Abstract
The Treaty of Lisbon is a stage in a process—not a final outcome, but rather an intermediate result. The EU can be seen as a building that is currently under construction; but now for various reasons this project is facing a major crisis, especially in the economic area. Two treaties have recently been signed with the hope that they are the tools needed to overcome this obstacle. Although anomalous, they may, under certain conditions, return us to the correct path.
Keywords
The Treaty of Lisbon defines itself as a ‘stage’ in both its preamble and in Article 1. A ‘stage’ is not a final outcome, but rather an intermediate result. Therefore the European Union (EU) can be seen as a building that is currently under construction. The problem is that the European project is not well defined in its details, and sometimes its designers have different and contrasting ideas: the path is thus not linear but tortuous. Obstacles on this path must be gradually overcome and detours made to circumvent them. Nevertheless, those who truly believe in the political unity of Europe are not particularly concerned because the road taken thus far shows that the compass indicates an inevitable route. Such has always been the case and difficulties can become opportunities. So it was in the beginning, when the memory of violence and disintegration on one hand, and the fear of another even more terrible conflict on the other, ignited the idea of European unity as a guarantee of peace. The laborious economic route that we are taking is the reaction to another obstacle: the failure of the project to rapidly achieve political unity. The failure of the European Defence Community gave impetus to the Common Market initiated by the Treaty of Rome in 1957 (European Union 1957). The end of the ‘unnatural division of Europe’ with the fall of the Berlin Wall might have given the impression that the need for unity in the West had been exhausted; however, the enlargement of Europe, together with new problems, has brought about yet an extraordinary opportunity.
Now Europe is facing a major economic crisis. Two treaties have recently been signed: one on Establishing the European Stability Mechanism (ESM), signed on 17 July 2011, and one on Stability, Coordination and Governance in the Economic and Monetary Union (the TSCG or ‘Fiscal Compact’), signed on 2 March 2012. Despite the limits and contradictions repeatedly underlined by the European Parliament, 1 the treaties can be seen as the tools needed to overcome an obstacle; these tools are anomalous but capable, under certain conditions, of returning us to the correct path.
See, in particular, the European Parliament Resolution P7_TA (2012) 0002 of 18 January 2012 on the conclusions of the European Council of 8 and 9 December 2011 on a draft international agreement relating to a fiscal stability Union.
Apart from the European Parliament's reservations about the contents of the treaties—that they are more directed at ensuring converging financial rigour, and neglect the need to push for the economic growth necessary to combat unemployment and resume development—its legal and technical criticism has been concentrated on the risk of the fragmentation of Europe and the abandonment of the Community method.
As regards the first aspect, there is a recurrent discourse on a dual-speed Europe and no shortage of treaties which, at least at their origin, have involved only some of the Member States as a result of states’ differing commitments to integration.
The most illuminating example is the Schengen Treaty of 1985. Although it deals with an essential feature of the EU (free internal circulation and a single external border), it was signed by only 5 (France, Germany, Belgium, the Netherlands and Luxembourg) of the 10 countries that were members of the European Economic Community. The so-called Schengen acquis, with the innovations created by the Convention for the application of the Treaty, was integrated into the law of the Union through a protocol attached to the Treaty of Amsterdam, signed on 2 October 1997 and entered into force on 1 May 1999.
The protocol authorised closer cooperation between the then 13 Schengen signatory countries. This protocol made the Schengen acquis applicable once the Treaty of Amsterdam came into force.
The Schengen Treaty originated in the differing views of Member States in the 1980s: for some, the free movement of people had to be absolute and inclusive of the free movement of citizens from third countries, whilst for others freedom of movement was to be applied only to nationals of the Member States. Reaching a Community-level solution would have meant a change in the treaties, given that no proper legal basis existed at the time. Thus the five founding countries of the Schengen Area decided to guarantee free movement only within their common area, with no internal borders.
Something similar happened with the Treaty of Prüm in 2005. This was another international treaty, signed by seven EU Member States—Belgium, Germany, Spain, France, Luxembourg, the Netherlands and Austria—which aimed to strengthen cross-border cooperation to combat terrorism and illegal immigration.
After the shock caused by both the terrorist attack on New York's Twin Towers in 2001 and the subsequent attacks in Madrid in 2004 and London in 2005, the seven Member States that had signed the Treaty of Prüm wanted to strengthen their fight against terrorism through the use of common cooperative measures (for example, the exchange of information concerning genetic data, fingerprints and personal data, and the establishment of common police patrols). A motivating factor here was the impossibility of finding a common solution among Member States in the context of the institutional architecture of the Union (the unanimity required in the Council to adopt the Council's decision was eventually reached three years later after the Treaty of Prüm). On 23 June 2008, the Treaty of Prüm was integrated into the law of the Union by Council Decision 2008/615/GAI on strengthening cross-border cooperation, especially in the fight against terrorism and cross-border crime.
It is therefore not surprising that the EU is being built one piece at a time, in stages. This is what has happened and is happening even with regard to the euro. Indeed, the single currency was provided for by the Maastricht Treaty of 1992 (European Union 1992). It was a unit of account through which irreversible exchange rates were established among the EU countries: the early signs of an actual single currency. In 1995, the European Council of Madrid decided to introduce the euro. To date, however, only 17 of the 27 countries use this currency, and the eurozone is waiting for the other Member States to replace their national currencies with the euro. Nevertheless, this monetary integration took place within Community law, as an example of strengthened cooperation among certain Member States that was specific and explicitly regulated by the treaty itself. However, the possibility of enhanced cooperation is provided for by the same Treaty of Lisbon, in relation to other topics, in Article 329 (TFEU). Indeed, according to this article some Member States may establish closer collaboration among themselves, within the scope of the non-exclusive competences of the EU itself, to promote the achievement of the Union's objectives.
Nevertheless, the Treaty Establishing the European Stability Mechanism (ESM) and the Treaty on Stability, Coordination and Governance (TSCG), signed at the beginning of February and March 2012 respectively, introduce different problems (European Union 2012a, b). In particular, the Treaty Establishing the ESM poses serious problems because the mechanism has a legal personality (Art. 32.2), a legal status with managerial autonomy (Art. 32.1) and has its seat in Luxembourg (Art. 31). The Treaty was first signed by the finance ministers of the 17 countries in the eurozone on 11 July 2011, following the European Council Decision of 25 March 2011 on amending Article 136 of the Treaty on the Functioning of the European Union (TFEU), which was subsequently amended on 2 February 2012 to strengthen the mechanism's capacity (European Union 2010). The Treaty Establishing the ESM will enter into force as soon as it is ratified by at least 90 % of the 17 countries of the eurozone (Art. 48).
The treaty originated from the need to safeguard the crisis-hit economies of some eurozone countries, particularly Greece. All Member States whose currency is the euro are bound by the treaty (Recital 7). It is open to the participation of the Member States that are not part of the eurozone but which, on an individual basis, ask to contribute to the operations in support of the Member States of the eurozone, participating as observers in the meetings of the Mechanism (Recital 9, Arts. 5 (4) and 6 (3)). These Member States will become full members of the ESM upon joining the single currency (Arts. 2 and 44).
The other above-mentioned treaty, the TSCG, is an international treaty signed on 2 March 2012 by 25 of the 27 EU Member States (all except Great Britain and the Czech Republic). It will come into force on 1 January 2013 if at least 12 contracting parties whose currency is the euro have ratified it, or on the first day of the month following ratification by the twelfth contracting party whose currency is the euro [Art. 14 (2)] The non-euro countries that ratify it will be bound by its essential provisions, with which they intend to comply.
The two treaties are complementary, given that granting financial assistance by the ESM will be conditional, as of 1 March 2013, on the ratification of the Fiscal Compact by the state applying for help. Thus, in the EU, solidarity will be linked to fiscal and financial responsibility.
It should be noted that the institutional split and the recourse to international law rather than the Community method in the two treaties is accompanied by insistent references to the EU's structure and Community law. Meanwhile, possible adhesion is expected not only from the eurozone states, but also from the other members of the EU, whilst other nations are excluded. In addition, as part of the ESM pact the European Commission and the European Central Bank have the power to report an urgent need for financial assistance, where its absence would threaten the economic and financial sustainability of the eurozone (Art. 4.4). Furthermore, a representative of the Commission and the president of the Eurogroup may attend the meetings of the ESM board of governors as observers (Art. 5.3). The Commission is also responsible for negotiating the memorandum of intent on financial assistance with the ESM Member State concerned, signing it on behalf of the ESM and verifying its compliance (Arts. 13.3 and 4). A unique aspect is the possibility that every ESM member could contest an interpretative decision of the treaty before the EU Court of Justice, whose judgment is binding for the parties involved (Art. 37.3).
Reasoning in strictly legal terms, the fact that the ESM, which is endowed with a legal personality, is a separate body from the EU, which also has a legal personality, seems to configure the Court of Justice as an arbiter. The Court, however, is an EU instrument, and the Treaty Establishing the ESM does not seem to be able to offer a compromise between the two different subjects. Evidently, there is a political will to keep the ESM closely connected to the EU.
This will is even more clear in the TSCG; its preamble emphasises the need to strengthen the architecture of the economic and monetary union of the EU, beginning with pre-existing treaties and facilitating the implementation of the measures already provided for in Articles 121, 126 and 136 of the TFEU. In Article 2, the contracting parties undertake to apply and interpret the new treaty in accordance with the previous treaties on which the EU is founded, including procedural law, whenever the adoption of secondary legislation is required. Article 2 also specifies that the Fiscal Compact has a legal limit in its compatibility with the treaties establishing the EU. A level of participation is also provided for the European institutions leading the Eurogroup (Arts. 11 and 12), and each contracting party of the Eurogroup may apply to the Court of Justice should it believe that another party has failed to comply with the rules laid down for the national budgets (Art. 8).
How should we evaluate, in summary, the two treaties briefly outlined here? The appeal to international law and the establishment of an autonomous structure for countries whose currency is the euro seem to be justifiable in view of the urgency to provide a solution for the economic crisis and the impossibility of obtaining the consent of all the Member States. The aforementioned risks can be overcome if the five-year term, provided for by the Treaty on Stability, Coordination and Governance (TSCG) is kept, in order to fully incorporate their content into the EU legal system by taking all necessary measures. If this were the case, the ongoing detour may appear only as a necessary circumvention of an obstacle on the way to greater European integration, as called for by the Lisbon Treaty (Art. 1).
In the current context, it is also necessary to seriously examine the role of the European Parliament, which is only marginally involved in the changes taking place. The Treaty of Lisbon made it a full co-legislator, and this is a significant step towards integration inspired by democratic principles. There have long been discussions of a democratic deficit that would weaken the European construction. The Parliament's new powers resolve this deficit to a considerable extent, but we must not forget some of the ongoing shortcomings, highlighted by the German Constitutional Court in its judgment of 30 June 2009 that allowed Germany to ratify the Lisbon Treaty. This is not the place to examine what led the European Parliament's Constitutional Affairs Committee to undertake a systematic and prolonged reflection. Certainly, the expansion of the European Council's powers and the establishment of new centres of government such as the Eurogroup summit and the ESM board of governors, without it being possible for the European Parliament to maintain anything more than a feeble form of control over them, aggravate the problem of ensuring the full democratic representation of all the European nations. On the other hand, it is significant that the innovations introduced by the ESM Treaty and the TSCG primarily concern the states that have adopted the euro as their currency. Currency is certainly a key hallmark of sovereignty. However, a monetary policy that is not accompanied by a unitary economic and financial policy is not enough, as is clear from the current situation. Therefore, the new stage, to be reached as soon as possible, is a European Government that involves all EU Member States in matters related to economic and financial policy.