties. In addition, the new Treaty has been 'supplemented' with a series of equally superfluous declarations[49] which reiterate this idea, sometimes entirely unnecessarily. Although this practice is not genuinely harmful, since it merely involves reiterating in a rather obvious way the substance of the actual provisions of the Treaty, it nevertheless points to a rather negative approach to the European integration process, one which cannot help but send a wrong message to the public.

9.4. Other areas of external relations

(1)      Positive changes have been made in the area of common commercial policy. Its scope has been extended as regards trade in services and intellectual property. Parliament's role is enhanced: the ordinary legislative procedure will be used to lay down measures implementing the common commercial policy; and Parliament will receive regular reports on negotiations on international agreements, which may not be concluded without its consent. The Treaty of Lisbon also endorses what is referred to as the 'cultural exception'[50], extending it to other areas.

(2)      Lastly, as regards humanitarian aid, Parliament can welcome the establishment of a specific legal basis coming under the ordinary legislative procedure and providing for the establishment of a voluntary humanitarian aid corps.

(3)      It should also be noted that the Treaty of Lisbon retains the specific provisions governing the development of the Union's neighbourhood policy, in particular the legal basis which enables it to conclude agreements in that area with the countries concerned. However, somewhat confusingly, it incorporates those provisions in Title I ('Common provisions') of the TEU.

10. A significant degree of flexibility

Another question of fundamental importance is whether the new institutional framework is sufficiently flexible to enable the Union to adjust to changing circumstances and meet new challenges that may arise in the future.

      To find an answer to this question we need to address two issues: firstly, that of revision of the Treaties, and, secondly, that of whether the system can evolve within the confines of the current institutional framework, without the need for revision of the Treaties itself.

(1)  The new Treaty makes a number of clear improvements to the revision procedure, first and foremost among which is the granting of a right of initiative as regards revision to Parliament, on the same basis as the Member States and the Commission. It also places the Convention on an institutional footing as the body responsible for preparing revisions, in recognition of both the truly decisive role the Convention played in the drafting of the Constitution and the limitations of the intergovernmental method. Parliament, which was the first to propose that the Convention method be used, cannot but welcome this change, which will help to make the revision procedure more transparent and democratic at the same time as making it more effective.

             One particularly positive development is the fact that Parliament must give its consent should the Council decide not to convene a Convention on the grounds that the changes are not sufficiently major.

(2)  Unfortunately, the new Treaty does not live up to Parliament's expectations as regards simplifying the revision procedure. The text of Article 48 of the amended TEU does contain a simplified procedure for revising the provisions of Part III of the TFEU on the internal policies of the Union (on condition that such revision does not increase the competences allocated to the Union), but this procedure merely allows the European Council to bypass the Convention method (without requiring Parliament's consent); furthermore, unanimity and approval by all the Member States in accordance with their respective constitutional provisions remain the rule. The EP and the Commission are consulted.

(3)           Revision of the Treaties will thus continue to require unanimity and ratification by all the Member States in all cases, even though, at the Convention, various proposals were put forward which enjoyed broad support in Parliament and among the national parliaments and would have made this requirement a little more flexible as regards the revision of the provisions dealing with the Union's internal policies, whilst complying with the fundamental principle that any further increase in the Union's competences would need to be unanimously approved by the Member States.

(4)  Conversely, Parliament cannot but welcome the retention of the 'bridging clauses' ('passerelles') which the Convention proposed for switches from unanimity to qualified majority voting within the Council or from special legislative procedures to the ordinary legislative procedure. The fact that this decision can only be taken unanimously by the European Council with Parliament's consent - and then only if no national parliament expresses any objections within a six-month period - provides an adequate guarantee that due respect will be shown for the rights of each Member State and that the decision will be transparent and democratically valid. In addition to these general bridging clauses, however, other specific such clauses exist, which as a rule either require the EP’s consent (broadening of the powers of the European Public Prosecutor’s Office), or give any national parliament the power to block the Council decision.

(5)  Another positive aspect of the new text is the improvements made in connection with enhanced cooperation, which may become more important in future in view of the substantial increase in the number of Member States. Whilst maintaining the conditions required to ensure the overall cohesion and institutional unity of the Union, the new Treaty extends the scope of enhanced cooperation mechanisms (which can now apply to all areas not covered by the exclusive competences of the Union, whereas under the current arrangements defence policy is excluded) and facilitates their establishment. Enhanced cooperation must bring together at least nine Member States, with the Council acting by a qualified majority except in common foreign and security policy matters, where unanimity will continue to be required (enhanced cooperation is currently banned in this area). Furthermore, the requirement that Parliament's consent should be sought (except in common foreign and security policy matters) will enhance the democratic legitimacy of the decision to establish such cooperation.

(6)  Lastly, the fact that the new Treaty has retained a ‘bridging clause’, as proposed by the Convention, allowing a switch to qualified majority voting or the ordinary legislative procedure within the enhanced cooperation mechanism, is also a satisfactory development.

(7)  It should also be noted that the Treaty of Lisbon amends the provisions governing the procedure for the enlargement of the Union, specifying that the EP and the national parliaments should be informed of any new application for accession and making explicit reference to the 'eligibility criteria approved by the European Council' (currently known as the 'Copenhagen criteria'), which must be taken into account when the Council takes its decision, unanimously as at present, after the EP has given its consent by a majority of its component Members.

(8)  Voluntary withdrawal from the Union: for the first time in the treaties establishing the European Communities and then the Union, which - with the exception of the first treaty, which established the European Coal and Steel Community - were expressly concluded for an unlimited period but which made no provision for a collective or individual withdrawal procedure, the TEU will incorporate a mechanism for 'voluntary withdrawal from the Union'. Admittedly even in the absence of any specific provisions such a move was anyway already permissible under international treaty law. However, the fact that withdrawal is now explicitly provided for in the TEU, which lays down detailed arrangements for dealing with such a situation, sends out the clear message that no Member State is obliged to continue its involvement in the European project if it no longer wishes to be involved. When taken together with the provisions on enhanced and structured cooperation, this clearly demonstrates that involvement in the Union and in the furtherance of its policies is something that must be chosen freely on the basis of a genuine political commitment.

11.      Entry into force of the new Treaty

           Since the new Treaty continues the tradition of treaties amending treaties already in force, and which will continue to exist in amended form, and since it does not seek to repeal and replace the current Treaties in their entirety, the rules governing its entry into force are those customarily applied in such cases. Accordingly, the Treaty of Lisbon itself provides (Article 6(2)) for its entry into force on 1 January 2009, if all the ratification instruments have been deposited by that date, or, failing that, on the first day of the month following the deposit of the final ratification instrument. The protocol (No 10) concerning the transitional provisions provides for any adjustments which may be required during the transitional period.

III.      Overall assessment/recommendation to approve the new Treaty

1.        In the light of the preceding analysis, the Committee on Constitutional Affairs' overall assessment of the outcome of the IGC which completed its work in October 2007 and the Treaty of Lisbon can only be resolutely positive. First and foremost, it enabled Europe to overcome the extremely worrying impasse in which it found itself. Its adoption will clear the way for a resumption of the ratification process in France and the Netherlands and will facilitate the use of the parliamentary method with a view to bringing the new text into force.

2.        Of course, the new Treaty is a compromise, one involving concessions which are difficult for Parliament to accept: the abandonment of the very idea of a Constitution and of certain provisions laid down in the Constitution; regrettable postponements of the entry into force of certain provisions and specific measures to satisfy the demands of a few Member States. This was the political price to be paid to find a way out of the crisis into which the 'no' votes in the French and Dutch referendums had plunged Europe. However, it does contain a large number of significant reforms and improvements by comparison with the current Treaties and most of the innovations introduced by the Constitution have been safeguarded.

           Above all, however, the new Treaty enhances democracy in the European Union, fosters more effective decision-making and clarifies to some extent who does what in the Union and the competences allocated to the Union, on the one hand, and to the Member States, on the other.

Additional remarks by Íñigo Méndez de Vigo, co-rapporteur

3.         The intergovernmental approach to Treaty revision has once again shown its limitations. Not a single substantive step forward has been made with respect to the Constitutional Treaty, while much has been removed. In short, the instinct was to cut rather than to create. What is more, with manifest disdain for the compromises reached, some governments have succeeded in unravelling earlier agreements and securing special exemptions or interpretations that fit in with their own interests. The prime example of this is the acceptance of the 'red lines' set out by Tony Blair's UK Government.

4.         The lack of vision and ambition shown by national leaders in the European arena has never been so obvious, and the Lisbon Treaty is a clear reflection of a feeling of diffidence towards – and even downright mistrust of – the Union and its institutions. It is therefore no surprise that many Europeans are visibly dismayed at the fate of the Constitutional Treaty – a dismay similar to that felt by Altiero Spinelli when he compared the Treaty on European Union adopted by the European Parliament with the Single Act adopted by the Council. It must be said, however, that many of the advances contained in that draft are today in force. Something similar will happen when the Lisbon Treaty enters into force: the advances brought by the Constitutional Treaty will form part of Community primary law.

5.         When that moment comes, we will need to make good use of the Treaty's institutional provisions and its potential and to flesh out its instruments in order to make the Union a more integral part of the daily lives of European citizens. Europe will need to face up to the growing strategic threats posed by terrorism and nuclear proliferation and to the new world situation created by globalisation and the technological revolution. Given the scale of the challenges facing it, Europe cannot bury its head in the sand: unless it throws its weight behind economic growth, market reform and greater competitiveness, it will be unable successfully to face up to the might of the US economy and the new winds blowing from countries such as China and India. The Union must rally around the principles and values that unite Europeans and must stand as the guardian of a social model that, for all its imperfections, has countless advantages. As Saint Augustine might say: 'taken in isolation, I am worth very little; in comparison to others, a great deal'.

6.         Europe will also need to address the issue of neighbourly relations. The Treaty of Lisbon provides us with the necessary legal basis in this area, which is closely linked with the issue of the Union's boundaries. Although no longer to be found in the Lisbon Treaty, the Constitutional Treaty's motto 'Unity in Diversity' should serve to guide the EU in its efforts to educate people about and protect our historical heritage. Europe needs to explore new forms of governance that will ensure greater public engagement with European issues, including more deliberative democracy at local level, e-democracy, participatory budgeting and arbitration to settle disputes. Furthermore, economic governance, with particular reference to relations between the Eurogroup and the European Central Bank, needs to be the focus of an in-depth debate aimed at putting an end to the dialectical skirmishes that are becoming increasingly common.

7.         We must be aware of the fact that it will be difficult for all 27 Member States to move forward together. If the Union is to achieve its goals, the European convoy cannot sail at the speed of the slowest ship. Greater use will therefore need to be made of enhanced cooperation in the future.

8.         Europe must not – and cannot – allow itself to indulge in introspection, to wallow in its own crises and expect the world simply to stop long enough for it to sort out its doubts and hesitancy. However, in order to set its house in order, Europe can now rely on the Lisbon Treaty and the advances it brings. The Treaty represents the one and only path of hope for the future, because European integration is a process that, as Paul Valéry said of poems, is 'never finished, only abandoned'. And it will be Parliament that leads the way along that path.

• [1]  Entry into force: 23 July 1951.
• [2]  Belgium, Germany, France, Italy, Luxembourg and the Netherlands.
• [3]  The following countries have joined the first six: Denmark, Ireland and the United Kingdom in 1973, Greece in 1981, Spain and Portugal in 1986, Austria, Finland and Sweden in 1995, the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia in 2004, and Bulgaria and Romania in 2007.
• [4]  Entry into force: 1 January 1958.
• [5]  Luxembourg Treaty of 17 February 1986, which came into force on 1 July 1987.
• [6]  Signed on 7 February 1992, came into force on 1 November 1993.
• [7]  Signed on 2 October 1997, came into force on 1 May 1999.
• [8]  Signed on 26 February 2001, came into force on 1 February 2003.
• [9]  Signed in Rome on 29 October 2004 and would have entered into force on 1 November 2006 (cf. Article IV - 447) if all the instruments of ratification had been deposited by that date.
• [10]  Signed in Lisbon on 13 December 2007.
• [11]  Resolutions on the preparations for the IGCs and assessing their outcomes:
  - Single European Act
  . resolution of 14 February 1984: Spinelli report and draft Treaty (OJ C 77, 19.3.1984, p. 33)
  . resolutions of 16 January 1986: Planas report (OJ C 36, 17.2.1986, p. 144)
               and 17 April 1986 (OJ C 120, 20.5.1986, p. 96)
  - Maastricht Treaty
  . resolutions on the report by D. Martin of
                 14 March 1990 (OJ C 96, 17.4.1990, p. 114),
                 11 July 1990 (OJ C 231, 17.9.1990, p. 97)
                 and 22 November 1990 (OJ C 324, 24.12.1990, p. 219)
  . resolution of 7 April 1992: D. Martin report (OJ C 125, 18.5.1992, p. 81)
  - Treaty of Amsterdam
  . resolutions of 17 May 1995: D. Martin/Bourlanges report (OJ C 151, 19.6.1995, p. 56)
                 and 13 March 1996: Dury/Maij-Weggen report (OJ C 96, 1.4.1996, p. 77)
  . resolution of 19 November 1997: Méndez de Vigo/Tsatsos report (OJ C 371, 8.12.1997, p. 99)
  - Treaty of Nice
  . resolutions on the Dimitrakopoulos/Leinen report of 18 November 1999 (OJ C 189, 7.7.2000, p. 222),
                 3 February 2000 (OJ C 309, 27.10.2000, p. 85)
                 and 13 April 2000 (OJ C 40, 7.2.2001, p. 409)
  . resolution of 31 May 2001: Méndez de Vigo/Seguro report (OJ C 47E, 21.2.2002, p. 108).
  - Treaty establishing a Constitution for Europe
  . resolution of 24 September 2003: Gil Robles/Tsatsos report (OJ C 77 E, 26.3.2004, p. 253)
  . resolution of 12 January 2005: Corbett/Mendez de Vigo report (OJ C 247 E, 6.10.2005, p. 88).
• [12]  OJ C 80, 10.3.2001, pp. 85 and 86.
• [13]  Mention need be made here only of the Rome ‘Assises’ involving the national parliaments (Conference of the Parliaments of the European Community, held from 27 to 30 November 1990), the interinstitutional conferences held in parallel with the IGCs on Economic and Monetary Union and Political Union, which culminated in the drafting of the Maastricht Treaty, the participation by Parliament representatives in the work of the Reflection Group prior to the Amsterdam IGC, followed by their involvement in the proceedings of the IGC itself, and, finally, their involvement as observers in the group set up to prepare the Nice IGC.
• [14]  Resolution of 25 October 2000 (report by Olivier Duhamel on the constitutionalisation of the Treaties), confirmed by the resolution of 31 May 2001 (Méndez de Vigo/Seguro report on the assessment of the Treaty of Nice and the future of the European Union).
• [15]  The idea of adopting such a Charter, which later became Part II of the Constitution, was first put forward by the German Council Presidency, which secured its acceptance by the Cologne European Council of 3 and 4 June 1999. The method of drafting the Charter was also laid down at that European Council meeting, then clarified at the following meeting held in Tampere on 15 and 16 October 1999. It was decided to establish a ‘body’ - subsequently termed ‘Convention’ - bringing together the four component parts of the Convention on the Future of Europe, but without the involvement of the applicant States.
• [16]  SN 300/1/01 REV 1, Annex 1, p. 19.
• [17]  .    Resolution of 16 March 2000: Duff/Voggenhuber report on the drafting of a European Union Charter of Fundamental Rights (OJ C 377, 29.12.2000, p. 329)
  .       Decision of 14 November 2000: Duff/Voggenhuber report on approval of the draft Charter of Fundamental Rights of the European Union (OJ C 223, 8.8.2001, p. 74)
  .       Resolution of 23 October 2002: Duff report on the impact of the Charter of Fundamental Rights of the Union and its future status (OJ C 300E, 11.12.2003, p. 432)
  .       Resolution of 29 November 2001: Leinen/Méndez de Vigo report on the Laeken European Council and the future of the Union (OJ C 153, 27.6.2002, p. 310(E))
  .       Resolution of 25 October 2001: Poos report on the reform of the Council (OJ C 112, 9.5.2002, p. 317(E))
  .       Resolution of 14 March 2002: Carnero González report on the legal personality of the European Union (OJ C 47, 27.2.2003, p. 594(E))
  .       Resolution of 7 February 2002: Napolitano report on relations between the European Parliament and the national parliaments in European integration (OJ C 284, 21.11.2002, p. 322(E))
  .       Resolution of 16 May 2002: Lamassoure report on the division of competences between the European Union and the Member States (OJ C 180, 31.7.2003, p. 493(E))
  .       Resolution of 17 December 2002: Bourlanges report on the typology of acts and the hierarchy of legislation in the European Union (OJ C 31, 5.2.2004, p. 126)
  .       Resolution of 14 January 2003: Napolitano report on the role of regional and local authorities in European integration (OJ C 38E, 12.2.2004, p. 167)
  .       Resolution of 24 September 2003 on the draft Treaty establishing a Constitution for Europe and the European Parliament’s opinion on the convening of the Intergovernmental Conference (IGC) (OJ C 77E, 26.3.2004, p. 255).
• [18]  A fourth took place on 3 and 4 December 2007, after the political agreement on the Treaty of Lisbon had already been reached.
• [19]  Name given to the two representatives from each Member State and from the EP and the Commission who took part in this preparatory phase of the talks. Parliament's 'sherpas' were Klaus Welle, the Head of President Hans-Gert Pöttering's Cabinet, and José Luís Pacheco, a member of the secretariat of the Committee on Constitutional Affairs.
• [20]  Draft report by Carlos Carnero González on the insertion in Parliament's Rules of Procedure of a Rule 202a concerning the use by Parliament of the symbols of the European Union, PE 398.505v3-00.
• [21]  The Treaty establishing the European Atomic Energy Community (EAEC/Euratom) will not be affected by the new Treaty, however, and will thus remain in force in parallel, although some of its provisions are altered by the Protocol amending the Euratom Treaty in order to bring them into line with the new text. However, Germany, Ireland and Austria have expressed the wish, in Declaration No 54 annexed to the Final Act of the IGC, that an Intergovernmental Conference should be convened as quickly as possible to revise the Euratom Treaty.
  Moreover, it should be pointed out that the new Treaty incorporates an excessive number of protocols, annexes and declarations: 12 protocols (most of those annexed to the Treaties in force have simply been brought into line with the constitutional text), amongst which could be cited those on the Schengen acquis, the role of the national parliaments, the subsidiarity and proportionality principles, the transitional provisions concerning the institutions, permanent structured cooperation in the area of defence, etc.), two annexes (already in existence, setting out the list of agricultural products and the list of overseas countries and territories) and 65 declarations. Since they have the same legal force as the Treaty, these protocols must also be ratified by all the Member States. The same is not true of the declarations, which are not legally binding, but which may be used as aids to interpreting the Treaties.
• [22]  Although it could be argued that the European Union as such has international legal personality, even though this is not conferred on it by the Treaties.
• [23]  Due note should be taken of the deletion, further to a French proposal, of the reference in that article to fair competition, the basis, according to the text of the Constitution, for the internal market. That deletion was justified to the extent that ‘fair competition’ represents only one of the means to establish that internal market, the Union’s actual objective. Moreover, that deletion has no legal implications concerning the role of competition, as demonstrated by the Protocol (No 6) on the internal market and competition.
• [24]  A principle which, at all events, could already be derived from the first part of paragraph 2 of Article 5 of the TEU.
• [25]  The draft Treaty submitted in July 2007 also moved the definition of citizenship to the TFEU and only determined efforts on the part of Parliament’s representatives to the IGC ensured that recognition of European citizenship has after all been incorporated into the opening provisions of the TEU, which is as it should be, since that Treaty makes repeated reference to 'citizens'.
• [26]  Protocol No 2 on the application of the principles of subsidiarity and proportionality.
• [27]  More exactly 750 'plus the President', to employ the wording of Article 14 of the TEU. Apart from this last-minute addition made to placate Italy, the rules governing the composition of the EP and the procedure for determining that composition are identical to those set out in the Constitution. The June 2007 European Council asked the EP to submit, in time for the October European Council, a proposal for the redistribution of seats in the EP in accordance with the new rules, which Parliament then did by adopting the resolution contained in the Lamassoure-Severin report (Parliament resolution of 11 October 2007 on the composition of the European Parliament, P6_TA-PROV(2007)0429). In that report, the EP endeavoured to propose a redistribution which was more consistent with the concept of degressive proportionality laid down in the new Treaty and which did not involve any further loss of seats for any Member State beyond what had already been agreed in the Accession Treaty for Bulgaria and Romania. Italy was not satisfied with that proposal and ultimately secured agreement that the Treaty should make provision for an additional seat, in a departure from the principle of digressive proportionality, in order to maintain its parity with the United Kingdom. A declaration (No 4) annexed to the Treaty of Lisbon states that 'the additional seat in the European Parliament shall be allocated to Italy'. Naturally enough, the new distribution of seats will take effect only once the Treaty has entered into force and the decision provided for in Article 9c has been formally adopted.
• [28]  Although the role assigned to the European Council in operating an 'emergency brake' in connection with certain decisions concerning social security and judicial cooperation in criminal matters may mean that, even if it does not directly perform legislative functions (it does not participate in the adoption of legally binding rules) it may at least interfere in a virtually decisive manner in a legislative procedure - cf. below, points 9.1. and 9.2.
• [29]  Parliament resolution of 18 November 1999 on the preparation of the reform of the Treaties and the forthcoming Intergovernmental Conference (OJ C 189, 7.7.2000, p. 222).
• [30]  The fact that the IGC introduced the requirement that at least four Member States should vote against a proposal in order to form a blocking minority means that in some circumstances a decision could be adopted with the support of far less than 62% of the population, which is the threshold set for the population criterion in the Nice Treaty: thus a decision opposed, for example, by Germany, France and the United Kingdom would nonetheless be adopted, even though its proponents represented only just over 58% of the population, as these three Member States cannot by themselves form a blocking minority even though between them they represent more than 41% of the population of the EU (in its current 27-member form). Moreover, it is necessary to bear in mind that at present the vagaries of the various possible combinations whereby it is possible to attain the minimum number of weighted votes required for a qualified majority has the effect that in many cases the required percentage of the population is substantially greater.
  On the other hand, raising the threshold for the number of Member States will not, in practice, have any effect, since it only made sense in a Union with 25 Member States, as was the case in 2004: 55% of Member States instead of half (50%) meant that in the 25-member EU 14 Member States would be required to vote in favour instead of 13, without the additional requirement formulated by the IGC that the majority must include at least 15 Member States; the number of Member States required to prevent a decision from being adopted will now be 12 instead of 13. However, in a Union of 27 55% of Member States in any case equals 15. Moreover, in practice, the possible increase in the risks of blockage due to this increase is certainly not very great. In reality, decisions are never taken with the Member States divided into two antagonistic blocs of virtually identical proportions.
• [31]  In that respect, the new Treaty incorporates practically all the changes provided for in the Constitution. The only exceptions concern the agreement on accession to the European Convention on Human Rights, which will have to be adopted unanimously (QMV under the Constitution), and the creation of a new legal basis for the introduction of rules governing the processing of personal data under the CFSP (Article 39 of the TEU). Although, according to the most generous interpretation, this involves nothing more than the establishment of joint rules to govern the exercise of a competence which rests solely with the Member States (everything covered by the Union's competence in the area of the protection of personal data is governed by Article 16 of the TFEU), it is regrettable that Parliament should not be involved in this procedure and that no explicit reference should have been made to legal review by the Court of Justice.
• [32]  A declaration (No 9) annexed to the Treaty sets out the political agreement reached among the Member States on a decision providing for the establishment of Presidency teams from three Member States for periods of 18 months. Those Member States would divide up the task of chairing the various sectoral configurations of the Council, either for rotating six-month periods (as at present) or for the whole 18-month period.
• [33]  It may be noted that the 2004 IGC did not accept the Convention's proposal that the government of each Member State should submit a list of three names from which the President would choose the Commissioner proposed by the Member State. Also, it is regrettable that the 2004 IGC did not accept the Commission's proposal that the investiture of the Commission should conclude with the vote by the European Parliament, which is politically highly symbolic, but added a stage to the procedure, which is now to conclude with the appointment of the Commission by the European Council, acting by a qualified majority.
• [34]  The transition to the new institutional situation resulting from the creation of the office of High Representative gave rise to a number of problems in the final days of the negotiations, with the EP endeavouring to safeguard its full prerogatives under two possible scenarios, either that of a temporary appointment immediately after the entry into force of the Treaty (scheduled for 1 January 2009), or the appointment of the new High Representative when the next Commission is constituted, in November 2009, following the European elections. A declaration (No 12) adopted at the Lisbon European Council guarantees Parliament’s rights.
• [35]  Adopted by Parliament and the Council by means of the ordinary legislative procedure, either on a proposal from the Commission and after consulting the Court of Justice, or at the request of the Court of Justice and after consulting the Commission.
• [36]  Each of the two arms of the legislative authority may revoke the delegation decision at any time; in addition, a delegated regulation proposed by the Commission can enter into force only if neither of the two institutions makes objections within the time limit provided for by the law or framework law delegating the power of regulation. These scrutiny arrangements are not exhaustive, moreover.
• [37]  In 22 of these cases, the Council decides unanimously (in five cases with the approval of the European Parliament, in 17 after mere consultation); in six cases it decides by a qualified majority (in one case with the approval of the European Parliament, in five cases after mere consultation) - cf. Annex 4.
• [38]  The Convention, on the other hand, proposed that the measures for the implementation of the own-resources system should be adopted by a Council law adopted by a qualified majority, with the approval of Parliament.
• [39]  The law establishing the system of and ceilings for own resources thus becomes a regulation, just like the law laying down implementing measures for that system; the law establishing the multiannual financial framework also becomes a regulation, whilst the budget, which was to be adopted by means of a law, now becomes simply 'the budget’, with the form of the legislative act which is to adopt it not specified. However, Article 314 of the TFEU states that it is adopted by means of a special legislative procedure, which makes it a legislative act pursuant to Article 289(3) TFEU.
• [40]  This is the general rule. In one specific case Parliament can continue to impose its standpoint, through a very large majority. But this is a fairly theoretical possibility.
• [41]  The special position of the United Kingdom and Ireland derives from the two protocols referred to in the two following footnotes, whilst that of Denmark, which has remained largely unchanged, derives from the Protocol on the position of Denmark.
• [42]  Protocol on the position of the United Kingdom and Ireland on the area of freedom, security and justice.
• [43]  Protocol integrating the Schengen acquis into the framework of the European Union.
• [44]  Article 10 of the Protocol (No 11) on the transitional provisions.
• [45]  Article 1, third paragraph, of the TEU and Article 1a(2) of the TFEU.
• [46]  The decision to establish, in time, a common defence will be taken by the European Council, acting unanimously, and will require the approval of all the Member States in accordance with their constitutional procedures.
• [47]  To add operations relating to disarmament, military advice, post-conflict stabilisation and the fight against terrorism, including in the territory of third countries, to the existing humanitarian and rescue tasks, conflict prevention and peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking.
• [48]  Whose main responsibility is to promote the rationalisation of the military capabilities of the Member States, the coordination of defence technology research and more effective military spending.
• [49]  One example is Declaration No 13, which emphasises that the provisions concerning the CFSP 'do not affect' the responsibilities of the Member States, as they currently exist 'for the formulation and conduct of their foreign policy' and that the provisions governing the common security and defence policy do not prejudice the specific character of their national security and defence policies. A further example is provided by Declaration No 14, which states that nothing in the new Treaty affects the representation of the Member States in international organisations, including a Member State's membership of the United Nations Security Council. Particularly unjustified, not to say partially incorrect, is the second paragraph of that declaration, which states that the provisions covering the CFSP 'do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament'.
• [50]  The Convention had proposed that the Council should act unanimously for the negotiation and conclusion of agreements in the field of trade in cultural and audiovisual services, where these risk prejudicing the Union's cultural and linguistic diversity. The 2004 IGC extended this 'exception' to cover the trade in social, education and health services where such agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them. The Council shall also act unanimously where agreements in the fields of trade in services in general and the commercial aspects of intellectual property include provisions for which unanimity is required for the adoption of internal rules.

• [1]  The TFEU also refers to the common foreign and security policy and the coordination of economic and employment policies, which, because of their specific nature, do not come under any of the three categories in this table. The areas of competence underlined in each of the columns are areas for which there are currently no specific provisions in the Treaties but in which the Union has already taken action, in particular using the provisions relating to the internal market or Article 308 TEC.
• [2]  In addition to these competences, the Union also high as an exclusive competence for the conclusion of international agreements when this is provided for in a legislative act of the Union, when it is necessary to enable the Union to exercise its internal competence or when it is likely to affect common rules or adversely affect their scope.
• [3]  Although the TFEU deals with the policies indicated in italics in this column in the article relating to shared competences, they are sectors in which Union action does not have the effect of preventing the exercise of national competences.
   

I -  Existing legal bases which move to qualified majority voting

[the numbers of the articles in the TEU and TFEU indicated first refer to those given in the Treaty of Lisbon; the numbers in [...] are those the articles will have in a future consolidated version of the Treaties (in accordance with the table annexed to the Treaty of Lisbon); the current procedure is indicated in brackets in italics]

1.   Art. 9 [16], paragraph 3, TEU and Art. 201b [236], paragraph (b), TFEU: Order of Presidencies of the Council – decision of European Council, without a Commission proposal (Art. 203 TEC – Council decides unanimously)

2.   Art. 42 [48] TFEU: free movement of workers, social benefits – ordinary legislative procedure[1] (Art. 42 TEC: codecision – Council acts unanimously) 

3.   Art. 47 [53], paragraph 1, TFEU: freedom of establishment, taking-up and pursuit of activities as self-employed persons – ordinary legislative procedure when the implementation of the relevant directives involves a change in the legislative principles in a Member State (Art. 47, paragraph 2, TEC: codecision – Council acts unanimously)

4.   Art. 61 G [74] TFEU: administrative cooperation in the area of freedom, security and justice – Council regulation, consultation of EP (Art. 66 TEC and Art. 34, paragraph 1, TEU: procedure laid down in Art. 67, paragraphs 1 and 2, TEC: unanimity in Council after consulting EP – Council may decide unanimously, after consulting EP, to move to qualified majority voting) 

5.   Art. 62 [77], paragraph 2, TFEU: border checks – ordinary legislative procedure (Art. 62 TEC: procedure laid down in Art. 67 TEC: unanimity in Council after consulting EP – Council may decide unanimously, after consulting EP, to move to qualified majority voting)

6.   Art. 63 [78] TFEU: asylum and protection of refugees and displaced persons – ordinary legislative procedure (Art. 63, paragraphs 1 and 2, TEC: procedure laid down in Art. 67, paragraph 5, TEC: unanimity and consultation of EP on certain aspects – Council may decide unanimously, after consulting EP, to move to qualified majority voting)

7.   Art. 63a [79] TFEU: immigration – ordinary legislative procedure (Art. 63, paragraphs 3 and 4, TEC: procedure laid down in Art. 67 TEC: unanimity in Council after consulting EP – Council may decide unanimously, after consulting EP, to move to qualified majority voting)

8.   Art. 65 [81], paragraph 2, TFEU: judicial cooperation in civil matters (excluding family law)[2] (Art. 65 TEC: procedure laid down in Art. 67 TEC: unanimity in the Council and simple consultation of EP, with the possibility of a switch to codecision on the basis of a Council decision taken unanimously after consulting EP)

9.   Art. 69 A [82], paragraphs 1 and 2, TFEU: judicial cooperation in criminal matters – ordinary legislative procedure[3] (Art. 31, paragraph 1, points (a), (b), (c), (d), TEU – unanimity in Council and simple consultation of EP) 

10. Art. 69 B [83], paragraphs 1 and 2, TFEU: approximation of criminal laws, offences and sanctions[4] (Art. 31, paragraph 1, point (e), TEU – unanimity in Council and simple consultation of EP)

11. Art. 69 D [85] TFEU: Eurojust – ordinary legislative procedure (Art. 31, paragraph 2, TEU – unanimity in Council and simple consultation of EP)

12. Art. 69 F [87], paragraph 2, TFEU: non-operational police cooperation – ordinary legislative procedure (Art. 30, paragraph 1, TEU – unanimity in Council and simple consultation of EP)

13. Art. 69 G [88], paragraph 2, TFEU: Europol – ordinary legislative procedure (Art. 30, paragraph 2, TEU – unanimity in Council and simple consultation of EP) 

14. Art. 71 [91], paragraph 1, TFEU: common transport policy (including cases covered by paragraph 3) – ordinary legislative procedure (Art. 71, paragraph 2, TEC – Council acts unanimously after consulting EP only in the case of the exceptions set out in paragraph 2)

15. Art. 107 [129], paragraph 3, TFEU: amendment of certain provisions of the Statute of the ESCB – ordinary legislative procedure (Commission proposal with consultation of the ECB or ECB recommendation with consultation of the Commission) (Art. 107.5 TEC – in the case of the Commission proposal, the Council acts unanimously after consulting the ECB; in all cases the EP is required to give its assent; in the case of a recommendation from the ECB, the Council acts by qualified majority after consulting the Commission)

16. Art. 151 [167], paragraph 5, TFEU: measures to encourage culture – ordinary legislative procedure (Council recommendations also by qualified majority) (Art.151, paragraph 5, TEC – codecision with unanimity in the Council; recommendations: Council acts unanimously on the basis of a Commission proposal)

17. Art. 161 [177] TFEU: Structural and Cohesion Funds (Art. 161 TEC: unanimity in the Council and assent of EP)

18. Art. 225 A [257] TFEU: creation of specialised courts (Art. 225A TEC: unanimity in Council and simple consultation of EP)

19. Art. 245 [281] TFEU: modification of the Statute of the Court of Justice, except Title I and Article 64 (Art. 245 TEC: unanimity in Council and simple consultation of EP)

20. Art. 245b [283], paragraph 2, TFEU: appointment of members of the Executive Board of the ECB – decision of European Council, on recommendation from Council, consultation of EP and of the Governing Council of the ECB (Art. 112 TEC – Heads of State or Government by common accord, remainder identical)

21. Art. 249 B [290], paragraph 2, and Art. 249 C [291], paragraph 3, TFEU: procedures for monitoring the exercise of implementing powers by the Commission (current comitology decision) – ordinary legislative procedure (Art. 202 TEC – unanimous Council decision after consulting EP)

II - New legal bases subject to qualified majority voting

1.   Art. 9 B [15], paragraph 5, TEU: election of the President of the European Council by the European Council

2.   Art. 9 E [18], paragraph 1, TEU, appointment of the High Representative by the European Council, with the agreement of the President of the Commission

3.   Art. 15b [31], paragraph 2(b), TEU: initiatives by the /High Representative of the Union for Foreign Affairs and Security Policy at the request of the European Council – Council decision

4.   Art. 16 [14] TFEU: principles and conditions for the operation of services of general economic interest – ordinary legislative procedure

5.   Art. 20 [23] TFEU: measures to facilitate diplomatic and consulate protection – Council directive, consultation of EP

6.   Art. 21 [24] TFEU: citizens' initiative for a European law – ordinary legislative procedure

7.   Art. 28 D [45], paragraph 2, TEU: statute and seat of the European Defence Agency – Council decision without Commission proposal

8.   Art. 28 E [46], paragraph 2, TEU: establishing permanent structured cooperation in the area of defence – Council decision without Commission proposal, consultation of /High Representative of the Union for Foreign Affairs and Security Policy

9.   Art. 28 E [46], paragraph 3, TEU: admission of a Member State to permanent structured cooperation in the area of defence – Council decision (only participating Member States may vote) without Commission proposal, consultation of Vice-President of the Commission/High Representative of the Union for Foreign Affairs and Security Policy

10. Art. 28 E [46], paragraph 4, TEU: suspension of a Member State from permanent structured cooperation in the area of defence – Council decision (only participating Member States may vote) without Commission proposal

11. Art. 49 A [50], paragraph 2, TEU: agreement on the withdrawal of a Member State – Council decision on a proposal from the negotiator of the agreement (in principle the Commission), with consent of EP

12. Article 61 C [70] TFEU: measures to assess the implementation of the area of freedom, security and justice, after simple information of EP and national parliaments

13. Art. 69 C [84] TFEU: incentive measures to support crime prevention – ordinary legislative procedure

14. Art. 97a [118], first paragraph, TFEU: intellectual property – ordinary legislative procedure

15. Art. 115 C [138], paragraphs 1 and 2, TFEU: Member States whose currency is the euro, common position and unified representation in international forums – Council decision, consultation of ECB

16. Art. 149 [165], paragraph 4, TFEU: sport – ordinary legislative procedure

17. Article 152 [168], paragraph 4, point (c), TFEU: measures to tackle common safety concerns in the public health sphere[5]

18. Article 152 [168], paragraph 5, TFEU: incentive measures to protect human health and in particular to combat the major cross-border health scourges and tackle tobacco and alcohol abuse[6]

19. Art. 172a [189], paragraph 2, TFEU: space policy – ordinary legislative procedure

20. Art. 176 A [194], paragraph 2, TFEU: energy – ordinary legislative procedure[7]

21. Art. 176 B [195], paragraph 2, TFEU: tourism – ordinary legislative procedure

22. Art. 176 C [196], paragraph 2, TFEU: civil protection[8]

23. Art. 176 D [197], paragraph 2, TFEU: administrative cooperation – ordinary legislative procedure

24. Art. 188 J [214], paragraphs 3 and 5, TFEU: humanitarian aid[9] and creation of European Voluntary Humanitarian Aid Corps

25. Art. 201b [236], point (a): list of Council configurations – European Council decision (without Commission proposal)

26. Art. 254a [298], paragraph 2, TFEU: administration of the European Union

27. Art. 256a [300], paragraph 5, TFEU: review of rules governing the nature and composition of the CoR and ESC – Council decision

28. Art. 269 [311], fourth paragraph, TFEU: measures implementing the own resources system – Council regulation, after EP consent (special legislative procedure, but no reference to unanimity)

• [1]  This procedure has an 'emergency brake' mechanism: where a Member State considers that the measures concerned 'would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system', it may request that the matter be referred to the European Council (thus automatically suspending the legislative procedure). The European Council must then within a period of four months either refer the matter back to the Council, thus enabling the procedure to continue, or ask the Commission to submit a new proposal.
• [2]  Points (e), (g) and (h) of paragraph 2 of that article contain new legal bases; the other points were already covered by Article 65 TEC. Paragraph 3 of that same Article 65 [81] TFEU makes provision for the Council to adopt a decision determining which aspects of family law with cross-border implications may be the subject of acts adopted under the ordinary legislative procedure.
• [3]  This procedure has an 'emergency brake' mechanism: where a Member State considers that the measures concerned 'would affect fundamental aspects of its criminal justice system, it may request that
  the matter be referred to the European Council and the procedure suspended. The European Council must, within four months, either refer the matter back to the Council so that the procedure continues, or request the Commission or the group of Member States from which the initiative originates to submit a new proposal. If, within the four months, either no action has been taken by the European Council or if, within 12 months the new legislative procedure has not been completed, enhanced cooperation in the relevant area will automatically go ahead if at least nine Member States are in favour.
• [4]  Ibidem.
• [5]    Measures covered by points (c) and (d) are new, whereas the measures covered by points (a) and (b) were already provided for in Article 152 TEC and came under the codecision procedure.
• [6]    The legal bases referred to in this paragraph are completely new, except for that covering incentive measures for the protection of human health, which was provided for in Article 152 TEC.
• [7]    The Union already takes measures in the energy sphere now, either on the basis of provisions that already require qualified majority voting, or on the basis of Article 308 TEC.
• [8]    Measures are already being taken in this sphere under Article 308 TEC.
• [9]    Measures are already being taken in this sphere under Article 179 TEC (by qualified majority), or under Article 308 TEC (unanimity).

This annex lists the legal bases to which the ordinary legislative procedure established by the Treaty of Lisbon will apply (this ordinary legislative procedure corresponds more or less to the procedure currently laid down in Article 251 TEC, i.e. the codecision procedure).

The subject areas underlined are those for which the legal basis is completely new, or where there has been a change in procedure so that the relevant measures are now subject to the 'codecision'/ordinary legislative procedure.

The numbers of the articles in the TEU and TFEU refer to those given in the Treaty of Lisbon; the numbers in [...] are those the articles will have in a future consolidated version of the Treaties (in accordance with the table annexed to the Treaty of Lisbon).

The corresponding articles of the Treaty now in force are indicated in italics and, in cases where the Treaty of Lisbon modifies the procedure, an indication is also given of the procedure that currently applies.

1.   Services of general economic interest (Article 16 [14] TFEU) (Article 16 TEC)

2.   Procedures for the right of access to documents (Article 16 A [15], paragraph 3, TFEU) (Article 255, paragraph 2)

3.   Data protection (Article 16 B [16], paragraph 2, TFEU) (Article 286, paragraph 2)

4.   Measures to combat discrimination on grounds of nationality (Article 16 D [18] TFEU) (Article 12 TEC)

5.   Basic principles for anti-discrimination incentive measures (Article 16 E [19], paragraph 2, TFEU) (Article 13.2 TEC)

6.   Measures to facilitate the exercise of the right of every citizen of the Union to move and reside freely in the territory of Member States (Article 18 [21], paragraph 2, TFEU) (Article 18, paragraph 2, TEC)

7.   Citizens' initiative (Article 21 [24] TFEU)

8.   Customs cooperation (Article 27a [33] TFEU) (Article 135 TEC)

9.   Application of competition rules to the common agricultural policy (Art. 36 [42], which refers to Article 43, paragraph 2, TFEU) (Article 36 TEC: qualified majority in Council and simple consultation of EP)

10. Legislation concerning the common agricultural policy (Article 37 [43], paragraph 2, TFEU) (Article 37, paragraph 2: qualified majority in Council and simple consultation of EP)

11. Free movement of workers (Article 40 [46] TFEU) (Article 40 TEC)

12. Internal market – social security measures for Community migrant workers[1] (Article 42 [48] TFEU) (Article 42 TEC: codecision – the Council acts unanimously)

13. Right of establishment (Article 44 [50], paragraph 1, TFEU) (Article 44 TEC)

14. Exclusion in a Member State of certain activities from the application of provisions on the right of establishment (Article 45 [51], second paragraph, TFEU) (Article 45, second paragraph, TEC: qualified majority in the Council without participation of EP)

15. Coordination of the provisions laid down by law, regulation or administrative action in Member States providing for special treatment for foreign nationals with regard to the right of establishment (Article 46 [52], paragraph 2, TFEU) (Article 46, paragraph 2, TEC)

16. Coordination of the provisions laid down by law, regulation or administrative action in Member States concerning the taking-up and pursuit of activities as self-employed persons and the mutual recognition of qualifications (Article 47 [53], paragraph 1, TFEU) (Article 47 TEC: codecision – Council acts unanimously when this involves a change in Member State legislation)

17. Extending provisions on freedom to provide services to service providers who are nationals of a third State and who are established within the Union. (Article 49 [56], second paragraph, TFEU) (Article 49, second paragraph, TEC: qualified majority in the Council without participation of EP)

18. Liberalisation of services in specific sectors (Article 52 [59], paragraph 1, TFEU) (Article 52, paragraph 1, TEC: qualified majority in Council and simple consultation of EP)

19. Services (Article 55 [62] TFEU) (Article 55 TEC)

20. Adoption of other measures on the movement of capital to and from third countries (Article 57 [64], paragraph 2, TFEU) (Article 57, paragraph 2, first sentence, TEC: qualified majority in the Council without participation of EP)

21. Administrative measures relating to capital movements in connection with preventing and combating crime and terrorism (Article 61 H [75] TFEU) (Article 60 TEC)

22. Visas, border checks, free movement of nationals of non-member countries, management of external frontiers, absence of controls at internal frontiers (Article 62 [77], paragraph 2, TFEU) (Article 62 TEC: procedure laid down in Article 67 TEC: unanimity in the Council and simple consultation of EP, with possible switch to codecision following a Council decision taken unanimously after consulting EP)

23. Asylum, temporary protection or subsidiary protection for nationals of third countries (Article 63 [78], paragraph 2, TFEU) (Article 63, paragraphs 1 and 2, and Article 64, paragraph 2, TEC: procedure laid down in Article 67 TEC: unanimity in the Council and simple consultation of EP, with possible switch to codecision following a Council decision taken unanimously after consulting EP)

24. Immigration and combating trafficking in persons (Article 63a [79], paragraph 2, TFEU) (Article 63, paragraphs 3 and 4, TEC: procedure laid down in Article 67 TEC: unanimity in the Council and simple consultation of EP, with possible switch to codecision following a Council decision taken unanimously after consulting EP)

25. Incentive measures for the integration of nationals of third countries (Article 63a [79], paragraph 4, TFEU)

26. Judicial cooperation in civil matters (excluding family law)[2] (Article 65 [81], paragraph 2, TFEU) (Article 65 TEC: procedure laid down in Article 67 TEC: unanimity in the Council and simple consultation of EP, with possible switch to codecision following a Council decision taken unanimously after consulting EP)

27. Judicial cooperation in criminal matters – procedures, cooperation, training, settlement of conflicts, minimum rules for recognition of judgments (Article 69 A [82], paragraphs 1 and 2, TFEU)[3] (Article 31 TEU: unanimity in Council and simple consultation of EP)

28. Minimum rules concerning the definition of criminal offences and sanctions in the areas of particularly serious crime with a cross-border dimension (Article 69 B [83], paragraphs 1 and, possibly, 2, TFEU)¹ (Article 31 TEU: procedure laid down in Articles 34, paragraph 2, and 39, paragraph 1, TEU: unanimity in Council and simple consultation of EP)

29. Measures to support crime prevention (Article 69 C [84] TFEU)

30. Eurojust (Article 69 D [85], paragraph 1, second subparagraph, TFEU) (Article 31 TEU: procedure laid down in Articles 34, paragraph 2, and 39, paragraph 1, TEU: unanimity in Council and simple consultation of EP)

31. Arrangements for involving the European Parliament and national parliaments in the evaluation of Eurojust's activities (Article 69 D [85], paragraph 1, third subparagraph, TFEU)

32. Police cooperation (certain aspects) (Article 69 F [87], paragraph 2 TFEU) (Article 30 TEU: procedure laid down in articles 34, paragraph 2 and 39, paragraph 1, TEU: unanimity in Council and simple consultation of EP)

33. Europol (Article 69 G [88], paragraph 2, first subparagraph, TFEU) (Article 30 TEU: procedure laid down in articles 34, paragraph 2 and 39, paragraph 1, TEU: unanimity in Council and simple consultation of EP)

34. Procedures for scrutiny of Europol's activities by EP and national parliaments (Article 69 G [88] paragraph 2, second subparagraph, TFEU)

35. Implementation of the common transport policy (Article 71 [91], paragraph 1, TFEU) (Article 71 TEC)

36. Sea and air transport (Article 80 [100], paragraph 2, TFEU) (Article 80, paragraph 2, TEC)

37. Measures for the approximation of national provisions which have as their object the establishment and functioning of the internal market to promote the objectives of Article 22a [26] (Article 94 [114], paragraph 1, TFEU) (Article 95, paragraph 1, TEC)

38. Measures to eliminate distortions in the internal market (Article 96 [116] TFEU) (Article 96 TEC: qualified majority in the Council without participation of EP)

39. Intellectual property except language arrangements for the European intellectual property rights (Article 97a [118], first paragraph, TFEU)[4]

40. Multilateral surveillance (Article 99 [121], paragraph 6, TFEU) (Article 99, paragraph 5, TEC: cooperation procedure)

41. Modification of the Protocol on the Statutes of the ESCB and ECB (Article 107 [129] paragraph 3, TFEU) (Article 107, paragraph 5, TEC: unanimity in the Council or, depending on the case, qualified majority after assent of EP)

42. Measures necessary for the use of the euro (Article 111a [133], TFEU) (Article 123, paragraph 4, TEC)

43. Incentive measures for employment (Article 129 [149] TFEU) (Article 129 TEC)

44. Social policy (Article 137 [153], paragraphs 1, except points (c), (d), (f) and (g), and 2[5], first, second and last subparagraphs, TFEU) (Article 137, paragraphs 1 and 2 TEC)

45. Social policy (equal opportunities, equal treatment and equal pay) (Article 141 [157], paragraph 3, TFEU) (Article 141, paragraph 3, TEC)

46. European Social Fund (Article 148 [164] TFEU) (Article 148 TEC)

47. Education (excluding recommendations) (Article 149 [165], paragraph 4, point (a), TFEU) (Article 149, paragraph 4, TEC)

48. Sport (Article 149 [165], paragraphs 2, point (g), and 4, TFEU)

49. Professional training (Article 150 [166], paragraph 4, TFEU) (Article 150, paragraph 4, TCE)

50. Culture (excluding recommendations) (Article 151 [167], paragraph 5, first indent, TFEU) (Article 151 TEC: codecision – Council acts unanimously)

51. Public health – measures to tackle common safety concerns in the health sphere[6] (Article 152 [168], paragraph 4, TFEU) (Article 152, paragraph 4, TEC)

52. Public health – incentive measures to protect human health and in particular to combat the major cross-border health scourges, and measures to tackle tobacco and alcohol abuse (Article 152 [168], paragraph 5, TFEU[7])

53. Consumer protection (Article 153 [169], paragraph 3, TFEU) (Article 153, paragraph 4, TEC)

54. Trans-European networks (Article 156 [172] TFEU) (Article 156 TEC)

55. Industry (Article 157 [173], paragraph 3, TFEU) (Article 157, paragraph 3, TEC)

56. Measures in the area of economic and social cohesion (Article 159 [175], third paragraph, TFEU) (Article 159 TEC)

57. Structural Funds (Article 161 [177], first paragraph, TFEU) (Article 161 TEC: Currently: unanimity in the Council and assent of EP)

58. Cohesion Fund (Article 161 [177], second paragraph TFEU) (Article 161 TEC: currently: unanimity in the Council and assent of EP; as from 2007: qualified majority in the Council and assent of EP)

59. European Regional Development Fund (Article 162 [178] TFEU) (Article 162 TEC)

60. Framework Programme for Research (Article 166 [182], paragraph 1, TFEU) (Article 166, paragraph 1, TEC).

61. Implementation of European research area (Article 166 [182], paragraph 5, TFEU)

62. Implementation of the Framework Programme for Research: rules for the participation of undertakings and dissemination of research results (Articles 167 [183] and 172 [188], second paragraph, TFEU) (Article 167 TEC)

63. Supplementary research programmes for some Member States (Articles 168 [184] and 172 [188], second paragraph, TFEU) (Article 168 TEC)

64. Participation in research programmes undertaken by several Member States (Articles 169 [185] and 172 [188], second paragraph, TFEU) (Article 169 TEC)

65. Space policy (Article 172a [189] TFEU)

66. Environment (Community measures to achieve environmental objectives except measures of a fiscal nature) (Article 175 [192], paragraph 1, TFEU) (Article 175, paragraph 1, TEC)

67. Environment Action Programme (Article 175 [192], paragraph 3, TFEU) (Article 175, paragraph 3, TEC)

68. Energy, excluding measures of a fiscal nature (Article 176 A [194], second paragraph, TFEU)[8]

69. Tourism - measures to complement the action of the Member States in the tourism sector (Article 176 B [195], second paragraph, TFEU)

70. Civil protection against natural and man-made disasters¹ (Article 176 C [196], second paragraph, TFEU)

71. Administrative cooperation in implementing Union law by Member States (Article 176 D [197], second paragraph, TFEU)

72. Commercial policy - implementing measures (Article 188 C [207], second paragraph, TFEU) (Article 133 TEC: qualified majority in the Council without consultation of EP)

73. Development cooperation (Article 188 E [209], paragraph 1, TFEU) (Article 179 TEC)

74. Economic, financial and technical cooperation with third countries (Article 188 H [212], second paragraph, TFEU) (Article 181 A TEC: qualified majority in the Council and simple consultation of EP)

75. General framework for humanitarian operations (Article 188 J [214], paragraph 3, TFEU)

76. European Voluntary Humanitarian Aid Corps (Article 188 J [214], paragraph 5, TFEU)

77. Regulations governing political parties and their funding (Article 191 [224] TFEU) (Article 191 TEC)

78. Creation of specialised courts (Article 225 A [257] TFEU) (Article 225A TEC: unanimity in the Council and simple consultation of EP)

79. Modification of Statute of Court of Justice, except Title I and Article 64 (Article 245 [281] TFEU) (Article 245 TEC: unanimity in the Council and simple consultation of EP)

80. Procedures for monitoring the exercise of implementing powers (Article 249 C [291], paragraph 3, TFEU) (Article 202 TEC: unanimity in the Council and simple consultation of EP)

81. European Administration (Article 254a [298], second paragraph, TFEU)

82. Adoption of financial rules (Article 279 [322], paragraph 1, TFEU) (Article 279, paragraph 1, TEC: unanimity in the Council after consultation of EP, then, as from 2007, qualified majority in the Council)

83. Fight against fraud affecting the Union's financial interests (Article 280 [325], paragraph 4, TFEU) (Article 280, paragraph 4, TEC)

84. Staff Regulations of officials and Conditions of Employment of Other Servants of the Union (Article 283 [336] TFEU) (Article 283 TEC: qualified majority in the Council and simple consultation of EP)

85. Statistic (Article 285 [338], paragraph 1, TFEU) (Article 285, paragraph 1, TEC)

• [1]    With an 'emergency brake' mechanism: where a Member State considers that the measures concerned 'would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system', it may request that the matter be referred to the European Council (thus automatically suspending the legislative procedure). The European Council must then within a period of four months either refer the matter back to the Council, thus enabling the procedure to continue, or ask the Commission to submit a new proposal.
• [2]    Points (e), (g) and (h) of paragraph 2 of this article contain new legal bases; the other points were already covered by Article 65 TEC. Paragraph 3 of the same Article 81 TFEU also allows the Council to adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure.
• [3]    An 'emergency brake' mechanism is provided for in paragraphs 3 and 4 of these articles whereby if a Member State considers that the measures concerned would affect fundamental aspects of its criminal justice system, it may request that the matter be referred to the European Council and the procedure suspended. The European Council must, within four months, either refer the matter back to the Council so that the procedure continues, or request the Commission or the group of Member States from which the initiative originates to submit a new proposal. If, within the four months, either no action has been taken by the European Council or if, within 12 months the new legislative procedure has not been completed, enhanced cooperation in the relevant area will automatically go ahead if at least nine Member States are in favour.
• [4]    In the absence of a specific legal basis, the Union has hitherto taken action in this area on the basis of Article 308 TEC: Unanimity in the Council and simple consultation of EP.
• [5]    In the areas covered by these points, the legislation is adopted by the Council unanimously, after consulting the EP. However, the second subparagraph of paragraph 2 contains a bridging clause whereby the Council may decide, unanimously, that the ordinary legislative procedure will be applied to points (d), (f) and (g) of paragraph 1.
• [6]    The measures provided for in points (a) and (b) of paragraph 4 of this article were already provided for in Article 152 TEC. The measures provided for in points (c) and (d) are new.
• [7]    All the legal bases provided for in this paragraph are new, with the exception of that for incentive measures for the protection of human health, which was already covered by Article 152 TEC.
• [8]    In the absence of a specific legal basis, the Union has hitherto taken action in this area on the basis of Article 308 TEC: unanimity in the Council and simple consultation of EP.

This annex lists the legal bases for special procedures.

The numbers of the articles in the TEU and TFEU refer to those given in the Treaty of Lisbon; the numbers in [...] are those the articles will have in a future consolidated version of the Treaties (in accordance with the table annexed to the Treaty of Lisbon).

Where there are corresponding articles in the current Treaties, these are indicated in italics, and in cases where there has been a change in procedure the procedure currently in force also appears in italics.

I -  Ad hoc procedures

1.   Annual budget - joint decision of EP and Council (Article 272 [314] TFEU) (Article 272 TEC: ad hoc procedure)

II - European Parliament acts

2.   Statute for Members of the European Parliament (Article 190 [223], paragraph 2, TFEU): adoption by EP, on its own initiative, after obtaining consent of Council (unanimously as regards taxation regime) and after consulting Commission (Article 190, paragraph 5, TEC)

3.   Provisions governing the exercise of the right of inquiry (Article 193 [226], third paragraph, TFEU): adoption by EP, on its own initiative, after obtaining consent of Council and Commission (Article 193 TEC: common accord)

4.   Statute of European Ombudsman (Article 195 [228], paragraph 4, TFEU): adoption by EP, on its own initiative, after obtaining consent of Council and Commission (Article 195, paragraph 4, TEC)

III -     Council acts

A.  Unanimity and consent of European Parliament

5.   Measures to combat discrimination (Article 16 E [19], paragraph 1, TFEU) (Article 13, paragraph 1, TEC: simple consultation of EP)

6.   Extension of citizenship-related rights (Article 22 [25] TFEU) - national ratification required (Article 22 TEC)

7.   European Public Prosecutor's Office (Article 69 E [86], paragraph 1, TFEU)

8.   Uniform electoral procedure (Article 190 [223], paragraph 1, TFEU): on initiative from and after consent of EP - national ratification required (Article 190, paragraph 4, TEC)

9.   Multiannual financial framework (Article 270a [312], paragraph 2, TFEU) Not mentioned in the treaties. Currently governed by an Interinstitutional Agreement

B.  Unanimity and consultation of European Parliament

10. Art. 6 TEU (with Art. 188 N [218], paragraphs 6 and 8): accession to the ECHR – Council decision on a proposal from the negotiator of the agreement (in principle the Commission), with consent of EP

11. Measures concerning social security or social protection (Article 18 [21], paragraph 3, TFEU) (Article 18, paragraph 3, TEC)

12. Citizenship: right to vote and stand for election in Member State of residence in municipal and European elections (Article 19 [22] TFEU) (Article 19 TEC)

13. Adoption of measures which constitute a step backwards in Union law as regards the liberalisation of the movement of capital to or from third countries (Article 57 [64], paragraph 3, TFEU) (Article 57, paragraph 2 in fine, TEC: Unanimity in the Council without consultation of EP)

14. Measures concerning passports, identity cards and residence permits (Article 62 [77], paragraph 3, TFEU)

15. Judicial cooperation in civil matters concerning measures relating to family law with cross-border implications[1] (Article 65 [81], paragraph 3, TFEU) (Article 67, paragraph 5, second indent, TEC)

16. Operational police cooperation (Article 69 F [87], paragraph 3, TFEU) (Article 30, paragraph 1, point (a): procedure laid down in Articles 34, paragraph 2, and 39, paragraph 1, TEU)

17. Interventions by the authority of a Member State on the territory of another Member State (Article 69 H [89] TFEU) (Article 32 TEU: procedure laid down in Articles 34, paragraph 2, and 39, paragraph 1, TEU)

18. Harmonisation of turnover taxes and indirect taxation (Article 93 [113] TFEU) (Article 93 TEC)

19. Approximation of provisions with a direct impact on the internal market (Article 95 [115] TFEU) (Article 94 TEC)

20. Language arrangements for European intellectual property rights (Article 97 a [118] TFEU)

21. Replacing the Protocol on the excessive deficit procedure (Article 104 [126], paragraph 14, TFEU) (Article 104, paragraph 14, TEC)

22. Specific tasks of European Central Bank concerning prudential supervision (Article 105 [127], paragraph 6, TFEU) (Article 105, paragraph 6, TEC: Unanimity in the Council after consultation of ECB and assent of EP)

23. Social policy: social security and social protection of workers, protection of workers where their employment contract is terminated, representation and collective defence, conditions of employment for third-country nationals[2] (Article 137 [153], paragraphs 1, points (c), (d), (f) and (g), and 2, point (b), TFEU) (Article 137, paragraphs 1, points (c),( d), (f) and (g), and 2, point (b), second paragraph, TEC)

24. Environment: provisions of a fiscal nature, town and country planning, management of water resources, land use and the supply and diversification of energy resources (Article 175 [192], paragraph 2, TFEU) (Article 175, paragraph 2, TEC)

25. Energy: fiscal measures (Article 176 A [194], paragraph 3, TFEU)

26. Association of overseas countries and territories with the Union - rules and procedure (Article 187 [203] TFEU - with consultation of EP) (Article 187 TEC - without consultation of EP)

27. Jurisdiction of the Court in the area of intellectual property (Article 229 A [262] TFEU) (Article 229A TEC: unanimity in the Council and simple consultation of EP, plus national ratification)

28. Modification of the Protocol on the Statute of the European Investment Bank (Article 266 [308], third paragraph, TFEU) (Article 266, third paragraph, TEC)

29. Union own resources - ceiling and creation of new resources (Article 269 [311], third paragraph, TFEU) - national ratification required (Article 269 TEC)

C.  Qualified majority and consent of EP

30. Implementing measures of the Union’s own resources system (Article 269 [311], paragraph 4, TFEU)

D.  Qualified majority and consultation of EP

31. Measures to facilitate diplomatic protection (Article 20 [23] TFEU - adoption of directives under special legislative procedure) (Article 20 TEC - agreement between the Member States: intergovernmental cooperation)

32. Research: specific programmes implementing framework programme (Article 166 [182], paragraph 4, TFEU) (Article 166, paragraph 4 TEC)

33. Outermost regions (Article 299 [349], second paragraph, TFEU) (Article 299, paragraph 2, second subparagraph, TEC)

• [1]    The Council may take a unanimous decision, after consulting the EP, to switch to the ordinary legislative procedure (second subparagraph of paragraph 3 of Article 65 [81] TFEU).
• [2]    The Council may take a unanimous decision, after consulting the EP, to switch to the ordinary legislative procedure for points (d), (f) and (g) (second subparagraph of paragraph 2 of Article 137 [153] TFEU).

Letter of 23 January 2008 from Mr Gerardo Galeote, chairman of the Committee on Regional Development, to Mr Jo Leinen, chairman of the Committee on Constitutional Affairs

Mr Jo Leinen

Chairman

Committee on Constitutional Affairs

Subject:  The Treaty of Lisbon

Dear Mr Leinen,

Given the time constraints, the Committee on Regional Development will not be able to adopt an opinion on the above-mentioned document, which, however, we consider to be highly relevant for regional development. Consequently and on behalf of the Committee, I would inform you of the committee's position.

The Treaty of Lisbon introduces several significant changes which, if ratified, will have a direct impact on the activities of the Committee on Regional Development. It will allow the Union to move forward on a renewed common basis towards a more democratic, efficient and visible future. Particularly valuable in this regard is the reinforcement of the regional dimension in the EU policy-shaping and decision-making process.

Our committee would therefore ask the Committee on Constitutional Affairs to take the following aspects into account in its report (2007/2286(INI) Rapporteur: Richard Corbett and Íñigo Méndez de Vigo):

The Committee on Regional Development:

1. Appreciates and approves the inclusion in the Treaty of Lisbon of key regional aspects such as the recognition of cultural and linguistic diversity as one of the EU's objectives, the renewed definition of the principle of subsidiarity, the consideration of the effects of Community legislation on local and regional authorities as well as the recognition of the principle of local and regional authorities consultation;

2. Welcomes the adjustment to introduce the concept of ‘territorial cohesion’ and its recognition as an objective for the EU; notes that territorial cohesion is cited as an area of shared competence between the Union and the Member States; endorses, furthermore, the fact that article 158 of the ECT, which defines cohesion policy, will be amended to include a new paragraph recognising the special status of the outermost regions;

3. Welcomes the extension of qualified majority voting and codecision procedure concerning for example the General Regulation on Structural Funds; believes these elements are bound to increase the ability of parliamentary committees with responsibilities in the field of structural and cohesion policy to influence policy;

4. Welcomes the particular attention to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross-border and mountain regions;

5. Asks the relevant authorities to fully implement provisions concerning the involvement of national and regional parliaments with legislative powers in the early-warning procedure designed to ensure that the principle of subsidiarity is respected; notes that the provision to allow national Parliaments and the Committee of the Regions to take legal action in the event of infringement of the principle of subsidiarity may lead to a change in the relationship between in particular the European Commission and the Member States;

6. Believes that a successful implementation of the Treaty of Lisbon and the new provisions created in the field of regional development and cohesion policy go hand in hand with an improved dialogue between the EU institutions and regional associations.

(closing formula and signature)

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Andrew Nicholas Duff

SUGGESTIONS

The Committee on Foreign Affairs calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

Structure

1.   Notes that, with respect to the external action of the Union, the Treaty of Lisbon makes major structural alterations in comparison with the Treaty establishing a Constitution for Europe (2004) by separating Title V of the Treaty on European Union – containing general provisions on the Union’s external action, specific provisions on common foreign and security policy (CFSP) and provisions concerning common security and defence policy (ESDP) – from Part Five of the Treaty on the Functioning of the European Union – containing general provisions on the Union’s external action, common commercial policy, cooperation with third countries and humanitarian aid, restrictive measures, international agreements, relations with international organisations and third countries and EU delegations, and the solidarity clause;

2.   Emphasises, therefore, that the two amended Treaties have the same legal value, and advises, in the interests of coherence and comprehension, that they should always be interpreted together;

Substance

3.   Notes that, despite structural differences in the field of foreign, security and defence policy, the Treaty of Lisbon is similar in substance to the constitutional treaty of 2004, and that, especially with respect to the international relations of the Union, the new Treaty constitutes a very great improvement on the arrangements currently in force;

4.   Strongly welcomes the new Treaty, therefore, in that it serves to raise the Union’s international profile and enhances its capacity to act effectively in world affairs; points out that the Treaty of Lisbon would:

–    clarify the Union's competences and define and extend its values and objectives to the effect that: "in its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter"[1];

–    make the Charter of Fundamental Rights binding and enable the Union to accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)[2];

–    assert that the Copenhagen criteria are to be taken into account in future enlargements;

–    provide an explicit legal basis for the Neighbourhood Policy;

–    establish a single legal personality for the Union as a whole;

–    oblige Member States to consult one another and to demonstrate mutual solidarity;

–    introduce a modest element of qualified majority voting (QMV) to Council decision making in CFSP, along with the facility of constructive abstention[3];

–    allow for a further extension of QMV in the future (for decisions outside the field of defence) when the European Council, acting by unanimity, so decides;

–    facilitate enhanced cooperation (by at least nine Member States) in CFSP;

–    create the post of permanent President of the European Council, who will ensure the external representation of the Union in CFSP at his or her level and in that capacity;

–    create the powerful post of High Representative of the Union for Foreign Affairs and Security Policy, who will be Vice-President of the Commission as well as chair of the Council of Ministers of Foreign Affairs, and who will conduct the CFSP and ESDP, contribute to policy development and ensure the consistency of the Union’s external action;

–    establish, with the consent of the Commission and after consulting Parliament, a European External Action Service (EEAS) in order to assist the High Representative, which will be drawn from the Commission, the Council secretariat and national diplomatic services;

–    strengthen the budgetary powers of the European Parliament over all EU spending, including the EEAS, giving Parliament parity with the Council;

–    give Parliament the power of codecision in the field of common commercial policy;

–    extend the use of QMV in the Council and Parliament's right of consent to all international agreements concluded by the EU in areas where the ordinary legislative procedure applies or where the special legislative procedure requires Parliament's consent for internal affairs;

–    provide new legal bases for instruments or policies with respect to urgent financial support for third countries, humanitarian aid, sanctions against non-state entities, space policy, security of energy supply, combating climate change, prevention of international terrorism and the protection of personal data;

5.   Welcomes, moreover, the major reform of the Common Security and Defence Policy, which comprises:

–    committing civilian and military capabilities of all Member States[4], including multinational forces, to the ESDP, with the possibility of entrusting a group of Member States to execute the tasks;

–    providing for permanent structured cooperation in defence between those militarily capable and politically willing Member States that attempt the most demanding missions;

–    committing to the progressive improvement of military capabilities;

–    expanding the role of the European Defence Agency;

–    obliging Member States to come to the aid of another under attack (without prejudice to the neutrality of certain Member States or to the NATO membership of others);

–    upgrading objectives (the "Petersberg tasks") to include the fight against terrorism;

–    insisting on mutual solidarity in the event of a terrorist threat or attack, or natural disaster;

6.   Notes with regret, however, that some Member States were clearly at pains in the IGC: (a) to make a rigid demarcation between CFSP and ESDP, on the one hand, and other aspects of the Union’s external action, on the other; (b) to dilute the practical effects of the decision in theory to develop common policies and pool resources in this area; and (c) to strictly limit the political role of the Commission and Parliament and the judicial role of the Court of Justice (ECJ)[5];

7.   Regrets that the UK and Poland have sought to limit the justiciability of the Charter of Fundamental Rights;

8.   Deplores, in particular, Article 25a of the EU Treaty, which provides that the processing of personal data in the field of security policy is to be governed by rules established by the Council alone without the involvement of Parliament or the supervision of the EU Courts;

9.   Notes, in this context, Declaration No 13 of the Intergovernmental Conference, which asserts that the CFSP provisions do not affect the current responsibilities of the Member States for the formulation and conduct of their foreign policy or their national representation in third countries and international organisations – notably, the primary responsibilities of members of the UN Security Council;

10. Notes, furthermore, Declaration No 14, which claims that the CFSP will not affect the existing legal basis, responsibilities and powers of each Member State in relation to its own foreign policy; and strongly regrets the statement, at once gratuitous and misleading, that the new CFSP provisions give no new powers to the Commission to initiate decisions and no increased role for Parliament;

11. Likewise notes Declaration No 24, which seeks to minimise the effect of the decision to upgrade the legal standing of the Union in international law;

Implementation

12. Notes that, according to Declaration No 12, "appropriate contacts" will be made with Parliament about the nomination by the European Council, with the consent of the President of the Commission, of the first High Representative to take office on the presumed entry into force of the Treaty on 1 January 2009; insists that the spirit of Article 9e of the EU Treaty should be fully applied in the case of this interim appointment (whereby, under Article 9d(7) of the EU Treaty, Parliament would normally have the right of consent to the appointment of the whole Commission, including the High Representative); gives notice, therefore, that it will expect to be fully consulted about this first appointment;

13. Insists on the need for conditions to establish the closest possible collaboration between the President of the European Council, the President of the Commission and the High Representative, and for the mutual respect of their different functions;

14. Welcomes Article 21 of the EU Treaty, which provides that the High Representative will "consult the European Parliament on the main aspects and basic choices" in CFSP and ESDP, "inform it of how those policies evolve", and ensure that Parliament’s views are duly considered; undertakes, moreover, to give full effect to its consultative powers and to develop enhanced, systematic scrutiny of the formulation and implementation of the Union’s foreign, security and defence policies and operations, fully using its budgetary authority; notes, too, the improved possibilities for Parliament to exercise democratic control over the activities of the High Representative in his capacity as Vice-President of the Commission;

15. In this context, urges that the Interinstitutional Agreement of 20 November 2002 concerning access by the European Parliament to sensitive information of the Council in the field of security and defence policy be revised in the light of the new Treaty;

16. Stresses the importance of ensuring the democratic accountability and transparency of the activities of the European Defence Agency;

17. In the light of the new potential in CFSP and ESDP afforded by the Treaty of Lisbon, wishes to foster closer collaboration between relevant committees of the European and national parliaments, including parliamentary observers from non-EU NATO members together with members from the NATO Parliamentary Assembly; further, proposes that the Western European Union Parliamentary Assembly be wound up on the coming into force of the Treaty of Lisbon;

18. Regrets the unnecessary complexity of the arrangements laid down in Article 28 of the EU Treaty with regard to the rapid financing of ESDP activities outside the EU budget; insists that the Interinstitutional Agreement on budgetary discipline and sound financial management of 17 May 2006, and the structured dialogue between the Council and Parliament envisaged therein, be fully implemented;

19. With regard to the establishment of the European External Action Service:

–    notes that, according to Article 13a(3) of the EU Treaty, Parliament has the right to be consulted about the establishment of the EEAS, and recalls that it is already in the process of drawing up a report on the matter;

–    notes that, according to Declaration No 15, preparations for the EEAS must begin as soon as the Treaty is signed; calls on the Council to associate Parliament in the preparatory work; and calls on the Council, the Commission and Member States to come forward with their proposals by no later than July 2008;

–    stresses the need for the EEAS to become a professional, permanent diplomatic service able to contribute effectively to achieving the Union's external action objectives and to supporting efficiently the work of the High Representative;

–    underlines the need for the EEAS to be organically linked to the Commission like the existing external delegations and to be financed by the EU budget;

–    reminds the Commission that the EEAS can only be established with its consent.

PROCEDURE

• [1]  Article 2(5) of the EU Treaty.
• [2]  Unlike the 2004 constitutional treaty, agreement to accede to the ECHR will now have to be by unanimity.
• [3]  As far as CFSP is concerned, QMV applies in the case of Articles 15b(2), 28(3), 28d(2) and 28e(2-3) of the EU Treaty.
• [4]  With the exception of Denmark.
• [5]  The ECJ has a role in policing the border between CFSP and non-CFSP matters (Article 25b of the EU Treaty), in reviewing the legality of sanctions (Article 240a of the Treaty on the Functioning of the European Union) and in delivering opinions on the compatibility of international agreements (Article 188n of the Treaty on the Functioning of the European Union).

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Thijs Berman

SUGGESTIONS

The Committee on Development calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

1.   Notes that Article 9 C(6) of the Treaty of Lisbon (the new Treaty) stipulates that “the Foreign Affairs Council shall elaborate the Union’s external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union’s action is consistent” and that Article 9 E(4) stipulates that the High Representative of the Union for Foreign Affairs and Security Policy “shall ensure the consistency of the Union’s external action”;

2.   Welcomes the fact that Article 10a(2) of the new Treaty , in Chapter V, Title I, explicitly mentions among the objectives of the Union’s external actions “the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty” and the assistance of "populations, countries and regions confronting natural or man-made disasters”;

3.   Welcomes the fact that in the Treaty on the Functioning of the European Union (TFEU), Part Five (External Action by the Union), Title III (Cooperation with third countries and humanitarian aid), development cooperation is treated as an autonomous policy area, on an equal footing with other areas;

4.   Welcomes, also, the fact that the TFEU (Article 188 J) recognises humanitarian aid as a fully-fledged Union policy, given that the Union is the world's leading humanitarian aid donor; notes that this recognition led to the adoption by the three institutions, on 18 December 2007, after a very fruitful joint review of the issue, of a European Consensus on Humanitarian Aid;

5.   Welcomes the fact that the TFEU (Article 188 D) recognises as the primary objective of the Union’s development policy “the reduction and, in the long term, the eradication of poverty”; insists that this primary objective must be placed in the context of the achievement of the Millennium Development Goals, as a consequence of the international community’s commitment at the UN Millennium Summit in 2000;

6.   Welcomes the fact that the new Treaty includes binding provisions for the protection of children's rights in the internal and external objectives of the European Union;

7.   Welcomes the fact that the TFEU (Article 188 D) requires that the Union’s development cooperation policy and that of the Member States “complement and reinforce each other”, requiring the Member States and the Union to strive towards enhanced donor coordination and a better division of labour, which will contribute to greater aid effectiveness;

8.   Hopes that this requirement for mutual complementarity between the Union and the Member States will lead to greater clarity of the roles of the Commission and the Member States, as called for by the OECD DAC Peer Review of June 2007, while giving rise to a strong common development policy, capable of better coordinating the policies of the different Member States, and avoiding overlap between Member States and the Commission, thereby improving cost-efficiency and aid effectiveness;

9.   Notes also that under Article 188 D of the TFEU “the Union shall take account of the objectives of development cooperation in the policies that it implements which are likely to affect developing countries”; stresses that only if high priority is given to Policy Coherence for Development will the Union be able to meet both the development objectives and the values of the Union as stated in the new Treaty; stresses that the 2008 Midterm Review of the Common Agricultural Policy should lead to concrete and decisive steps to reach full coherence with the objectives of the EU's development policy, such as the rapid phasing out of all trade-distorting subsidies;

10. Insists that, in order to ensure Policy Coherence for Development, there is a continued need for a specific Directorate General for Development at the administrative level, responsible for the policy setting, policy advice and policy management of EU development cooperation and, at the political level, a Commissioner specifically responsible for the EU's development policy in all developing countries and in a position to promote the interests of EU development policy within the College of Commissioners and in relation to the Council;

11. Calls on the Commission to correct the existing inconsistencies in the structure and the competences of its Directorates General, both in terms of policies and budget; calls for the Directorate General for Development to be made responsible for all EU development cooperation, including cooperation with non-ACP developing countries, and for the integration of EuropeAid into the Directorate General for Development;

12. Calls on Commission and the Council, given that a large part of current and future EU external relations revolve around development cooperation, to ensure that development experts from the Directorate General for Development and the Member State ministries are adequately represented both in the process of designing the external action service and in the service as such;

13. Welcomes the extension of the ordinary legislative procedure (co-decision), and stresses that this must mean that Parliament will enjoy a real and effective right of democratic scrutiny over all aspects of Union development cooperation policy;

14. Stresses that Parliament must structure and organise itself in the most efficient way possible so as to be able to scrutinise effectively the implementation of the laws bringing the provisions of the new Treaty into force;

15. Regrets that both the Council and the Commission have been reluctant to recognise Parliament's full scrutiny rights in the past; welcomes recent improvements made by the interinstitutional agreement on comitology as a first step in this direction;

16. Calls in this respect for the extension of the areas to which the regulatory procedure with scrutiny applies;

17. Welcomes the deletion by the new Treaty of Article 179(3) of the Treaty establishing the European Community, which excludes the European Development Fund (EDF) from the scope of that Treaty, and notes that this opens the way to include the EDF in the budget of the Union without the need to revise that Treaty; calls on the Council and the Commission to include the EDF in the budget of the Union at the 2008/2009 Midterm Review, which will enhance the democratic legitimacy of an important part of Union development policy and its budget.

RESULT OF FINAL VOTE IN COMMITTEE

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Carlos Carnero González

SUGGESTIONS

The Committee on International Trade calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

1.   Considers that, in comparison to the existing Treaties, the Treaty of Lisbon is a significant step forward for the Common Commercial Policy (CCP);

2.   Stresses that the two amended Treaties have the same legal value, and emphasises, in the interest of coherence, efficiency, transparency, and democracy, that they should always be interpreted in the same manner;

3.   Welcomes the fact that the Treaty of Lisbon maintains the improvements made in the Draft Treaty establishing a Constitution for Europe in the provisions related to the CCP and, in particular, the following:

a)   the recognition of the CCP as an exclusive competence of the Union, which implies full and comparable participation by all the institutions of the Union in CCP decision-making;

b)   the extension of the scope of the CCP to trade in services and all trade-related areas, including commercial aspects of intellectual property and foreign direct investment;

c)   the recognition of the lowering of barriers (other than customs barriers) among the policy objectives of the CCP (Article 188b of the Treaty of Lisbon/Article 131 of the EC Treaty);

d)   the application of the ordinary legislative procedure (i.e. qualified majority voting and co-decision with Parliament) to legislative acts relating to the CCP;

e)   the Council meeting in public when debating and adopting EU legislation and in particular CCP legislation;

f)    the fact that, since the ordinary legislative procedure applies, Parliament's consent is now mandatory as a general rule for all agreements concluded pursuant to the CCP, whether implementing measures are required or not;

g)   the application of the assent procedure prior to the ratification of agreements dealing predominantly with external trade.

4.   Welcomes the fact that, with regard to the negotiation and conclusion of international agreements under the CCP, the Treaty of Lisbon provides that the Commission will be under a legal obligation to inform Parliament of the progress of negotiations on a par with the special "Article 188n of the Treaty of Lisbon (Article 133 of the EC Treaty) - Committee" of the Council;

5.   Expressly deprecates the fact that the Treaty of Lisbon does not provide Parliament with the right to approve the mandate of the Commission to negotiate a trade agreement and stresses the imbalance - regarding the role and powers of Parliament - between the internal and the external competence in the areas of the CCP;

6.   Therefore calls on the Commission to include far-reaching social and environmental clauses and standards in the bilateral or regional trade agreements; and emphasises that no Free Trade Agreement should be signed without a Partnership and Cooperation Agreement;

7.   Welcomes the explicit requirement that the CCP shall serve the principles and objectives of the Union's external action, inter alia the protection of its fundamental interests, support for democracy and the rule of law, and the promotion of sustainable development;

8.   Welcomes the setting up of a 'double-hatted' High Representative of the Union for Foreign Affairs and Security Policy, who will ensure that all external action of the Union is consistent and coherent; considers that the pursuit of trade policy objectives will contribute to global interdependence, international stability and security;

9.   Notes, in this regard, that the Union's external action also covers the CCP and that the High Representative should not only ensure the right balance between the intergovernmental logic of the Common Foreign and Security Policy (CFSP) and the supranational logic of the CCP, but also ensure that the intergovernmental logic of CFSP does not contaminate the CCP;

10. Notes that the negotiation and conclusion of agreements in the field of foreign direct investment, services and of commercial aspects of intellectual property is subject to the same voting requirements as internal legislation; notes also the requirement for unanimity, under specific conditions, in the field of cultural, audiovisual, social, educational and health services, which will no longer fall within the scope of mixed competence;

11. Calls on the European Council, the Council and the Commission to consider the negotiation of a new Inter-Institutional Agreement that provides Parliament with a substantive definition of its roles and involvement in every stage leading to the conclusion of an international agreement;

12. Calls on the Commission to provide Parliament with all the necessary information relating to the CCP and the negotiation of commercial agreements or the negotiation of the commercial components of any agreement, including all proposals and draft proposals for negotiating mandates and/or directives, in sufficient time for the European Parliament as well as national parliaments to be able to express their views and for the Commission to be able to take due account of those views;

13. Calls on the Commission, with regard to the transparency of operations of the Article 188n of the Treaty of Lisbon (Article 133 of the EC Treaty) Committee, to make available all documents to Parliament's Committee on International Trade;

14. Calls on the Commission to refrain from making substantive changes to basic legislative acts, or from adding details affecting the political will expressed in basic legislative acts, when adopting implementing legislation in the commercial policy field in future; stresses, therefore, that Parliament's role in the area of CCP is very important in ensuring democratic legitimacy and accountability;

15. Calls on the Council to provide Parliament with the agenda of the External Relations Council; and requests that Parliament's representatives fully participate in all COREPER II meetings that deal with matters falling within the scope of the ordinary legislative procedure;

16. Calls on the future High Representative of the Union for Foreign Affairs and Security Policy to consider with Parliament adequate methods of keeping Parliament fully informed of and consulted on the Union's external action.

RESULT OF FINAL VOTE IN COMMITTEE

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Costas Botopoulos

SUGGESTIONS

The Committee on Budgets calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

1.   Points out that important modifications have been introduced by the Treaty of Lisbon as regards budgetary and financial issues:

a)   the Multiannual Financial Framework (MFF) becomes legally binding, it is expressly referred to in the Treaty and its duration is set for a period of at least 5 years; it is important that Parliament is legally granted the right of consent to the MFF, even if it will not be formally in a position to lay down the MFF's provisions required for the smooth running of the annual budgetary procedure as is currently the case with the Interinstitutional Agreement on budgetary discipline and sound financial management,

b)   the current distinction, in the budgetary procedure, between "compulsory" and "non-compulsory" expenditure is abolished, ensuring full parity between Parliament and Council,

c)   a new and simplified budgetary procedure is established with a single reading followed by a specific Conciliation Committee which shall have the task of finding a common agreement between Parliament and Council within a short period of 21 days, subject to the approval of both arms of the budgetary authority, whereas the Parliament will have the right to ultimately approve the budget if the agreement is rejected by the Council,

d)   the EU institutions are formally committed to ensuring budgetary discipline when adopting any act likely to have appreciable implications for the budget,

e)   codecision shall be applied to the adoption of the Financial Regulation and its implementing rules;

2.   Welcomes the above modifications as rendering the whole budgetary procedure more democratic and rational and also notes that they entail a new relationship between the two arms of the budgetary authority;

3.   Regrets that Parliament's role concerning the Union's own resources system has not been extended; believes that its right of consent over the corresponding implementing measures, which shall be laid down by the Council by a qualified majority, could constitute progress towards a more democratic and effective procedure, bearing in mind, however, that the scope of the implementing measures is limited to what has been defined in the own resources decision;

4.   Recommends that the Interinstitutional Agreement of 17 May 2006 on budgetary discipline and sound financial management should be adjusted according to the new budgetary procedure, as laid down in Point 4 thereof;

5.   Intends to draft an own-initiative report on the new budgetary procedure in order to carry out an in-depth analysis and a proper assessment of its impact on Parliament’s internal organisation and to safeguard its budgetary prerogatives at interinstitutional level; considers that, following the adoption of this report, the responsible committee would be in a position to propose the necessary changes to the Rules of Procedure, including Annex IV, taking into account the whole range of consequences which derive from the adoption of the Treaty and its impact on Parliament’s reform;

6.   Considers that the evaluation of the budgetary and financial implications introduced by the Treaty of Lisbon should also be an opportunity for Parliament to contribute to the current debate on the review of the EU budget.

RESULT OF FINAL VOTE IN COMMITTEE

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Ján Hudacký

SUGGESTIONS

The Committee on Industry, Research and Energy calls on the Committee on Foreign Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

General

1.  Reiterates its long-standing position that a consolidated text of the Treaties should be produced once the present amending Treaty is ratified by the Member States;

2.  Is of the view that Protocol No 6 on the Internal Market and Competition should be exercised with prudence and that the Treaty provision "the Union shall, if necessary, take action under the provisions of the Treaties" should be clarified by reference to the other provisions of the Treaties and the acquis communautaire;

Industry

3.  Believes that, in the area of industry, the amendments to the existing provisions of the EC Treaty will not interfere with the existing structure of business interests and investment decisions because:

a)   industry falls under the EU's competence of supporting, coordinating or complementing the actions of the Member States, while it is for the Member States to determine and promote their industrial policy,

b)   for the development of the industrial sector, guidelines are to be established at Union level, along with common indicators and arrangements for the periodic assessment and monitoring of industrial policies and the exchange of best practices between Member States is being encouraged,

c)   the provision "excluding any harmonisation of the laws and regulations of the Member States" does not necessarily mean the end of a common approach to industry,

d)   The European Parliament appreciates the EU's commitment to improving its economic, social and territorial cohesion on the basis of special attention being paid to rural areas and areas affected by industrial transition,

e)   The European Parliament will no longer participate in decision-making when coordinated action is deemed necessary; it will only be kept informed;

R&D

4.  Notes that amended Articles 163, 165 and 166 of the EC Treaty should be considered as improvements because they strengthen scientific and technological bases via the establishment of a European Research Area in which researchers, scientific knowledge and technology circulate freely, thus permitting researchers to cooperate freely across borders while also stimulating competitiveness in the Union, especially in the industrial sector;

5.  Notes two potentially contentious issues between the European Parliament and the Council, the latter being supported by the Commission:

a)   international agreements will no longer fall under the traditional Article 300 procedure,

b)   the retention of Articles 171 and 172 will mean the continuance of the consultation procedure to establish agencies, thus compromising the Parliament's prerogative to be a full participant in the setting-up of agencies;

Space

6.  Expresses its satisfaction at the insertion of a provision on European Space Policy into the section on Research and Technological Development and the consequential recognition in the Treaty of the fact that space has equal importance to R&D;

7.  Welcomes the opportunity given to Parliament and to the Council to establish, under the codecision procedure, the necessary measures which may take the form of a European Space Programme; however, considers that 'excluding any harmonisation of the laws and regulations of the Member States in this field' may imply some obstacles to the implementation of a common European Space Policy;

8.  Also welcomes the provision relating to the establishment of any appropriate relations explicitly with the European Space Agency;

Energy

9.  Rejoices at the fact that energy will now have a separate Title in the Treaty and thus a legal basis in the context of the internal market, while attention will be paid to the functioning of the energy market, security of the energy supply, energy efficiency and energy saving, the development of new and renewable forms of energy and the interconnection of energy networks;

10. Expresses its satisfaction at and support for the solidarity clause to be applied "if severe difficulties arise in the supply of certain products, notably in the area of energy";

11. Stresses that while the future ordinary legislative procedure (presently codecision) will be followed as a rule, deciding the energy mix will still remain within the competence of the Member States and fiscal measures in this field will still require the consultation of Parliament and unanimity in Council;

European Atomic Energy Community Treaty

12. Considers that, despite its imperfections, the Euratom Treaty remains for the time being an indispensable legal framework and no particular changes have been made to it by the present amending Treaty; considers, however, that Protocol No 12 to the amending Treaty, relating to the Euratom Treaty, makes the text illegible and very complicated due to numerous cross-references and the repeal of certain articles of the Euratom Treaty;

13. Notes that the Euratom Treaty will continue to have full legal effect; draws attention to Protocol No 12 seeking to adapt the Euratom Treaty in order to take account of common provisions laid down in the other Treaties, such as institutional and financial provisions; therefore reiterates the need for a consolidated text of the Euratom Treaty;

Research Fund for Coal and Steel

14. Draws the Commission's attention to the fact that Protocol No 11 on the Research Fund for Coal and Steel introduces procedural provisions that will not enhance the participation of the European Parliament in the decision-making process, by retaining the consultation procedure in a sector, research and technological development, where it is co-legislator, irrespective of the budgetary implications of this fund.

RESULT OF FINAL VOTE IN COMMITTEE

for the Committee on Constitutional Affairs

on the Treaty of Lisbon
(2007/2286(INI))

Draftsman: Jean-Marie Cavada

SUGGESTIONS

The Committee on Civil Liberties, Justice and Home Affairs calls on the Committee on Constitutional Affairs, as the committee responsible, to incorporate the following suggestions in its motion for a resolution:

The new Treaty: a long-awaited way out of a legal and institutional schizophrenia in the policies related to the area of freedom, security and justice

1.   Welcomes the following general improvements introduced by the new Treaty as regards the policies related to the area of freedom, security and justice:

(a)  making legally consistent, binding and transparent, at Treaty level, the relationship between the fundamental rights outlined in the Charter of Fundamental Rights of the European Union and the related EU policies needed to ensure the protection and promotion of those rights. With a binding Charter, the EU legislator will now be able to implement in a more consistent way all policies which could affect the fundamental rights of a person. This will be the case not only as regards the policies expressly comprised in the area of freedom, security and justice, such as the right of asylum, or the right to a fair trial, but also as regards the more general policies linked to the protection of human dignity against any form of discrimination, the protection of minorities, the right to transparency and to sound administration at European level, social rights and the right to data protection. The accession to the European Convention on Human Rights will, moreover, strengthen this relationship by also making the EU institutions accountable before the European Court of Human Rights;

(b)  bringing to an end the schizophrenic institutional and legal situation created fifteen years ago by the Treaty of Maastricht, which introduced a parallel, temporary legal regime for justice and home affairs policies (the so-called "third pillar"). By re-establishing the full competence of the Court of Justice, the rule of law will be reinstated where it is still lacking, and by associating the European Parliament in codecision the democratic legitimacy of these policies will be substantially improved;

(c)  strengthening the EU's democratic accountability by extending the codecision procedure (the "ordinary legislative procedure") to measures concerning police and judicial cooperation in criminal matters. A further point to be welcomed is that Parliament's assent will be required where the Council wishes to establish minimum rules on "other" specific aspects of criminal procedure, to create a European Public Prosecutor's Office out of Eurojust and to extend the powers of the European Public Prosecutor;

(d)  associating the European Parliament in the conclusion by the EU of international treaties. Hitherto, despite Article 21 of the EU Treaty, which provides for the European Parliament to be consulted, it has never been consulted by the Council even when the treaty under negotiation was clearly a "main aspect of the common foreign and security policy" (as in the case of the EU-US Agreement on extradition and mutual legal assistance);

(e)  abolishing, in several cases, the principle of unanimity within the Council. The qualified majority system will facilitate negotiations in the EU institutions and lead to the adoption of higher standards of fundamental rights protection (by contrast, the unanimity principle favours the adoption of a minimum common denominator and in several cases raises questions as to the added value of EU legislation).

By aligning the procedures in respect of qualified majority voting and codecision, the new Treaty will make it easier to adopt, within a consistent political framework, measures which now fall partly within the unanimity requirement and partly within the qualified majority requirement (as is currently the case with regard to legal and illegal migration);

(f)   harmonising legislative instruments. Instead of "common positions", "framework decisions", "decisions" and "conventions" as referred to in the present Article 34 of the EU Treaty, the European Union will adopt the normal Community instruments, regulations, directives and decisions governed by Community law, which will lead to another important change, namely, the possibility of these legislative acts having direct effect;

(g)  improving transparency and accountability in the relations between the EU institutions and individual citizens, civil society, political parties and national parliaments. In this regard, the fact that, for policies related to the area of freedom, security and justice, a specific regime has been established whereby the Commission, Member State governments and the European and national parliaments are to be involved in assessing the impact of these policies within the EU is extremely beneficial. As regards good governance within the EU, Parliament calls on the Commission and the Council to speed up the deliberations on the practical implementation of the plan to establish a European Public Prosecutor's Office, as a main prerequisite for the realisation of the goals set out in the first sentence of this point;

2.   Regrets that the price to be paid for these improvements has been that:

(a)  according to Article 10 of the Protocol on transitional provisions to the Treaty, the measures adopted under the third pillar regime will, for a period of five years after the entry into force of the new Treaty, remain beyond the control of the Commission and, moreover, of the Court of Justice. It is hard to understand why the Member States decided to protract for such a long period a situation which they themselves recognised as being legally flawed. The question is now how to minimize the negative impact for EU citizens:

-  an initial answer to this is to be found in the aforesaid Protocol, which provides that, where an act is amended, the transitional period will no longer apply to the amended act. The institutions should now decide whether it may not be better immediately after the entry into force of the new Treaty to amend some of the pre-existing, less satisfactory third-pillar measures;

-  a further solution could be to postpone until the period from 1 January to May 2009 the formal adoption of measures which are currently founded on the third pillar and which may affect the fundamental rights of citizens. A few months' delay will be easily comprehensible to EU citizens if the new rules will be enforceable before the European judicature;

(b)  somewhat complex new provisions are introduced to cater for the situation where a Member State considers that a draft directive would affect fundamental aspects of its criminal justice system or where it is not possible to reach unanimity (police cooperation). In those circumstances, the Member State in question may request that the draft directive be referred to the European Council. The first reason is perfectly understandable and even justifiable, as would be the case also for other situations where a Member State is confronted by the risk of a substantial reduction in the protection of fundamental rights; the second one is more a problem of a balance of powers.

      In these cases, the "ordinary" legislative procedure will be suspended for four months. In case of disagreement, and if at least nine Member States wish to establish enhanced cooperation on the basis of the draft directive concerned, the authorisation to proceed on the basis enhanced cooperation will be deemed to have been granted (and so would not need Parliament's consent, as required by Article 280 of the EC Treaty). However, where the ordinary procedure applies, it is important to stress that the adoption of the measure itself would still require codecision in conjunction with Parliament;

(c)  the system of opt-ins and opt-outs will become even more complex. Although the new provisions on enhanced cooperation will not apply to measures which build on the Schengen acquis, the Schengen regime will be modified (see below). Furthermore, the other opt‑outs which apply to non-Schengen related measures, such as judicial cooperation in civil matters, will be extended to apply to police and judicial cooperation (see the modifications to the protocols on Schengen and the position of the United Kingdom, Ireland and Denmark);

(d)  as far as the particular situation of the United Kingdom and Ireland is concerned, it must be recalled that Parliament was not formally consulted when a separate regime was decided for those countries in the Schengen regime in 2000 and 2001. The current situation is that, where the United Kingdom has opted into the Schengen acquis, it must participate, and where it has not opted in, it may not participate[1]. The modifications to the Schengen protocol will not change this aspect, but will add the possibility for the United Kingdom and Ireland to decline to participate in a measure building on the Schengen acquis in respect of which they have already opted in.

      This is likely to cause further fragmentation of the rules. Parliament will not be consulted in relation to participation in a measure and the effect on Schengen acquis. None the less, the actual measure will still need to be adopted by codecision, where the codecision procedure applies;

(e)  Furthermore, the UK and Ireland will be able to opt out of proposals to amend Title IV measures in respect of which they have previously opted in, and they will not be bound by new data protection rules adopted on the basis of the new treaty provision exempting the UK and Ireland from the substantive rules on police and judicial cooperation in criminal matters;

3.   Considers that the improvements introduced by the new Treaty outweigh its weaknesses. The EU institutions should now do their utmost to secure the successful ratification of the new Treaty by the Member States. They should also:

(a)  inform EU citizens of their new rights and of the new EU legal framework and, by the same token, invite the Member States to launch wide-ranging information campaigns and introduce specific professional training for national judiciaries and security services, with the aim of preventing all illegal discrimination between European citizens;

(b)  associate the national parliaments in the definition of the next multi-annual programme in the area of freedom, security and justice; this association could most appropriately take place through:

-  informal fora (such as the "Future" Group which will meet periodically during the four Council Presidencies in 2008 and 2009);

-  the formal, regular and timely transmission of all legislative preparatory texts, from the original legislative proposals onwards, in order to avoid discrimination between national parliamentarians and between European citizens;

(c)  conduct in 2008 the negotiations for the adoption at the beginning of 2009 of all the necessary measures needed for the successful launch by the new elected Parliament, commencing in 2010, of the new area of freedom, security and justice; bearing in mind the national and/or parliamentary reservations expressed in respect of a number of legislative procedures, invites the Commission and the Council to re-examine, from the perspective of the new legal bases introduced by the Treaty of Lisbon and taking stock of the political debate, the following legislative texts;

General rights

- Framework Decision on procedural rights (2004/0113(CNS))

- Framework Decision on data protection for security purposes (to be integrated into the revision of Directive 95/46/EC) (2005/0202(CNS)) (parliamentary reservations from DK, IE, NL, SE and UK)

Judicial cooperation

- Framework Decision on racism and xenophobia (2007/2067(CNS)) (parliamentary reservations from SE, NL, DK, IE and LV)

- Framework Decision on decisions adopted "in absentia"(still to be submitted)

- Framework Decision on the European evidence warrant (2003/0270(CNS)) (parliamentary reservations from. SE and DK)

- Framework Decision on the mutual recognition of convictions (2005/0018(CNS)) (parliamentary reservations from SE, NL and IE)

- Framework Decision on supervision orders in pre-trial procedures (2006/0158(CNS))

- Framework Decision on the exchange of information extracted from criminal records (2005/0267(CNS)) (parliamentary reservations from SE, FI, NL, IE, EL and DK)

- Framework Decision on EUROJUST (still to be submitted)

Police cooperation

- Framework Decision on fighting organised crime (parliamentary reservation from SE)

- Framework Decision on access to VIS data for security purposes (to be integrated as an amendment to the VIS Regulation) (2005/0232(CNS))

- Framework Decision on access to EURODAC for security purposes (to be integrated as an amendment to the VIS regulation) (2006/0310(CNS))

- Framework Decision on EUROPOL (consultation of European Parliament pending);

4.   Declares its willingness to participate, in a spirit of cooperation with the Commission and the Council Presidency, in the redrafting of these proposals during the course of 2008, and reserves its right to make any formal recommendations necessary to improve the political agreements already reached, as provided for in Article 39 of the EU Treaty; to this end, proposes the creation from the beginning of 2008 of a high-level working group competent to discuss openly the improvements to be made to the texts cited above;

5.   Welcomes the Conference Declaration concerning Article 10 of the Protocol on transitional provisions (Declaration 39a), and invites the Commission to start work, as early as 2008, on the amendment or replacement of legal acts which already appear unsatisfactory or ineffective (such as the Convention on Mutual Legal Assistance in Criminal Matters or other texts which experience shows should be improved);

6.   Considers that, from 2008, Parliament should be regularly informed of, and consulted on, the main programmes and agreements concerning third countries, such as the area of freedom, security and justice with Russia, the international strategy against trafficking in human beings, and matters relating to drugs trafficking and preventing and combating terrorism, even where such consultation is not mandatory.

RESULT OF FINAL VOTE IN COMMITTEE

• [1]  As a result, the Council has not permitted the UK to participate in the creation of Frontex and in the adoption of Regulation (EC) No 2253/2004 of 13 December 2004 on standards for security features and biometrics in passports and travel documents issued by Member States, and the UK has brought two actions against the Council (Cases C-77/05 United Kingdom v Council [2007] ECR I-0000 and C-137/05 United Kingdom v Council [2007] ECR I-0000).