The Lisbon Treaty and Constitutional Reform

The Failure of the Constitutional Treaty

The Treaty establishing a Constitution for Europe (the Constitutional Treaty), signed in Rome on October 29, 2004, was intended to replace the existing treaties with a single consolidated text and to reform the Union’s institutions for an enlarged Europe of twenty-five or more Member States. The Constitutional Treaty was the product of the European Convention (2002–2003), a novel deliberative body chaired by former French President Valéry Giscard d’Estaing that included representatives of Member State governments, national parliaments, the European Parliament, and the Commission, along with observers from candidate countries and civil society.

The Constitutional Treaty was a comprehensive document of 448 articles organised in four parts: constitutional principles and objectives; the Charter of Fundamental Rights; the policies and functioning of the Union; and general and final provisions. It introduced the term “European Union” as the single legal entity, replaced the three-pillar structure with a unified legal framework, gave the Charter of Fundamental Rights binding legal force, and simplified the Union’s legal instruments and legislative procedures.

The ratification process, however, proved catastrophic. The French referendum of May 29, 2005, rejected the Treaty by 54.7 percent to 45.3 percent, with a turnout of 69.3 percent. The “No” campaign united left-wing voters (who opposed the Treaty’s liberal economic orientation) and right-wing voters (who opposed further loss of national sovereignty and feared Turkish accession). Three days later, the Dutch referendum of June 1, 2005, rejected the Treaty by 61.5 percent to 38.5 percent, with a 63.3 percent turnout — an even more decisive rejection.

The rejections in two founding Member States created an existential crisis for the European project. The European Council declared a “period of reflection” (June 2005 to June 2007) during which the future of the constitutional project was debated. The consensus that emerged was that the substantive reforms of the Constitutional Treaty were necessary but that the constitutional form — the language of a “Constitution,” the use of the term “Constitution,” the replacement of existing treaties with a single text — was politically unacceptable. The solution was to preserve the substance of the Constitutional Treaty while abandoning its constitutional form.

The Lisbon Negotiations

The Intergovernmental Conference (IGC) that drafted the Lisbon Treaty met under the German Presidency of the European Council in the first half of 2007. The IGC was instructed to negotiate a Reform Treaty that would amend the existing treaties rather than replace them. The Berlin Declaration of March 25, 2007 (the 50th anniversary of the Treaty of Rome) committed the Member States to reaching agreement on treaty reform before the European Parliament elections of June 2009.

The IGC reached agreement at the European Council in Lisbon on October 18–19, 2007. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community was signed on December 13, 2007, in the Jerónimos Monastery in Lisbon. The Treaty entered into force on December 1, 2009, after a ratification process that required two referendums in Ireland (the first rejected the Treaty in June 2008; the second approved it in October 2009 after Ireland obtained guarantees on taxation, military neutrality, and ethical issues) and the resolution of constitutional challenges in Germany (the German Federal Constitutional Court upheld the Treaty in its Lisbon judgment of June 30, 2009, subject to limits on the transfer of sovereign powers).

Institutional Reforms

The Lisbon Treaty introduced the most significant institutional reforms since the founding treaties. The European Council was recognised as a formal institution of the Union (Article 13 TEU), with a President elected by the European Council by qualified majority for a term of two and a half years, renewable once. The President of the European Council — first held by Herman Van Rompuy — provides continuity and external representation for the Union, replacing the previous system of rotating six-month presidencies.

The Treaty established a High Representative of the Union for Foreign Affairs and Security Policy (Article 18 TEU), who serves as Vice-President of the Commission, chairs the Foreign Affairs Council, and conducts the Union’s common foreign and security policy. The High Representative is assisted by the European External Action Service (EEAS), a diplomatic service established by Council decision in 2010.

The composition of the European Commission was reformed: from November 1, 2014, the Commission comprised one member per Member State until the number of Member States reached twenty-seven, after which the number of Commissioners would be reduced to two-thirds of the number of Member States. The President of the Commission is elected by the European Parliament on a proposal from the European Council, taking into account the results of the European Parliament elections — the “Spitzenkandidaten” process that was first used in 2014.

The European Parliament gained significant new powers. The ordinary legislative procedure (formerly co-decision) was extended to approximately forty new policy areas, making it the standard legislative procedure for most EU legislation. The Parliament’s consent was required for the adoption of the multiannual financial framework and for the conclusion of most international agreements. The number of MEPs was capped at 751 (750 plus the President), with a minimum of six and a maximum of ninety-six per Member State.

Extension of Qualified Majority Voting

The Lisbon Treaty substantially extended the scope of qualified majority voting (QMV) in the Council. The Treaty eliminated the national veto in over forty policy areas, including policing, criminal justice cooperation, asylum and immigration policy, external border controls, judicial cooperation in civil matters, and aspects of the common commercial policy and the common fisheries policy.

The new definition of qualified majority — the “double majority” — took effect on November 1, 2014 (subject to transitional arrangements until March 31, 2017). A qualified majority requires the support of at least 55 percent of Member States (at least fifteen Member States) representing at least 65 percent of the Union’s population. A blocking minority must include at least four Member States representing more than 35 percent of the population. This new definition, which reduces the influence of smaller Member States and increases the transparency of the voting system, replaced the complex weighting system established by the Treaty of Nice.

Legal Personality of the European Union

The Lisbon Treaty conferred legal personality on the European Union (Article 47 TEU), enabling the Union to conclude international agreements and to become a member of international organisations in its own right. The previous legal framework had attributed legal personality to the European Community (under Article 281 TEC), but the Union itself had no legal personality. The abolition of the three-pillar structure — the Communities, CFSP, and JHA — and the conferral of legal personality on the Union simplified its external representation and enabled it to act as a single entity in international affairs.

The Charter of Fundamental Rights

The Lisbon Treaty gave the Charter of Fundamental Rights of the European Union the same legal value as the Treaties (Article 6(1) TEU). The Charter, originally proclaimed at the Nice European Council in December 2000, had been a political declaration with non-binding legal status. The Lisbon Treaty made it a binding source of primary EU law, directly enforceable before the Court of Justice and the national courts when applying EU law.

The Charter contains fifty-four articles organised in seven titles: Dignity (human dignity, right to life, prohibition of torture, prohibition of slavery), Freedoms (liberty and security, private and family life, freedom of thought, freedom of expression, freedom of assembly, right to education, freedom to choose an occupation, freedom to conduct a business, right to property), Equality (equality before the law, non-discrimination, cultural diversity, equality between men and women, rights of the child, rights of the elderly, integration of persons with disabilities), Solidarity (workers’ rights, fair working conditions, social security, health care, environmental protection, consumer protection), Citizens’ Rights (right to vote, right to good administration, right of access to documents, right to petition, freedom of movement), Justice (right to an effective remedy, presumption of innocence, legality of criminal offences, ne bis in idem), and General Provisions governing the Charter’s interpretation and application.

The Charter applies to the institutions and bodies of the Union and to Member States “only when they are implementing Union law” (Article 51(1)). The Charter does not extend the field of application of Union law beyond the powers of the Union and does not establish any new power or task for the Union. The UK and Poland secured a Protocol on the Application of the Charter (Protocol No. 30) that clarifies the Charter’s effect in those Member States — though the Court of Justice has held that the Protocol does not amount to an opt-out from the Charter (NS v. Secretary of State for the Home Department, 2011).

Article 50 TEU and the Withdrawal Clause

The Lisbon Treaty introduced, for the first time, a procedure for a Member State to withdraw from the European Union. Article 50 TEU provides that “any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.” The withdrawal procedure begins with the Member State notifying the European Council of its intention, following which the Union negotiates and concludes an agreement with that state setting out the arrangements for its withdrawal.

The withdrawal agreement must take account of the framework for the future relationship between the withdrawing state and the Union. The Council, acting by qualified majority after obtaining the consent of the European Parliament, concludes the agreement. The Treaties cease to apply to the withdrawing state from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification (unless the European Council, with the consent of the Member State, decides to extend the period).

Article 50 was drafted in anticipation that it might never be used — a “sleeping provision” included for constitutional completeness. The United Kingdom’s referendum of June 23, 2016, in which 51.9 percent voted to leave the European Union, activated Article 50 for the first time. The UK’s withdrawal, which took effect on January 31, 2020, tested the Article 50 procedure and demonstrated that withdrawal was a complex and contentious process encompassing the disentanglement of the withdrawing state from the Union’s legal order, financial settlement, citizens’ rights, the Irish border, and the future trading relationship.

Enhanced Cooperation and the Citizens’ Initiative

The Lisbon Treaty simplified the rules for enhanced cooperation — a mechanism allowing a group of at least nine Member States to proceed with integration in a specific policy area when the Council has determined that the objectives cannot be achieved within a reasonable period by the Union as a whole. Enhanced cooperation was first used to establish the European Public Prosecutor’s Office (the Council regulation adopted in 2017 with twenty participating Member States) and the Unified Patent Court system.

The Treaty introduced the European Citizens’ Initiative (Article 11(4) TEU), which allows one million citizens from a significant number of Member States to invite the Commission to submit a legislative proposal on a matter where citizens consider that a legal act of the Union is required for the implementation of the Treaties. The first successful citizens’ initiative — “Right2Water” (2013) — led to Commission action on water and sanitation as a human right.

The Lisbon Treaty, though less ambitious in form than the Constitutional Treaty, achieved the most significant institutional and constitutional reforms of the European Union since the Treaty of Rome. It equipped the Union with the institutional capacity to operate effectively as a political union of twenty-seven Member States, embedded the Charter of Fundamental Rights in the Union’s constitutional order, and clarified the relationship between the Union and its Member States through provisions on subsidiarity, proportionality, and the withdrawal procedure.