THE TREATY OF LISBON: AN OVERVIEW OF FORTHCOMING EU

UNCLAS SECTION 01 OF 04 BRUSSELS 001522 SIPDIS E.O. 12958: N/A TAGS: PREL PGOV EUN SUBJECT: THE TREATY OF LISBON: AN OVERVIEW OF FORTHCOMING EU REFORMS REF: (A) BRUSSELS 1414; (B) 2008 USEU BRUSSELS 892; (C)2008 BRUSSELS 398; (D) 2008 USEU BRUSSELS 303 and previous BRUSSELS 00001522 001.4 OF 004 SUMMARY -------------- ¶1. (U) The Treaty of Lisbon, now scheduled to enter into force on December 1, is intended to streamline EU decision-making and to enhance EU effectiveness on the world scene through a series of institutional reforms. Changes of key interest to the USG include the creation of two new positions: permanent President of the European Council (to chair top-level meetings of EU leaders),and High Representative of the Union for Foreign Affairs and Security Policy. Other major reforms include the removal of the "pillar" structure (while retaining the consensus rule for EU decisions on foreign policy and security issues),expanding the use of qualified majority voting in the EU Council of ministers, and increased involvement by the European Parliament. Many "Lisbon" reforms will require further internal EU adaptations to existing practices, and will take many months to implement. USG dealings with EU bodies must adapt accordingly. ¶2. (U) This message is meant to provide a brief, non-exhaustive overview of major EU reforms that will take effect starting on December 1, 2009. It should not be treated as explaining the operation of EU bodies and rules not affected by the reforms, for which USEU would refer to its "Introducing the EU" cable series. A detailed analysis of Lisbon Treaty reforms affecting specific EU policy areas was previously provided in REFTELs. END SUMMARY. AN AMENDING TREATY -------------- ¶3. (U) The Treaty of Lisbon is an amending treaty consisting of changes to basic, existing EU texts; namely, the Treaty on the European Union (TEU) and the Treaty establishing the European Community (TEC),the latter of which will be renamed the "Treaty on the Functioning of the European Union" (TFUE). "Lisbon" also contains a number of legally-binding Protocols and Declarations. The EU will henceforth, then, be governed by two consolidated treaties: -- The TEU, containing most of the EU institutional provisions, as amended by "Lisbon"; -- The TFEU, containing the existing substantive provisions on specific EU policies with implementing modalities and mechanisms, as amended by "Lisbon." Note: Consolidated versions of the TEU and TFEU encompassing "Lisbon" changes are available from (http://eur-lex.europa.eu/Lex). NO MORE PILLARS; A SINGLE PERSONALITY -------------- ¶4. (U) The EU system currently comprises three legal pillars, of which only the European Community pillar (the "first pillar" -- roughly speaking, the economic pillar) has its own legal personality. With the entry into force of "Lisbon," the three-pillar structure will formally disappear. EU polices concerning economic integration, the Common Foreign and Security Policy (CFSP, the "second pillar") and the area of freedom, security and justice (some of them currently forming the "third pillar") will all be brought under a single legal framework. However, the specificity of CFSP, by virtue of its primary relevance to national sovereignty, including defense policy, will be retained through the maintenance of its inter-governmental character and decision-making rules (consensus). ¶5. (U) The "Union" will replace and succeed the European Community (currently a subset of the EU),thus giving the EU a legal personality only conferred until now upon the European Community 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 - to become a member of international organizations. Per the revised TEU, the Union as such will accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), safeguarded by the Council of Europe's European Court of Human Rights in Strasbourg. Though the full implications will only appear over time, a preliminary analysis suggests that the conferral of legal personality could bolster the EU's profile at the international level. CHARTER BECOMES LEGALLY BINDING -------------- ¶6. (U) The TEU, as amended by "Lisbon," provides a legal reference to the EU's Charter of Fundamental Rights listing political, social and economic rights for EU citizens. The Charter, first proclaimed in 2000 as a political declaration, will thus become binding by BRUSSELS 00001522 002.4 OF 004 acquiring treaty value. The UK and Poland secured a derogation (an "opt-out") to prevent the EU Court of Justice as well as their own domestic courts from ruling that legislation and practices in the two countries are contrary to the Charter. The Czech Republic in October 2009 was also granted a derogation from the Charter, in response to a demand from President Klaus before signing his country's "Lisbon" ratification act. TWO TOP-LEVEL JOBS CREATED -------------- ¶7. (U) Most important among "Lisbon" changes to the EU institutions are the provisions on the creation of two top-level positions, the holders of which will be key interlocutors of the USG. A permanent President of the European Council will henceforth be appointed by EU leaders for a two-and-a-half year term (renewable once). The nominee will chair the meetings of the European Council and prepare for them by facilitating consensus. He/she will ensure the external representation of the Union at his/her level on issues concerning CFSP without prejudice to the powers of the High Rep (see below). The role will be defined via operational provisions and by the ability of the first appointee to work with Member State leaders and EU leaders, such as the Commission President and the rotating six-month Presidency. The latter will be maintained and will continue to preside over specialized formations of the EU Council, the notable exception being external affairs. ¶8. (U) The permanent Presidency of the European Council will, in theory, provide a guarantee of consistency at top level. The permanent President will be running meetings of the EU-27 heads of State and government. The EU system under "Lisbon" will no longer operate with the chain of command that enables the current rotating Presidency of the European Council to rely on its own ministers and officials for the conduct of business at all levels of responsibility. However, the six-month rotating EU Presidency will still chair lower-level bodies. The incoming Spanish EU Presidency will spend much of its time establishing the future pattern of "Lisbon" in this regard. ¶9. (U) To ensure greater consistency in EU foreign policy, the Treaty of Lisbon also creates a High Representative of the Union for Foreign Affairs and Security Policy, merging the positions of High Rep for CFSP (currently held by Javier Solana) and External Relations Commissioner (currently Benita Ferrero-Waldner). The High Rep will also be a Vice-President of the Commission. He/She will conduct the EU's CFSP, contribute to the development of such policy by submitting proposals, and implement the policy, doing likewise for the EU's security and defense policy (ESDP). He/She will be assisted by a European External Action Service (EEAS),set "to work in cooperation" with the diplomatic services of the Member States and comprising "officials from relevant departments of the General-Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of te Member States" (ref A). ¶10. (U) The High Rep will chair the meetings of the "Foreign Affairs" Council, resulting from the splitting of the "External Relations" and "General Affairs" components of the current General Affairs and External Relations Council (GAERC). How the High Rep will balance the roles of Commission VP and key player of CFSP/ESDP will be one of the most intriguing developments to watch. ¶11. (U) Based on "Lisbon," the President of the Commission will be officially "elected" (not just confirmed) by the European Parliament, acting on a proposal from the European Council. As originally concluded and signed by the EU governments, the new treaty would have reduced the size of the Commission to a number of members corresponding to two thirds of Member States, effective in November 2014. However, following a first (negative) Irish referendum and in order to persuade Irish citizens to revert their vote on "Lisbon" in a second referendum, EU leaders decided that the Commission shall continue to include one national of each Member State. MORE POWERS FOR THE EUROPEAN PARLIAMENT -------------- ¶12. (U) The legislative powers of the European Parliament (EP) will grow under "Lisbon." The existing co-decision procedure putting the EP on the same footing as the Council will be renamed "ordinary legislative procedure." It will be used for the adoption of legislation covering a broad range of new areas, including the mechanism for the Member States' control of the Commission's implementing powers ("comitology"). Co-decision will also apply to intellectual property, energy policy (functioning of the market, renewable energies, interconnection) and new areas in Justice and Home Affairs (JHA). The procedure will not apply to CFSP, defense, nor to other sovereign issues such as tax or operational police cooperation. The EP will also gain new budgetary powers as "Lisbon" removes the distinction between "obligatory expenditure" (including the Common Agricultural Policy, on which the EP currently has no BRUSSELS 00001522 003.6 OF 004 say) and non-obligatory expenditure. (SEPTEL will explore "Lisbon" reforms on economic and regulatory matters.) ¶13. (U) The Treaty of Lisbon will limit the number of MEPs to 750 plus 1 (the President) -- the current EP elected in June 2009 numbers 736 members -- and will change the way in which EP seats are apportioned among Member States, based on an automatic method of calculation (but not until 2014). "Lisbon" also expands the role of Member States' parliaments, giving them the ability to review Commission legislative proposals against the principle of "subsidiarity," whereby the EU does not take action unless it is more effective than action at national or local level. VOTING SYSTEM IN THE COUNCIL -------------- ¶14. (U) The Treaty of Lisbon not only expands the scope of issues on which the EU Council votes by qualified majority-voting (QMV), but it also modifies, albeit not for immediate application, the system of weighted voting used for the adoption of legislative proposals tabled by the Commission (but not for CFSP nor for sovereign areas such as taxation). Current rules on QMV (i.e., 255 votes needed out of a total of 345) will remain in place until October 31, 2014. After that, a "double majority" system will take effect, under which adoption by QMV will require a vote of at least 55 percent of the Member States corresponding to 65 percent of the total EU population. Between November 1, 2014 and March 31, 2017, however, members of the Council may ask that a decision subject to QMV be adopted according to the old voting rules. After 2014, Member States will also retain the possibility of invoking the "Ioannina compromise" allowing countries that fail to muster a blocking minority in the Council to suspend the decision under certain conditions. SECURITY AND DEFENSE MATTERS -------------- ¶15. (U) The new treaty expands the scope of the European Security and Defense Policy (ESDP),renamed Common Security and Defense Policy (CSDP),by enlarging the so-called "Petersberg" military-civilian tasks to joint disarmament operations, military advice, assistance tasks, and post-conflict stabilization. Mutual commitments are clarified through the inclusion of a "solidarity clause" (in the event a member state is the victim of a terrorist attack or of a natural or man-made disaster) and a WEU-inspired "common defense clause" (in the event of an armed aggression against a member's territory, when the other member states have an obligation of assistance by all means in their power). The latter obligation does not affect the "specific character" of certain (read: neutral) EU member states or NATO agreements. The scope of "enhanced cooperation" (allowing some EU countries that wish to work more closely together in a given area) will be extended to CFSP. A new mechanism of "permanent structured cooperation" will be available to EU member states "whose military capabilities fulfil higher criteria and which have made binding commitments to one another in this area." There will be a possibility for the Council "to entrust the implementation of a task to a group of Member States" to protect the Union's values and serve its interests. Though "Lisbon" maintains the prohibition on charging military or defense operational expenditure to the EU budget, there are provisions allowing exceptions for the urgent financing of initiatives concerning preparatory activities under the "Petersberg" tasks. JHA --- ¶16. (U) Of all EU policies, Justice and Home Affairs (JHA or -- in EU language - the creation of an area of justice, freedom and security) will likely experience the most dramatic changes. More decisions will be taken using the "ordinary legislative procedure" (see above) in areas that had not yet been transferred to the Community domain, or the so-called "first pillar." Police and judicial cooperation in criminal matters will become subject to the "Community" method and co-decision with the EP. The extension of QMV and co-decision is coupled with safeguards to reassure Member States fearing the impact of the changes on their national systems. Hence the introduction of so-called "emergency brake" provisions for judicial cooperation in criminal matters. Member States will retain the possibility of suspending measures threatening "fundamental aspects" of their judicial systems, and will (continue to) have the option of proceeding with "enhanced cooperation" (see above). The UK, Ireland, and Denmark secured the right to "opt-out" from EU measures in JHA. The new treaty paves the way for the establishment of a European Public Prosecutor to protect the financial interests of the EU. OTHER CHANGES -------------- ¶17. (U) The Treaty of Lisbon also provides for: BRUSSELS 00001522 004.6 OF 004 -- A clear division of competences between the EU and its Member States, based on areas of exclusive EU competence (e.g. competition rules for the functioning of the internal market),areas of shared competence (e.g. social policy),and areas of supporting EU competence (e.g. education and culture); -- EU citizens to "take the initiative of inviting" the Commission to submit an "appropriate proposal" for a legal act "required for the purpose of implementing the treaties." The initiative will require the approval of one million citizens from a significant number of Member States; -- The Court of Justice of the European Communities (ECJ) to be renamed the "Court of Justice of the European Union" (CJEU). Foreign policy issues will continue to be excluded from the Court's jurisdiction. The Court will have jurisdiction over matters concerning the EU area of Freedom, Security and Justice but not those concerning police and criminal cooperation. Its junior tribunal will lose its "First Instance" qualifier and become the "General Court"; -- Formal EU competence to ensure the proper functioning of the energy market, energy supply and promotion of energy efficiency and renewables; -- The recognition of space policy as an area in which the EU has a shared competence with its Member States, thus giving the Commission clear authority to propose measures in this field; -- Priority status for the fight against climate change; -- A legal basis for EU recognition of the role of public services and services of general interest; -- A European Voluntary Humanitarian Aid Corps, to allow young people to assist victims of disasters worldwide. -- The inclusion of sport as an area where the EU will have the right to carry out actions to support, coordinate or supplement its Member States; -- A member country to withdraw from the EU in accordance with its own constitutional requirements, by way of a first-ever mechanism for negotiation and conclusion of a withdrawal agreement with the other Member States. COMMENT -------------- ¶18. (U) The entry into force of the Treaty of Lisbon ends a seven-year saga marked by the stunning failure of the 2004 draft Constitutional treaty and the refashioning of a painful consensus on treaty reforms. The end-result could only be ratified by the EU-27 at the price of further negotiations among Member States and concessions to opponents of integration. A project originally aimed at the simplification of the EU constitutional order has finally given way to a rather opaque text, leaving EU governments and officials with a widespread desire to be done with institutional debates. However, bargaining will continue on setting some implementing modalities of the reforms, starting with the exact profile of the new high-level jobs and the functioning of the EEAS. The impact of "Lisbon" on EU functioning - and the resulting effect on USG engagement with the EU and member states - will take many months to become apparent. MURRAY