Doreen Allerkamp, University of Mannheim
'The Presidency Effect after the Lisbon Treaty: the Consequences of the Demotion of the Rotating Council Presidency'
The Lisbon Treaty has made some key changes to the institutional set-up of the Council of the EU and the European Council. Most notably, it has institutionalized non-rotating, longer-term Presidencies for the European Council and the (newly established) Foreign Affairs Council. Before Lisbon, only the Eurogroup had an elected, longer-term Chairman, while semi-annual rotation was the provision for all (other) Council constellations, including the European Council. While this has had certain drawbacks (notably persistent continuity issues), which have previously been addressed by measures preserving rotation (notably the annual and multi-annual Presidency programs), it has also had certain unintended consequences that have arguably been beneficial: under rotation, the combined effect of the Presidency’s ins-titutional shape, the expectations associated with it and the agenda it faces produces a certain integration bias in each member state-incumbent in turn, as each temporarily takes on responsibility for keeping the EU project moving and on track. Drawing on the experience of the first few post-Lisbon Presidencies, this paper assesses what the changes to one of its core factors, institutional shape, means for this ‘Presidency effect’; what, if any, changes there are to the expectations associated with the rotating Council Presidency as it negotiates its relationship with the new European and Foreign Affairs Council Presidents; and whether with the abolition of rotation in two of the most important Council formations, a certain potential for more continuity is being paid for with less member state responsibility for the European project as a whole.
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Uwe Puetter, Central European University, Budapest
Consolidating Europe’s New Intergovernmentalism - European Council and Council Leadership in Economic Governance and CFSP under the Lisbon Treaty
This paper compares European Council and Council leadership in two core areas of EU activity - economic governance and CFSP. Both policy fields are among the most dynamic ones in contemporary EU policy-making. They are based on a pre-dominantly intergovernmental structure and rely on a decentralised system of policy implementation in which ultimate decision-making authority continues to rest with the member states. Instead of being governed through the classical community method both fields are subject to far-reaching coordination procedures. Continuity and policy coherence can only be assured through the constant leadership and involvement of the European Council and Council. This is reflected in the prominent role the two investigated policy fields have acquired in the European Council - making them the two most debated items. This leadership role has posed a number of challenges to both institutions. The Lisbon Treaty constitutes the latest and the most significant in a series of institutional adjustments. The Treaty consolidates a specific and new type of deliberative intergovernmentalism in EU policy-making which is based on a system of constant and consensus-oriented policy dialogue at the highest level of national and EU decision-making. Based on new empirical research, which has been carried out over the last two years in Brussels and member state capitals, the paper revisits the main innovations of the Lisbon Treaty in this regard. It looks in particular at how new presidency arrangements, the division of labour between Council formations and the strengthened integration of national administrative resources seek to enhance consensus oriented policy dialogue in a heterogeneous governance setting.
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Morten Broberg, University of Copenhagen and Danish Institute for International Studies
Something Old, Something New, Something Borrowed, Something Blue - EU Development Cooperation After Lisbon
In 1992 the Maastricht Treaty introduced specific provisions on EU development cooperation at Treaty level. With the entry into force of the Lisbon Treaty most of these provisions were carried over in the Treaty on the Functioning of the European Union. The Lisbon Treaty has however introduced a number of both minor and major novelties, and certain parts of the provisions have been re-arranged. Moreover, the Lisbon Treaty proposes to introduce a higher degree of consistency in the European Union’s external relations - including also its actions in the field of development cooperation.
This paper sets out, firstly, to map out the Union’s Treaty basis following the entry into force of the Lisbon Treaty, secondly, it attempts to identify the likely consequences that the changes are likely to bring about, and, thirdly, it will point out some problems regarding the Treaty basis that either have been carried on or have been introduced with the Lisbon Treaty.
This paper sets out, firstly, to map out the Union’s Treaty basis following the entry into force of the Lisbon Treaty, secondly, it attempts to identify the likely consequences that the changes are likely to bring about, and, thirdly, it will point out some problems regarding the Treaty basis that either have been carried on or have been introduced with the Lisbon Treaty.
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Anand Menon, University of Birmingham
Much Ado About Nothing: EU Defence Policy after the Lisbon Treaty
The paper argues that the Lisbon Treaty will not exert a noticeable impact upon the effectiveness of CSDP. Certainly it addresses some important problems that have bedeviled EU security policies in the past, though even here its success is far from guaranteed. More fundamentally, the treaty does little if anything to address perhaps the fundamental challenge confronting CSDP: the reluctance of member states to take their responsibilities seriously. Indeed, given the source of the major problems confronting CSDP, a narrow focus on institutions and institutional evolution at the EU level not only largely misses the point, but may also be actively counterproductive, shifting attention from national governments and hence letting these latter ‘off the hook.’
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Michael E. Smith, University of Aberdeen
Building the European External Action Service: Institutional Learning versus Intergovernmental and Bureaucratic Politics
The creation of a new ‘European External Action Service’ (EEAS) under the Treaty of Lisbon represents one of the most far-reaching projects to reform EU foreign policy institutions in the history of European integration. By the middle of 2010 the process of creating the EEAS was well under way, provoking conflicts between EU member states, between major EU institutions, and even among various senior EU officials. At the time of writing, it is unclear whether the EEAS will in fact function as intended, and enhance the EU’s capacity for coherent and effective action in world politics.
This paper analyzes these changes and incorporates evidence from elite interviews conducted with nearly 40 senior EU officials over the past three years. Beyond the political conflicts noted above, which generally involve intergovernmental disputes among major EU member states and bureaucratic politics within/among EU institutions, a third dimension to the process must be noted: the clash between informal working methods and institutions devised in the years prior to Lisbon, and the new reforms required under the Treaty (including, but not limited to, the EEAS). Thus, the conflict over the EEAS represents an interesting ‘natural experiment’ for comparing formal intergovernmental/bureaucratic and informal/cognitive approaches to institutional reform. The outcome to this process will therefore have important implications for both the theoretical analysis of institutional approaches to European foreign policy and the actual practice of it, for years to come.
This paper analyzes these changes and incorporates evidence from elite interviews conducted with nearly 40 senior EU officials over the past three years. Beyond the political conflicts noted above, which generally involve intergovernmental disputes among major EU member states and bureaucratic politics within/among EU institutions, a third dimension to the process must be noted: the clash between informal working methods and institutions devised in the years prior to Lisbon, and the new reforms required under the Treaty (including, but not limited to, the EEAS). Thus, the conflict over the EEAS represents an interesting ‘natural experiment’ for comparing formal intergovernmental/bureaucratic and informal/cognitive approaches to institutional reform. The outcome to this process will therefore have important implications for both the theoretical analysis of institutional approaches to European foreign policy and the actual practice of it, for years to come.
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Michael Smith and David Allen, Loughborough University
The European Union and the Great Powers: Towards a New Diplomacy?
This paper aims to investigate the ways in which the EU may be framing a new form of diplomacy in the wake of the Lisbon Treaty, by exploring the EU’s relations with established and emergent ‘great powers’ in the world arena. The Lisbon Treaty has set in motion the establishment of a new system of EU diplomacy, through its consolidation of the position of High Representative for Common Foreign and Security Policy and its establishment of the European External Action Service. At the same time, the Union is faced by a world arena in which the constellation of power is in flux, perhaps more than in any period since the end of World War II. One of the first tasks of any EU diplomacy must therefore be to define its position in relation to established and emergent great powers, and to consider the ways in which any EU ‘grand strategy’ might be pursued at the diplomatic level. The paper sets out to highlight key processes and key relationships in this area by discussing the linked questions of the ‘internal’ development of an EU diplomacy, the nature and uses of ‘strategic diplomacy’ in EU external policy, and the potential impact of the ‘new’ EU diplomacy on key target states or groupings.
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Kenneth Armstrong, Queen Mary, University of London
Europe 2020: Does the Lisbon Treaty Help or Hinder Reforms to EU Governance?
The adoption of Europe 2020 as the successor to the Lisbon strategy coincided with the entry into force of the Lisbon treaty. The paper explores whether the constitutional and institutional architecture of the Lisbon Treaty helps or hinders the realisation of governance reforms to be undertaken in the context of Europe 2020. Looking at reforms to both economic and social governance, the paper highlights potential gaps between the sorts of reforms that are or might be proposed and the assumptions and limits contained in the treaties. In doing so it highlights the problems of conducting constitutional reforms that seem more preoccupied with constraining older forms of EU governance than with animating new forms of EU governance. Whether or not this tension will give rise to legal challenges will also be seen to depend on the assumptions underpinning the role of EU courts in reviewing EU governance.
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Caterina Carta, London School of Economics and Political Science
The EEAS: The Puzzle of a Service of a New Kind
This paper introduces the main organisational dilemma inherent in the new-born European External Action Service (EEAS). It argues that two main dimensions will impact the functioning of the EEAS. On the one hand, bureaucratic arrangements will bring about variations in officials’ preferences on how to compose different nationalities and previous institutional affiliations. On the other hand, the hybrid foreign policy mission of the EEAS will create variations in foreign policy conceptions on whether the EEAS should act as an enterpreneur or as a broker in the process of foreign-policy making. By crossing the bureaucratic and political dimensions, four scenarios on the future role EEAS within the EU system are advanced. It is here argued that the EEAS will evolve as an inter-institutional foreign-policy actor, that is, an actor with a strong consociational bureaucratic component with a tendency to act as an interpreneur of foreign policy making.
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Lars Hoffmann, Maastricht University
Montesquieu v the European Union? The Issue of Executive Opacity in the Union’s Continuous Constitutionalisation Process
For the past 25 years, the EU has undergone a process of incremental constitutionalisation and institutional reform - recently culminated in the Lisbon Treaty. Different treaty reforms have addressed specific institutional shortcomings, so that today’s executive and legislative functions are distributed among the European Parliament, the European Council, the Council of Ministers and the European Commission. Still, the EU remains short of what is generally referred to as a government. The elected political leadership of a state’s executive branch is often the most visible, recognised and scrutinised part of a constitutional system. Thus, I argue that the EU’s constitutionalisation process, driven no less by national governments, has set-up an effective judiciary and legislature but has failed to provide the EU with a clearly identifiable executive. Even in the post-Lisbon EU, executive leadership, executive visibility and executive accountability is only very sparsely provided by the Commission and the European Council. This paper examines the legal and political reasons behind this Montesquieuian shortcoming. In doing so it focuses on the EU’s relevant political particularities and constitutional restraints, thus, explaining why the European integration process has not lent itself to create an EU executive in the Montesquieuian sense. Based on this analysis, I argue that the Union’s executive opacity is explainable. However, if the EU is to continue its process of incremental constitutionalisation, a restructuring if not a reinvention of its executive branch is paramount.
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Christine Neuhold, Maastricht University Co-author: Rik de Ruiter
Late Wake-up Call or Early Warning? Parliamentary Participation and Cooperation in Light of the Lisbon Treaty
The Treaty of Lisbon upgrades the role of national Parliaments in the European Union by foreseeing a number of mechanisms through which national Parliaments are to "contribute actively to the good functioning of the Union". Little is known as to how parliaments will seize these opportunities within the practical political process.
This paper wants to pick up on this point by analyzing first empirical experiences of implementing selected Treaty provisions since 2005. The main focus is whether strategies prevalent on the national level with regard to scrutiny of EU legislation are simply being replicated in the context of the new Lisbon Treaty provisions on national parliaments. This will be done by way of an analysis of eight so-called subsidiarity tests conducted by the Conference of European Affairs Committees (COSAC) since 2005 and other strategies employed such as the direct dialogue with the European Commission.
This paper wants to pick up on this point by analyzing first empirical experiences of implementing selected Treaty provisions since 2005. The main focus is whether strategies prevalent on the national level with regard to scrutiny of EU legislation are simply being replicated in the context of the new Lisbon Treaty provisions on national parliaments. This will be done by way of an analysis of eight so-called subsidiarity tests conducted by the Conference of European Affairs Committees (COSAC) since 2005 and other strategies employed such as the direct dialogue with the European Commission.
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Agata B. Capik, University of Luxembourg
Tomorrow We’ll See - The Current Architecture of the Court of Justice Serving within the Area of Freedom, Security and Justice
By enhancing the jurisdiction of the Court of Justice, the Reform Treaty aimed to improve Europe’s ability to fully implement policy in the area of Freedom, Security and Justice as well as to ensure the consistency of interpretation. At the same time, in accordance with Article 68 TFEU, the Stockholm program defines strategic guidelines for legislative and operational planning within this sensitive area. As it has been underlined in the Stockholm Program ‘All opportunities offered by the Lisbon Treaty to strengthen the European area of freedom, security and justice for the benefit of the citizens of the Union should be used by the Union institutions.’ This holds especially truth by means of an effective protection, to be ensured by the Court of Justice of the European Union.
The aim of this paper is to discuss the changes regarding the jurisdiction of the ECJ after entering into force the Treaty of Lisbon from the procedural point of view (I). Consequently, the attention will be drawn to the extension of the competences of the ECJ within Freedom, Security and Justice area, especially in course of the preliminary ruling procedure (II.). Based on the experiences of the last year and potential movements (such as rapidly growing amount of ppu-cases) after the transitional period as foreseen in Protocol No 10, an evaluation of the influences of these changes on the effectiveness of the protection of the rights of individuals within the current architecture of the (overloaded) ECJ will be given (III). The paper will conclude with proposal for an amendment of the Rules of Procedure with regard to the architecture of the ECJ, strengthening the efficiency of the protection of individuals rights within the area Freedom, Security and Justice area.
The aim of this paper is to discuss the changes regarding the jurisdiction of the ECJ after entering into force the Treaty of Lisbon from the procedural point of view (I). Consequently, the attention will be drawn to the extension of the competences of the ECJ within Freedom, Security and Justice area, especially in course of the preliminary ruling procedure (II.). Based on the experiences of the last year and potential movements (such as rapidly growing amount of ppu-cases) after the transitional period as foreseen in Protocol No 10, an evaluation of the influences of these changes on the effectiveness of the protection of the rights of individuals within the current architecture of the (overloaded) ECJ will be given (III). The paper will conclude with proposal for an amendment of the Rules of Procedure with regard to the architecture of the ECJ, strengthening the efficiency of the protection of individuals rights within the area Freedom, Security and Justice area.
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Ester Herlin-Karnell, Vrije University Amsterdam
Flexibility and Loyalty in the AFSJ
The Area of Freedom, Security and Justice (AFSJ) has been elevated to a central constitutional place by the Treaty of Lisbon. A relatively unexplored feature of the AFSJ sphere is the flexibility provisions, most prominently the enhanced cooperation mechanisms where some Member States can go further than less integrative Member States by establishing enhanced cooperation between them. In this paper I want to explore the impact of the principle of loyalty in this area and how it has changed after the Lisbon Treaty by looking at the flexibility provisions within the AFSJ. After all, not only does the loyalty obligation impose a general - and very well documented - duty for the Member States to be loyal towards the EU, but many of the subject matters in this area such as the fight against terrorism and organized crime have a global dimension to it and therefore touch upon the common security and foreign policy area. It will be argued that what is emerging in this area is something much stronger than a loyalty obligation and more similar to a strict proportionality test.
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Christian Kaunert, University of Salford and European University Institute, Florence
The Development of the EU Asylum Policy: Revisiting the Venue-shopping Argument in the post-Lisbon Era
It is generally argued that the development of EU cooperation on asylum and migration can be best explained by the idea of ‘venue-shopping’, i.e. the search by rational policy-makers for new venues of policy-making that are more amenable to their goals. According to that perspective, the development of the EU asylum policy is the result of an attempt by EU Member States to avoid liberal constraints at the national level with a view to adopting more restrictive asylum measures at the EU level. This paper argues that, whilst this argument originally held true, various recent changes have rendered it problematic. A thorough examination of the evolution of the EU asylum policy demonstrates that, overall, it has actually become more liberal than had been envisaged by policy-makers and scholars alike a few years ago. This is mainly due to broader changes that have affected the EU ‘system of venues’, which have in turn made the EU asylum policy venue more liberal. As recent treaties have cemented such changes, it is highly unlikely that policy-makers would ever manage to develop a more restrictive policy in the EU asylum policy venue. Attempts to ‘venue-shop outwards’ into the realm of foreign policy, as an alternative, have not proved successful in the field of asylum. Therefore, it appears that the only avenue left for those willing to develop a more restrictive asylum policy in the post-Lisbon era is through increasing border controls to restrict asylum-seekers’ access to these more liberal asylum provisions.
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Sarah Léonard, University of Salford and Sciences Po, Paris
The European Union and External Border Controls in the Post-Lisbon Era: ‘Venue-shopping’ in Different Directions
EU cooperation on asylum, migration and borders has often been presented as an outcome of ‘venue-shopping’. According to that perspective, policy-makers dealing with asylum and migration have attempted to free themselves from domestic liberal constraints by relocating to a new policy-venue at the EU level, where they would have more opportunities to pursue restrictive policies. This paper puts this argument to the test by examining the development of the EU policy on external borders. It highlights that, although there has been a restrictive trend in the EU external borders policy, there have also been more progressive developments, mainly as a result of important changes to the ‘EU system of venues’, such as the entry into force of the Lisbon Treaty. This increasing liberalisation of the EU external borders policy venue has led policy-makers to attempt to ‘venue-shop’ in two new directions. In addition to ‘outward’ venue-shopping into the realm of foreign policy, i.e. cooperation with third states on external border controls, one can witness the development of networks across and beyond the EU, in which the EU External Borders agency FRONTEX is playing an increasingly significant role.
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Ulrike Barten, European Centre for Minority Issues
Minority Rights in the EU after Lisbon
The inclusion of minorities into the Treaty on European Union (TEU) by the Lisbon Treaty marks the first time minorities are included in binding EU primary law. Minorities are included in art. 2 TEU which lays down the common values of the EU. In art. 21 of the Charter of Fundamental Rights (CFR) on non-discrimination, membership in a national minority is one of the grounds where discrimination is prohibited. With the Lisbon Treaty, the Charter now has the same legal value as the EU treaties. Members of minorities may also look forward to the EU acceding to the European Convention on Human Rights (ECHR).
What do these changes in EU law mean for minorities? Which types of minorities are included in art. 2 TEU? What can members of national minorities expect from art. 21 CFR? Is there a ‘minority advantage’ when the EU accedes to the ECHR and thereby accepts the jurisdiction of the European Court of Human Rights? .
Using a special minority lens on the Lisbon Treaty, uncertainties and possibilities are addressed. An overview over minorities in the past in the EU framework is linked to an outlook into the future.
What do these changes in EU law mean for minorities? Which types of minorities are included in art. 2 TEU? What can members of national minorities expect from art. 21 CFR? Is there a ‘minority advantage’ when the EU accedes to the ECHR and thereby accepts the jurisdiction of the European Court of Human Rights? .
Using a special minority lens on the Lisbon Treaty, uncertainties and possibilities are addressed. An overview over minorities in the past in the EU framework is linked to an outlook into the future.
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Ian Cooper, ARENA - Centre for European Studies, University of Oslo
A Virtual Third Chamber for the European Union? National Parliaments Under the Treaty of Lisbon
The Treaty of Lisbon introduces an early warning mechanism (EWM) which empowers national parliaments to intervene collectively at the EU-level; they may now raise objections to - and even help to block - EU legislative proposals. The EWM represents a new model of parliamentary involvement in international relations: national parliaments now constitute a ‘virtual third chamber’ for the EU. Though they do not meet together in the same physical space, national parliaments collectively form a body that can, at least to some degree, perform three key parliamentary functions at the EU-level - representation, legislation, and deliberation. First, the EWM provides a new channel of representation linking the citizen with the EU. Second, it gives national parliaments power – more than is commonly supposed - to influence the EU’s legislative process. Third, it creates a new forum for debating the merits of proposed EU legislation, which will increase the salience of national parliaments’ concerns, particularly with respect to subsidiarity. Using this analysis we can assess its potential for achieving its two goals, which are to enhance the EU’s democratic legitimacy by involving national parliaments in its work, and to create a more effective subsidiarity enforcement mechanism in the EU’s legislative process.
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Joana Mendes, University of Amsterdam
Participation Rights after Lisbon: beyond Atlanta
This paper will address the possible legal consequences of Article 11 TEU (participatory democracy) with regard to participation rights in procedures leading to non-legislative acts of the Union. On the basis of institutional arguments, the EU Courts have so far refused to grant participation rights in rulemaking procedures where this not is expressly established by treaty or legislation (Atlanta). The other EU institutions have taken suit. I will contrast the reasons that have led to this exclusion with the new Treaty framework. I will argue that Article 11 TEU opens the way for a role for law in regulating participation in rulemaking procedures. This change is favoured by other Treaty norms, namely the looser requirements on private standing (Article 263 (4) TFEU) and the new hierarchy of norms (Articles 290 and 291 TFEU).
Article 11 TEU looks both back and forward. While interpreting this provision, I will acknowledge its political background and the fact that, with the exception of the European citizens’ initiative, it is far from being an innovation proper. Mostly, it provides formal constitutional recognition to previous institutional practices. Nevertheless, legal consequences will flow from the fact that participatory democracy is now formally one of the democratic principles of the Union. At the very least, a hypothetic regression of current practices could hardly be justified in the light of this norm. More importantly, the EU institutions will need to decide in which instances and under which forms they will give effect to Article 11 TEU. This paper will present normative proposals in this respect.
Article 11 TEU looks both back and forward. While interpreting this provision, I will acknowledge its political background and the fact that, with the exception of the European citizens’ initiative, it is far from being an innovation proper. Mostly, it provides formal constitutional recognition to previous institutional practices. Nevertheless, legal consequences will flow from the fact that participatory democracy is now formally one of the democratic principles of the Union. At the very least, a hypothetic regression of current practices could hardly be justified in the light of this norm. More importantly, the EU institutions will need to decide in which instances and under which forms they will give effect to Article 11 TEU. This paper will present normative proposals in this respect.
For further information on this paper contact UACES.
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Andrej Stuchlik, German University of Administrative Sciences Speyer and Aron Buzogány, German Research Institute for Public Administration, Speyer
Paved with Good Intentions. Latent Ambiguities of Empowering Parliaments after Lisbon
Both the subsidiarity control and the early-warning mechanism of the Lisbon Treaty received much attention as they promised to rebalance the position of national and regional parliaments which were seen as losers of the integration process. One year later and beyond formal scrutiny capacity and good intentions, the question remains whether these novelties did actually succeed.
Based on insights from two ongoing research projects on the changing role of national and regional parliaments in the European multi-level governance system, the paper offers two interrelated perspectives:
The first assesses the formal and informal changes that took place regarding the position of national parliaments following the Lisbon Treaty. The second perspective offers a closer look to development in the German Bundestag and the regional parliaments. What emerges from both perspectives is that while there is significant activism among legislative actors that could lead to an improved scrutiny of EU decision-making, actual change has been very limited.
Reasons for this are both institutional and structural. First, the new provisions only partly shift control back to national legislatures not only because they imply unrealistically high thresholds but also because their involvement takes place, if at all, at a too late stage in the EU policy-cycle. Second, the incentives of individual MPs to engage in matters of subsidiarity are low and will continue to do so. We discuss three potential solutions to remedy this situation (i) strengthening interaction between parliaments and administration, (ii) use of informal (informational) networks, and (iii) promoting role change of subsidiarity stakeholders.
Based on insights from two ongoing research projects on the changing role of national and regional parliaments in the European multi-level governance system, the paper offers two interrelated perspectives:
The first assesses the formal and informal changes that took place regarding the position of national parliaments following the Lisbon Treaty. The second perspective offers a closer look to development in the German Bundestag and the regional parliaments. What emerges from both perspectives is that while there is significant activism among legislative actors that could lead to an improved scrutiny of EU decision-making, actual change has been very limited.
Reasons for this are both institutional and structural. First, the new provisions only partly shift control back to national legislatures not only because they imply unrealistically high thresholds but also because their involvement takes place, if at all, at a too late stage in the EU policy-cycle. Second, the incentives of individual MPs to engage in matters of subsidiarity are low and will continue to do so. We discuss three potential solutions to remedy this situation (i) strengthening interaction between parliaments and administration, (ii) use of informal (informational) networks, and (iii) promoting role change of subsidiarity stakeholders.
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