CMLR Dougan Treaty of Lisbon

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THE TREATY OF LISBON 2007: WINNING MINDS, NOT HEARTS

MICHAEL DOUGAN*

1. Introduction**

It would be tempting to say of the Treaty of Lisbon 2007 (TL):1 alls well that ends well. Except, of course, that not everything is well, and matters are far from ended. This article seeks to provide an overview of the main reforms to the Unions primary law contained in the TL, highlighting some of the prob-lems those reforms create and some of the issues they are likely to generate in the future. For ease of reference within this admittedly lengthy piece, the arti-cle is structured as follows:

2. the long process of constitutional reform; 3. the Unions constitutional architecture; 4. the Union institutions; 5. decision-making instruments and procedures; 6. decision-making powers; 7. human rights and fundamental freedoms; 8. the Union judiciary; 9. the Area of Freedom, Security and Justice;10. accession, withdrawal and amendment;11. some overall re ections on the revised Treaties.

The TL obviously contains a great deal more amendments to the existing Trea-ties than that. However, space precludes analysis of the detailed reforms to various individual elds of Union activity (including the far-reaching changes to the Unions external competences in general and the CFSP in particular);2

* Professor of European Law and Jean Monnet Chair in EU Law, Liverpool Law School. This article draws upon work presented at the Universities of Durham, Swansea, Leiden and Malta. I am very grateful to participants for their comments and discussions. I am indebted to Eleanor Spaventa, and to my colleagues on the CML Rev Editorial Board, for their invaluable suggestions on previous drafts.

** The editorial board decided that the exceptional length of this article was warranted given the importance of the new treaty, despite at the time of writing the lack of complete certainty as to whether it will enter into force.

1. O.J. 2007, C 306.2. See Title V TEU and Part Five TFEU.

Common Market Law Review 45: 617703, 2008 2008 Kluwer Law International. Printed in the Netherlands

618 Dougan CML Rev. 2008

and indeed other issues of broader constitutional importance (such as certain new exibility features,3 and the revised rules on enhanced cooperation).4 Var-ious amendments to the Treaty establishing the European Atomic Energy Community must also go unexplored,5 though these are largely technical concerning the alignment of Euratoms institutional and nancial provisions with those of the Union according to the revised Treaties, while still retaining Euratoms separate legal status and personality and do not signi cantly af-fect the substantive regime for the regulation of civil nuclear energy.6

Before proceeding, an important note on references, necessitated by the fact that the TL will implement another major renumbering exercise across the Unions two main treaties. Provisions of the Treaties as they are revised by the TL will be referred to by their new numbers, in accordance with the table of equivalence provided for in the Annex referred to in Article 5 TL, in either the Treaty on European Union (TEU) or the Treaty on the Functioning of the Eu-ropean Union (TFEU).7 Provisions of the Treaties as they currently stand, be-fore the entry into force of the TL, will be referred to by their existing num-bers, explicitly identi ed as such where the context so requires, in either the Treaty on European Union (TEU) or the Treaty establishing the European Community (EC).

2. The long process of constitutional reform

It might be helpful brie y to recall the main stages in the process of constitu-tional reform which eventually culminated in the TL.

The IGC which was concluded in December 2000, as well as agreeing the Treaty of Nice, adopted a Declaration on the Future of the Union, highlight-ing the need for a more thorough re ection upon the Unions constitutional framework.8 One year later, the Laeken European Councils Declaration on the Future of the European Union laid down the detailed parameters for this

3. E.g. the provisions on closer integration between members of the Euro-group: see Chapt. 4, Title VIII, Part Three TFEU.

4. See Title IV TEU and Title III, Part Six TFEU. For consideration, see Dougan, The un- nished business of enhanced cooperation: Some institutional questions and their constitutional implications in Ott and Vos (Eds.), 50 Years of European Integration: Foundations and Per-spectives (TMC Asser Press, forthcoming).

5. See Protocol No 2 annexed to the TL. 6. In which regard, note Declaration No 54 annexed to the Final Act. 7. In fact, the author bene ted greatly from a consolidated version of the Treaties published

in January 2008 by the UK Foreign and Commonwealth Of ce: Cm 7310 (available via www.fco.gov.uk).

8. See Presidency Conclusions of 8 Dec. 2000.

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process of constitutional re ection.9 Building on the perceived success of the Convention which had previously drafted the Charter of Fundamental Rights, the Laeken Declaration also established a Convention on the Future of Eu-rope to prepare a set of proposals for presentation to the Member States at a future IGC. That Convention composed of representatives of the Member States, the European Parliament, the national parliaments and the Commission commenced its work in February 2002 and presented a draft Treaty estab-lishing a Constitution for Europe to the European Council in July 2003.10 An intergovernmental conference was convened in autumn 2003 to deliberate on the Convention draft and agree on a new Treaty, as required under existing Article 48 TEU, leading to signature of the Treaty establishing a Constitution for Europe (Constitutional Treaty or CT) at a ceremony in Rome on 29 Octo-ber 2004.11

According to Article IV-447 CT, the Treaty had to be rati ed by the High Contracting Parties in accordance with their respective constitutional require-ments, with a view to entering into force on 1 November 2006. At rst, rati -cation by national parliaments (and, in the case of Spain, through a popular referendum) proved unproblematic. However, the rati cation process de-scended into crisis following negative results in popular referenda in France (29 May 2005) and the Netherlands (1 June 2005). In the light of those events, the European Council meeting in June 2005 called for a period of re ection across all Member States.12 Opinion proved to be deeply divided about the best way forward.13 For example, some believed that the CT was effectively dead

9. See Presidency Conclusions of 14 Dec. 2001.10. O.J. 2003, C 169. See, for general analysis of the Convention draft, e.g. Dashwood, The

Draft EU Constitution: First impressions, 5 CYELS (20022003), 419; Dougan, The Conven-tions Draft Constitutional Treaty: Bringing Europe closer to its lawyers?, 28 EL Rev. (2003), 763; Kokott and Ruth, The European Convention and its Draft Treaty establishing a Constitu-tion for Europe: Appropriate answers to the Laeken Questions?, 40 CML Rev. (2003), 1315; Lenaerts and Gerard, The structure of the Union according to the Constitution for Europe: The emperor is getting dressed, 29 EL Rev. (2004), 289.

11. O.J. 2004, C 310. See, for general analysis of the CT, e.g. Dashwood, The EU Constitu-tion: What will really change?, 7 CYELS (2004/2005), 33; Constantinesco, Gautier and Michel (Eds.), Le Trait tablissant une Constitution pour lEurope (Presses Universitaires de Stras-bourg, 2005); Arnull, Dashwood, Dougan, Ross, Spaventa and Wyatt, Wyatt & Dashwoods EU Law (Sweet & Maxwell, 5th ed, 2006) Chapt. 11.

12. See the Declaration by the Heads of State or Government of the Member States of the European Union on the Rati cation of the Treaty establishing a Constitution for Europe (18 June 2005). The period of re ection was extended by the European Council meeting in June 2006 (see Presidency Conclusions of 16 June 2006). Note also the Commissions Plan D for Democ-racy, Dialogue and Debate: COM(2005)494 and COM(2006)212.

13. See further: Editorial, What now?, 42 CML Rev. (2005), 905; Editorial, What should replace the Constitutional Treaty?, 44 CML Rev. (2007), 561. Also, e.g. Rossi, En cas de non-rati cation Le destin prilleux du Trait-Constitution, 40 RTDE (2004), 621.


and the best option was to make the existing post-Nice arrangements work as best they could in the enlarged Union;14 possibly also cherry picking some of the more uncontroversial reforms proposed under the CT and adopting them (so far as possible) through secondary legislation, changes to institutional rules of procedure and new inter-institutional agreements.15 Others did not give up hope that the CT might still enter into force: Member States such as Belgium and Luxembourg pressed ahead with rati cation and secured positive votes; it was possible that (as with the Danes over Maastricht and the Irish over Nice) a second referendum could eventually be held in France and the Netherlands, with changed political circumstances increasing the chances of popular ap-proval.

In the end, however, the outcome of the period of re ection was that the European Council, meeting in June 2007 under the presidency of Germany, agreed to declare the CT defunct; it approved the mandate for another inter-governmental conference charged with drafting a new Reform Treaty.16 That Reform Treaty was to shed the form, language and symbols of a European Constitution, in favour of having another amending Treaty, similar in nature to the Single European Act, Treaty of Amsterdam or Treaty of Nice; but with-in this new garb, to preserve as many as possible of the technical reforms proposed under the old CT which were intended to improve the Unions ef-fectiveness, ef ciency and accountability. The IGC itself was convened by the Portuguese Presidency in July 2007,17 and reached political agreement on the text in October 2007. The Reform Treaty was then signed by the Member States at a ceremony in Lisbon on 13 December 2007. Assuming that rati ca-tion proceeds without upset, the new Treaty should enter into force on 1 Janu-ary 2009, before the European Parliament elections scheduled for June of that

14. In which regard, consider the ndings of Wallace, Adapting to Enlargement of the Euro-pean Union: Institutional Practice Since May 2004 (Trans-European Policy Studies Associa-tion, December 2007) available at www.tepsa.be/TEPSA%20-%20Wallace%20Publication%20website.doc.

15. Consider, e.g. the Councils moves towards greater transparency in its legislative delib-erations through amendments to its Rules of Procedure, and the European Parliaments greater in uence over Commission implementing powers thanks to amendments to the Second Comi-tology Decision: sections 4.2 and 5.3.3 (respectively). See further: Editorial, In the meantime Further progress in transparency and democracy while the Constitution is dormant, 43 CML Rev. (2006), 1243.

16. See Presidency Conclusions of 23 June 2007.17. 12004/07. The IGC was formally based on a proposal submitted by Germany (11222/07)

reproducing the European Council mandate. Note the Commissions generally positive opinion on the IGC mandate (COM(2007)412 Final); as well as the more ambivalent opinion of the European Parliament (Resolution of 11 July 2007). Note also the opinion of the European Cen-tral Bank (annexed to 11624/07).

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year.18 At the time of writing, only Ireland plans to hold a popular referendum on the TL; the remaining Member States will ratify by parliamentary votes alone.19

3. The Unions constitutional architecture

The most obvious difference between the CT and the TL concerns their re-spective approaches to the existing Treaties. Whereas the Laeken Declaration had posed the question whether reform of the current Treaties might eventu-ally lead to the promulgation of some form of European constitution, the sub-sequent Convention decided to present its proposals already in the form of a Treaty establishing a Constitution for Europe. That ambiguous phrase ac-knowledged the international law basis of the text, but nodded towards a more fundamental status.20 For some, that more fundamental status was essentially a matter of simpli cation: a mere recasting of the ground rules governing the Unions institutions and competences, based upon the existing Treaties as in-terpreted by the Court of Justice, which were anyway already acknowledged to enjoy a constitutional character.21 In particular, the CT would have re-pealed and replaced the existing Treaties (including Rome, Maastricht, Am-sterdam and Nice) in their entirety, brought an end to the current pillar struc-ture, and abolished the European Community as a distinct legal entity. Instead, there would have been a unitary European Union, based upon a single Consti-tutional Treaty, and possessing its own legal personality.

For others, however, the very idea of a constitution suggested something more far-reaching: accustomed to understanding political systems according to the model of the nation State, and unwilling or unable to conceive of a con-stitutional order which could indeed be constitutional without being na-tional, the new European Union appeared either (to those who at least knew

18. See Art. 6(2) TL.19. At the time of writing, the following Member States had already successfully rati ed the

TL: France, Hungary, Malta, Romania, Slovenia. For France, rati cation required a constitu-tional amendment: see Dcision no. 2007560 DC of Le Conseil constitutionnel (20 Dec. 2007).

20. For broader discussion, see von Bogdandy, The prospect of a European Republic: What European citizens are voting on, 42 CML Rev. (2005), 913; Birkinshaw, Constitutions, consti-tutionalism and the State, 11 EPL (2005), 31; Dyvre, The constitutionalisation of the Euro-pean Union: discourse, present, future and facts, 30 EL Rev. (2005), 165.

21. See, e.g. Opinion 1/91, Draft Agreement between EEC and EFTA, [1991] ECR I-6079, para 21. See further, e.g. Piris, Does the European Union have Constitution? Does it need one?, 24 EL Rev. (1999), 557; Craig, Constitutions, constitutionalism and the European Un-ion, 7 ELJ (2001), 125.


something of its institutions and competences) as a rather poor imitation of a fully- edged federal government, or (to those whose knowledge was rather less probing) as a purported super-state directly threatening the continued existence of their own national sovereignty. Unfortunately, such mispercep-tions were further fuelled by other proposals brewed up in the ush con dence of the Convention and adopted by the Member States at the 2004 IGC: trim-mings such as the Unions ag, motto and anthem, whose symbolic resonance attracted disproportionate attention; and terminologies such as the Minister for Foreign Affairs, and the renaming of regulations and directives as laws and framework laws (respectively), that wantonly encouraged comparisons to national political systems, seldom with favourable results.

The Member States, during their period of re ection, seem to have con-cluded that failure to ratify the CT was attributable, at least in part, to the over-ambition of the Conventions grand constitutional designs, and / or that sal-vaging the substantive reforms contained in the CT would be easier to achieve if they shed the form and language of a constitution. Accordingly, the Euro-pean Councils mandate for the 2007 IGC declared that [t]he constitutional concept is abandoned:22 gone are the repeal-and-replace approach to the existing Treaties, the title Constitution and the various trimmings and termi-nologies referred to above.23 Instead, the TL simply amends the existing Trea-ties (albeit extensively) along the same lines as the Treaties of Amsterdam and Nice. However, the Union still replaces and succeeds to the European Community,24 the Union as a whole will possess its own legal personality,25 and most of the technical reforms proposed under the CT are reincarnated though sometimes with important alternations by way of insertion into the revised Treaties.26

The Treaty on European Union, which retains its present title, contains cer-tain core constitutional principles such as those setting out the Unions ob-jectives, the limits of its competences, and respect for fundamental rights (Title I), those identifying the democratic principles upon which the Union is found-ed (Title II), those dealing with the Unions institutions (Title III) and the pos-

22. Presidency Conclusions, Annex I. 11177/07 p. 15.23. Though note Declaration No 52 annexed to the Final Act. Two further victims of aban-

doning the constitutional concept the decision to incorporate the Charter of Fundamental Rights by reference rather than full text, and the deletion of any express clause af rming the primacy of Union over national law in favour of a declaration recalling the supremacy of Com-munity law according to the ECJs established case law are dealt with in greater detail in sec-tions 7 and 11.3 infra (respectively).

24. Art. 1, third para TEU.25. Art. 47 TEU.26. The latter providing the basis for the great majority of this articles analysis.

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sibility of engaging in enhanced cooperation (Title IV). However, the bulk of the text of the TEU in fact, Articles 21 to 46 is found in Title V: general provisions on external action and speci c provisions on the CFSP. Title VI contains the nal provisions dealing with issues such as legal personality, amendment of the Treaties and accession to / withdrawal from the Union.

The Treaty of Rome is renamed the Treaty on the Functioning of the Euro-pean Union and, according to Article 1(1), organises the functioning of the Union and determines the areas, delimitation of, and arrangements for exercis-ing its competences. Part One contains certain other core constitutional principles such as the various categories of Union competence, as well as the provisions of general application intended to have pervasive effects through-out the Unions activities (such as ensuring sex equality, safeguarding the en-vironment and protecting personal data). Part Two concerns non-discrimina-tion and Union citizenship, while Part Three contains the substantive provi-sions on Union policies and internal actions. Part Four continues to deal with the association of overseas countries and territories, and a new Part Five cov-ers external action by the Union (other than the CFSP). Part Six contains more detailed provisions on the functioning of the Unions institutions, the arrange-ments governing its nances and the detailed rules on enhanced cooperation. The general and nal provisions make up Part Seven.

As usual, the TL introduces a series of new protocols, as well as amending many of the existing protocols, which form an integral part of the Treaties;27 and the Final Act is accompanied by a series of declarations adopted either by the entire IGC or by individual Member States.

At rst glance, it is dif cult to identify any compelling reason why the Union should continue to be founded on two separate treaties, and the logic of apportioning provisions between the two texts is sometimes hard to fathom: for example, the principles of attributed powers, subsidiarity and proportional-ity are located in the TEU, whereas the provisions on exclusive, shared and complementary competences are found in the TFEU. However, the TLs ap-proach represents the price to be paid for jettisoning the constitutional con-cept: if two treaties are what we currently have, and the TL is merely amend-ing those treaties in a technical fashion, then two treaties is what should emerge at the end; to repeal one of those treaties, and leave the other in places indis-tinguishable from the old CT, might be more dif cult to sell to an already sceptical public. Moreover, it is possible to identify a rough-and-ready divi-sion of labour between the two texts: besides the detailed CFSP provisions, the TEU has more the character of a mission statement coupled with some basic organizing principles on issues such as the institutional architecture; the TFEU

27. Art. 51 TEU.


seems more concerned with the nitty-gritty work of setting out the legal bases required to ful l that mission statement, and eshing out more of the details on the institutional framework. Indeed, the TEU contains no legal bases for the adoption of Union legislation; all Union legislative acts will be adopted pursu-ant to the TFEU.28

Although that rough-and-ready division might suggest a de facto order of precedence between the two texts, Article 1, third paragraph TEU and Article 1(2) TFEU each state that the Union is founded on both Treaties, which shall have the same legal value. In other words, the TEU and TFEU together with their various protocols should be read as a seamless ensemble of primary law for the Union. However, that does not render the existence of the two Treaties merely a matter of historical nostalgia, or political expediency. It raises some interesting legal issues, not least concerning the degree to which the CFSP remains distinct from the remainder of the Union legal order, and the nature of its relationship to other elds of Union action.

It would surely be inappropriate, after the TL, to continue conceptualizing the Union in terms of distinct pillars each possessed of their own peculiar legal sub-orders. After all, the Community which makes up the existing First Pillar will be suppressed as an entity separate from the Union; the provisions on police and judicial cooperation in criminal matters (PJC) which make up the existing Third Pillar will be absorbed into Title V, Part Three TFEU on the Area of Freedom, Security and Justice (AFSJ).29 In fact, the degree of cross-fertilization between the TEU and the TFEU, on issues such as the Unions objectives, competences and institutional framework, is such that pillar-talk becomes largely meaningless or even positively unhelpful. Across the great majority of legal bases on internal and external Union action, variations in the strength and scope of decision-making powers, the applicable decision-mak-ing procedures or the available legal instruments certainly exist but they are not such as to call into question the essential unity of the underlying legal or-der.

Exceptional treatment is reserved only for the CFSP, which is not only dis-tinguished by its placement in the TEU rather than the TFEU, but is also more strongly differentiated from the rest of the Unions policies: for example, by the continued predominance of unanimity within the European Council and the Council, the express exclusion of any competence to adopt legislative acts, the special role of the High Representative for Foreign Affairs, the more mar-

28. However, the TEU does provide for the adoption of certain non-legislative acts, espe-cially as regards the functioning of the Union institutions and in the eld of the CFSP. On legis-lation and non-legislation: section 5.

29. Section 9.

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ginal in uence of the Commission and especially the European Parliament, and the virtual exclusion of the jurisdiction of the Court of Justice.30 Moreover, although the peculiar legal instruments currently available under the Second Pillar (such as joint actions and common positions) will be replaced by deci-sions, as currently employed by the Community and now classi ed as a ge-neric legal instrument for the entire Union,31 it is arguable that any decisions adopted speci cally pursuant to the CFSP will remain distinct, as regards their potential effects within the national legal systems, from decisions adopted in any other eld of Union activity. In particular, the deletion from the TL of any express provision that Union acts per se have primacy over national law,32 coupled with the IGCs declaration recalling the principle of supremacy as developed in the case law of the Court of Justice, with particular reference to the Council Legal Services opinion on the supremacy of Community law,33 all support the view that CFSP acts should not generally be capable of having independent effects (such as direct effect and / or primacy) within the domes-tic legal orders.34 In any case, it is expressly provided that the exibility clause currently found in Article 308 EC, and in the revised Treaties as Arti-cle 352 TFEU, cannot be used to attain CFSP objectives.35

Physical separation and institutional differentiation hardly warrant continu-ing to treat the CFSP effectively as a separate pillar; to recognize the exis-tence of such an autonomous sub-system would undermine the clear intention of the revised Treaties that the Union should constitute a unitary entity. But the special characteristics of the CFSP mean that certain problems will continue to arise, in particular, that of distinguishing between when the Union should act using its ordinary external relations powers, and when it should instead exer-cise its special CFSP powers. The pillars may have gone, but similar problems of cross-pillar coordination will persist, although they would now be better termed problems of determining the correct legal basis. What principles do the revised Treaties lay down for resolving this legal basis issue? In fact, no clear answer emerges from the texts.

Currently, the choice between employing CFSP powers qua Union, or ordi-nary external action powers qua Community, is assisted by (existing) Article

30. See Art. 24(1) TEU. Also Art. 31 TEU. On the High Representative: section 4.5. On the ECJs CFSP jurisdiction: section 8.2.

31. Section 5.1.32. Cf. Art. I-6 CT. See section 11.3.33. Declaration No 17 annexed to the Final Act. 34. See further, e.g. Arnull at al. op. cit. supra note 11, para 11013.35. Art. 352(4) TFEU. See section 6.1. Note that the revised Treaties also envisage the adop-

tion of speci c data protection rules within the context of the CFSP: see Art. 39 TEU and Art. 16(2) TFEU.


47 TEU, according to which nothing in the Treaty on European Union shall affect the EC Treaty. That provision has already been interpreted by the Court to mean that, if a given initiative is possible under the First Pillar, then the Third Pillar provisions should not be used instead, as a means of encroaching upon the Communitys own criminal law powers.36 It seems likely that the same Community preference approach will also determine the choice be-tween the First and Second Pillars as the proper basis for external action.37 The problem is that, according to the new provisions contained in Article 40 TEU, implementation of the CFSP should not affect other Union action under TFEU powers, but conversely, implementation of other Union action under the TFEU should not affect the exercise of Union competences as regards the CFSP. Without an express presumption favouring one body of Treaty provisions over another, it will be left to the ECJ to establish an alternative set of criteria (such as a lex generalis / lex specialis rule) for allocating the exercise of the Unions external relations powers between the CFSP provisions of the TEU and the ordinary external action powers of the TFEU.38

4. The Union institutions

The main provisions on the Union institutions are contained in Title III TEU and Part Six TFEU. To the existing list of Union institutions, Article 13(1) TEU adds two newcomers: the European Central Bank;39 and the European Council. The latters position deserves considerable attention, as do various reforms to the Council, the European Parliament and the Commission.40 The new High Representative also warrants brief attention, while the Court of Jus-tice will be considered in greater detail later.41

36. See Case C-170/96, Commission v. Council, [1998] ECR I-2763; Case C-176/03, Com-mission v. Council, [2005] ECR I-7879; Case C-440/05, Commission v. Council, judgment of 23 Oct. 2007, nyr.

37. See A.G. Mengozzi Opinion of 19 Sept. 2007 in Case C-91/05, Commission v. Council, pending.

38. An issue discussed extensively by Marise Cremona and Alan Dashwood at a seminar on the Lisbon Treaty held at Durham University in December 2007. For an indication of how the ECJ might approach this issue, consider Case C-403/05, European Parliament v. Commission, judgment of 23 Oct. 2007, nyr.

39. Despite requests for amendments to the draft text so as to confer upon the ECB a special institutional status: see the Letter from the President of the European Central Bank to the Portu-guese Presidency, Clari cation of the institutional status of the ECB (2 Aug. 2007).

40. See, for analysis of the CTs institutional provisions, e.g. Dashwood and Johnston, The institutions of the enlarged EU under the regime of the Constitutional Treaty, 41 CML Rev. (2004), 1481.

41. Section 8.

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4.1. European Council

According to Article 15 TEU, the European Council shall provide the Union with the necessary impetus for its development and shall de ne the general political directions and priorities thereof. That provision also states that the European Council shall not exercise legislative functions. However, numerous provisions of the revised Treaties give the European Council power to take legally binding decisions of a quasi-constitutional or high politics nature: for example, on the Councils future con gurations and system of rotating presidencies;42 the future composition of the European Parliament as regards the allocation of MEPs between Member States;43 the future rotation of Com-missionerships between the Member States (including the power to alter the number of Commissioners);44 proposing the candidate for Commission Presi-dent and nal appointment of the Commission after its nominees have re-ceived the consent of the European Parliament;45 appointing the High Repre-sentative for Foreign Affairs;46 de ning the strategic interests and objectives of the Union in the eld of external relations,47 and its strategic guidelines for action within the Area of Freedom, Security and Justice.48

As we shall see further below, the European Council also plays an impor-tant role in issues such as mediating after the use by a Member State of an emergency brake within the Council,49 or in situations where lack of una-nimity within the Council could lead to a group of Member States being ex-ceptionally authorized to embark on an enhanced cooperation;50 and also as regards accession to / withdrawal from the Union,51 and amendment of the Treaties by the ordinary or various special revision procedures.52

The TL follows the approach of the CT in bringing to an end the current system of rotating the Presidency of the European Council among the Member States. That system was deemed to create problems of consistency and conti-

42. Art. 236 TFEU. Section 4.2.43. Art. 14(2) TEU. Section 4.3.44. Art. 17(5) TEU and Art. 244 TFEU. Section 4.4.45. Art. 17(7) TEU. Section 4.4.46. Art. 18(1) TEU. Section 4.5.47. Art. 22(1) TEU.48. Art. 68 TFEU. See also e.g. Art. 42(2) TEU on the decision to adopt a common defence

policy; Art. 86(4) TFEU on expanding the powers of a future European Public Prosecutors Of- ce; Art. 7(2) TEU on determining that a Member State is guilty of a serious and persistent breach of the Unions core values.

49. Section 5.2.4.50. Section 9.1.51. Sections 10.1 and 10.2 (respectively).52. Section 10.3.


nuity in de ning the Unions political agenda; the tasks associated with the Presidency had become too demanding to be discharged effectively by a per-son who acts at the same time as his / her Head of Government; certain con-cerns were voiced about the potential for con icts of interest between the Presidents role as impartial chair of the European Council and his / her duty to protect the national interests of the relevant Member State; moreover, the bene ts of rotation in encouraging a sense of ownership by all Member States over the European Council had become tenuous in a Union of 27 coun-tries. The European Council therefore acquires a more stable Presidency. Ar-ticle 15(5) TEU provides that the President is to be elected by the European Council, acting by QMV, for a term of two and a half years (renewable once). According to Article 15(6) TEU, he / she will be responsible for chairing Eu-ropean Council meetings, ensuring the preparation and continuity of the Euro-pean Councils work, facilitating cohesion and consensus within the European Council, presenting reports to the European Parliament after European Coun-cil meetings, and representing the EU externally at his / her level as regards the CFSP.53

Article 15(6) TEU expressly states that the President of the European Coun-cil may not hold a national of ce. While there is no explicit bar to his / her holding another of ce within the Union itself, one may discount the theoreti-cal possibility for the same person to be President of the European Council and of the Commission: such an accumulation of of ces would be inconsistent not only with the implicit assumption throughout the text of the revised Treaties that the two posts are to be occupied by different individuals,54 but more fun-damentally with the spirit of the Unions inter-institutional balance, which en-trusts such different responsibilities, and the representation of such different interests, to the European Council and the Commission.

One assumes that the of ce of European Council President will be occupied by an experienced politician who has previously attained high of ce in his / her country of origin.55 In the hands of such a gure, the European Council Presidency could become a formidable new fulcrum of power less in a for-mal sense, since the revised Treaties give the Presidency itself no real deci-sion-making powers independent of the other members of the European Coun-cil, but rather in providing a strong and focused nucleus at the very centre of Union policy-making with the opportunity to harness the European Councils

53. Though without prejudice to the powers of the new High Representative for Foreign Af-fairs (see section 4.5).

54. And note also Declaration No 6 annexed to the Final Act. 55. At the time of writing, there is lively speculation about the prospects of appointing

former UK Prime Minister Tony Blair: Frances Nicholas Sarkozy is reported to be in favour, Germanys Angela Merkel to have serious reservations (see, e.g. The Guardian, 20 Feb. 2008).

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strategic in uence, and thereby channel the activities of the Unions other main political institutions too. However, much will depend not only on the ambitions and the abilities of the individual of ce-holder, but also on the pre-cise latitude (and degree of administrative support) offered to the Presidency itself by the European Council under its own internal institutional arrangements;56 as well as the attitudes of the Heads of State or Government, many of whom may not take well to the idea of replacing a system based on the principle of primus inter pares with the conferral of signi cant imperative powers upon a gure lacking any direct electoral mandate and (according to the revised TEU) largely unaccountable short of impediment or serious mis-conduct.57 Indeed, public criticism by a current Commissioner of the shady backroom bargaining among Member States to identify the rst new-style President of the European Council perhaps foreshadows the limits that such a shallow reservoir of legitimacy may in itself impose upon his / her effective political power.58 Appointing someone with established Union-wide or even global recognition might well energize the workings of the European Council but it also carries the risk either of creating a Frankensteins Monster, or of trapping a very big sh within a rather small pond.59

According to Article 15(4) TEU, except where otherwise provided, the Eu-ropean Council shall reach decisions by consensus. True enough, some deci-sions are to be adopted by unanimity,60 certain others by QMV.61 Where rele-vant, Article 235(1) TFEU provides that the de nition of a quali ed majority within the European Council is based on that applicable to the Council (though, in that context, the European Council President and the Commission President do not vote).62 For those purposes, under Article 3 of the Protocol on Transi-tional Provisions, the de nition of QMV within the European Council will, until 31 October 2014, be that derived from the Treaty of Nice and applicable also in respect of Council acts; as from 1 November 2014, the new de nition of QMV contained in Article 16(4) TEU will be activated.63 However, unlike the situation within the Council, there does not appear to be any option, be-

56. See Art. 235(3) TFEU on adoption of the European Councils Rules of Procedure. At the time of writing, the Presidencys job description is being negotiated by the Member States.

57. Cf. Kokott and Ruth, op. cit. supra note 10, 13378.58. As reported on www.euobserver.com (8 February 2008).59. On the European Council Presidents institutional role, see further section 11.2. 60. I.e. so that abstentions will not prevent adoption of the relevant decision. E.g. Arts. 14(2),

17(5), 42 TEU; Art. 86(4) TFEU. 61. E.g. Arts. 15(5), 17(7), 18(1) TEU; Art. 236 TFEU.62. Section 4.2. 63. As with the Council, higher thresholds apply where the relevant proposal does not ema-

nate from the Commission or the High Representative: see Art. 238(2) TFEU.


tween 1 November 2014 and 31 March 2017, for members of the European Council to pick-and-choose between the old and new de nitions of QMV.64

4.2. The Council

Article 16(6) TEU expressly refers to two Council con gurations: General Af-fairs and Foreign Affairs. The European Council must establish a list of other Council con gurations.65 Article 16(9) TEU states that the Presidency of Council con gurations66 shall be held by the Member States on the basis of equal rotation, in accordance with conditions established by the European Council.67 The draft text of those conditions is to be found in Declaration No 9 annexed to the Final Act of the TL. The Presidency should be held by pre-established groups of three Member States for a period of 18 months. Groups are to be made up on the basis of equal rotation, taking into account the diver-sity of Member States and their geographical balance. Unless they decide oth-erwise, each member of the group shall in turn chair for six months the relevant Council con gurations, with the other members assisting the Chair on the ba-sis of a common programme. It is anticipated that this arrangement, which should be adopted on the TLs date of entry into force, will facilitate greater coherence and continuity in the Councils activities assuming, of course, that the relevant Member States work together in a cooperative and constructive manner.

According to Article 16(3) TEU, the Council shall act by QMV, except where the Treaties provide otherwise. The de nition of QMV was perhaps the thorniest issue to be addressed by the Convention and the subsequent IGCs. On the one hand, it was generally considered that the post-Nice de nition of QMV, consisting of more and higher thresholds before a quali ed majority is attained, constitutes an obstacle to ef cient decision-making within the Coun-cil. On the other hand, the Member States were not prepared to swallow the Conventions relatively straightforward proposal that a quali ed majority should consist of a simple majority of Member States representing at least 60% of the Union population.68 Negotiations were further complicated by the

64. Art. 3(2) of the Protocol on Transitional Provisions refers only to a member of the Coun-cil, not of the European Council.

65. Acting by QMV under Art. 236(a) TFEU; pending which, see Art. 4 Protocol on Transi-tional Provisions.

66. Other than Foreign Affairs, which is presided over by the High Representative for For-eign Affairs (section 4.5).

67. Acting by QMV under Art. 236(b) TFEU.68. See Art. 24(1) of the Conventions draft Constitutional Treaty; under Art. 24(2), higher

thresholds were to apply in respect of proposals not emanating from the Commission or the

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determination of the incumbent Polish administration to preserve the highly favourable if disproportionate voting in uence its country (together with Spain) had previously secured under the Treaty of Nice. The resultant provi-sions, which can be divided into three periods, and apply regardless of wheth-er the Council is adopting legislative or non-legislative acts,69 are hardly a triumph of simpli cation. Nevertheless, they succeed in consigning to the his-tory books the idea of weighted votes, which gave disproportionate voting power to the smaller Member States and were increasingly unsustainable in the enlarged and enlarging Union, while retaining safeguards against the pos-sibility that the larger Member States might, by the sheer size of their popula-tions, nd it too easy either to steamroll or scupper decisions within the Coun-cil.

The rst period runs, according to Article 16(5) TEU and Article 3(3) of the Protocol on Transitional Provisions, until 31 October 2014: the de nition of QMV as currently contained in Article 205 EC will continue to apply, i.e. the triple threshold introduced by the Treaty of Nice requiring a weighted ma-jority of votes from a simple majority of Member States representing at least 62 percent of the actual Union population. The second period runs from 1 November 2014 until 31 March 2017. According to Article 16(4) TEU, a new de nition of QMV will come into play, i.e. consisting of at least 55 percent of Member States, comprising at least 15 countries, representing at least 65 per-cent of the actual Union population; furthermore, a blocking minority must include at least 4 Member States, failing which the quali ed majority shall be deemed attained (a provision intended to reassure the smaller Member States that a few very large countries cannot form an automatic blocking minority solely on the basis of their populations).70 However, during this period, pursu-ant to Article 16(5) TEU and Article 3(2) of the Protocol on Transitional Provi-sions, any Member State may instead request that the vote be taken in accor-dance with the old triple threshold de nition of a quali ed majority as inher-ited from Nice. Finally, as from 1 April 2017, the new de nition of QMV contained in Article 16(4) TEU alone will apply.71

To complicate matters further, Poland had lobbied with excruciating persis-tence that the text of the revised Treaties should contain a formal mechanism often referred to as the Ioannina Compromise for protecting the interests of dissenting countries, where the quali ed majority made up by the other

proposed Minister for Foreign Affairs.69. On the distinction between legislative and non-legislative acts: section 5.1.70. Higher thresholds apply where the Council does not act on a proposal from the Commis-

sion or the High Representative: see Art. 238(2) TFEU.71. Again, with higher thresholds applicable where the proposal does not emanate from the

Commission or the High Representative: see Art. 238(2) TFEU.


Member States was relatively slim. In the end, the 2007 IGC agreed to the fol-lowing package of reforms. First, Declaration No 7 annexed to the Final Act of the TL contains the text of a draft decision containing the Ioannina Compro-mise itself, to be adopted by the Council when the TL is signed,72 with a view to entering into force on the same day as the TL. According to that decision, between 1 November 2014 until 31 March 2017, if countries representing at least three-quarters of the Member States or of the actual Union population necessary to constitute a blocking minority resulting from the application of Article 16(4) TEU73 indicate their opposition to the adoption of an act by QMV, the Council must try to reach a satisfactory solution addressing their concerns, within a reasonable period and without prejudicing any mandatory deadlines. As from 1 April 2017, the same obligation will arise at the initiative of coun-tries representing at least 55 percent of the Member States or of the actual Union population necessary to constitute a blocking minority under Article 16(4) TEU.74 Secondly, a new Protocol on the Council decision relating to the implementation of the QMV rules provides that, before examining any pro-posal intended to amend or abrogate the Ioannina Decision or any of its provi-sions, or to modify indirectly its scope or meaning through the modi cation of another Union act, the European Council must reach a consensus on that pro-posal. Thus, while Poland failed to secure for the Ioannina Compromise a formal basis in primary Union law, it nevertheless succeeded in conferring upon the Ioannina Decision a signi cant degree of constitutional protection against future alteration.

It is worth noting that, under Article 16(8) TEU, the Council shall meet in public when it deliberates and votes on a draft legislative act.75 That is an im-portant step towards countering widespread criticism of the Councils per-ceived secrecy as a legislative chamber, and suspicions about cynical political horse-trading between Member States. In fact, thanks to reforms to the Coun-cils Rules of Procedure enacted during the period of re ection, the Coun-cils deliberations are already open to the public when it acts under the co-decision procedure, as are its rst deliberations on important new legislative proposals to be adopted other than by co-decision; certain other debates may also be held in public, for example, on important (non-legislative) initiatives affecting the interests of the Union and its citizens.76

72. O.J. 2007, C 306/250.73. Or, where applicable, Art. 238(2) TFEU.74. Or, where applicable, Art. 238(2) TFEU.75. See also Art. 15(2) TFEU.76. See Art. 8 of the Councils Rules of Procedure, O.J. 2006, L 285/47. See further, e.g.

Editorial, In the meantime op. cit. supra note 15.

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4.3. European Parliament

In accordance with Article 2 of the Protocol on Transitional Provisions, the composition of the European Parliament during its 20042009 term shall not be affected by the entry into force of the TL. However, in good time before the 2009 elections, Article 14(2) TEU and Article 2 of the Protocol on Transi-tional Provisions oblige the European Council, acting unanimously, on the Parliaments initiative and with its consent, to adopt a decision establishing its composition. For these purposes, the number of MEPs shall not exceed 750, plus the President, divided between Member States on a degressively propor-tional basis, with a minimum of six and maximum of 96 MEPs per Member State. This new system of allocating MEPs to Member States through second-ary instruments is intended to offer greater exibility, particularly in the light of future enlargements, as compared to the existing approach (whereby chang-es to the allocation of MEPs to Member States require formal amendment of the Treaty itself).77

The CT had proposed capping the number of MEPs in the future European Parliament at 750. On that basis, the European Council meeting in June 2007 requested that the European Parliament submit a draft decision on its future composition, which the Parliament did in October 2007, shortly before the -nal summit meeting to reach political agreement on the new TL.78 However, the Parliaments proposal received a very frosty reception in Italy: its number of MEPs was projected to fall from 78 (the same as France and the United Kingdom) to 72 (compared to 74 for France and 73 for the British), re ecting the relative decline in the Italian population. To avert the real risk of an Italian refusal to conclude negotiations on the TL, the IGC therefore agreed to in-crease the number of MEPs in the future European Parliament to 751; Declara-tion No 4 annexed to the Final Act states that the additional seat will go to It-aly, and on that basis, Declaration No 5 signals the European Councils politi-cal agreement to the revised draft decision.79 That compromise may well have restored Italian pride, but it hardly sits easily with the principle of degres-sively proportional representation proclaimed by the revised Treaties. More-over, this episode serves as a portent of the dif cult political problems likely to arise, should projections of signi cant population changes in various Mem-ber States, even within the next few decades, prove to be accurate.80 But it is

77. Cf. section 10.3 on the ordinary revision procedure. 78. European Parliament resolution of 11 Oct. 2007 on the composition of the European

Parliament (2007/2169(INI)).79. See also Presidency Conclusions of 14 Dec. 2007, para 5.80. See, e.g. Eurostat, Long-Term Population Projections at National Level (Issue Number

3/2006).


perhaps in that very context that the simpli ed procedure for determining the composition of the European Parliament under Article 14(2) TEU will prove its true worth, i.e. by isolating the question of how to (re)allocate MEPs be-tween Member States in a demographically evolving Union, from initiatives to reform other (unrelated) provisions of the Treaties, so that the latter amend-ment process is not held blackmail to a given countrys quest to protect its existing political weight within the European Parliament.

Another interesting question concerns the subtle change in wording, from the current Treaties to the revised Treaties, concerning exactly who the Euro-pean Parliament is meant to represent. In Spain v. United Kingdom, the ECJ was asked to clarify whether only Union citizens were entitled to vote and stand in elections to the European Parliament, or whether those rights could also be extended to certain third country nationals.81 The Court noted that the relevant provisions of the current Treaties neither expressly de ne who may vote / stand in the European Parliament elections, nor clearly exclude the pos-sibility that a third country national might be entitled to do so. In particular, the reference in Articles 189 and 190 EC to the European Parliament representing the peoples of the Member States had different meanings in different coun-tries and languages and could not be taken as determinative of the issue. The Court concluded that, in the current state of Community law, the de nition of the persons entitled to vote / stand in the European Parliament elections falls within the competence of each Member State.82

However, the relevant provisions of the revised Treaties seem more precise about the European Parliaments democratic franchise. For example, Article 14(2) TEU states that the European Parliament shall be composed of repre-sentatives of the Unions citizens; Article 10 TEU concerning the principle of representative democracy also refers repeatedly to citizens.83 It is therefore unclear whether the approach adopted by some Member States, of permitting certain third country nationals to vote in elections to the European Parliament, would remain compatible with Union law after the entry into force of the TL. One might feel somewhat uneasy at the prospect of disenfranchising whole classes of persons whose rights to vote / stand in the European Parliament elections have already been sanctioned under Community law. For its part, the Court may yet decide that, while the new Treaty text undeniably leaves less

81. Case C-145/04, Spain v. United Kingdom, [2006] ECR I-7917. See further, e.g. Bes-selink, annotation of Spain v. United Kingdom, 45 CML Rev. (2008), 787813.

82. Albeit that that competence must be exercised in compliance with Community law. For an indication of what this might require, see Case C-300/04, Eman and Sevinger, [2006] ECR I-8055.

83. That is true not only of the English version, but also, e.g. the French, Italian, Spanish and German texts.

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room for manoeuvre, the changes agreed under the TL nevertheless fail to outweigh the other sorts of factor taken into consideration in reaching the con-clusion in Spain v. United Kingdom: for example, that an express principle of parliamentary representation for Union citizens does not necessarily exclude the recognition of limited electoral rights also for certain third country nation-als; or that, given the territorial basis upon which MEPs are allocated across Member States, the decision by one country to confer electoral rights upon speci c categories of third country nationals has no effect upon the choice or number of MEPs elected in any other Member State.84

4.4. European Commission

The composition of the Commission is dealt with by Articles 17(4)-(5) TEU.85 The Commission appointed between the date of entry into force of the TL and 31 October 2014 will consist of one national per Member State.86 However, subsequent Commissions shall consist of a number of members equal to two-thirds of the number of Member States,87 unless the European Council, acting unanimously, decides to alter this number. Those members are to be selected on the basis of equal rotation between the Member States, and must re ect the demographic and geographical range of all Member States. The detailed rota-tion system is to be established by the European Council, acting unanimously, and subject to the rule contained in Article 244 TFEU, whereby the difference between the total number of terms of of ce held by nationals of any given pair of Member States may never be more than one.88

The procedure for appointing the Commission is contained in Article 17(7) TEU: the Commission President is to be proposed by the European Council (acting by QMV) and elected by the European Parliament (by a majority of its members); the Commissioners are to be proposed by the Council, by common accord with the Commission President-elect; the entire Commission89 requires

84. Note Declaration No 64 annexed to the Final Act, in which the UK expresses its under-standing that the revised Treaties are not intended to change the basis for the franchise for EP elections; though the rather cryptic Declaration No 57, made by Italy, might seem to express a contrary understanding.

85. Note that the impact of the entry into force of the LT upon the existing Commission (in particular, the appointment of the rst High Representative) is dealt with under Art. 5 of the Protocol on Transitional Provisions.

86. Including the President and the High Representative.87. Including the President and the High Representative. 88. Note also Declaration No 10 annexed to the Final Act, intended to assuage Member State

nerves about the balanced functioning of a Commission in which not all nationalities are repre-sented.

89. Including the President and the High Representative.


the consent of the European Parliament, before nally being appointed by the European Council (again acting by QMV). When proposing its candidate for Commission President, the European Council is expressly instructed to take into account the elections to the European Parliament a reform which is meant both to increase the political in uence of the MEPs and hence the in-centive for citizens to vote at the European parliamentary elections, and also to bolster the Commissions own legitimacy by linking its complexion more closely to the popular will as represented in the European Parliament.90

4.5. High Representative

One of the principal objectives of the reform process launched at Laeken was to furnish the Union with an institutional framework capable of executing its external policies more effectively and coherently. The Convention and CT proposed creating the post of Minister for Foreign Affairs an amalgama-tion of the existing functions of the High Representative for the CFSP and the Commissioner for External Relations. However, following the rati cation cri-sis and the period of re ection, the title Minister was considered unhelpful in conveying the true nature of this institutional reform to the wider public, and the post is now called High Representative of the Union for Foreign Af-fairs and Security Policy.

According to Article 18 TEU, the High Representative shall conduct the Unions CFSP.91 In particular, he / she will enjoy a power of initiative as re-gards CFSP proposals; and will be responsible for implementing the CFSP under mandate from the Council.92 The High Representative will, moreover, preside over the Foreign Affairs Council, whether it is considering CFSP or other external relations matters such as the common commercial policy.93 But the chief constitutional novelty of the High Representative is that he / she will simultaneously be associated with the Council and a member of the Commis-sion (in fact, one of its Vice-Presidents). In the latter capacity, according to Article 18(4) TEU, the High Representative shall ensure the consistency of the Unions external action, with responsibility within the Commission for exter-nal relations and coordinating other aspects of the Unions external action. Under Article 15(2) TEU, the High Representative shall also take part in the

90. But see section 11.2 for reservations about this idea.91. Cf. Art. 15(6) TEU on external representation of the Union by the President of the Euro-

pean Council, without prejudice to powers of the High Representative (section 4.1).92. See the detailed provisions on external action in general and the CFSP in particular con-

tained in Title V TEU. 93. Art. 18(3) TEU.

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work of the European Council, though without formally becoming a member thereof.

When the Conventions proposals were rst published, doubts were ex-pressed about whether the same person could really owe their institutional loyalty to both the Council and the Commission. However, the nal text of the TL makes clear that the High Representative should be bound by the Commis-sions procedures only when discharging his / her responsibilities under Article 18(4) TEU, and only to the extent that this is consistent with his / her position within the Council. In other words, the High Representative may well be dou-ble-hatted but his / her Council hat will sit on top of the Commission one at the nal stage of decision-making by the Foreign Affairs Council.94

According to Article 18(1) TEU, the High Representative is to be appointed by the European Council (acting by QMV) with the agreement of the Commis-sion President.95 However, as one of the Vice-Presidents of the Commission, he / she must also be approved, collectively with the remainder of the College, by the European Parliament.96 Moreover, in the event of a motion of censure being passed by the European Parliament against the Commission, the High Representative must resign from his / her duties within the Commission (but will remain in post for those responsibilities associated with the Council).97

5. Decision-making instruments and procedures

5.1. Legal instruments

As regards the Unions legal instruments, the TL implements two main re-forms aimed at greater simpli cation, democratic legitimacy and decision-making ef ciency.98 The rst is abolition of the various legal instruments used

94. As pointed out by Arnull et al., op. cit. supra note 11, para 11010. On the High Repre-sentatives responsibilities, see further Editorial comments: Mind the Gap!, 45 CML Rev. 317322.

95. The European Council may end his / her term of of ce by the same procedure. This ap-plies also in situations where the Commission President requests the High Representative to resign: see Art. 17(6) TEU.

96. Section 4.4. As regards the role of the European Parliament in the appointment of the very rst High Representative, i.e. into the Commission already holding of ce on the date of entry into force of the TL, see Declaration No 12 annexed to the Final Act.

97. Art. 17(8) TEU and Art. 234 TFEU. 98. On the current position, see further, e.g. Bast, Legal Instruments in von Bogdandy and

Bast (Eds.), Principles of European Constitutional Law (Hart Publishing, 2006); Schtze, The morphology of legislative power in the European Community: Legal instruments and the fed-eral division of powers, 25 YEL (2006), 91.


in the existing Second and Third Pillars (such as joint actions, common posi-tions, framework decisions and conventions) in favour of a uni ed set of legal acts for the Union as a whole. The second is the introduction, within that uni- ed set of legal instruments, of a distinction between legislative acts and non-legislative acts. A similar distinction was proposed in the CT, which divided the Unions instruments into two discreet categories: legislative acts (taking the form of laws and framework laws); and non-legislative acts (in the form of regulations and decisions).99 However, the 2007 IGC was in-structed by the European Council to jettison the language of laws and framework laws as part of the wider process of abandoning the constitu-tional concept, while still retaining the substantive idea of introducing a clearer hierarchy of norms into the Union legal order. The TL ful ls this man-date by means of a technically suave solution. On the one hand, the revised Treaties specify a uni ed set of legal acts based on those currently employed in the First Pillar: regulations, directives, decisions,100 recommendations and opinions.101 On the other hand, those legal acts can then be divided into their discreet legislative and non-legislative categories, less according to some qualitative difference in the nature of the instruments themselves, and rather according to the decision-making procedure by which the Treaties specify they should be adopted. Thus, legislative acts are regulations, directives or decisions adopted through the ordinary or a special legislative procedure as identi ed in the relevant legal basis.102 Non-legislative acts comprise all other legal instruments, i.e. adopted under or pursuant to the Treaties through a non-legislative procedure.

This distinction between legislative and non-legislative acts has important consequences in several elds:103 for example, the national parliaments right to object to Union measures on the grounds of an alleged incompatibility with the principle of subsidiarity applies only as regards draft legislative acts;104

99. See further, e.g. Dougan, op. cit. supra note 10, 781783; von Bogdandy, Arndt and Bast, Legal Instruments in the European Union and their reform: A systematic approach on an empirical basis, 23 YEL (2004), 91; Lenaerts and Desomer, Towards a hierarchy of legal acts in the European Union? Simpli cation of legal instruments and procedures, 11 ELJ (2005), 744.

100. The de nition of which is amended so as expressly to acknowledge the possible adop-tion of decisions without a speci c addressee.

101. See Art. 288 TFEU. 102. See Art. 289(1)-(3) TFEU.103. See further, e.g. Liisberg, The EU Constitutional Treaty and Its Distinction between

Legislative and Non-Legislative Acts: Oranges Into Apples?, Jean Monnet Working Paper Se-ries 01/06 (NYU School of Law).

104. Section 6.3. The possibility for national parliaments, and the Committee of the Regions, to seek judicial review on subsidiarity grounds is also limited to Union legislative acts: sections 6.3 and 8.3.

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similarly, the Councils obligation to deliberate and vote in public applies only to draft legislative acts;105 the distinction between legislative and non-legisla-tive measures may also prove crucial to the new rules on the standing of natu-ral and legal persons to bring an action for annulment directly before the Union courts.106

5.2. Adoption of legislative acts

5.2.1. Initiation of legislative proceduresAccording to Article 17(2) TEU, Union legislative acts may be adopted only on the basis of a Commission proposal, except where the Treaties provide otherwise.107 The main exception to the general principle that the Commission enjoys a monopoly over the initiation of Union legislation is contained in Ar-ticle 76 TFEU: in the eld of police and judicial cooperation in criminal mat-ters, acts may also be adopted on the initiative of a quarter of the Member States.108

In addition to the existing power of the Council and the European Parlia-ment to request the Commission to consider submitting a proposal on any given issue,109 Article 11(4) TEU follows the CT by introducing a further in-novation: at least one million citizens from a signi cant number of Member States may invite the Commission to submit appropriate proposals for the pur-poses of implementing the Treaties. The detailed conditions for exercising this citizens initiative (including the minimum number of Member States whose citizens must be involved) are to be laid down by regulations adopted by the European Parliament and the Council under Article 24 TFEU.

5.2.2. Ordinary legislative procedureArticle 10 TEU contains a concise statement of the Unions dual basis of dem-ocratic legitimacy: citizens are directly represented at the Union level in the European Parliament; Member States are represented in the European Council and the Council, those representatives being themselves democratically ac-countable either to their national parliaments or their citizens.

That dual democratic basis is best re ected in the ordinary legislative pro-cedure co-decision since it is based on an equal say between the European

105. Art. 16(8) TEU and Art. 15(2) TFEU. See section 4.2. 106. Section 8.3. 107. See also Art. 289 TFEU. 108. But see the additional exceptions referred to in Art. 289(4) TFEU.109. See Arts. 241 and 225 TFEU (respectively).


Parliament and the Council.110 The TL is therefore to be applauded for extend-ing the ordinary legislative procedure across many more legal bases: for ex-ample, agricultural policy (currently subject to mere consultation of the Parlia-ment by the Council);111 and the common commercial policy (as regards which the Parliament is currently denied any formal right of participation).112 Perhaps most signi cantly, the ordinary legislative procedure will apply across most of the Area of Freedom, Security and Justice.113 Furthermore, variants of the co-decision procedure which currently instruct the Council to act by unanimity will see QMV become fully applicable: for example, measures to facilitate the taking up and pursuit of self-employed activities;114 and incentive measures in the eld of culture.115 This extension of co-decision brings with it not only improvements in democratic legitimacy, but also greater consistency in deci-sion-making procedures, thereby reducing the incentive for the Union institu-tions to engage in wasteful legal basis disputes.

5.2.3. Special legislative procedures and passerelle clausesHowever, the TL still does not bestow upon the Union a uniform legislative process, nor eradicate completely the potential for inter-institutional wran-gling over the correct legal basis. Despite the impressive expansion in the scope of the ordinary legislative procedure, certain legislative acts are still to be adopted under so-called special legislative procedures.

Special legislative procedures generally involve the Council acting byunanimity, sometimes after consulting,116 sometimes with the consent of,117 the

110. The full procedure is described in Art. 294 TFEU. For these purposes, the Council acts by QMV, save where Arts. 293 and 294 TFEU speci cally provide otherwise.

111. Art. 43 TFEU. Cf. Art. 37 EC.112. Art. 207 TFEU. Cf. Art. 133 EC.113. See Title V, Part Three TFEU and section 9.1. 114. Art. 53 TFEU. 115. Art. 167 TFEU.116. E.g. Art. 21(3) TFEU on social measures for migrant Union citizens; Art. 22 TFEU on

electoral rights of Union citizens; Art. 64(3) TFEU on regressive measures on the free move-ment of capital to / from third countries; Art. 77(3) TFEU on border / residency documents for migrant Union citizens; Art. 81(3) TFEU on cross-border family law; Art. 87(3) TFEU on op-erational cooperation between national law enforcement agencies; Art. 89 TFEU on cross-bor-der operation of national law enforcement agencies; Art. 113 TFEU on the harmonization of indirect taxation; Art. 115 TFEU on internal market harmonization; Art. 118 TFEU on language arrangements for European IPRs; Art. 311, third para TFEU on the initial decision on Union own resources.

117. E.g. Art. 19(1) TFEU on general anti-discrimination measures; Art. 86(1) TFEU on establishment of a European Public Prosecutors Of ce; Art. 312(2) TFEU on the Unions multi-annual nancial framework; the exibility clause contained in Art. 352 TFEU.

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European Parliament;118 though a few such special legislative procedures per-mit the Council to act by QMV.119 Nevertheless, the revised Treaties contain various passerelle clauses (simpli ed revision procedures) which may be used to alter some of those deviant legislative processes without recourse to the full-blown drama of a Treaty amendment.120

First, there are passerelle clauses which provide for the extension of the ordinary legislative procedure. In particular, Article 48(7) TEU states that, as regards legal bases contained in the TFEU which provide for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council (acting unanimously and with the consent of the Euro-pean Parliament) may decide to provide instead for the future application of the ordinary legislative procedure. Any such proposal must be noti ed to the national parliaments, each of which has an effective right to veto the proposal within a six month period.121 Speci c provisions of the TFEU are excluded from the scope of application of this passerelle clause.122 In addition, Article 81 TFEU contains a more speci c passerelle clause whereby the Council may identify which aspects of family law having cross-border implications shall in the future be adopted by the ordinary legislative procedure (rather than by a special legislative procedure based on unanimity in the Council and consulta-tion with the European Parliament); any such proposal to extend the ordinary legislative process must also shall be noti ed to the national parliaments, each of which has a right to veto the proposal within a six month period.123 The Council also enjoys speci c passerelle powers based in part on the existing EC Treaty to convert the applicable legislative procedure from special to

118. Note that the cooperation procedure, currently contained in Art. 252 EC, will be en-tirely abolished: in one area replaced by the ordinary legislative procedure (see Art. 99(5) EC / Art. 121(6) TFEU); in the rest by a non-legislative procedure involving mere consultation of the EP by the Council (Arts. 102(2) and 103(2) EC / Art. 125(2) TFEU; Art. 106(2) EC / Art. 128(2) TFEU).

119. E.g. Art. 23 TFEU on diplomatic protection of Union citizens (after consulting the EP); Art. 311, fourth para TFEU on implementing the Unions own resources (with the EPs con-sent).

120. See section 10.3 on the ordinary revision procedure. 121. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.122. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on

Union own resources; Art. 312(2), rst para on the multiannual nancial framework; and the Art. 352 exibility clause.

123. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if the legal basis to which an enhanced cooperation relates provides for the Council to legislate according to a special legislative procedure, then the Council (acting unanimously and in its restricted enhanced cooperation formation, after consulting the European Parliament) may decide instead to apply the ordinary legislative procedure. The national parliaments have no role here: see Dougan, op. cit. supra note 4.


ordinary in respect of various aspects of the Unions social and environmen-tal policies, though in those situations, the national parliaments hold no right of veto.124

Secondly, there are passerelle clauses which provide for the extension of QMV within the Council. In particular, Article 48(7) TEU provides that, as regards legal bases contained in the TFEU under which the Council acts by unanimity within the context of a special legislative procedure, the European Council (acting unanimously and with the consent of the European Parlia-ment) may authorize the future use of QMV.125 By these means, the Member States may decide that the legislative procedure should become more ef cient within the Council while remaining special as regards the participation of the European Parliament. Again, any such proposal must be noti ed to the national parliaments, each of which has an effective right to veto the proposal within a six month period;126 and again, speci c provisions of the TFEU are excluded from the scope of application of this passerelle clause.127 Among the latter is Article 312(2) TFEU on the adoption of the Unions multiannual -nancial framework by the Council, acting unanimously according to a special legislative procedure, with the consent of the European Parliament. However, that provision contains a speci c passerelle clause of its own: the European Council may authorize the Council to act by QMV; that decision may be taken unilaterally, without the national parliaments having any right of veto.128

It is worth noting that other special legislative procedures under the revised Treaties involve different combinations of actors and decision-making rules. For example, legislative acts concerning the status of MEPs and the exercise of the European Parliaments supervisory prerogatives are to be adopted by the Parliament with limited participation from the Council and the Commis-sion.129 Such legal bases are not amenable to conversion into the ordinary leg-islative procedure by means of Article 48(7) TEU. Other legislative acts are to be adopted by the Council according to a special legislative procedure, but

124. See Art. 153(2) TFEU (social policy) and Art. 192(2) (environment). Cf. Arts. 137(2) and 175(2) EC (respectively).

125. This passerelle clause may also be used in the context of certain legal bases for the adoption of non-legislative acts: section 5.3.1.

126. Cf. Art. 6 of the Protocol on the role of national parliaments in the European Union.127. See Art. 353 TFEU: the relevant provisions are Art. 311, third and fourth paras. on

Union own resources; Art. 312(2), rst para on the multiannual nancial framework; and the Art. 352 exibility clause.

128. Note also the enhanced cooperation passerelle clause in Art. 333 TFEU: if unanimity applies under the legal basis to which an enhanced cooperation relates, then the Council (acting unanimously and in its restricted enhanced cooperation formation) may move instead to QMV. Again, the national parliaments have no role here: see Dougan, op. cit. supra note 4.

129. See Arts. 223(2), 226 and 228(4) TFEU.

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may not enter into force until approved by the Member States in accordance with their own constitutional requirements.130 Even where such legal bases can be converted into the ordinary legislative procedure, or to the use of QMV, pursuant to Article 48(7) TEU,131 the prescribed role of the Member States themselves will remain inviolate.

5.2.4. Emergency brakesUnder a few legal bases, the CT proposed introducing a new emergency brake procedure, based on the ordinary legislative procedure but deviating from the general rules applicable to QMV in Council, in particular, by offering each Member State an effective right of veto, albeit one which is intended to be used only in special circumstances. Those emergency brakes, which were then modi ed at the 2007 IGC, can now be divided into two variants.

The rst variant applies to the coordination of national social security sys-tems. Whereas existing Article 42 EC uses co-decision, but with the Council acting unanimously throughout, the revised Article 48 TFEU employs the or-dinary legislative procedure, with Council acting by QMV as normal. How-ever, where a Member State declares that draft legislation would affect funda-mental aspects, or the nancial balance, of its social security system, it may refer the matter to the European Council, suspending the ordinary legislative procedure. Within four months, the European Council may (by consensus) refer the draft back to the Council, permitting the ordinary legislative proce-dure to resume; or instead kill off the draft, by either taking no action or re-questing the Commission to submit a new proposal.132

The second emergency brake variant applies to various legal bases for Union action to promote judicial cooperation in criminal matters and the de -nition of criminal offences and sanctions.133 Here, where a Member State con-siders that draft legislation would affect fundamental aspects of its criminal justice system, it may refer the matter to the European Council, again suspend-ing the ordinary legislative procedure. This time, however, if the European Council fails to reach a consensus in favour of resuming the ordinary legisla-tive procedure, and at least nine Member States wish to establish an enhanced cooperation on the basis of the draft act, authorization to proceed with that enhanced cooperation shall automatically be deemed to have been granted

130. E.g. Art. 25 TFEU on additional rights for Union citizens; Art. 223(1) TFEU on a uni-form electoral procedure for the EP; Art. 262 TFEU on ECJ jurisdiction over European IPRs; Art. 311, third para TFEU on the initial decision on Union own resources.

131. I.e. other than in the case of Art. 311, third para TFEU: see Art. 353 TFEU. 132. Note Declaration No 23 annexed to the Final Act. 133. See the detailed provisions of Arts. 82(3) and 83(3) TFEU. On the AFSJ, see section

9.


(without having to comply with the usual procedural requirements applicable to the initiation of an enhanced cooperation, such as obtaining Commission support, Council approval and European Parliament consent).134

Since all those legal bases are explicitly described as using the ordinary legislative process, and decision-making within the Council is at no point for-mally subject to a requirement of unanimity, one assumes that the speci cities of the emergency brake mechanism the de facto veto and (where applica-ble) the extraordinary authorization to engage in enhanced cooperation could not be suppressed pursuant to the passarelle clause contained in Article 48(7) TEU.

5.3. Adoption of non-legislative acts

Non-legislative acts in particular, regulations, directives and decisions ad-opted other than by an ordinary or special legislative procedure may be di-vided into three main categories: those adopted directly under the Treaties, where provided for by a speci c legal basis; delegated acts in situations where the Commission has been authorized to supplement or amend non-essential elements of a legislative act; and implementing acts of the Commission or the Council which are required for the uniform application of Union law.135

5.3.1. Non-legislative acts adopted directly under TreatiesMyriad legal bases across the Treaties directly authorize the adoption of non-legislative acts: for example, the Commission adopts measures in the eld of competition and State aids;136 the European Central Bank does so in the eld of monetary policy.137 The Council also adopts various non-legislative mea-sures directly under the Treaties: sometimes by unanimity (for example, rules governing the languages of the Union institutions,138 and authorizing enhanced cooperation within the CFSP);139 sometimes by QMV (as with administrative cooperation between Member States within the Area of Freedom, Security and Justice,140 and authorizing enhanced cooperation in other elds of non-exclu-sive Union competence).141 So too the European Council: for example, in es-

134. See Art. 20 TEU and Art. 329 TFEU. 135. Note also, on the adoption of recommendations, Art. 292 TFEU. Also, e.g. Arts. 60 and

97 TFEU. 136. Arts. 105 and 108 TFEU.137. Art. 132 TFEU.138. Art. 342 TFEU.139. Art. 329(2) TFEU.140. Art. 74 TFEU.141. Art. 329(1) TFEU.

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tablishing the list of Council con gurations,142 or extending the powers of a future European Public Prosecutors Of ce.143 One of the most important cat-egories of non-legislative acts adopted directly under the Treaties is measures of the European Council and the Council in the eld of the CFSP (where the use of legislative instruments is precluded, and unanimity remains the general rule).144

As regards legal bases contained in the TFEU or Title V TEU which provide for the Council to adopt non-legislative acts by unanimity, the passerelle clause contained in Article 48(7) TEU empowers the European Council (acting unan-imously, with the consent of the European Parliament, and subject to a veto by each national parliament) to authorize the Council to act thenceforth by QMV.145 As before, speci c provisions of the TFEU are excluded from the scope of application of this simpli ed revision clause;146 so too are the remain-ing provisions of the TEU, and any decisions with military implications or those in the area of defence. But in addition, Chapter 2, Title V TEU on the CFSP seems to contain its own passerelle clause: under Article 31(3) TEU, the European Council may unanimously decide to extend the use of QMV by the Council within this eld (though again excluding decisions with military or defence implications).147

The relationship between Article 48(7) TEU and Article 31(3) TEU gives rise to certain problems: the latter does not provide for the involvement of the European or national parliaments, making the procedural implementation of the two passerelle clauses signi cantly different; yet it is dif cult to identify a coherent way of dividing their respective scopes of application without ren-dering one or other clause redundant. For example, one might think that Article 31(3) TEU is intended to act as a lex specialis within Chapter 2 as regards decision-making under the CFSP but since the remainder of Title V TEU nowhere empowers the Council to adopt decisions by unanimity, that would make the relevant provisions of Article 48(7) TEU super uous.148 It would

142. Art. 236 TFEU.143. Art. 86(4) TFEU.144. See Chapter 2, Title V TEU, esp. Art. 31 TEU. Further: section 3. 145. Note Art. 6 of the Protocol on the role of national parliaments in the European Union.146. See Art. 353 TFEU: the relevant exclusions are non-legislative acts adopted under the

Art. 352 TFEU exibility clause; and decisions to suspend Member State rights under Art. 354 TFEU.

147. Art. 31(4) TEU.148. Assuming that the speci c provisions concerning the common security and defence

policy are intended to be an integral part of Chapter 2, Title V TEU. That seems correct, given that those provisions state explicitly when the Council shall act by QMV; where they remain silent, it must be on the understanding that the relevant decisions will be taken by unanimity in accordance with Art. 31(1) TEU.


also deny the national parliaments any in uence over future decisions to con-vert unanimity to QMV within such a sensitive area of Union competence, thereby contravening the spirit which underpins the various procedures for amending the Treaties.149 The alternative interpretation would be to treat the operation of Article 31(3) TEU as implicitly subject to the higher procedural requirements imposed under Article 48(7) TEU which would not only render the more speci c passerelle clause otiose, but also give the European Parlia-ment a signi cant say in the future framework of decision-making within the CFSP, something which would arguably run counter to the peculiarities of the inter-institutional balance within that particular eld.150 Neither choice, there-fore, seems ideal.

Setting aside the CFSP, the European Parliament does exercise in uence over the adoption of certain non-legislative acts directly under the Treaties. That in uence tends to take the form of ex ante input into the decision-making process through the consultation procedure;151 in a few cases, however, the European Parliaments supervisory powers are strengthened by a requirement to obtain its consent to the proposed measures.152 There are still legal bases where the European Parliament exercises no direct control over the adoption of executive acts, though these generally concern individual administrative measures,153 or the appointment of members to ancillary Union bodies.154

So much for the institutional aspects of non-legislative acts adopted directly under the Treaties. More generally, the distinction between legislative and non-legislative acts drawn in the TL is clearly not based on the sort of institu-tional criterion familiar to national legal systems which are organized accord-ing to a traditional separation of powers: with an institutional structure as com-plex as that of the EU, patently lacking a clear and stable legislature such as the UKs Queen in Parliament, it would have been dif cult to state (for ex-ample) that only acts of the Council and the European Parliament, or all acts of the Council and / or the European Parliament, are to be considered legisla-tive in nature. The TL settles instead on a purely formal criterion for distin-guishing between legislative and non-legislative acts, i.e. based on the appli-

149. Section 10.3. 150. Section 3. 151. E.g. Art. 27(3) TEU on the organization and functioning of the European External Ac-

tion Service; Art. 78(3) TFEU on emergency measures to cope with asylum in uxes. 152. E.g. Art. 50(2) TEU on conclusion of agreements between the Union and withdrawing

states; Art. 352 TFEU on non-legislative measures adopted under the exibility clause.153. E.g. Art. 66 TFEU on urgent and exceptional safeguard restrictions on capital move-

ments as regards third countries; Art. 75, second para TFEU on the implementation of restrictive measures against natural and legal persons / groups.

154. E.g. Arts. 257(4), 301 and 305 TFEU on members of specialized courts, the Economic and Social Committee and the Committee of the Regions (respectively).

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cable decision-making procedures for their adoption, as they are identi ed in speci c legal provisions and on an ad hoc basis under the Treaties. But could such a criterion ever hope to re ect any coherent underlying constitutional principle? It seems instead to emerge as a labelling exercise with an essen-tially pragmatic basis and some rather arbitrary consequences.155

After all, from the point of view of process, many special legislative pro-cedures (based on a Commission proposal, unanimity or QMV in Council, and consultation with or the consent of the European Parliament) appear iden-tical to non-legislative procedures conducted in the same manner.156 Moreover, as regards their substance, many measures identi ed as non-legislative in nature will seem indistinguishable from legislative ones in terms of their scope of application (in general terms across the entire Union territory) and subject matter (regulating the rights and obligations of natural and legal per-sons). Consider, for example, regulations and directives adopted to give effect to the competition principles set out in current Articles 81 and 82 EC, which will become Articles 101 and 102 TFEU.157 Is a measure such as Regulation 1/2003 on competition enforcement really any less legislative in nature in terms of the procedure for its adoption, or its substantive content than many of the legislative acts which would be adopted elsewhere under the Treaties? Or again, consider Council measures implementing agreements between the social partners falling within the elds of social policy competence entrusted to the Union under existing Article 137 EC, which

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