Since the Czech President Vaclav Klaus officially declared on 3rd on November 2009 that he “signed the Lisbon Treaty”[1] it was clear for everybody that changes in EU brought by the Lisbon Treaty which will shortly come into force – are no longer eminent – they are to follow for sure.
Following that idea, the present paper will focus on two major questions: how will the community method change under the Treaty of Lisbon and what impact will such a change have on the internal market of EU.
To clarify the historical background of the questions it is important to note the following: “The Maastricht Treaty of 1992 made formal a distinction between “Community” and intergovernmental elements of the EU. “Community” elements are governed according to the “Community method”, under which there may be legislation which is binding on the Member States, which only the European Commission may propose, which typically requires European Parliament approval, and which is subject to the jurisdiction of the European Court of Justice and to enforcement by the European Commission. Until the Maastricht Treaty, only the European Community existed, governed according to the Community method under the Treaty establishing the European Community. The Maastricht Treaty, officially called the Treaty on European Union, added to the EC two “intergovernmental” elements, namely co-operation in the field of foreign and security policy, and co-operation in the field of justice and home affairs. These two elements fell outside the Community method. The Maastricht Treaty brought all three elements together under the umbrella of the new European Union.”[2]
To give an official definition, the community method represents EU’s usual method of decision-making in which the Commission makes a proposal to the Council and Parliament who then debate it, propose amendments and eventually adopt it as EU law[3].
The method is highly criticized, as the ever growing institutional rigidity does not allow the cooperation between Member States to reach further institutional interests and further integration and on the other hand, because Member States are afraid of loosing sovereignty.[4] For this reason, the Community Method “is increasingly circumvented”.[5] True or not, what is clear is that the method undergoes substantive changes under the newly ratified Treaty.
I. Therefore, what will the Lisbon Treaty do?
It will impose major changes in the area of adoption of legislative acts through the creation of the “ordinary legislative procedure”, as provided for and described fully in art. 294 of the Treaty on the Functioning of European Union (TFEU). This procedure is in fact a well-known one. It is the co-decision procedure of Article 251 of the present EC Treaty. At some point, the Convention considered shortening the current co-decision procedure by one reading, but because the co-decision procedure is working well at present, it was decided not to change it. [6]
The co-decision procedure regulates a complicated game that resembles the French legislative procedure a little bit. It allows two bodies (Council and Parliament) to exert influence on legislative proposals and fine-tune them through several readings. The main idea behind the procedure is to allow the European Parliament to play a genuine role in the European law-making process.[7] Now, the ‘ordinary’ legislative procedure is used for the adoption of nearly all European legislation.[8] It has been stated that currently 2/3 of the legislative proposals are already carried out under this procedure.[9]
Therefore, an important innovation in the new legislative procedure is dictated by the need for a dual democratic basis, as the procedure itself is based on a dual say between the Parliament and the Council.[10]
What is more, national parliaments – which, even at domestic level, often have a weaker role in the lawmaking process than is commonly understood – are given a bigger role in the European legislative process[11] – including the right to be directly informed of (and thus influence) draft European laws as well as the right collectively to hinder and ultimately even block EU legislation which does not adequately respect member state rights.[12]
To comment more on what these changes will bring to the European Parliament, it is important to underline that it will become a genuine co-legislator in nearly all cases in the future, and it will also have a much tighter grip on implementation legislation enacted on the European Commission’s initiative. As a result of this parliamentary involvement and the check that can be carried out on delegated legislation, the European legislator more than ever resembles most legislators in the Member States.[13] According to Tom Eijsbouts, we are at the ‘dawn of a legislator’ (read: a real legislature) for this reason.[14] The extent to which the legislating possibilities of the European Parliament resemble that of a national one is a question of debate – the European Parliament is instituted on elective basis, it does exercise supreme legislative power. Still – the question as to how representative the European Parliament is and if there exists some “democratic deficit” remains an open one.
Citizens − under the Citizens’ Initiative Procedure − or the European Parliament − through the legislation resolution − may request the Commission to pursue an initiative. In actual fact, the Commission cannot be forced to take any initiative, save a few exceptional cases based on the old third pillar[15], but it can be prevented from doing so. Cooperating national parliaments can block a proposal through the orange-card procedure (article 69 TFEU).[16]
It is widely accepted that the new citizen initiative process offers greater participation directly to European citizens, rather than to their national governments, but the downfall is that a significant number of Member States must be represented in the signature lists for an initiative proposal to be legitimate (article 1 (12) (8B) (4) of the Lisbon Treaty).[17]
With all these positive changes, it would have seemed that the incorporation of one general legislative procedure would bring an end to the numerous so-called “Byzantine procedures”.[18] Still, the TL does not bestow the Union a uniform legislative process, nor eradicate completely the potential for inter-institutional wrangling 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”. Nevertheless, the TL contains various “passerelle clauses” (simplified 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 (section 10.3 of the “ordinary revision procedure”)[19]. For example, there are passerelle clauses which provide for the extension of QMV within the Council, in particular the possibility for the European Council to authorize the future use of QMV where the Council acts by unanimity within the context of a special legislative procedure (article 48 (7) TEU).
II. The second question of the paper is how will the change in the method affect the internal market.
The Treaty of Lisbon is to be applauded for extending the ordinary legislative procedure across many more legal bases: e.g. agricultural policy (currently subject to mere consultation of the Parliament by the Council, article 43 TFEU, Cf. art. 37 EC); and the common commercial policy (as regards which the Parliament is currently denied any formal right of participation, article 207 TFEU, Cf. article 133 EC).[20]
Perhaps most significantly, the ordinary legislative procedure will apply across most of the Area of Freedom, Security and Justice (Title V, Part Three TFEU and section 9.1). Also, almost all policy areas of Justice and Home Affairs (JHA) will come under the “community method”, forming a single area of Freedom, Security and Justice in which QMV and co-decision will be the general rule. This contrast in the respective developments of the two “pillars” erected at Maastricht reflects their different relationship with the bulk of the Union’s policies. JHA is the obverse side of the coin which is the internal market: the disappearance of national barriers between the Member States constitutes an inexorable drive to adopt measures under JHA on the same legal foundations.[21]
Furthermore, variants of the co-decision procedure which currently instruct the Council to act by unanimity will see QMV become fully applicable: e.g. measure to facilitate the taking up and pursuit of self-employed activities (article 53 TFEU); and incentive measures in the field of culture (article 167 TFEU). This extension of co-decision brings with it not only improvements in democratic legitimacy, but also greater consistency in decision-making procedures, thereby reducing the incentive for the Union institutions to engage in wasteful legal basis disputes.[22]
These changes can only bring a positive impact that the newly instituted legislative procedure will have on the internal market. Citizens can bring legislative initiatives in internal market areas that is of immediate interest for more than one million EU citizens from several member states, in case such a need in overlooked by EU institutions – which by default change the notion of participatory democracy within EU.
The European Parliament and Council have the power to make better quality laws, in more expeditious terms, more transparent and thus, more democratic. The Parliaments of Member States have also a more active control powers which would make the internal market legislation be closer to the immediate needs of each Member State.
To conclude, it is clear that this switch in legislative procedures means that more transparent and democratic procedures will apply to what has been dealt with, so far, in secret diplomatic negotiations, agreed between the ministers and implemented by the national institutions without competent democratic involvement.[23]
[1] New York Times, Czech President Klaus signs Lisbon Treaty, published November 3, 2009, available at http://www.nytimes.com/reuters/2009/11/03/world/international-uk-eu-treaty-czech-klaus.html.
[2] House of Commons, Foreign Affairs Committee, Foreign Policy Aspects of the Lisbon Treaty, third Report of Session 2007-08, p. 10, available at http://publications.parliament.uk.
[3] Glossary Eurofunding, http://welcomeeurope.com.
[4] Luigi Carafa, The Outlook for EU Policy Procedures: Is the Decline of the Community Method both unavoidable and desirable, Politkovskaya & Dink Promotion, Political and Administrative Studies Department, College of Europe, p. 12, electronic copy available at: http://ssrn.com/abstract=1104429.
[5] G., Majone, Dilemmas of European Integration: The Ambiguities and Pitfalls of Integration by
Stealth, Oxford University Press, Oxford, 2005, p. 48.
[6] Wim Voermans, Is the European Legislator after Lisbon a real Legislature?, to be published in Legislação – Cadernos de Ciência de Legislação – Portuguese Journal of Legislative Studies – 2009, p. 6, electronic copy available at: http://ssrn.com/abstract=1347959.
[7] Voermans [2009], p. 6.
[8] Since its introduction in 1992, the co-decision procedure has surpassed many pessimistic expectations. In 2002 the Convention concluded that the co-decision procedure worked pretty well. About 32% of the proposals are accepted in the first reading; in approx. 40% of the cases, the decision can be adopted after a second reading and in 28% of the cases, a Conciliation Committee is instituted during the negotiations on the proposal, Document of the European Convention on legislative procedures, CONV 216/02, 24 July 2002, cited by Voermans [2009], p. 6.
[9] Emilio de Capitani, representing the European Parliament, on the conference The Lisbon Treaty & The Changing Landscape of Liberty and Security in the EU, Centre for European Policy Studies, CEPS, 17th March 2008, p. 6, Report available at http://www.libertysecurity.org/IMG/pdf_Proceedings_Lisbon_Treaty_Conference.pdf.
[10] Michael Dougan, The Treaty of Lisbon 2007: winning minds, not hearts, Common Market Law Review, no. 45, Kluwer Law International, 2008, p. 639-640.
[11] Protocol on the role of national Parliaments in the European Union, Lisbon Treaty, December 3, 2007, CIG 14/07, TL/P/en 2.
[12] Dr. Gavin Barrett, The Treaty of Lisbon – Just What is it All About? A Brief Layperson’s Introduction to the Main Features of the Treaty of Lisbon, May, 2008, p. 3, electronic copy available at: http://ssrn.com/abstract=1469045.
[13] Voermans [2009], p. 2.
[14] Tom Eijsbouts, ‘De Dageraad van een wetgever’ (The Dawn of a Legislator), Regelmaat, 2003, pp. 207-221, cited by Voermans [2009], p. 2.
[15] Article 76 (b) of the TFEU.
[16] Voermans, [2009], p. 6.
[17] Stephen C. Sieberson, Dividing Lines Between the European Union and Its Member States, The Impact of the Treaty of Lisbon, Cambridge University Press, 2008, p. 67.
[18] Voermans [2009], p. 4-5.
[19] Dougan [2008], p. 640-641.
[20] Dougan [2008], p. 640.
[21] Brendon Donnely, Justice and Home Affairs in the Lisbon Treaty: A Constitutionalising Clarification?, Eipascope, 2008, p. 19.
[22] Dougan [2008], p. 640.
[23] Stefan Griller, The Lisbon Treaty: EU Constitutionalism Without a Consitutional Treaty? European Community Studies Association of Austria Publication, volume 11, Springer, 2008, p. 237.
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