Rather than being a standalone document, the treaty is an amending text to the existing rules governing the operation of the EU, writes Mark Callanan
THE TEXT of the Lisbon Treaty was finalised in December last year under the Portuguese EU presidency, as part of discussions on reviewing the EU's operations. In fact, while the text was signed in Lisbon, many of the final provisions derive from compromises brokered by the German presidency in the first half of 2007. Many of the provisions closely mirror compromise proposals made by Irish negotiators during Ireland's EU presidency in 2004.
This article is the first of two that seeks to address the issues covered by the treaty. As has been pointed out by a number of commentators, the treaty is a long and complicated text. Therefore, a selective approach is necessary in dealing with some of the highlights of the text.
The articles will set out in a factual way the key provisions of the new treaty, avoiding jargon where possible (although this is difficult to do completely in an EU context). No judgment is passed on the supposed merits or drawbacks of the provisions - the aim therefore is to give a brief overview of the main provisions of the treaty itself.
In essence, the EU's treaties act as the operating "rulebook" for the European Union, agreed upon by each of the members of the EU club. They set out, in legalistic and elaborate language, the remit of the EU (for example, specifying those areas where European legislation such as EU directives can be adopted). They also specify how EU legislation is adopted in different areas, clarifying the role of national governments and the influence of other EU institutions such as the European Parliament and the European Commission.
The Lisbon Treaty is in effect the latest in a series of amendments to this "rulebook". Rather than being a standalone document, it is an amending text to the existing rules, which is one of the reasons why it is so lengthy and difficult to read. Most people, even those who would admit to knowing very little about it, would be aware that the EU has become increasingly important in recent years.
Decisions taken at EU level, for better or for worse, have a significant effect on our day-to-day lives - whether it be decisions of the European Central Bank on interest rates, employment legislation in areas such as working time or equality, or new rules designed to protect the environment.
A number of the treaties that have been subject to referendums in Ireland in the past have expanded the remit of the EU to adopt legislation in new areas. Therefore, with or without ratification of the new treaty, the existing text of the treaties defines the scope of areas where the EU is empowered to legislate. The list of areas is extensive, and encompasses areas related to the EU's internal market, competition policy, agriculture, justice, employment and social policy, external relations (including security issues), EU funding and the environment.
However, the EU's role is greater in some areas than in others. Thus, its role in the field of the environment for example, is considerable - a large number of EU directives have been adopted regulating issues like waste management and protecting threatened species. The EU's role in culture and education is less pronounced, where it plays a supporting role, for example through funding provision. This situation would be largely unaffected, whether Ireland ratifies the treaty or not. However, the treaty does include a number of provisions intended to clarify the extent of the EU's remit in different areas by identifying different competences:
• Exclusive competences - where EU institutions have exclusive power to legislate. This applies for example to certain trade agreements with non-EU countries. Of course, Irish representatives have a say in these decisions, but the decisions are made at EU level;
• Shared competences - where decision making is shared between the EU and the national levels, for example in the field of social policy and employment law. In such areas, for example, EU decisions may establish minimum standards that must apply across the EU. However, national governments may also wish to legislate or undertake activities within the basic framework agreed at EU level. Most areas of EU activity fall under this category;
• Supporting competences - areas such as education or protecting human health where the EU can in a limited way support activities undertaken by national governments (for example by part-funding university exchanges or research into food safety), but where the main responsibility for decision making is at national level.
As indicated above, this description describes the status quo under the existing treaties, albeit with a clearer definition of "who does what". That said, the treaty would extend the EU's remit in a number of specific fields, allowing it to undertake limited activities in a number of areas such as disease prevention, energy and sport. If ratified, it would also introduce new provisions in areas like public services, development and humanitarian aid, and climate change. On climate change, the new treaty would make it an objective of EU policy to promote "measures at international level to deal with regional or worldwide environmental problems, and in particular combating climate change". Another provision makes the reduction and elimination of poverty the main aim of EU development co-operation policy.
The treaty also contains a special protocol on "services of a general interest" - euro jargon for public services. This recognises the essential role of national governments in having the discretion to provide or organise public services as closely as possible to meet the needs of citizens, and to ensure a high level of quality, affordability, equal treatment and universal access for citizens.
In the sensitive field of foreign affairs and defence, the requirement for unanimity is effectively maintained. Although certain decisions can be made by majority voting, any country can "for vital and stated reasons of national policy" insist that a decision be made by unanimity. This is known as the "emergency brake" and in effect amounts to a veto for individual states. Under another clause, known as "constructive abstention", individual governments can abstain from a particular decision to allow other governments go ahead with a foreign policy initiative. However, the abstaining country would not be bound by that decision and is not obliged to take part in the initiative. This provision is maintained in the new treaty.
The treaty would also allow smaller groups of countries make their own arrangements in the security and defence field, without obliging other countries to take part.
At present, the EU treaties allow EU states to come together to undertake joint missions involving military or civilian resources in areas such as humanitarian missions, peacekeeping tasks, and peacemaking missions. The Lisbon Treaty would extend the possible areas of joint activity to include disarmament operations, conflict prevention missions, the provision of military advice, and post-conflict stabilisation.
Individual countries retain the right to decide whether or not to participate. As under existing arrangements, participating national governments would lend resources for such missions on a case-by-case basis, such as the mission to Chad. Other EU missions under way include military missions in Macedonia and Congo, police missions in Palestine and Bosnia, and civilian missions in Kosovo and Georgia. In that context, the treaty includes a general clause to improve military capabilities to undertake future missions of this type.
Under the terms of the Constitution, joining a European mutual defence pact is prohibited and any decision to do so would require a further referendum. The proposal to amend the Constitution in the upcoming referendum reaffirms this principle.
This is compatible with the Lisbon Treaty, which clearly states that any decision to establish a common European defence would require the unanimous approval of all EU leaders "in accordance with their respective constitutional requirements".
In the area of judicial co-operation on criminal matters, each member state also maintains a veto under the "emergency brake" provisions. In any case, Ireland, along with the UK, has the right to opt out of any EU legislation adopted in this field, if the Government feels that such decisions may be incompatible with Ireland's common law.
The treaty also introduces a new "solidarity clause", whereby if an EU country was the victim of a terrorist attack or a natural or man-made disaster, other EU countries would assist that country to protect democratic institutions and citizens living in the country.
The treaty would add a number of new provisions regarding its basic aims and values. The EU's aim is stated under the new treaty as promoting "peace, its values and the well-being of its peoples". These values, derived from Europe's "cultural, religious and humanist inheritance", are listed in the treaty as including "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". The treaty would also give the European Charter of Fundamental Rights legal status by recognising in the treaties the rights, freedoms and principles set out in the charter.
The charter was originally signed in 2000 and revised in 2007, and recognises a number of freedoms, as well as social rights and principles of access to justice. For example, it recognises the right to human dignity, freedom of thought and religion, access to a fair trial, principles of non-discrimination and equality between men and women, the rights of children and the elderly, workers' rights such as protection from unfair dismissal, and access to healthcare and social security.
It should be pointed out that the charter's principles apply to the EU institutions and national governments only in the context of the implementation of EU legislation. However, the Lisbon Treaty is also clear that "the provisions of the charter shall not extend in any way the competences of the union as defined in the treaties".
• Monday: How does the treaty affect the EU's institutions and Ireland's representation in them?
• Dr Mark Callanan lectures in European studies at the Institute of Public Administration in Dublin. The Referendum Commission's explanation of the treaty is available at www.lisbontreaty2008.ie/index.html