In 2005 the people of France and the Netherlands voted against the EU Constitution. It was a serious blow to the European politicians and bureaucrats who had devised and promoted the new Constitution. It also taught them a valuable lesson: that while voters were prepared to support an economic union, they balked at the very obvious creation of a United States of Europe, complete with a President, an anthem and a flag.
So the politicians and high-ranking civil servants went back to the drawing board and came up with the Treaty of Lisbon. According to themselves it retained all of the important features of the EU Constitution, but it could now be simply passed off as a Treaty. That clever move meant that the French, the Dutch, the English and all the other voters across the EU except the Irish were no longer entitled to vote on it.
So is it a Constitution or a Treaty?
Here’s what Bertie Ahern said:
“Thankfully they haven’t changed the substance (of the Constitution); 90 per cent of it is still there.”
An Taoiseach, Bertie Ahern, Irish Independent, 24 June 2007
And Minister Dermot Ahern agreed.
"The substance of what was agreed in 2004 has been retained. What is gone is the term 'constitution' ".
Dermot Ahern, Irish Foreign Minister, Daily Mail Ireland, 25 June 2007
And they’re telling the truth this time! Here’s how the Treaty retained the most important facets of the EU Constitution.
The Treaty of Lisbon would establish a new European Union with a new legal and constitutional form – just as the EU Constitution intended to.
It does not simply reform what went before – it creates, for the first time, a European Federation.
The Lisbon Treaty would bring about this constitutional revolution by amending the two existing European Treaties, the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC). The former would retain its name, while the latter would be renamed the Treaty on the Functioning of the European Union (TFEU).
These two amended Treaties would then become the de facto Constitution of the new European Union.
Like the EU Constitution, the Lisbon Treaty makes EU law superior to the Constitutions and laws of the member states.
Member States would retain their national constitutions, but these would be subordinate to the new Union Constitution. The Treaty clearly declares that EU law is superior to Irish law and the Irish Constitution in Declaration 17 concerning Primacy.
This has not been stated in a European Treaty before.
The Declaration is reinforced in the 28th Amendment to the Constitution Bill published by the Irish government, which is what people will be voting on in June.
This Constitutional Amendment would permit Ireland to join the new European Union which Lisbon would set up. And it then states:
“No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State." (our emphasis added)
The Treaty would empower the new European Union to act as a State, just as the EU Constitution intended.
To understand the change that would be introduced by the Lisbon Treaty one needs to appreciate that what we call the European Union today is not a State. It is not even a legal or corporate entity in its own right, for it does not have legal personality. The name "European Union" at present is the descriptive legal term for the totality of relations between its 27 Member States and their peoples.
The Lisbon Treaty would change this situation fundamentally by creating a constitutionally and legally quite new EU, while retaining the same name, the "European Union". Unlike the present European Union, this constitutionally new EU would be separate from and superior to its Member States, just as the USA is separate from and superior to Massachussetts or Kansas, or as Federal Germany is to Bavaria or Bremen.
This new European Union could sign treaties with other States in all areas of its powers and conduct itself as a State in the international community of States. It would speak at the United Nations on agreed foreign policy positions; just as in the days of the Soviet Union the USSR had a UN seat while Russia, Ukraine and Byelorussia had UN seats also. Member States would be obliged to support the Union's foreign and security policy "actively and unreservedly in a spirit of loyalty and solidarity".
The word "loyalty" clearly demonstrates the constitutional relations involved.
The new Union would make the majority of laws for its Member States each year. Under the Lisbon Treaty it would get further power to make laws by qualified majority voting in relation to over 30 new policy areas. It would furthermore be given new power to take decisions in relation to as many specific issues. There would be some 68 areas or issues in all where individual Member States decide matters now and where under Lisbon they would lose their veto or their right to decide.
Like the EU Constitution, the Treaty would make us all real citizens of this new European Union.
One can only be a citizen of a State, and all States must have citizens.Citizenship of the European Union at present is stated to "complement" national citizenship – in other words it’s mostly notional.
However, the Lisbon Treaty would simultaneously transform the meaning of Union citizenship. The Treaty would replace the word "complement" in the sentence "Citizenship of the Union shall complement national citizenship", so that the new sentence would read: "Citizenship of the Union shall be additional to national citizenship.”This would make us real citizens of a real EU on top of our national citizenship for the first time.
The rights and duties attaching to this citizenship of the new Union would be superior to those attaching to citizenship of one's own national State in any case of conflict between the two, because of the superiority of EU law over national law and constitutions.
As most States recognise that one can only have a single citizenship internationally, it is likely that over time one's EU citizenship would tend to be regarded by other countries as one's primary and internationally definitive citizenship.
Under the Lisbon Treaty – as with the EU Constitution – the EU has a full legal personality and can enter contractual relationships with other states.
Lisbon would establish a European Union with full legal personality and a fully independent corporate existence in all Union areas for the first time, so that the post-Lisbon Union can function as a State vis-a-vis other States and in relation to its own citizens(Art. 47 TEU, cf. Art.281 TEC).
This means that the EU can make treaties and enter negotiations with other states.
This new EU would take over as well the "intergovernmental" powers over foreign policy and security, as well as crime, justice and home affairs, which at present are outside the scope of European law, leaving only aspects of the Common Foreign, Security and Defence Policy outside the scope of its supranational power(Title 5, Art.24, amended TEU)
As envisaged by the EU Constitution the Lisbon Treaty would create a Union Parliament for the Union's new citizens:
The Lisbon Treaty would make Members of the European Parliament, who at present are "representatives of the peoples of the Member States", into "representatives of the Union's citizens" (Art.14(2), amended TEU; cf. current Art.189 TEC). This illustrates the constitutional shift which the Treaty would make from the present European Union of national States and peoples to the new Federal Union of European citizens.
As envisaged by the EU Constitution, Lisbon would create a political Government of the new Union:
The Lisbon Treaty would turn the European Council of Prime Ministers and Presidents into an "institution" of the new Union (Art.13, amended TEU), so that its acts or its "failing to act" would, like all other Union institutions, be subject to legal review by the EU Court of Justice(Arts.263-265, TFEU)
Legally speaking, these summit meetings of the European Council would no longer be "intergovernmental" gatherings of Prime Ministers and Presidents outside supranational European structures. As part of the new EU´s institutional framework, the Prime Ministers and Presidents would instead be constitutionally required to "promote the Union's values, advance its objectives, serve its interests" and "ensure the consistency, effectiveness and continuity of its policies and actions" (Art. 13(1), amended TEU). They would also "define the general political direction and priorities thereof" (Art.15(1), amended TEU).
As an Institution of the new Union, the European Council of Prime Ministers and Presidents would, for example, be in principle open to direction from the European Court of Justice to take steps to harmonise company taxes that constituted a "distortion of competition", something which at present requires unanimity, if they were slow or reluctant to do this(Art.113 TFEU), or if they failed to take steps to ensure that the new Union's "own resources" were adequate to meet its objectives(Art.311 TFEU).
The European Council would thus become in effect the Cabinet Government of the new Federal EU, and its individual members would be primarily obliged to represent the Union to their Member States rather than their Member States to the Union.
Lisbon would create a new Union political President – something also envisaged by the EU Constitution.
The Treaty proposes to give the European Council a permanent political President for up to five years - two and a half years renewable once (Art.15(5), amended TEU).
There is no gathering of Heads of State or Government in any other international context which maintains the same chairman or president for several years, while individual national Prime Ministers and Presidents come and go.
It is part of the federalist evolution of the Union that the President of the European Council becomes no longer a rotating Head of Government, but a permanent EU official. If the President plays this role effectively - including setting the agenda for legislation and representing the EU on the international stage - he or she is bound to assume increasing status and importance.
As in a Constitution, Lisbon would give the new Union self-empowerment powers:
These are shown by:
(a) the enlarged scope of the Flexibility Clause (Art.352, TFEU), whereby if the Treaty does not provide the necessary powers to enable the new Union attain its very wide objectives, the Council may take appropriate measures by unanimity. The Lisbon Treaty would extend this provision from the area of operation of the common market to all of the new Union's policies directed at attaining its much wider post-Lisbon objectives. The Flexibility Clause has been widely used to extend EU law-making over the years;
(b) the proposed Simplified Treaty Revision Procedure (Art.48, amended TEU), which would permit the Prime Ministers and Presidents on the European Council unanimously to shift Union decision-taking from unanimity to qualified majority voting in the Treaty on the Functioning of the Union where population size would become the decisive criterion in European law-making; and
(c) the several "passerelles" or "ratchet-clauses", which would allow the European Council to switch from unanimity to majority voting in certain specified areas, such as judicial cooperation in civil matters (Art.81(3)TFEU), in criminal matters(Art.83(1)TFEU), in relation to the EU Public Prosecutor(Art.86(4) TFEU) and the Multiannual financial framework (Art.312(2) TFEU).
The Treaty of Lisbon is an attempt to construct a highly centralised European Federation, from the top down, out of Europe's many nations, peoples and States, without their free consent and knowledge.
It retains 95% of the changes envisaged by the EU Constitution, and the brazen attempt to downplay these changes by re-naming the Constitution a Treaty shows a deep disregard for democracy and a disrespect for the voters of each and every EU member state.
The answer to the question asked at the beginning of this article is this: Lisbon is a Constitution re-jigged, renamed and remarketed as a Treaty.
With thanks to the National Platform EU Research and Information Centre