EU LAW
The European Union law provides for a Charter of Fundamental Rights that guides such fundamental issues such as the social, political, and economic rights for its citizens and residents. Drafted by the European convention and proclaimed in 2000 it did not, however, come into full implementation until December 2009 with the entry of the Treaty of Lisbon (ToL).[1] This is after rejection of the Constitutional Treaty (CT) by the citizens of European’s Union (EU) founding states, Netherlands and France. Following the enactment of the Lisbon Treaty, the fundamental rights charter contains the equivalent legal value as the EU treaties. The Lisbon Treaty was aimed at improving the institutional framework and the democratic legitimacy of the EU. The treaty as will be discussed in this paper maintains all the important elements of the rejected constitutional treaty. This implies that the European community shall be replaced by the Union. Consequently, the ToL provides for the exclusion of the adoption of legislative acts.
Craig and Búrca point out that ssimilar to the CT, the ToL abolishes formally, the three pillar structure of the EU.[2] The pillars entail special instruments functional in common foreign, security policy, and in judicial cooperation. However, the adoption of the Legislative Act is excluded from CFSP in the ToL. Provisions for the specificity of CFSP are stated in two declarations. First no powers are given to the commission to make decisions or to increase the mandate of the European parliament.[3] The second provision states that in view of the flexibility clause, its application is excluded for CFSP matters.
Nicholas notes that in reference to the citizens’ initiative, the provision on participatory democracy can call on the European Commission to submit a proposal on matters falling within its area of jurisdiction.[4] Consequently, the provision touching on the European council (EU) President is as it appears in the CT. A permanent president will be nominated for two and half years that are only renewable one. A qualified majority of the members of the European Council is mandated to nominate the president and it cannot be combined with a national position.
The new treaty, just like the CT, grants the EU and the European Central Bank (ECB) a European Institution status. Consequently, the Commission President is to be elected by majority of the European Parliament as was the case in the CT. the EU is to nominate a candidate through a qualified majority.[5] The candidate is then to be elected by the majority component of the European.[6] The position of the Vice-President of the Commission was called Foreign Minister. Besides the name, other elements remain basically the same in the ToL. The position involves a merger the high Representative and the Commissioner for external Relations. The HR has the role of chairing the Foreign Affairs Council. He/she will be the Vice-President of the Commission.[7]
Jirásek notes that the Treaty of Lisbon (ToL) in several ways seeks to democratize the functioning of the EU by reinforcing the role of the national parliament’s capacity to decision making.[8] This is similar to the latter disfunct treaty. The treaty states that the national parliaments are mandated to participate in the proper functioning of the union. They are to participate in overseeing the functioning of freedoms, justice, and security as well as in the political monitoring of the Europol.
Jirásek notes that it is stipulated that by 2014 the Commission will have been reduced to two thirds of the member states. This reduction is to be based on the principle of strictly equal rotations. This, therefore, implies that in every third term, the Commissioner will neither be from Maltese nor Luxembourg and consequently not from France nor Germany. This is regardless of the size of a member state.
The clause on voluntary withdrawal is also directly extracted from the CT. The ToL only lays out a clear guideline for negotiations on the same.[9] Unsuccessful negotiations would therefore, mean that the member state can leave the EU two years after their notice to the EC. According to the External Action Service (EEAS) is to assist the HR in fulfilling his duties. It is supposed to work closely with the diplomatic unit of the member states. In addition, it shall entail the General Secretariat from Council, the Commission and seconded staff from national diplomatic services. The organization and functioning is to be established by a Council decision agreed upon through a proposal by the HR.[10]
A report by the European Council stipulates that just like in the CT, the ToL provides for a single legal personality for the EU that caters for both the current European Community and the EU. In the ToL it is stated that the legal personality is not mandated in any way to authorize the Union to legislate beyond the competences bestowed upon it by the Member States as per the Treaties.[11]
The guidelines on categories and areas of competences in the ToL have been directly extracted from the CT. The provisions specify exclusive competence, competence to coordinate, shared competence or supplement actions of the member states. They also provide a list of the policy areas falling. Certainly it is not a rigid “Kompetenzkatolog” as was initially demanded by Germany, but it makes clearer what the powers of the EU.[12]
In summary, the Constitutional Treaty has to a very large extent been retained in the ToL. There are however, some few differences. First, the symbolic elements in the CT have been abolished. This is a minor detail looking at it from a legal perspective, but may result to major future implications the process of integration. This is evident in the stronger emphasis on national sovereignty as well as on the limits of EU competences. Secondly, the ToL is an amending treaty that will add provisions to the ‘acquis’. The legal basis of the EU is likely to become more complex.[13] The treaty itself is too complex for the average citizen to read. In addition, some control mandates for national parliaments are strengthened. This could cause implication of the national level in the decision making process of the EU-policy. It also poses the risk of national parliaments concentrating on a defensive role.[14]
In conclusion the Treaty of Lesbon has to a great extent adopted the elements of the denfunct constituon. Most of the clauses and provisions in it reflect what was originally in the Constitutional treaty. The Lisbon Treaty was aimed at improving the institutional framework and the democratic legitimacy of the EU. The treaty maintains all the important elements of the rejected constitutional treaty. There are however a few provisions in the ToL that were not in the CT. The ToL also provides for the exclusion of the adoption of legislative acts.
Bibliography
Craig, P and Búrca, G. (2003). EU Law, Text, Cases and Materials (3rd ed.). Oxford: Oxford University Press. p. 318. “EU Reform Treaty Abandons Constitutional Approach”. Foreign Office. 22 August 2007.
Craig, P and Búrca, G. (2007). “Chapter 11 Human rights in the EU”. EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. p. 15. ISBN 978-0-19-927389-8.
European Council – Nice 7–10 December 2000: Conclusions of the Presidency, European Parliament, 11 December 2000, retrieved from http://www.ceps.be/book/treaty-lisbon-how-much-constitution-left-overview-main-changes
Jirásek, J (2010) “Application of the Charter of Fundamental Rights of the EU in the United Kingdom and Poland According to the Lisbon Treaty”. Retrieved from http://www.eipa.eu/files/repository/eipascope/20121213145031_GVA_Eipascope2012_2.pdf
Joint Declaration by the European Parliament, the Council and the Commission Concerning the Protection of Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms (OJ C 103, 27/04/1977 P. 1)
Beunderman M. (7 September 2007). “Poland to join UK in EU rights charter opt-out”. Euobserver.com. Retrieved from http://www.eipa.eu/files/repository/eipascope/20121213145031_GVA_Eipascope2014
Nicholas W (2000). “Vaz blames press for dislike of EU”. The Guardian (London). Retrieved from http://www.ceps.be/book/treaty-lisbon-how-much-constitution-left-overview-main-changes
Pernice, I (2008), “The Treaty of Lisbon and Fundamental Rights”, in Griller, Stefan; Ziller, Jaques, The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Wien New York: Springer), retrieved http://www.europedia.moussis.eu/books/Book_2/2/2/5/?all=1
The Charter of Fundamental Rights of the European Union, European Parliament, 21 February 2001, retrieved from www.search.ask.com/web?l=dis&q=the+EU+treaty+(Lisbon+Treaty)+is+the+same+as+the+defunct+constitution&.
Men, Jing. Between Human Rights and Sovereignty. European Law Journal 17, no. 4 (July 2011): 534-550. Business Source Complete, EBSCOhost (accessed January 8, 2014).
[1] European Council – Nice 7–10 December 2000: Conclusions of the Presidency, European Parliament, 11 December 2000
[2] Craig, P and Búrca, G. (2007). “Chapter 11 Human rights in the EU”. EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. p. 15.
[3] Joint Declaration by the European Parliament, the Council and the Commission Concerning the Protection of Fundamental Rights and the European Convention for the Protection of Human Rights and Fundamental Freedoms (OJ C 103, 27/04/1977 P. 1)
[4] Nicholas W (2000). “Vaz blames press for dislike of EU”. The Guardian (London).
[5] Beunderman M. (7 September 2007). “Poland to join UK in EU rights charter opt-out”. Euobserver.com.
[6] Craig, P and Búrca, G. (2003). EU Law, Text, Cases and Materials (3rd ed.). Oxford: Oxford University Press. p. 318.
[7] Craig, P and Búrca, G. (2007). “Chapter 11 Human rights in the EU”. EU Law: Text, Cases and Materials (4th ed.). Oxford: Oxford University Press. p. 15.
[8] Jirásek, J (2010) “Application of the Charter of Fundamental Rights of the EU in the United Kingdom and Poland According to the Lisbon Treaty”.
[9] Men, Jing. Between Human Rights and Sovereignty. European Law Journal 17, no. 4 (July 2011): 534-550.
[10] Jirásek, J (2010) “Application of the Charter of Fundamental Rights of the EU in the United Kingdom and Poland According to the Lisbon Treaty”.
[11] European Council – Nice 7–10 December 2000: Conclusions of the Presidency, European Parliament, 11 December 2000
[12] European Council – Nice 7–10 December 2000: Conclusions of the Presidency, European Parliament, 11 December 2000
[13] The Charter of Fundamental Rights of the European Union, European Parliament, 21 February 2001.
[14] Pernice, I (2008), “The Treaty of Lisbon and Fundamental Rights”, in Griller, Stefan; Ziller, Jaques, The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty? (Wien New York: Springer),
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