The Treaty of Lisbon from a Christian-social perspective

Sander Luitwieler, summary of presentation for the 4th ECPM Members Congress, Brussels, 11 June 2008

How can the Treaty of Lisbon be evaluated from a Christian-social perspective? After making some general points, this question shall be answered by examining to what extent the new Treaty will make the EU more efficient, transparent and democratic, and by assessing the further deepening of the integration process that the new Treaty brings about. Finally and as a way of looking forward, it will be considered how - starting from the Lisbon Treaty - a Christian-social agenda might look like.
The Treaty of Lisbon is a standard amending Treaty. This means that, just as the Treaties of Amsterdam and Nice, it will make changes to the existing Treaties, which will therefore remain in existence. The two basic Treaties are the Treaty establishing the European Community (TEC), or the Treaty of Rome of 1957, and the Treaty on European Union (TEU), or the Treaty of Maastricht of 1992. These two Treaties have been revised several times in the course of time, most recently by the Treaty of Nice in 2000. The Constitutional Treaty, on the other hand, would have replaced the existing Treaties, while it also contained new elements.
The content of the Constitutional Treaty and the Lisbon Treaty is however almost completely the same. The differences particularly concern the form. Thus compared with the Constitutional Treaty, the Lisbon Treaty uses different terminology, does not contain the symbols of the EU, only refers to the Charter of Fundamental Rights instead of including it as such, and does not include the principle of the primacy of EU law. These differences do not make any difference legally or substantially. Yet politically they do, in the sense that the Lisbon Treaty has another political character than the Constitutional Treaty.
The similar content of both Treaties particularly concern, on the one hand, the important institutional innovations and, on the other hand, the substantial deepening of the integration process.
As to the institutional innovations, will the Treaty of Lisbon make the Union more efficient? Regarding parts and on paper, this is certainly the case. The new Treaty introduces a double majority system, which will replace the current complex triple majority system. This means that a so-called qualified majority in the Council of Ministers will be reached when at least 55% of the member states (at least 15) and at least 65% of the EU population is in favour of a (Commission) proposal. In addition, decision-making by qualified majority voting (QMV) is substantially extended. Furthermore, as from 1 November 2014 the Commission will be reduced to two-thirds of the number of member states. In an EU of 27 member states, this boils down to a Commission of 18 members. In the reduced Commission, the member states will rotate on the basis of a strictly equal rotation system.
When looking at the total picture of the Treaty, it may however be questioned whether it will make the EU more efficient. The efficiency of the institutional structure as a whole might well be problematic, particularly because all kinds of existing and new Presidencies are going to function next to - and in competition with - each other: the Commission President, the new permanent President of the European Council, the new High Representative for Foreign Affairs as President of the Foreign Affairs Council, and the rotating team Presidency of the other Council formations. The competences of all these Presidencies have not been clearly defined, and they might encroach on each other's turf.
What about the transparency of the Union? The Lisbon Treaty again introduces improvements in this respect. As a result of the abolition of the pillar structure, the Union will have a uniform structure, obtains legal personality, and a single institutional framework. The double majority system that we already discussed is simpler than the current triple majority system, but in practice there will be a transitional period during which the current system may be invoked. The so-called Ioannina formula will moreover be maintained in a revised form. For the first time, a (kind of) division of competences is included in the Treaties, which is moreover further clarified by the Lisbon Treaty. A distinction is made between exclusive competences of the EU, shared competences between the EU and the member states, and supporting competences of the EU (supporting and coordinating the competences exercised by the member states). Finally, the Council of Minister will deliberate and vote in public as far as legislative proposals are concerned.
The total picture of the Treaty is, however, one of less transparency. As the Lisbon Treaty makes changes to - and thus complicates - the existing Treaties, the whole has become even more unreadable. On this point the Constitutional Treaty, which would have replaced the existing Treaties, was at least an improvement. All kinds of Protocols, Declarations, transitional provisions and exceptions have moreover been included. In addition, the present institutional structure, which represents a ‘peculiar' compromise between the supranational and intergovernmental models, has been maintained and further elaborated on. This particularly concerns the fact that the Lisbon Treaty strengthens several EU institutions at the same time: the European Parliament and the Commission (President) as supranational institutions and the Council and European Council as intergovernmental institutions. As a result, the institutional structure as a whole and the mutual relations between the different institutions are rather difficult to comprehend.
Will the Treaty of Lisbon make the Union more democratic? Again several improvements may be noted. Qualified majority voting in the Council in combination with co-decision of the European Parliament will become the ‘ordinary legislative procedure'. This places the Parliament on an equal footing with the Council in the legislative process. The co-decision procedure will moreover be extended. The Parliament will also be put on an equal footing with the Council as regards the budgetary process, where the Parliament will now have a decisive say as to the whole annual budget. In addition, the political accountability relation between the Commission and the Parliament will be strengthened. The position of the national parliaments in the decision-making process will also be strengthened. The EU institutions will better inform them. As to the ‘subsidiarity test', the ‘yellow-card procedure' will be supplemented by a ‘orange-card procedure'.
As we again look at the total picture, however, it must be recognized that the afore-mentioned maintenance and strengthening of the compromise model causes problems in the area of democratic control and accountability. The personification of the ‘peculiar' compromise is the double-hatted High Representative for Foreign Affairs. He will be both vice-President of the Commission charged with external relations and President of the Foreign Affairs Council responsible for the common foreign, security and defense policy. The High Representative may, depending on the situation, put on another hat and by doing so duck out of adequate democratic control. Though the Lisbon Treaty strengthens several EU institutions at the same time, some are more strengthened than others. From a democratic point of view, another point of concern is therefore that the position of the (European) Council - particularly in comparison with the Commission - is strengthened the most. This is so because it gets a permanent President and probably also as consequence of the High Representative, who will moreover be supported by a civil service. The European Council is however the least transparent and democratically controllable institution, and this problem becomes only more urgent when power is concentrated in the hand of individuals.
As to the deepening of the integration process that the Lisbon Treaty brings about, it consists of the following elements. First, as a result of the abolition of the pillar structure, police and judicial cooperation in criminal matters will now be decided on by QMV instead of unanimity. Second, the content and applicability of the competences in the area of freedom, security and justice are more broadly formulated. In addition to police and judicial cooperation in criminal matters, this also concerns, for example, asylum and immigration. Third, there are still other areas that will be decided on by QMV, among which the areas in which the Lisbon Treaty transfers new competences to the EU. Examples are intellectual property rights, sport, tourism, space, energy, civil protection and administrative cooperation. Fourth, the cooperation in the area of the CFSP and the CSDP will be further intensified. Though the intergovernmental character of the CFSP has been maintained and even strengthened, the creation of the (potentially) important figure of the High Representative, supported by his own civil service, shows that the CFSP receives more ‘face' and is further developed. This is even more true for the CSDP, in view of the more broadly formulated Petersberg tasks, the entrusting of these to groups of member states, and the institutionalisation of the European Defense Agency. Fifth, closer cooperation - further integration by a limited number of member states in a particular policy area - becomes easier and possible in more policy areas. All in all, it can be stated that the Lisbon Treaty brings with it a substantial deepening of the integration process and also offers new possibilities for this.
The further deepening of the integration process can be assessed in the light of the subsidiarity principle. In our view, this implies that when a policy area is boundary-crossing, a better result can be achieved by deciding at the EU level, and the cultural diversity between the member states will not be breached, (parts of) this policy area should be decided on at the EU level. In the light of the subsidiarity principle, the following elements of the further deepening can be positively evaluated: police and judicial cooperation in criminal matters, the broader competences in the area of freedom, security and justice, among which asylum and immigration, and the new EU competences, particularly as to energy (and the new reference in the environmental provisions to combating climate change). Yet it should be noted that the cultural diversity might be breached, particularly in the area of police and judicial cooperation in criminal matters. The intensified cooperation in the area of the CFSP and the CSDP does not, in advance, need to be negatively evaluated, but this is open for discussion. The inbuilt possibilities for further and also creeping deepening through closer cooperation can be negatively evaluated. Closer cooperation creates, among other objections, first- and second-rank member states, and the Lisbon Treaty makes it also possible to launch further integration in particular policy areas via closer cooperation without having to change the Treaty.

How could a Christian-social agenda for the future look like? This discussion should take place in connection with the discussion about the basic themes of Christian-social policy (e.g. the new ECPM brochure and political program). Starting from the Lisbon Treaty and the further deepening it will bring about, one may particularly think about asylum, immigration, refugees, police cooperation, combating crime and terrorism, environment, energy, and climate change. One might also consider the common foreign, security and defense policy, social policy, and perhaps still other policy areas. In any case, it is important to make priorities in this respect. While the subsidiarity principle is useful for assessing the division of competences between the EU and national levels, the principle of ‘public justice' can be applied to evaluate the content of these EU policies.

Sander Luitwieler