The Lisbon Treaty: Democracy vs. State Sovereignty in the EU

Introduction

The objective of this research is to analyze the extent to which the Lisbon Treaty changes the balance of power between democracy and state sovereignty. This work examines why the Lisbon Treaty adopted its particular approach and assesses the prospects for success on that basis. The two guiding research questions are: (1) What impact will the Lisbon Treaty have upon countries whose governments are formed on the basis of democracy? (2) Will the Lisbon Treaty effectuate the superiority of EU law over the laws of individual countries? The methodology is qualitative and interpretive, taking the form of a review of the relevant literature.

Effects of the Lisbon Treaty on the European Parliament

The European Parliament will possess more power than ever in shaping Europe due to the powers conferred by the Lisbon Treaty. While each successive EU treaty has effectively increased the legislative power of the European Parliament, the Lisbon Treaty now equalizes the power of the Parliament and the Council of Ministers in decisions on the largest part of EU laws.

The Lisbon Treaty is stated to have made the European Parliament "a stronger lawmaker by bringing over 40 new fields within the 'co-decision' procedure, under which it has equal rights with the Council. These areas include agriculture, energy security, immigration, justice and home affairs, health and structural funds." (European Parliament, 2009) The European Parliament has also gained a larger role in budget-setting, with the "old distinction between 'compulsory' and 'non-compulsory' expenditure" being abolished and Parliament deciding on the EU budget in its entirety together with the Council. (European Parliament, 2009) In addition, "MEPs will also have to give their consent to a whole range of international agreements negotiated by the Union, in areas such as international trade." (European Parliament, 2009)

It is stated that more power also means "more responsibility." (European Parliament, 2009) With the increases in legislative power, the decisions of Parliament "will, more than ever, directly affect the daily lives of Europe's citizens. Parliament shall, in all its activities, fully respect the fundamental rights of EU citizens, in line with the Charter of Fundamental Rights enshrined in the Lisbon Treaty." (European Parliament, 2009)

It is also reported that MEPs will hold a new role in "relations with other institutions of the EU. From now on, results of elections to the European Parliament will be directly linked to the choice of candidate for the President of the European Commission. The whole Commission, including the High Representative of the Union for Foreign Affairs and Security Policy, needs Parliament's approval to take office." (European Parliament, 2009) The Lisbon Treaty further provides Parliament with a newly gained right to propose changes to treaties.

Five primary points concerning the European Parliament and the Lisbon Treaty are as follows:

(1) The European Parliament is better equipped for present challenges. "The Lisbon Treaty improves the ability of the EU and its Parliament to act and deliver. At a time when both Europe and the rest of the world are faced with new challenges like globalization, demographic shifts, climate change, energy security and terrorism, no single state can effectively deal with them alone. Only by working together, in a more efficient, accountable, transparent and coherent way and speaking with one voice, can Europe respond to its citizens' concerns. The reform treaty makes your Parliament better equipped for today's and tomorrow's challenges — in a growing EU. Further, with Lisbon, your Parliament will also enjoy a new right to propose future treaty changes." (European Parliament, 2009)

(2) The new European Parliament has new and additional power in shaping Europe. "With the Lisbon Treaty, the European Parliament will have more power in shaping Europe than ever before. With its full legislative power extending to over 40 new fields, Parliament becomes a truly equal lawmaker with the Council of Ministers, representing member states' governments. Agriculture, energy security, legal immigration, justice and home affairs, public health and structural funds are just a few of the areas where Parliament acquires full authority. Its decisions will have an ever stronger impact on your everyday life."

(3) The new European Parliament has a tighter hold on the European Union's purse strings. "From now on, the Parliament will decide on the entire EU budget together with the Council of Ministers. Until now, it did not have the final word on 'compulsory expenditure' (around 45% of the EU budget) such as spending relating to agriculture or international agreements. This changes as the Parliament becomes responsible for the entire EU budget, together with EU governments. Your Parliament will not only have a decisive say on overall spending priorities, but will also have a tighter hold on the EU's purse strings."

(4) The new European Parliament will have greater authority over who runs the EU. "In the Lisbon era, the Parliament will not only decide what is done and how money is spent, it will also have a greater say on which men and women run the EU. The Parliament will elect the President of the European Commission, on the basis of the EU heads of state and government's pre-selection, which must take into account the results of European elections — and your choice. Also, Parliament's consent is needed in the appointment of the EU's new voice in the world and foreign policy chief, the High Representative for Foreign Affairs and Security Policy, who will also be a Commission Vice-President."

(5) The new European Parliament has a stronger voice for Europe's citizens. "New power means more responsibility. As the only directly-elected EU institution, the Parliament will have new tools to give a stronger voice to the 500 million citizens it represents and to hold the EU accountable to them. The Parliament will be the guardian of EU citizens' new catalogue of civil, political, economic and social rights — the Charter of Fundamental Rights — embedded in the Lisbon Treaty, as well as their new right of citizens' initiative, which will allow people to call for new policy proposals if supported by 1 million signatures. Also, it will safeguard national parliaments' right to object to European-level legislative proposals should they consider them to concern matters better dealt with at national level." (European Parliament, 2009)

German Federal Constitutional Court Ruling on the Lisbon Treaty

The German Federal Constitutional Court (FCC) delivered a judgment on June 30, 2009 that has been cited as "crucial to the future of the European integration process." (Beaudouin, 2009) The ruling, comprising 150 pages, "concerns the constitutionality of the Act of Parliament ratifying the Lisbon Treaty and of the accompanying Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat." (Beaudouin, 2009) Its terms are applicable not only to Germany but to all other EU member states as well. The judgment:

(1) accepts that the Lisbon Treaty is compatible with the German Basic Law (Constitution), subject to a number of provisions;
(2) identifies the risk of a "structural democratic deficit" in the European Union;
(3) requires that codecision rights for the German Parliament be clearly enshrined in law in order to "ensure the effectiveness of the [German people's] right to vote" and to prevent the EU from "going beyond the boundaries of the power accorded to it"; and
(4) reinterprets in a strict sense certain key provisions of the Treaty concerning: (a) the source of the European Parliament's legitimacy — because there is no single European people, the European Parliament lacks real political legitimacy in its own right, since political legitimacy derives from the peoples of the Member States and thus from the states themselves; (b) the primacy of European law, which is not "absolute," and the Court reserves the right to block European legislation in order to protect sovereignty and "constitutional identity"; and (c) ring-fenced sovereign powers for the Member States in the areas of criminal law and procedure, policing, military matters, fiscal policy, and social, cultural, religious, educational, and media affairs.
(5) emphasizes that the formal creation of a European federal state and the transfer of sovereign powers to such a state would require a change in the Constitution and therefore a referendum. (Beaudouin, 2009)

Beaudouin reports that the Lisbon Treaty makes the EU "considerably more powerful by merging the three pillars, endowing the Union with legal personality, extending its competences, establishing the principle of qualified majority voting, creating the post of High Representative for the CFSP and incorporating the Charter of Fundamental Rights into the Treaty itself." (Beaudouin, 2009)

Beaudouin (2009) states that the European Union "has both federal and intergovernmental traits: 'The extent of the Union's freedom of action has steadily and considerably increased, not least with the Treaty of Lisbon, so that in some fields of policy, the European Union now has a shape that corresponds to that of a federal state, i.e. is analogous to that of a state. In contrast, the internal decision-making and appointment procedures remain predominantly committed to the pattern of an international organization, i.e. are analogous to international law; as before, the structure of the European Union essentially follows the principle of the equality of states.' (FCC press release, point 1)"

As Europe is not a federal state, the Council is not a second chamber, the European Parliament does not represent one people, and the Commission is merely a supranational body: "On the European level, the Council is not a second chamber as it would be in a federal state but the representative body of the masters of the Treaties; correspondingly, it is not constituted according to proportional representation but according to the image of the equality of states. As a representative body of the peoples that is directly elected by the citizens of the Union, the European Parliament is an additional independent source of democratic legitimization [...]. As a representative body of the peoples in a supranational community, which as such is characterized by a limited willingness to unite, it cannot, and need not as regards its composition, comply with the requirements that arise on the state level from the citizens' equal political right to vote. As a supranational body, the Commission need not extensively fulfill the conditions of a government that is fully accountable either to Parliament or to the majority decision of the electorate because the Commission itself is not obliged by the will of the electorate in a comparable manner." (point 271, quoted in Beaudouin, 2009)

Beaudouin (2009) additionally states that even with the Lisbon Treaty, "the Union will suffer from a democratic deficit and the European Parliament will not represent one sovereign European people: 'Measured against requirements in a constitutional state, the European Union lacks, even after the entry into force of the Treaty of Lisbon, a political decision-making body which has come into being by equal election of all citizens of the Union and which is able uniformly to represent the will of the people [...]. Even after the new formulation of Article 14.2 TEU Lisbon [...] the European Parliament is not a body of representation of a sovereign European people. This is reflected in the fact that — as the representation of the peoples in their respectively assigned national contingents of Members — it is not laid out as a body of representation of the citizens of the Union as an undistinguished unity according to the principle of electoral equality.'"

Beaudouin (2009) further reports that the Lisbon Treaty "is compatible with the Basic Law provided that state sovereignty is not waived." The judgment includes the first official definition of an inviolable boundary around sovereign competences: sovereignty has a boundary within which states must retain sufficient room for maneuver, encompassing policy areas of security, defense, law and criminal procedure, budgetary revenue and expenditure, family, cultural, educational, and social affairs, and certain basic freedoms.

Beaudouin (2009) states that European unification on the basis of a union of sovereign states under the Treaties "may however not be realized in such a way that the Member States do not retain sufficient space for the political formation of the economic, cultural and social circumstances of life. This applies in particular to areas which shape the citizens' circumstances of life, in particular the private space of their own responsibility and of political and social security, which is protected by the fundamental rights, and to political decisions that particularly depend on previous understanding as regards culture, history and language and which unfold in discourses in the space of a political public that is organized by party politics and Parliament. Essential areas of democratic formative action comprise, inter alia, citizenship, the civil and the military monopoly on the use of force, revenue and expenditure including external financing and all elements of encroachment that are decisive for the realization of fundamental rights, above all as regards intensive encroachments on fundamental rights such as [...] deprivation of liberty in the administration of criminal law or placement in an institution. These important areas also include cultural issues such as the disposition of language, the shaping of circumstances concerning the family and education, the ordering of [...] freedom of opinion, of the press and of association and provision for the profession of faith or ideology." (Beaudouin, 2009)

With regard to states and their respective constitutions, "What have always been deemed especially sensitive for the ability of a constitutional state to shape itself democratically are decisions on criminal law and procedure and on the disposition of the police monopoly on the use of force within the state and the military monopoly on the use of force externally; the fundamental fiscal decisions on public revenue and public expenditure, with the latter being particularly motivated, inter alia, by social-policy considerations; decisions on the shaping of the circumstances of life in a social state; and decisions which are of particular importance culturally, for example about family law, the school and education system and dealing with religious communities." (Beaudouin, 2009)

A second key point in Beaudouin's report is that, since the states "must remain sole masters of the Treaties, the bridging clauses are unconstitutional." Specifically noted is Point 231: "The empowerment to transfer sovereign powers to the European Union or other intergovernmental institution permits a shift of political rule to international organizations. The empowerment to exercise supranational competences comes, however, from the Member States of such an institution. They therefore permanently remain the masters of the Treaties. In a functional sense, the source of Community authority, and of the European constitution that constitutes it, is the peoples of Europe with their democratic constitutions in their states. The 'Constitution of Europe', the law of international agreements or primary law, remains a derived order." (Beaudouin, 2009) Beaudouin notes that the Union "may not be endowed with the power to determine its own competence." (2009)