Ireland and the Treaty of Lisbon
The decision of the Irish government to submit the Treaty of Lisbon to the electorate in a second referendum has been welcomed by the European Council at its meeting in December 2008. The government leaders should realise, however, that approval of the treaty is far from a foregone conclusion. In view of the uncertainty and confusion which have led to the initial rejection, a special effort must be made in order to communicate the essence of the European Union in plain and simple terms. If the advocates of the new treaty would fail again to refute the allegation that ‘Lisbon’ will transform the EU into an anti-democratic organisation, the slogan If you don’t know, vote no will prove to be a recipe for victory in the hands of the opponents once more. It is therefore imperative to find the words with which the EU can be described in a positive manner.
After the rejection of the Constitution for Europe by the French and the Dutch voters in the spring of 2005 the European Commission has held a brainstorm session in order to identify the best way forward. At a subsequent press conference, President Barroso stated that the EU doesn’t need a philosophical debate about the future of Europe and that he and his Commission preferred to deliver concrete results for the citizens instead. This intention has been elaborated in a communication of the Commission to the European Council, published on May 10th 2006 under the title A Citizens’ Agenda-Concrete results for Europe. The concrete measures, mentioned in this paper, are related to such divergent fields as a new financial framework, a reinvigorated agenda for growth and jobs, a reformed Stability Pact ánd to successful projects like Erasmus and Galileo. The common denominator of these proposals lies in their alleged ability to renew the confidence of the citizens in the European Union. This approach has resulted in the formulation of a twin track strategy which aims on the one hand to reconquer the hearts and minds of the citizens and on the other to find –over time- a solution for the constitutional crisis of the Union.
The tactics of delivering concrete results for the citizens has found following in the member states. In his Communication about Europe, which the Dutch minister for European Affairs Frans Timmermans submitted to parliament in December 2007, he expressed the view that the citizens should be better informed about the EU in a broader sense. Europe is much more than a debate about the institutional arrangements. He continued by emphasizing the need to make the EU more visible on the basis of concrete policies so as to enable the debate to concentrate on content rather than on procedures.
The fact that the portfolio of commucation strategy lies in the hands of the Vice-President of the European Commission Margot Wallstrom, may serve as an indication for the importance that the present Commission attaches to proper relations with the citizens. Wallstrom is the auctor intellectualis of Plan-D for Democracy, Dialogue and Debate which the Commission launched in the aftermath of the failure of the Constitution for Europe. In line with the Citizens’ Agenda, the purpose of the plan was to focus not any longer on the institutional questions, but to concentrate on the citizens and their expectations instead. The results of the plan induced Commissioner Wallstrom to go a step further and to announce a new approach in 2008, which puts citizens at the heart of European policies. While this formula may be captivating from a communicational point of view, it raises serious questions from a legal perspective. What the Commissioner intends to do, makes -legally speaking- no sense. It’s just impossible. And yet it happens. Consequently, the practice of EU communication makes a short reflection on the nature of the European Union unavoidable.
The debate about the future of Europe has been dominated from the outset by the dilemma whether ‘Europe’ was to become a federal state or a mere confederation. Even before the foundation of the EEC in 1957, politicians pondered over the question whether the distinctive member states should follow the example of the United States of America and evaporate into a new state or should retain their sovereignty by forming a Europe of Nations. This opposition has been smoothed over in the preamble to the Treaty of Rome with the formula that the participating states were determined to lay the foundations for an ever closer union between the peoples of Europe. After the conclusion of the Treaties of Maastricht (1992) and Amsterdam (1997) the discussion about the endgoal or finalité politique of European cooperation was given new impetus by the German minister of Foreign Affairs Joschka Fischer. In his speech ‘From Confederacy to Federation’ which he delivered on 12 May 2000 at the Humboldt University in Berlin, Fischer presented a blueprint for a future European federation. This thought-provoking lecture led to the adoption of the Declaration of Laeken in 2001, by which a Convention about the Future of Europe was convened. However, the participants in the Convention proved also incapable of bridging the traditional contradistinctions. While they remained divided over the question, whether the EU should receive a constitution (federation) or a new treaty (confederation), the text they produced was presented to the public as a Treaty establishing a Constitution for Europe. This attempt to reconcile two opposing concepts without a proper legal foundation has been utterly detrimental to the process of European integration as a whole.
As a result, the debate about the future of Europe had ended in deadlock once more. This regrettable state of affairs led President Barroso to conclude that it would be better to avoid this inextractible problem altogether and to concentrate on delivering concrete achievements instead. The gist of the present article is to suggest that the Treaty of Lisbon contains a number of legal innovations, which will enable politicians, scholars and citizens to address the question of the nature of the European Union from a new perspective.
The Treaty of Lisbon comprises two provisions, which are of particular importance in this respect. On the one hand, it offers member states the possibility of voluntary withdrawal from the EU and, on the other, it improves the position of the citizens by enshrining the Charter of fundamental rights in the founding treaties of the Union. At first glance, it would appear contradictory that the new treaty should strengthen both the position of the citizens and that of the member states. A closer examination, however, reveals that this apparent contradiction contains the key to the solution of the persistent problem of the nature of the European Union.
The perspective that the Treaty of Lisbon, once it has entered into force, will offer member states the opportunity of voluntary withdrawal from the Union, implies that the EU is neither a federal state nor a federation in the making. With the possible exception of Canada, federal states do not recognize the right of secession of their constituent parts. The American Civil War of the 19th century was precisely about the question whether states had the right to secede from the Union or not. Although Czechia and Slowakia have recently managed to seperate in a peaceful manner, territorial integrity remains a hallmark of federal states. Any allegation that the Treaty of Lisbon will turn the EU into a federal state is therefore untenable.
The perspective that the Treaty of Lisbon, once it has entered into force, will give the citizens of the member states a fully-fledged status as citizens of the European Union, implies that the EU can not be regarded as a confederation either. Confederations are unions of states, which have no direct bearing on or relation to the citizens of the participating states. Since the Treaty of Lisbon envisages to provide the citizens of the member states with a real and meaningful status as citizens of the European Union, it will become equally impossible to describe the Union as a confederation.
This concise analysis of the legal character of the European Union after the Treaty of Lisbon puts beyond doubt that the EU will be neither a federal state nor a confederation. Consequently, legal theory does not provide practitioners with the terms they need in order to describe the Union. While this state of affairs may serve to explain why the debate about the endgoal of the EU was doomed to end in deadlock, it can also be regarded as an encouragement to explore uncharted waters. The reasoning may run as follows: if the EU is not a federation, because it consists of a number of states, and if the EU is not a confederation since it is composed of citizens as well, the question is warranted whether these distinctive elements could not be regarded as the unique qualities of the new phenomenon in international law, which the EU evidently is. To put it differently: if there are no international organisations with citizens and if there are neither federations which are composed of various sovereign states, the words with which to describe the EU are already at hand. The European Union is an international organisation that is composed of citizens and states. At this juncture, the words to identify the European Union as a new phenomenon in international law, present themselves in the term ‘Union of citizens and member states’. Once the nature of the EU as a Union of citizens and member states has been established, the European Union can be defined as an ‘organisation of sovereign states, in which the citizens of the member states are also citizens of the Union’.
Scholars tend to argue that the European Union works in practice, but not in theory. This assertion may have been valid in the period before the conclusion of the Treaty of Lisbon. As demonstrated above, the new treaty contains sufficient elements to identify the EU in a positive manner as a Union of citizens and member states. From this perspective, the new approach of Commissioner Wallstrom, which puts citizens at the heart of European policies, seems to be perfectly reasonable. The concept of the EU as a Union of citizens and member states implies that the Union must meet democratic standards of governance both on the level of the member states and on that of the Union. Under the old presumptions, Wallstrom’s approach would have been at odds with international law. In the new situation, in which the EU has been transformed from an international organisation into a democratic polity, it is self-evident that the citizens should be at the heart of the European Union.
Of course, the conclusion that the EU has developed over the years into a new phenomenon in international law, that may be described as a Union of citizens and member states, does not form the beginning and the end of EU Communication. It is, however, an indispensable precondition for a successful strategy in this respect. The positive answer to the question what the European Union is, provides policy makers with a theoretical framework, within which the concrete results of European cooperation can be presented in mutual coherence. The combination of a sound legal theory with a new practical approach offers a unique opportunity to diminish or even bridge the gap between ‘Brussels’ and the citizens. Moreover, it enables supporters of the Treaty of Lisbon to prevent the opponents from hijacking the second referendum in Ireland with the same tactics of spreading fear and uncertainty once more. The allegation that the new treaty will turn the EU into an anti-democratic Leviathan, can now be refuted with the concept of the EU as a Union of citizens and member states, that delivers concrete results for the citizens ánd for the member states. The financial crisis that is hitting the world and Europe may serve to illustrate the point. As common currency, the Euro protects both the financial stability of the member states and the spending power of the citizens. A similar argumentation can be applied to a variety of subjects, including common immigration policies, climate change and the internal market. On the other side, the new concept ensures that sensitive matters such as neutrality, taxation and ethical issues remain in the hands of the member states. Thát appears to be the real and deeper meaning of the EU motto: Unity in Diversity.
In conclusion, it should be underlined that the realisation of the concept of the Union of citizens and member states requires a new balance between all participants, which will not be found overnight. However, the main message that can be spread from now on, is that the Treaty of Lisbon will turn the EU into a better democracy and a more perfect Union. The Treaty of Lisbon is not the last station on the way to a fully-fledged Union of citizens and member states, but the approval of the new treaty is an absolute condition for the present functioning and the further evolution of the Union. The purpose of EU Communiation is not only to demonstrate the concrete benefits of European cooperation, but also to show the direction in which the European Union is developing. The latter is not the easy part. Its implementation will take patience and time, cultural innovation and educational skills, but it must get started on pain of losing the interest and involvement of the citizens. After all, a Union of citizens and member states can not prosper without the commitment of its citizens.
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