Welcome to the new version of European Tribune. It's just a new layout, so everything should work as before - please report bugs here.

Using Nice to implement Lisbon

by rz Mon Jun 16th, 2008 at 07:09:11 PM EST

At the current moment it is completly unclear how and if the Lisbon Treaty can be salvaged. Many national governments are already discussing the 'nuclear' option of ratifying the treaty and leaving Ireland behind. In a legal sense this would mean that they will leave the EU as it exists right now and form a new one based on the Lisbon Treaty.

But this is a rather radical step and one should try to calmly look at all options we have to take Ireland's decision into account but still implement reforms contained in the Lisbon treaty. In this diary I want to focus on one of the reforms which I liked most, that is the creation of a more coherent Foreign Policy by creating a more powerful Foreign Policy Representative and  a diplomatic corps.

The Nice Treaty includes an Article (Article 43) which allows for several Nations to establish  "enhanced cooperation". On the page I have linked to is a lot of stuff which I do not fully  understand, but let me cite what I think is the important part when it comes to foreign policy:

Member States which intend to establish enhanced cooperation between themselves   shall address a request to the Council to that effect. Authorization shall be granted   by the Council, acting by a qualified majority on the opinion of the Commission and   after having informed the Parliament. However, Article 23 of the EU Treaty provides   that a Member State may request that the matter be referred to the European Council   for a decision by unanimity. Member States thus retain their right of veto in this area.

As one can see it is possible to establish enhanced coordination in the area of Foreign Policy but it could be vetoed by any member. However if all 26 signing Members agree to implement the Foreign Policy cooperation established in the Lisbon Treaty I think Ireland would not be in a position to veto this.

Maybe similar thing could be done in other areas as well.


Display:
Yes, I agree that enhanced cooperation may be the way forward. However, for clarity first all the member states should proceed with ratification of Lisbon. The only countries where this is at risk of failing are the UK (the House of Lords debates it tomorrow) and the Czech Republic (no date set for either chamber of the parliament, pending a Constitutional challenge).

Once you have 24+ countries who have agreed to Lisbon you have the political capital to attempt to establish enhanced cooperations in all the areas covered by the Treaty of Lisbon.

Also, even if a veto is given on an enhanced cooperation requiring unanimity, nothing prevents the concerned states from agreeing their own treaty outside EU structures as long as the treaty doesn't hinder the EU (which member states cannot do according to the Treaties). This was the way the Schengen area started: France, Germany and the BeNeLux relaxed internal border controls by a separate agreement, and since this didn't hinder but assisted the functioning of the Common Market there could be no objection from the EU. Eventually this "outside treaty" can become the basis for an "enhanced cooperation" and then for a new EU Treaty.

Note one important feature of enhanced cooperations: every member state can take part in Council deliberations on it, but only the member states forming the cooperation can vote. Also, I believe it is possible for a country to vote in favour of an enhanced cooperation but not actually take active part in it.

The rules for Enhanced Cooperations post-Nice appear in the Consolidated Treaty establishing the European Community

Article 11
  1. Member States which intend to establish enhanced cooperation between themselves in one of the areas referred to in this Treaty shall address a request to the Commission, which may submit a proposal to the Council to that effect. In the event of the Commission not submitting a proposal, it shall inform the Member States concerned of the reasons for not doing so.
  2. Authorisation to establish enhanced cooperation as referred to in paragraph 1 shall be granted, in compliance with Articles 43 to 45 of the Treaty on European Union, by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament. When enhanced cooperation relates to an area covered by the procedure referred to in Article 251 of this Treaty, the assent of the European Parliament shall be required.
A member of the Council may request that the matter be referred to the European Council. After that matter has been raised before the European Council, the Council may act in accordance with the first subparagraph of this paragraph.
3. The acts and decisions necessary for the implementation of enhanced cooperation activities shall be subject to all the relevant provisions of this Treaty, save as otherwise provided in this Article and in Articles 43 to 45 of the Treaty on European Union.

Article 11a
Any Member State which wishes to participate in enhanced cooperation established in accordance with Article 11 shall notify its intention to the Council and to the Commission, which shall give an opinion to the Council within three months of the date of receipt of that notification. Within four months of the date of receipt of that notification, the Commission shall take a decision on it, and on such specific arrangements as it may deem necessary.

Articles 43-45 refer to "freedom of establishment" - that is, enhance cooperation can't curtail it; article 251 describes the codecision procedure.

Enhanced Cooperation is developed further in the Consolidated Treaty on European Union, first in relation to the Common Foreign and Security Policy:

Article 27a

1. Enhanced cooperation in any of the areas referred to in this title shall be aimed at safeguarding the values and serving the interests of the Union as a whole by asserting its identity as a coherent force on the international scene. It shall respect:
-- the principles, objectives, general guidelines and consistency of the common foreign and security policy and the decisions taken within the framework of that policy,
-- the powers of the European Community, and
-- consistency between all the Union's policies and its external activities.
2. Articles 11 to 27 and Articles 27b to 28 shall apply to the enhanced cooperation provided for in this article, save as otherwise provided in Article 27c and Articles 43 to 45.

Article 27b

Enhanced cooperation pursuant to this title shall relate to implementation of a joint action or a common position. It shall not relate to matters having military or defence implications.

Article 27c

Member States which intend to establish enhanced cooperation between themselves under Article 27b shall address a request to the Council to that effect.

The request shall be forwarded to the Commission and, for information, to the European Parliament. The Commission shall give its opinion particularly on whether the enhanced cooperation proposed is consistent with Union policies. Authorisation shall be granted by the Council, acting in accordance with
the second and third subparagraphs of Article 23(2) and in compliance with Articles 43 to 45.

Article 27d
Without prejudice to the powers of the Presidency and of the Commission, the Secretary-General of the Council, High Representative for the common foreign and security policy, shall in particular ensure that the European Parliament and all members of the Council are kept fully informed of the implementation of enhanced cooperation in the field of the common foreign and security policy.

Article 27e

Any Member State which wishes to participate in enhanced cooperation established in accordance with Article 27c shall notify its intention to the Council and inform the Commission. The Commission shall give an opinion to the Council within three months of the date of receipt of that notification. Within four months of the date of receipt of that notification, the Council shall take a decision on the request and on such specific arrangements as it may deem necessary. The decision shall be deemed to be taken unless the Council, acting by a qualified majority within the same period, decides to hold it in abeyance; in that case, the Council shall state the reasons for its decision and set a deadline for re-examining it.

For the purposes of this Article, the Council shall act by a qualified majority. The qualified majority shall be defined as the same proportion of the weighted votes and the same proportion of the number of the members of the Council concerned as those laid down in the third subparagraph of Article 23(2).

There are similar provisions for enhanced cooperation in "Police and Judicial Cooperation in Criminal Matters" (Article 40), and the entire "Title VII" (Articles 43-45) details how enhanced cooperations are supposed to work.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 02:18:29 AM EST
Thank you. That is a very comprehensive outline of the legal issues. May impression is that many heads of states are already thinking along these lines. Jean-Claude Juncker mentioned it explicitly.

So far it seams that the options given by Article 43 have never been used. But maybe now is the time to do so.

by rz on Tue Jun 17th, 2008 at 06:40:57 AM EST
[ Parent ]
You assume Ireland would want to veto it.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 04:03:30 AM EST
Or for that matter not want to join it.

The narrative that Ireland has suddenly become anti-EU or doesn't want to engage in the EU is completely false, or at least more false than other countries.

by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 04:04:52 AM EST
[ Parent ]
You assume the Irish government can indefinitely enter into agreements and approve policies that will be opposed at home.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 04:56:17 AM EST
[ Parent ]
You assume they'd be opposed at home by any substantial group. The No campaigns were boosted greatly by the requirement that they be given equal time to the Yes campaigns on-air.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 05:00:43 AM EST
[ Parent ]
Anyway, they probably can. Not generally a deal breaker for voters, remember? Anything except expanded military cooperation would probably be fine.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 05:02:43 AM EST
[ Parent ]
Denmark got an opt-out to the Euro in 1992, why can't Ireland get an opt-out to "common security and defence" and be done with it?

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 05:05:11 AM EST
[ Parent ]
It does have, as far as I know. Doesn't stop the No crowd saying otherwise at every referendum there has ever been.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 05:06:15 AM EST
[ Parent ]
What happens if an opt-out is agreed and Ireland still rejects the treaty?

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 10:44:47 AM EST
[ Parent ]
<shrug> The Nice treaty will still be in place.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 10:47:16 AM EST
[ Parent ]
So how do we kill the EU, then?

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 10:51:14 AM EST
[ Parent ]
Are we trying to?
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 10:54:08 AM EST
[ Parent ]
Some people on Wallstrom's blog are.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 11:01:13 AM EST
[ Parent ]
Oh, well to hell with them.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 11:02:04 AM EST
[ Parent ]
Yes, I understand that Ireland is not suddenly Anti-EU. But it would be politically rather difficult for Ireland's Prime Minister to be part of an agreement which essentially implements parts of the Lisbon Treaty after it has been rejected in a Referendum.
by rz on Tue Jun 17th, 2008 at 05:04:34 AM EST
[ Parent ]
That would be on a case-by-case basis, and would depend on what part it was. I doubt that a common foreign policy would be a real problem for the government.
by Colman (colman at eurotrib.com) on Tue Jun 17th, 2008 at 05:08:35 AM EST
[ Parent ]
Maybe I am politically out of touch, but I don't see the Irish Government approving other members engaging in enhanced cooperation on the major elements of the Lisbon treaty (excluding military/security) as a huge political problem for it.  It would probably abstain - or refuse to veto - or failing that allow weighted majority voting knowing that that would allow the proposal to fly.

The NO crowd would scream blue bloody murder - and still not get much traction in national elections - because fundamentally Ireland is pro-EU  and would get increasingly nervous if it appears Ireland is being left behind.

We have to get away from the miasma of inaction that UK euroscepticism creates.  It may actually be a good thing - from a more dynamic EU point of view - if more precedents are set  for the EU evolving by way of a leadership process whereby some countries forge ahead on key issues and others follow at their "own chosen speed".

You wouldn't see Ireland for dust as it scampers to catch up on most issues.  The real issue is with the UK - and anything which forces it to make up it's mind one way or the other on the UK can't be a bad thing.

I think its time we confronted the naysayers and forced the pace and let those who want to fall behind.  The project is too important to let it fail.  We have indulged the eurosceptics and the neo-cons for too long.


"It's a mystery to me - the game commences, For the usual fee - plus expenses, Confidential information - it's in my diary..."

by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Tue Jun 17th, 2008 at 06:42:23 AM EST
[ Parent ]
Ireland could very well life happily ever after being left out of a enhanced cooperation on Foreign Policy. Maybe that suits their politics of neutrality much better.

We should stop seeing the possibility of increased cooperation between some Nations as a snub to all other Nations and more as an accommodation of all interests.

by rz on Tue Jun 17th, 2008 at 06:49:24 AM EST
[ Parent ]
There are even more parts of the Lisbon Treaty which can be implemented easily using the Nice Treaty: Let me cite here Article 4 from the Protocol on the Enlargement of the European Union (I found this on Jon Worths Euroblog):

2. When the Union consists of 27 Member States, Article 213(1) of the Treaty establishing the European Community and Article 126(1) of the Treaty establishing the European Atomic Energy Community shall be replaced by the following:
`1. The Members of the Commission shall be chosen on the grounds of their general competence and their independence shall be beyond doubt.
The number of Members of the Commission shall be less than the number of Member States. The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously.
The number of Members of the Commission shall be set by the Council, acting unanimously.'
This amendment shall apply as from the date on which the first Commission following the date of accession of the 27th Member State of the Union takes up its duties.

This means that the decrease of the number of Commissioners is already implemented.

by rz on Tue Jun 17th, 2008 at 06:54:01 AM EST
So, how about: the countries who didn't ratify Lisbon don't get a commissioner? :-P

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 10:43:44 AM EST
[ Parent ]
Jokes aside, the mechanism is as follows:
The Members of the Commission shall be chosen according to a rotation system based on the principle of equality, the implementing arrangements for which shall be adopted by the Council, acting unanimously.

A system has already be agreed upon, in the Lisbon Treaty. But the issue of loosing a Commissioner was important in the campaign, so Ireland's Prime Minister might be in a difficult situation here.

by rz on Tue Jun 17th, 2008 at 11:21:08 AM EST
[ Parent ]
Interestingly, Lisbon allowed for another 5 years of one commissioner per state, which as we have seen Nice didn't:
Article 17

  1. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.

  2. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
    The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union.
And
Article 244

In accordance with Article 17(5) of the Treaty on European Union, the Members of the Commission shall be chosen on the basis of a system of rotation established unanimously by the European Council and on the basis of the following principles:
(a) Member States shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as members of the Commission; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one;
(b) subject to point (a), each successive Commission shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States.

Gah, trust politicians to do a crap job of specifying an algorithm.

When the capital development of a country becomes a by-product of the activities of a casino, the job is likely to be ill-done. — John M. Keynes
by Migeru (migeru at eurotrib dot com) on Tue Jun 17th, 2008 at 11:30:59 AM EST
[ Parent ]


Display:
Go to: [ European Tribune Homepage : Top of page : Top of comments ]