EU TREATY OF LISBON - NO MORE PILLARS; A SINGLE LEGAL

UNCLAS SECTION 01 OF 03 BRUSSELS 000295

SIPDIS

SIPDIS

DEPT FOR EUR/ERA
DEPT ALSO FOR USTR

E.O. 12958: N/A
TAGS: PREL EUN PGOV ECIN ETRD PBTS
SUBJECT: EU TREATY OF LISBON - NO MORE PILLARS; A SINGLE LEGAL
PERSONALITY

REFS: (A) 2007 BRUSSELS 3488; (B) 2007 BRUSSELS 2473
(C) 2007 BRUSSELS 2001

SUMMARY
--------------


1. With the entry into force of the Treaty of Lisbon (targeted for
2009),the current three-pillar structure of the EU will formally
disappear. EU polices concerning economic integration, the Common
Foreign and Security Policy (CFSP) and the area of freedom, security
and justice will all be brought under a single legal framework,
although the specificity of CFSP, including defense policy, will be
retained through the maintenance of specific decision-making rules.
The "Union" will replace and succeed the European Community
(currently a suset of the EU),thus giving the EU as such the
status of legal personality, which is only onferred until now upon
the European Communit and EURATOM. This recognition will not, by
itself, entail any extension of the Union's powers. However, it
will allow the EU to sign treaties and -- subject to the Member
States' agreement -- become a member of international organizations.
Though all implications will only appear over time, our preliminary
analysis suggests that the conferral of legal personality could
bolster the EU's profile at the international level.


2. This message, building on previous USEU reporting on the Treaty
of Lisbon (REFTELS),is the second in a series that is meant to put
forthcoming EU reforms in perspective and describe their impact on
the United States' relations with the EU. Other messages will
follow that will focus specifically on foreign policy, defense,
justice and home affairs, economic policy, and the role of the
European Parliament and national parliaments. End Summary.

THE PILLAR STRUCTURE IS ABOLISHED
--------------


3. A key feature of the failed draft Constitutional Treaty that was
retained by the Treaty of Lisbon (ToL) negotiators is the removal of
the current three-pillar structure as established under the Treaty
of European Union ("Maastricht Treaty") that entered into force in

1993. Since then the three pillars -- the "Community" pillar, CFSP
and police and judicial cooperation in criminal matters (the bulk of
Justice and Home Affairs issues currently forming the "third
pillar") -- have been functioning on the basis of different
decision-making procedures and legal instruments. Doing away with
the pillars implies that "The Union shall replace and succeed the
European Community," as stated in the revised Article 1 under the
common provisions of the revised TEU.


4. The establishment of a single structure as originally designed
under the draft Constitutional Treaty could also have implied
getting rid of the special rules and legal instruments that have
been created over time for handling the non-Community issues.
However, anxious to reaffirm the specificity of CFSP, the ToL
negotiators clearly stated that "the Common Foreign and Security
Policy is subject to specific procedures defined by the European
Council and the Council acting unanimously" (except where otherwise
stated) and that "the adoption of legislative acts shall be
excluded" from CFSP (article 11.1 TEU). A Declaration annexed to
the ToL further clarifies that the provisions of CFSP "do not give
new powers to the Commission to initiate decisions nor do they
increase the role of the European Parliament" in such matters. In
practice, the "second pillar" will thus be maintained de facto with
its specific set of decision-making rules.


5. The single framework will allow for the adoption of more
decisions using the ordinary legislative procedure
(qualified-majority voting in the Council and co-decision with the
European Parliament) in areas related to freedom, security and
justice that have not been transferred yet to the Community domain,
or so-called "first pillar." Visa, asylum and immigration issues
are already governed by the "Community method" of decision-making,
under which the Commission makes a proposal to the Council and the
European Parliament, which eventually adopt it as a piece of
legislation. The ToL will pave the way for substantial changes in
JHA matters (to be detailed in a separate message),although some
specificities and exceptions will be retained here as well,
including comprehensive "opt-outs" for some countries that could
lead to an increased lack of uniformity in the application of the EU
legal order.

THE EU ACQUIRES LEGAL PERSONALITY
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6. The issue of the legal personality has long been a subject of
debate among scholars and practitioners of the EU. At present, only

BRUSSELS 00000295 002 OF 003


the two remaining Communities - the European Community and EURATOM
-- have legal personality. In this sense, legally binding
agreements concluded by the EC (European Community) are signed on
behalf of one or both of the existing Communities. As an
illustration, the WTO Agreement was concluded by the member states
individually as well as the European Communities, not by the EU. In
the daily practice of international relations, non-EU states are
interacting with two organizations (the Communities) and a third
entity ,the EU, which is often seen as encompassing the EC and the
Member States when acting collectively in an area of member state
competence. The EU lacks the legal status of the two Communities.
This has been a source of confusion that has always been resented --
some would say nurtured -- by EU officials themselves.


7. With the formal removal of the pillar structure and the creation
of a single framework, the ToL introduces a single legal personality
for the European Union (Article 32 of TEU). By becoming a subject
of international law, the EU as such will technically be able to
conclude international agreements in all its areas of competence,
buy or sell property, go to and be summoned to court, and -- subject
to the Member States' agreement -- become a member of international
organizations. In other words, the EU - like the EC before it --
will finally be able to take action and assume responsibility on
behalf of its Member States.


8. The conferral of the legal personality to the EU will go on a
par with a single procedure for the conclusion of international
agreements. Under that procedure (detailed in Article 188n of the
Treaty on the Functioning of the European Union, or TFUE),the
Council authorizes the opening of negotiations on the basis of
recommendations from the Commission or (when the agreement envisaged
relates exclusively or chiefly to CFSP) the High Representative of
the Union for Foreign Affairs and Security Policy. The Council
appoints the Union negotiator or head of the EU's negotiating team.
The Council may also address guidelines to the negotiator and set up
a special committee to be consulted during the conduct of the
negotiations. The Council ultimately then also adopts a decision
authorizing the conclusion and the signing of the agreements.


9. Under the new Treaty, the European Parliament (EP) must give its
"consent" ((by a majority of votes cast) to association agreements
or those on accession by the Union to the European Convention for
the Protection of Human Rights and Fundamental Freedoms, as well as
the agreements:

-- Covering areas subject to the ordinary legislative procedure (QMV
and co-decision) or the special legislative procedure where consent
by the EP is required;

-- Having important budgetary implications for the Union;

-- Establishing a special institutional framework by organizing
cooperation procedures.

(In other cases - such as trade cooperation agreement with non-EU
countries, the EP is simply consulted. In this respect, the TFUE
has only marginally expanded the EP's right of "assent" on
international agreements, although the expansion of the co-decision
procedure itself potentially expands the EP's role. The
above-described procedure does not apply to agreements relating
exclusively to CFSP).


10. Per Article 6 of the revised TEU, the Union as such will accede
to the European Convention for the Protection of Human Rights and
Fundamental Freedoms (ECHR). The TFEU also provides that accession
to the ECHR will be agreed by the Council acting unanimously, with
the act concluding the agreement to be ratified by all Member States
in accordance with their respective constitutional requirements.


11. The single legal personality may also have an impact on the
role of EC delegations in third countries that are currently under
the authority of the Commission. Subject to practical arrangements
to be defined in the months ahead, those delegations (numbering over
120 around the world and managed by Commission DG RELEX) will be
placed under the authority of the High Rep for Foreign Affairs and
Security Policy, who will combine the responsibilities of the
current RELEX Commissioner and the current High Rep for CFSP. This
could lead to an assertion of the EU's "institutional image" in the
world at large and encourage the heads of those delegation offices
to assert a politico-diplomatic profile, e.g. in African and Asian
countries.


12. To make the EU's mandate clear, a declaration annexed to the
ToL states that the legal personality may not "in any way authorize
the Union to legislate or to act beyond the competencies conferred

BRUSSELS 00000295 003 OF 003


upon it by the Member states in the Treaties." In other words,
legal personality may not lead to calling into question the division
of competencies between the EU and its Member States. By
implication, the Member States remain free to conclude international
agreements within those areas remaining in their exclusive
competence, and will be necessary joint participants with the EU in
agreements which include provisions touching on areas of joint or
exclusive Member State competence.

COMMENT
--------------


13. The removal of the pillar structure is intended to make the EU
constitutional order easier to understand, to provide for better
legal certainty and to increase the EU's effectiveness vis-`-vis the
outside world. But the first practical effect of this change is to
significantly broaden the scope of agreements the EU had been able
to enter into, from just those within the competence of the
Community (the old "first pillar") to now any agreement falling
within the areas of justice and home affairs and common foreign and
security policy (although agreements under the latter can only be
concluded through unanimity). Though some implications of the
reforms described in this message will only appear over time, a
preliminary analysis suggests that by conferring legal personality
on the EU as such the new treaty will likely enhance the affirmation
of the Union's identity at international level, including
potentially in the United Nations generally, as opposed to just the
UN technical agencies, where the EC is already active as either an
observer or, in a few instances (WTO, FAO),a member.

WOHLERS