A Critical Analysis of EU Member State Sovereignty under the Treaty of Lisbon. Sovereignty v Democracy.

Lorna Griffiths


The Lisbon Treaty enacted has had a significant impact, by modifying and amending the previously enacted treaties or legislation. The Treaty of Lisbon provides a clear, unambiguous statement of the EU's values, goals and fundamental rights. The provisions are in fact far more substantive than those which this document entails; these values extend in scope as wide as the fundamental human rights considerations within the European Union, the removal of the pillar system of governing under the Maastricht Treaty and that of the EC. For the first time in the history of the European Union, values of previous political symbolism have now equally legal footing.

 

Any Member State must respect the EU's goals represented in Article 2 of the TEU,[1] democratic, fairer principles of human rights and democracy are most prevalent.[2] Article 3 of the TEU[3] sets out the objectives of the EU. The Lisbon Treaty sought to rectify concerns of an ever expanding union of states. A previous sufferance from a 'democratic deficit' has been reviewed and the competences of the European Union have been formalised through Articles 3, 4 and 6 TFEU respectively regarding competences that are exclusive to the EU, those shared and supporting competences. Those entirely exclusive to the Union are very limited, for example the establishing of competition rules necessary for the functioning of the internal market. In fact, the most part of the amendments which are brought through the Lisbon Treaty are relatively limited and this draws to question the strained reactions of a number of the Member States.[4] It is pertinent to question if legally amendments are hardly revolutionary, what are the political impacts to these changes?

 

One of the main issues to be considered is the effect that the increased democratic legitimacy of the European Union under the Lisbon Treaty 2009 has on the sovereign powers of the Member States.[5] The first issue to be considered is  the principle of sovereignty; its importance both nationally and internationally and whether these conflicting principles can be reconciled. In order to fully appreciate the principle of sovereignty under the Lisbon Treaty it is necessary to consider the notion of democracy, in order to analyse the effect any amendments of the Lisbon Treaty to the increased democratic legitimacy of the EU will have on Member State sovereignty. Having, considerably identified these conflicting principles will set the ground for an analysis of the individual amendments of the Lisbon Treaty, the effect they have on member state sovereignty, whether this thus being a direct cause of the attempt to democratically legitimise the EU and therefore unavoidable or instead a deliberate attempt to perturb the sovereignty of individual member states of the EU under the guise of an attempt to create a fairer, more accountable Europe. As a final area of analysis it will be analysed exactly whose sovereignty has been affected in its attempt to become more democratic. Did the European Union, intend to reduce the sovereign powers of the Member State and replace it with an increased supremacy of the Union thus creating a Super-state or are the sovereign controls simply an effect of the modern day Union of states.

 

The concept of sovereignty is a difficult notion to assess. Relatively recent in the field of academia there is much contradicting literature as to the meaning of sovereignty. “There exists perhaps no conception on the meaning in which is more controversial than that of the meaning of sovereignty. It... has never had a meaning which was universally agreed upon.[6]  Perhaps, one ought to start with the English Oxford Dictionary example. At this point one shall focus entirely on the matter of sovereignty away from the interpretation of the European Union. It is thus described using three limbs of argument. These being that sovereignty may represent a 'supreme power or authority' using an example of a sovereign parliament, one may further this example in drawing attention to the sovereign Parliament of the UK. In addition, it is described as 'the authority of a state to govern itself or another state.' This thus draws attention to the fact that unlike the previous limb sovereignty is both a national and international concept. The third and final limb drawn upon in the example is that sovereignty can also represent 'a self governing state.' One must carefully draw comparison between this idea and the first limb discussed since a very careful balance must be drawn between a completely sovereign state and a parliament which holds sovereignty. This is the case in the UK. The Parliament is without doubt sovereign but the extent to which the state as a whole holds sovereign power is somewhat debatable. The UK parliament has supreme law making authority within its jurisdiction; the UK as a state does not. The UK parliament has supreme, independent authority over a geographic area. Its supremacy is found in its power to make law that rests on a political fact for which no purely legal explanation can be provided.

 

It is arguable that Philosopher Jean Bodin in his literature La Republique[7] was the first to draw upon the principle of the sovereignty of an individual state in this manner. Julien Freund describes Bodin's concept of sovereignty by indicating that Bodin sees “sovereignty no longer only as a phenomenon of power, but also as a right.[8]Bodin uses the example of the head of state to illustrate his point. The Prince has the power to both legislate and rule over a given territory without interference by another state or organisation, “Those who are sovereign must not be subject to the authority of anyone else... This is why the law says that the Prince must be excluded from the power of the law.”[9] The governing head of state under the opinion of Bodin is thus beyond the limits of the laws which he decrees; he knows no bounds, limits or controls. Bodin's concept of sovereignty is thus most compatible with an aristocratic system of governance.  It is without doubt that in an era such as today, the belief that the King is the God given representative of the state is less founded than at previous historical dates. The United Kingdom is now a far more democratic and an active member of internationally based treaties. One may question however, the possibility of reconciling this ancient sovereign concept to the present international state of the United Kingdom.

 

Susumu Yamauchi[10] attempts to do so, drawing upon Hugo Grotius' notion of an international society of states on the matter of what is sovereignty. He suggests that “the modern concept of sovereignty is abstract, exceedingly independent and exclusive.” One may consider whether Grotius is a founding father of modern international law. Grotius writes of a international society founded by groups of states, who consciously form an international society, in which they “recognising certain common interests and perhaps some common values regard themselves as bound by certain rules in their dealings with one another, such as that they should respect one another’s c1aims to independence...”[11] Whilst, his philosophy lacks to some extent the complete, complex characteristics of the modern day  concept of international law, for example the process of peaceful intervention. It is pertinent to question whether the modern concept of sovereignty is as 'abstract' or 'exclusive' as Yamauchi suggests. The philosophy of Grotius to a relative extent draws upon  the idea of international organisations governing an otherwise sovereign state. One may use modern examples such as the Universal Declaration of Human Rights, NATO and integration into the European Union as a basic illustration of this point. This principle of conferred powers, in which the 'sovereign' state uses its power to impart its sovereign exercise to another body was, in these cases by no means accidental. The principle of sovereignty remains intact and not hugely 'abstract.' Each state involved in such international organisations has limited its sovereign power, entirely consciously, with the absolute possibility to fully regain its sovereignty. The original concept of sovereignty thus described by Bodin remains relatively unharmed.

 

It is without doubt that regardless of whether the EU intended to further place restrictions on the sovereignty of Member States under the newly passed Lisbon Treaty, the previous limitations upon the Member States are according to the European Court of Justice clearly enshrined in the legal system. Consecrated in case law the EU has since its creation created its own legal system where Member States, albeit voluntarily, have limited their sovereign rights in a number of fields and are thus bound to apply the legal decisions of the ECJ as an integral part of their national legal system.[12] All law that stems from the Treaty in this way must be adhered to by the Member State through domestic legislation. A breach of this places the legal base of the European Union in question; it is a common principle of the European Union that the voluntary decision of a Member State to join the Union therefore brings them within the realms of permanent limitation of their sovereign rights in certain limited fields and this limitation means that Member States must ensure that incompatible prevalent legislation does not exist. This basic idea can be justified according to Craig and De Burca[13]. Without this distinction of EU competent legislation and domestic rule the primary aims of the EU could not be achieved and EU legislation would become 'merely contingent' if it was then subject to later national law. This limitation on the sovereign rights of the Member States is purely voluntary and whilst the state made the decision to enact the legislation making them a member of the EU, they equally have the right to repeal their membership in the EU. This right to repeal will be focused on significantly at a further point in this paper, questioning the introduction of an 'exit clause' in the Lisbon Treaty and the effects this has on the issue of sovereignty for the Member States.

 

It is necessary to briefly discuss relevant primary issues arising from the Member States in accordance with the European limitation of their sovereign rights; it is interesting to look briefly at the UK in reference to the issue of the constitutionality of the Lisbon Treaty. Tension increased with the entry into force of the Lisbon Treaty on 1st December 2009, particularly on matters regarding EU governmental state sovereignty. At this juncture I draw to attention the choice of the use of issues arising particularly with government state sovereignty, It is essential that a careful distinction be drawn here between the idea that the Lisbon Treaty infringes on the sovereignty of the Member State Government by becoming more democratic as opposed to becoming as sometimes described as a supranational State. This important distinction will be further drawn upon throughout.

 

It is quite clear that until the entrenching of the Lisbon Treaty the United Kingdom accepted, with few problems, the practical limitations of sovereign rights that membership in the EU entails. The European Communities Act 1972; Sections 2 and 3 provide for direct and immediate effect of EU instruments in the UK and any UK Law must be construed in a way that is compatible with the EU. This position is best illustrated by Lord Bridge in Factortame[14] [Lord Bridge, 658:] “...Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary...Parliament has always loyally accepted the obligation to make appropriate and prompt amendments...” The position is clear; any substantive UK law that is contrary to EU law must be abrogated or modified to ensure consistency, this cannot be done impliedly since the ECA is a Constitutional Act derived from the UK Constitution alone and it is made clear that if, in the unlikely event a provision of EU law is so contrary to UK law that it cannot be interpreted consistently it would be unlikely that the ECA would be adhered to.[15] It was however emphasised that this possibility is extremely unlikely. The conceptual foundation of this acceptance is somewhat debatable but regardless of this it is clear that the UK accepted the limitation of sovereign rights and fully recognised their right to withdraw at any given time.

 

This commonly held stance on the issue of sovereignty was thus, until the entrenching of the Lisbon Treaty rather unproblematic. The idea that the UK parliament retains its sovereignty whilst being a member of the European Union was accepted by the state and government alike. However, with the entry into force of the Treaty of Lisbon, the UK government had to create further measures to safeguard their implied sovereignty under the Lisbon Treaty. As such, provisions of the Lisbon Treaty having a fundamental effect on Member State sovereignty will be focused upon significantly throughout the course of this paper. However, one shall briefly draw attention to a number of those provisions immediately. Amendments to the European Parliament system, increased legitimacy of the national parliaments and the increase in the use of the qualified majority voting system are all examples of the creation of a fairer, more democratic European Unions

 

One of the most predominant goals of the Lisbon Treaty is the enhancing of the democratic legitimacy of the European Union. For the first time in the history of the Union, the principle of democracy is expressly provided for. Articles 9-12 of the Treaty of the European Union provide provision for the enhancing of the democratic nature of the European Union, most expressly through the changes to the European Parliament and the effect this has on the National parliaments.[16] This section of the TEU 'provisions on democratic principles' follows fairly significant pressure from as early as the Maastricht Intergovernmental Conference Declaration N° 13, the Nice Declaration 2000 and most importantly the Declaration of Laeken 2001. Throughout each of these Declarations the importance of the role of the institutions, particularly that of the European Parliament and the increased and certified role of the national parliaments is reinforced. The Laeken Declaration stresses that the European Union “derives its legitimacy from democratic, transparent and efficient institutions. The national parliaments also contribute towards the legitimacy of the European project”

 

Regarding the EU, a careful balance must be drawn between sovereignty and democracy both pre and post Lisbon. In its attempt to become more democratic, it has potentially placed further restrictions on the delicate balance of sovereignty of the Member States; this idea will continuously be drawn upon throughout this paper.

 

Classically described, democracy is a system of governance in which the 'demos'[17] elects a government to act on their behalf and has the power to equally dismiss them. This is something which the European Community lacked, since European elections did not in the same way that national elections do provide any form of legitimate influence on the development of the Union. Professor Vernon Bogdanor suggested that a legitimate and accountable election in national member states will allow the citizens to choose a government with a recognised political leader and have to power to influence public policy of their national state. He stresses that elections under the European Union do not fulfil any of these recognisable characteristics, drawing upon the example of a European election in 1994 in which a dispute amongst the member states as to the election of the President of the Commission, eventually leading to the election of Jacques Santer had not even consulted the European Parliament despite it being newly elected and therefore the only body that could be considered to be the representative of the European citizens.  Since this federal report was written in 2007, before the amendments of the EU it is clear that at this stage in the history of the European Union, there was to some extent a 'democratic deficit'. This term has been used and analysed hugely in academic literature and although this 'democratic deficit' is important to consider when looking at how the changes to the European Union under the Lisbon Treaty have been achieved and to what extent this attempt to improve the democratic legitimacy of the European Union has restricted the sovereignty of Member States, one shall only look rather briefly at the importance of the 'democratic deficit' before the Lisbon Treaty regarding the areas relevant to this paper

 

It is clear that before the Lisbon Treaty, the issue of democracy of the European Union was somewhat troublesome for the legitimacy of the Union itself. Thus this problem of a 'democratic deficit' has been addressed in the relevant articles of the Treaty of Lisbon.

 

These changes in the Lisbon Treaty with the creation of the European Union attempted to go so far in the creation of a more democratic system, giving the citizens of the Union a greater and fairer say in the running of the EU. This is a process that has not gone unnoticed and has been greatly considered by many of the Member States, including Germany[18].

 

It is at this juncture that one shall briefly consider the European Union Act 2011; the Union under the Lisbon Treaty has attempted and has to some extent been successful in the creation of a more democratic Union, at the expense, in some areas, of the sovereignty of the Member State. Perhaps, it is for this reason that UK parliament has entrenched this EU Act which ensures no further amendments may be made to the TFEU or TEU without having previously passed a referendum by the British people. The Act[19] will thus “ensure that in the future this Parliament and the British people have their say on any proposed transfer of powers to the EU.”[20]William Hague describes the EU Act as a direct response to the democratic deficit of the European Union under the Lisbon Treaty; he views it as a legal guarantee that the powers of the EU are at this point limited in that they cannot be expanded without the direct agreement of the British population through referendum. One must speculate however, that the referendum elements introduced to the Union under this EU Act 2011 are perhaps simply a mechanism to avoid the fairer, more democratic Union that the Lisbon Treaty brings. The democratic deficit described above is without doubt decreased under the Treaty and it must be questioned whether without further resources heavily pooled into the European Union within Britain if the British population will ever have the 'real' possibility to agree or disagree upon elements brought to referendum. As Hague correctly stipulates “too many people feel the EU is something done to them not by them.” How this can possibly change however with a government increasingly suggesting the EU is a bad agreement for Britain is another matter.

 

Regardless of the reasons for this Act making changes that devolve further power to the EU being subject to a referendum both France and the Netherlands refused to ratify the Pre-Lisbon, failed Constitutional Treaty and then Ireland, one of the Member States who has benefited most significantly from the EU rejected the first ratification of the Lisbon Treaty. The apparent difficulties that are beginning to emerge in the successful ratification of EU treaties have led some to question the fundamental foundations of the EU, “are the dreams of a reconciled and more united Europe dying”[21] with the main aims of the Lisbon Treaty; a fairer and more democratic Union of states?

 

One should consider the principle areas in which the Treaty of Lisbon amends any former legislation in relevance to the sovereignty, democracy debate.

 

Somewhat importantly the Lisbon Treaty provides institutional and amendments to the previous treaties. Although in some areas these changes are hardly revolutionary in subject, the political significance cannot be overlooked. As in many areas of amendments of the Lisbon Treaty, these institutional and operational changes aim for the most part in creating a more “democratic, effective and accountable[22]European Union. It will be necessary at this juncture to look into important institutional changes, particularly within the European Parliament and the increased accountability of national parliaments in this matter, procedural changes and the increased role of national parliaments and citizens in the European Institutional procedure. It is predominantly here that one can most clearly see some kind of distinction between the much debated principles of sovereignty and democracy.

 

When considering the changes to the European Parliament, it is important to note that the European Parliament has changed somewhat significantly. More powers have been devolved to this directly elected body, making it more accountable to the national governments. New law making powers mean that the European Parliament will be seen to have equal footing to that of the council, thus playing an equal part in the procedure of 'co-decision' in a huge array of new legislative competences, including agriculture, justice and home affairs. Members of the European Parliament will have to give their consent in the acceptance of international treaties negotiated by the European Union. Along with this rather substantial increase of power comes an increase in responsibility. The newly conferred powers to the European Parliament gives the elected members a greater say in the shaping of Europe, “With its full legislative power extending to over 40 new fields, Parliament becomes a truly equal lawmaker with the Council of Ministers, representing member states governments... Its decisions will have an ever stronger impact on...everyday life”[23]. This further responsibility means a stronger, fairer, directly elected voice for the 500 million EU citizens, “The Parliament will be the guardian of EU citizens' new catalogue of civil, political, economic and social rights” It will safeguard the right of national parliaments to object to EU level legislative proposals, consistently implementing any decisions in line with the Charter of Fundamental Rights. This amendment is hugely significant, the role of the national parliaments at this point is significantly increased, in fact the national parliaments are “central to the democratic fabric of the Union.[24]

 

There is now the  possibility to intervene at an early stage of the process, should a third of the Member States complain about the application of the subsidiarity principle in the proposal of prospective legislation, the Commission has the duty to review the proposal, deciding whether to withdraw, continue or amend the proposal. At this point the national parliaments are compared to in academic literature[25]as watchdogs of the principle of subsidiarity.” It is interesting to note that these amendments to the European Parliament are far from different to those that caused much distress in the failed Constitutional Treaty 2004. Jean-Claude Piris[26] draws a possible distinction on this matter regarding the sovereignty, democracy distinction. He infers that this amendment going seemingly unnoticed by the Member States was subject to very dominant, 'active and clever MEPs' and thus suggesting an underhand inferal of supra-nationality of the European Union.

 

With this consideration of changes made at the European Parliament level, it is without doubt necessary to consider the consequences this has on National Parliaments and the careful balance between the ever colliding principles of democracy and sovereignty under the Lisbon Treaty.

 

Although National Parliaments were formally recognised in the European Union Pre-Lisbon,[27] this recognition was not at all extensive. Article 4 of the Protocol on the Role of National Parliaments in the EU provided a rather narrow interpretation of the powers of the national parliaments. This has been significantly increased under the Lisbon Treaty. The amendments are by no means revolutionary and the success of the amendments rely almost entirely on Member State implementation  yet until present, this is the most significant step towards a fairer and more democratic Europe. Jean-Claude Piris comments in his book[28] that this rather considerable amendment was due to his opinion that “the fact that the European Parliament did not fully succeed in clearly and incontrovertibly establishing itself as providing the solution for the democratic legitimacy that the EU needs, was one of the reasons why the Lisbon Treaty gave a role to national parliaments in the EU legislative procedure.” The significance in this move towards a more democratic Union, with a far greater say for National Parliaments is, in my opinion, a step away from Member State Government supremacy over European Union policies. The National Parliaments will now have the ability to request and receive information directly from the EU without having to receive this from their national government. Once again, the opinion of Jean-Claude Piris is insightful here as he suggests that for many Member States the amendments to the democratic nature of the European Parliament did not got go far enough; he draws upon the idea that in certain Member States the extent to which the national parliament controls positions taken by the representative of its government in the Institutions vary and hence the success of this democratisation relies entirely on the Member State itself. It is necessary to expand on this, speculating upon the idea that these amendments to the EU under the Treaty of Lisbon in part caused the difficult ratification of the Lisbon Treaty and disconcertion within many Member States. This is due to pointing to the question as to whose sovereignty was affected under the Lisbon Treaty; is it that of the Member State as a whole or is it the government sovereignty in particular that these changes have infringed more than ever before in the history of the European Union? This idea will be expanded upon at a later point in this essay.

 

Article 12 of the TEU along with Protocols 1 and 2 govern the principles of the powers of the national parliaments. Of crucial importance under Article 12, one must draw upon part (b) and Protocol 2 in order to expand upon the principle of subsidiarity mentioned hereto. This principle of subsidiarity monitoring is much debated among academics as to the extent of the effect that it has on national parliaments. One should begin discussing this principle by drawing attention that subsidiarity is not a new idea. Principles of the same character existed from as early as the Maastricht Treaty and these acted as 'footsteps' to the now more consolidated and democratic principles under of the Lisbon Treaty. A somewhat problematic area of this is the fact that the Lisbon Treaty does not provide a clear definition of subsidiarity monitoring, Article 5(3) of the TEU provides that the Union shall only act in policy areas that do not fall under the scope of exclusive competence only if and “insofar as the objectives of the proposed action cannot be achieved by the Member States...” This definition is widely criticised as being ambiguous and unclear. Adam Cygan in his journal[29] is somewhat ruthless in his analysis of the subsidiarity principle; he argues that national parliaments have become, due to the subsidiarity principle 'victims' of Europeanisation and a flow of supra-national institutions. The Lisbon Treaty is the latest of a long line of Treaties since the Single European Act 1986 which through its aim to create more democratic output legislation has “delivered a gradual, but consistent, expansion of EU competences at the expense of national parliaments... this political evolution has reinforced deparliamentarisation.” Whilst this proposition maybe though best, closer inspection of the powers national parliaments are granted under the subsidiarity monitoring begs to differ.

 

Before the ratification of the Treaty of Lisbon, national parliaments were given a duration of six weeks in order to draw attention to the belief that the prospective legislation was against the principle of subsidiarity, this has now been increased to a period of 8 weeks including a further 10 days elapsing from placing the proposal on the agenda and the adoption. Whilst this is by no means revolutionary and may, as Cygan suggests, have little practical effect since 8 weeks is a rather short period of time for national parliaments to scrutinise the proposal, it is in reality very much a significant step in the democratic formalisation of the EU. Thus with the specific implementations necessary of the Member States this 8 week period is an amendment which can achieve democratic legitimacy for national parliaments in the European Parliament. These implementations to which I refer above are simply issues regarding time limits and adequate members of staff in the position to deal with the scrutiny of proposals, whilst Euro-sceptics of course argue that this a deliberate attempt to ensure that national parliaments do not exercise their rights in regards to this power of subsidiarity monitoring,[30] I believe one should instead think clearly about the aims of the Lisbon Treaty; this being a creation of a fairer and more democratic Union with a larger basis of legitimate output data. At this point, it is necessary question how this could be achieved without following the presumption that Member States must fuel more resources into the European Union?

 

This mechanism discussed above is further expanded upon in Protocol 2 of the Treaty on the Functioning of the European Union. This “Early Warning Mechanism” provides national parliaments with the possibility to present political horizontal dialogue as pre-legislation intervention through mechanisms known as the 'yellow' and 'orange' card procedures. The yellow card procedure states that within the 8 weeks “any parliament or chamber may submit a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity” with this when concerning commission proposals, if a third of the votes claim that the proposal breaches the subsidiarity principle, then the proposal must be reviewed. Although there is no mandatory obligation to amend the proposal, it provides a rather significant political pressure on the Commission to reconsider that offending proposal. For Member State approval of this yellow card procedure one may look to the EU Committee Report of the House of Lords; “The raising of a yellow card would have a significant effect on the EU Institutions...if national parliaments operate the mechanism effectively it would be hard for the Commission and the Council to resist such sustained political pressure.” Once again, I draw attention to the recognition here that it is of utmost importance that the national parliaments effectively enforce their subsidiarity monitoring power in order to make full use of the scope. Given such enforcement, this is a politically important step since legally the Commission does not have to withdraw the proposal as such. However , it is doubtful as to how it would continue with a proposal whilst having one third of Member States claiming it violates the principle of subsidiarity and thus this 'yellow' card procedure is not by any means “completely toothless in allowing the poacher of political power (the Commission) to be gamekeeper and ignore the objections of national parliaments from whom power will be taken should its proposals become EU law.[31]as suggested by J Freeborn.

 

The 'orange' card procedure, takes that of the 'yellow' further; the procedures have been likened to the idea of a football referees use of penalty cards[32], although the lack of a 'red' card in the process of subsidiarity monitoring is something widely discussed. Article 7(3) Protocol 2 provides where a simple majority of the national parliaments claim the proposal is against the principal of subsidiarity the proposal must be reviewed and in the case where the Council decide to continue with the proposal they must provide detailed reasoning as to their choice of doing so. In this case if 55% of the Council or the European Parliament is against this then the proposal cannot be further considered.

 

The German Constitutional Court judgement 2009 on the constitutionality of the Treaty of Lisbon is worth mentioning here since it provides domestic judicial opinion on the somewhat controversial issue of subsidiarity monitoring. The absence of a Red Card as a final part of the 'early warning' mechanism procedure is viewed by many states as being a weakness of the procedure. At this point, there is in fact no mechanism for national parliaments to enforce the subsidiarity monitoring procedure. Cygan has suggested that the 'orange card' “fails to find an appropriate compromise between efficiency and accountability.”[33] He suggests the Lisbon Treaty fails to provide any form of safe guard clause which would protect the concerns of national parliaments. He continues that since the national parliaments have no legislative powers or since they are not recognised as a legislative organ the evolution of a 'conseil d'état' without a “designated treaty role would offer the national parliaments a prospect of influence in circumstances when the Council and the European Parliament decide not to provide the necessary proxy representation to confirm an orange card.[34]

 

It is without doubt that Cygan's arguments as to the limitations of the 'early warning mechanism' procedure and the principles of subsidiarity are well founded and that as a procedure in total the amendments in the Lisbon Treaty do not go far enough to fully consider the role of the national parliaments in subsidiarity monitoring to be hugely significant or important. However, it is essential that the principle of subsidiarity monitoring be viewed with perhaps a more political outlook. For the first time in the history of the European Union, the national parliaments have been given a larger, fairer and more democratic say in the running of the Union. With this procedure, Member States are hugely encouraged to fuel more resources into the European Union and the process has successfully formalised dialogue proceedings between the national governments of the member states, the nationals of the states and the legislative bodies of the European Union. With this increased influence of the national parliaments, more resources fuelled into the process and increased accountability of the member states in the parliament to the national governments along with the possibility of an evolution of a 'red card' such as the one discussed above by Adam Cygan the political step of this process of subsidiarity monitoring is hugely significant in the commencing of a fairer, democratic European Union, as the Lisbon Treaty intended to create.

 

This principle of subsidiarity is far from reconcilable with Bodin's concept of sovereignty previously discussed. One has already addressed the idea that Bodin's concept is far easier to reconcile with a dictatorial or aristocratic governing system and the consequently democratic, perhaps even federal system of the European Union, particularly with this prevailing system of subsidiarity monitoring, cannot easily be viewed as a process of the amendments of the Lisbon Treaty that does not affect the sovereignty of the governments of the Member States. Bodin's concept of sovereignty has been described by Alain de Benoist[35] as a system opposed to “organised groups, consecrated heteronomy, irresponsibility and generalised welfare.” The newly founded process of subsidiarity monitoring under the Lisbon Treaty recognises the “capacity of individuals and groups to choose representatives and the capacity to participate in the public life and make decisions for themselves and by themselves.[36]

 

Also, in regard to the institutional and legislative concern, one must consider the Council and its scope of powers. Article 16 (1) Treaty of the European Union provides that 'the council shall jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the treaties.' The powers conferred on the Council here are vague and wide in scope. It is difficult to understand the powers conferred under the Lisbon Treaty to the Council of the European Union in reference to the effect they have on the principles of democracy and sovereignty of the Member States under the Treaty of Lisbon simply from this article alone. It is somewhat arguable that the powers of the Council have increased, particularly in consideration of the institutions of the EU collectively. Previously to the Lisbon Treaty the position of the President of the Council held that of the European Council also, meaning that the aims of the Council would be easily achieved since the aims would be the same in the European Council. With the Lisbon treaty this provision has been amended, the President of the European Council is in position for a two and a half year period, renewable once. Whereas the position of presidency in the Council, adopted by a decision is based on a six-monthly equal rotation system, in which a trio of Member State representatives work consecutively for a period of eighteen months. For the coming year 2012, representatives of Poland, Denmark and Cyprus will be President of the Council of the European Union. Perhaps an important amendment to note is that unlike pre-Lisbon, in order to change the presidency system, the European Council need only act with qualified majority voting and taking into consideration Article 16(9) of the TEU that 'the Presidency of the Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation.'  The importance to note here with the amendment under the Lisbon Treaty to the Presidency system in the Council and the European Council is that it is absolutely necessary for the President of the Council to ensure that policies in the Council at least, at a very minimum take into account the general policy of the President of the European Council. This is rather significant on the issue of sovereignty since the representatives of the governments of the Member States thus have to ensure consistency with the rather political body of the European Council. This clearly detracts from the value of the sovereign word of the Member States. In addition, the powers conferred to the Council under Article 16(1) of the TEU extend to the point in which the Council has the right to vote their approval on proposed legislation by the commission, this thus extended with Article 241 TFEU in which a majority in the Council can request the Commission to undertake a study in which the Council considers it desirable that the Council and the Commission obtain common objectives. T. Christiansen draws upon the importance of the amendments to the power of the Council under amendments made with the Lisbon Treaty. He  confers that the “Council may not (yet) be a supranational institution in its own right, but it has certainly moved on from being purely a site of decision-making and the forum for bargaining among representatives of national governments for which it was originally conceived.”[37] This view is without doubt consistent among academic literature, with Peterson and Shackleton describing the amended Council of the European Union as a “unique blend of intergovernmental and supra-national.”[38]

 

As discussed above, it is arguable that the provisions in the Lisbon Treaty aim to increase the effectiveness of the Council of the European Union. A further example of this is a new procedural voting system to be achieved by 31 October 2014;[39] the qualified majority voting system increases legal bases in which the Council may enact greater, simpler, more democratically legitimate legislation. Until the enactment of the Lisbon Treaty the qualified majority has been defined according to a complex weighting system of votes whereby each Member State enjoys a certain number of votes, mostly depending on their demographic weight, so for example, one may draw a comparison between Malta and Germany to illustrate the somewhat unjust pre-Lisbon system. Malta, thus having 3 votes but only 413,000 EU citizens in comparison to the 82 million EU citizens of Germany with only 29 votes[40]. The pre-Lisbon system was therefore extremely over-representative in certain areas when considering the balance between the larger and smaller EU states. The Lisbon Treaty will replace this with a more transparent, more democratic system based on the double majority of States and population alike; this means legislation will be adopted in the Council if  it  wins  the  approval  of  55%  of Member States of the Union, whilst representing at the same time 65% of the citizens of the European Union. This system is undoubtedly more democratic and effective in comparison with the system applied before the Lisbon Treaty that will remain until 2014. Whilst, in a number of extremely limited areas QMV was the required system of voting the scope post-Lisbon has been hugely extended. 24 legal bases in EC and EU treaties that previously required unanimity in order of adoption of legislation now require QMV, for example it is now no longer necessary to achieve majority in areas of freedom, security and justice.[41] Along with approximately 30 new legal bases to be covered by QMV in the Council, including Article 11(4) TEU on the establishment of procedures and conditions for citizens initiatives, Article 50(2) on the agreement on the withdrawal of a Member State and civil protection.[42] This extended QMV procedure in the Council of the European Union was adopted with the perception that it is a system far easier to understand by the average citizen and that it is far closer to the ideals represented in the Lisbon Treaty. It prevents the smaller Member States from using their power to veto and thus protecting national ideals and interests in the process. The 1 vote per country procedure significantly reduces this problem of over-representation Although this QMV procedure in practise will not often be used since the Council historically far prefers to work by consensus and  the most part of important legislation adoption, such as cooperation in defence, measures on passports and ID cards etc. and social security and protection of citizens[43] will continue to be governed by unanimity, this, illustrating perhaps the distrust of this procedure. However, with the sharp increase of the scope of QMV procedure, one cannot fail to question the significance of qualified majority voting becoming the default procedure on the issue of sovereignty. Since in an ever enlarged European Union, the possibility of passing legislation through the Council with unanimity of all 27 Member States would be extremely troublesome and hence representing a significant safeguard of state sovereignty. However, under the QMV procedure, the possibility of successful passing of legislation is far greater, hence this can only have a negative effect on the sovereignty of Member States.

 

The Treaty of Lisbon provides a clear statement of the values and goals of the EU. Article 50 of the TEU provides that 'Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.' It will then be that the Member State undergoes a 'divorce[44]' procedure in which the Union negotiates an agreement with the Member State concerned for its terms of withdrawal, the treaties and provisions of the Union will no longer be applicable to that Member State following the date of the entry into force of the agreement or if this is not possible two years after their request to leave unless otherwise agreed between the Union and the Member State. This provision is without doubt hugely significant in the analysis of the issues of democracy and the contrasting principle of sovereignty. Legally the principle is not hugely important, the system is relatively simple and without much debate. Politically it is quite a different matter. Firstly, whether Euro-sceptic or Euro-enthusiast one cannot deny that this provision clarifies a basic issue and aim of the Lisbon Treaty, which is that the Member States can leave the European Union at any time without hindrance from the Union itself. Piris summarises this position succinctly, he says, “the Union is actually a voluntary association between states which remain sovereign as to the question of whether or not they remain in that association.[45]He suggests that the European Union in the enactment of the Lisbon Treaty meant no violation on the sovereignty of the Member States, it was intended simply to codify all main principles of the EU, providing for a system which is easily implemented and causes as little disruption to the remaining Member States, hence the system of negotiation and then the rather long minimum implementation period of two years should the negotiation stage fail.

 

However, one cannot merely accept this theory. Instead, it is vital to consider again Lord Bridge's opinion in Factortame, “Thus, whatever limitation of its sovereignty Parliament accepted when it enacted the European Communities Act 1972 was entirely voluntary.” These principles, simply, cannot be reconciled. On the one hand, entrance into the EU was entirely voluntary along with any limitations to the sovereignty of the State. Whilst this is true, Member States did not have any problems with the possibility of leaving the Union, this was always at their complete discretion. Although there are no Member States which have left in a recent enough period to draw upon for this issue, it is clear that Lord Bridge along with the most part of those involved in the ECA 1972 had no concerns about the actual limitation of the government's sovereign rights. Whilst this is so apparent, it should be questioned as to why the British Representative Peter Hain calls this proposal 'excellent.' Perhaps he did not consider the implications and the political significance involved in this express withdrawal clause. This clause, gives the Member States the right to withdraw, a right which was already available, which brings to consideration whether this actually limited the right that was inherent in the EU and pre-Lisbon almost unregulated. This is a way of the Union itself to limit sovereign rights, to ensure that each Member State is aware that whilst a member of the European Union they have given up their sovereign rights; on loan to the European Union and should the state want them back they have to seek the union's cooperation in arranging acceptable terms of withdrawal. All the while remaining relatively hidden behind the guise of a more democratic, fairer and voluntary European Union. Anne Palmer[46] even goes as far to suggest that this principle of withdrawal was primarily put within the Lisbon Treaty to ensure that withdrawal is never used. She continues to suggest that the withdrawal mechanism is simply a 'safety-zone' for the EU, to ensure that should a new government become elected in a Member State, promising to exit Europe, the European Union will have at minimum two years to ensure this doesn't happen. A provision supposedly in place to simply confirm the sovereign position of each Member State, here very potentially suggests that in fact the State is not as sovereign as it appears to be. This leaves unanswered the question to what extent can a state be sovereign if the scope of their sovereignty is given and governed by an external organisation, without even the possibility to immediately repeal involvement in this international organisation.

 

A final area to consider relevant to the discussion of sovereignty of Member States under the Lisbon Treaty is the procedure for treaty revision. The procedure Pre-Lisbon has been replaced by the Ordinary Legislative Procedure. Article 48 TEU provides that revision of a treaty can come from the Member State, Commission or European Parliament. The Lisbon Treaty here provides amendment to previous procedures since the amendment of the TEU introduces for the first time the European Parliament as a body of revision. Power has in this manner been conferred upon the European Parliament through the ordinary legislative revision procedure to increase or reduce the power of the EU and that power through the revision of treaties has been provided equally in other areas, including institutional matters.[47]  Article 48(5)[48] in fact extends this power of the European Parliament. This amendment provides change of a significant level; Jean-Claude Piris describes this as being so extraordinary it cannot simply be thought of as 'ordinary.' This ordinary legislative procedure is in reality extremely heavy and it is not favoured or used by Member States. In a similar vein to previous points made the introduction of the European Parliament as being a new institution in the process of treaty change ensures clarification of a more democratic Europe but again makes limitations upon the sovereign power of national governments. However, due to this unrest of Member States, the ordinary legislative procedure whilst not favoured allows room for the use of specific and procedural revision procedures, these specific and partial methods of treaty reform will leave the MS as the 'masters of the treaties.'

 

It is apparent throughout each important principle of the Lisbon Treaty discussed above that each goes somewhat towards creating this new, ideal, more democratic European Union. It is these areas which warrant the further discussion of how this ideal has affected the issue of sovereignty. One should consider, firstly the issue of the effect on sovereignty of the European Union; were the amendments of the Lisbon Treaty carefully designed to conceal a new trend towards the idea that EU will become a super-state? In addition, and on the other hand, it is without doubt necessary to carefully scrutinise the diminishing sovereignty of the individual Member States; one must compare at this juncture the possibility of a diminishing sovereignty for Member State internal governments with that of a fairer democratic Union increasing drastically the powers of the national parliaments and the power of the citizens thus cumulatively having a somewhat significant effect on the sovereignty of the Member State government.

 

Should one consider the individual provisions of the Lisbon Treaty as discussed above in the means of sovereignty and democracy, it is quite apparent, with the exceptions of the inclusion of an Exit Clause and changes made in the Council any other amendments focus to the most part on the creation of a fairer and more democratic European Union. Therefore, as a conclusion to this paper  it will be analysed how this attempt to create a more democratic Union could affect and cause such distrust among Union states in regard to their sovereign status. One should also draw comparison between the idea that the creation of this more democratic Union does not necessarily infringe upon the sovereignty of the Member States but instead the increased status and power of the nationals of the Member States; this attempt to create a 'demos' for the European Union, to provide citizens with an opinion that does not go unnoticed infringes the sovereignty of the government of the individual state. For example, in the case of the UK, the increased democratically legitimate Union with greater influence for British nationals affects the sovereignty of Parliament. Perhaps it is for reasons such as this that the UK appeared rather pleased with the creation of an exit clause procedure confirming the sovereignty of the Member State government and not the Member State Citizens.

 

In my view, the EU under the guise of democracy, persistent throughout the Lisbon Treaty never intended to undermine further than the already well-entrenched limitation previous to the Treaty of Lisbon. For the first time in the European Union, the Treaty of Lisbon provides in the TEU that the Union must respect the 'essential functions' of the Member States. Piris suggests this provision aimed to address, since the 'essential functions' of a Member State have no legal boundaries, a certain distrust towards the Member States who view the 'creeping' competence of the European Union as a rather worrying matter. Irrelevant to the intentions of the European Union under the Lisbon Treaty, Article 4(1) does not prevent distrust as to the possibility that the European Union is becoming or rather through the Lisbon Treaty 'starting the ball rolling' towards a European Super-State. Its enhanced political appearance with further involvement of the national parliaments and the European Parliament, measures that attempt to increase engagement of the citizens of the Member States into the European Union, similarly protecting and further enshrining citizen interests and rights is an issue that does not go unnoticed by Member States vigorously asserting their sovereign rights. Democracy may go so far in ensuring effective and efficient governing in an ever expanding European Union but it equally ensures further difficulties in reconciling the sovereignty of Bodin and the modern constraints that membership in the EU brings.

 

One should question perhaps whether the extent to which the EU goes in order to create this more democratic Union is actually worthwhile. Should one consider whether in fact the amendments made under the Lisbon Treaty in the attempt to create a more democratic Union do not go very far and equally do not have the possibility to go further, one may argue that in fact the sovereignty of Member States has been rather significantly infringed. For example, it has been made clear at previous points of this paper that in order for certain areas amended by the Lisbon Treaty, most noticeably the principle of subsidiarity monitoring by national parliaments a rather significant amount of further resources must be ploughed into the success of the EU by the Member States. Should this not occur, one may question the possibility that the governments of Member States' power has been limited in place of that national parliaments which cannot fully make use of their new-founded competence since the sovereign body of the Member State either cannot or simply does not want to provide further resources to ensure full use of competence is gained. At this point, I draw briefly to the possibility of the creation of a new chamber in order to counteract such problems and distrust towards the EU by the Member States. Should a Chamber be created in which the organisation is both responsible and accountable to the European Parliament and the Council, therefore representing equally the Member States and the directly elected members of the European Parliament to ensure accountability and similar legislative proposals one would see rather fewer attempts to safeguard a sovereignty effectively from the nationals of one’s own State.

 

This issue is without doubt very difficult to achieve a sound conclusion. Throughout the course of this paper amendments to the Lisbon Treaty in many areas that affect the principle of a sovereign state and a democratic Union have been explored. In my opinion, the EU did not in any way go towards the creation of a Super-state or even a federal union of States. The EU is increasingly viewed by nationals of Member States as 'something which happened to them and not by them.' With governments equally proving to show distrust and a lack of confidence in the EU[49], it is hardly surprising that this is a common reaction to the amendments and evolutionary nature of the European Union. André Gide[50]Dans le domaine des sentiments, le réel ne se distingue pas de l'imaginaire.”[51] If Governments insist on distrust and fighting to maintain a sovereignty which is not in fact hugely restricted nor at risk, it is hardly surprising the nationals of the Member States view it in a similar light. The Lisbon Treaty does not impose further restrictions upon the Member States sovereignty. Democracy in the European Union does not restrict sovereignty; not in a negative light at any means. The increased democratic legitimacy does not restrict sovereignty of the Member States of the European Union any further than is necessary to achieve the main aims of the European Union; to create a single market union with a strong international outlook, to ensure peace and fundamental rights to every citizen.



[1]    Article 2 TEU

[2]    “It might be said that human rights are the very heart and soul of the document.” J. Rifkin, The European Dream (New York: Jeremy P. Tarcher/Penguin, 2004), 212

[3]    Article 3 TEU

[4]    Most notably Germany through its 30 June 2009 Judgement on the Lisbon Treaty and a certain 'excitement' of the UK to an 'exit clause.' More of which to come on these matters.

[5]Examples shall be drawn from the UK since constraints of this paper do not allow me to go further.

[6]              Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)

[7]    Jean Bodin, De la Republique, (Francfort 1591)

[8]              Julien Freund, L’essence du politique (Paris: Sirey, 1965), p. 118

[9]    Jean Bodin,  The Six Bookes of a Commonweale, a facsimile reprint of the English translation of 1606, corrected and supplemented in the light of a new comparison with the French and Latin texts, edited with an Introduction by Kenneth Douglas McRae (Cambridge: Harvard University Press, 1962).

[10]  Susumu Yamauchi, The Ambivalence of Hugo Grotius:State sovereignty and common interests of mankind,  (Hitotsubashi Journal of Law and Politics) http://hdl.handle.net/10086/8195

[11]  H. Bull, in Susumu Yamauchi ibid

[12]            Flaminio Costa v ENEL [1964] ECR 585 (6/64

[13]  Craig and De Burca, EU Law, (5th Edn, OUP)

[14]  Factortame Ltd v. Secretary of State for Transport (No. 2) [1991] 1 AC 60

[15]  Thoburn v Sunderland City Council [2002] EWHC 195 (Admin

[16]  This analysis of the EP and NP will be drawn upon significantly at a later point in this paper

[17]  Demos- Latin for the people.

      Vernon Bogdanor, Legitimacy, accountability and democracy in the European Union, ( Federal Trust Report 2007)

[18]  See The Lisbon Case, Federal Constitutional Court of Germany 30 June 2009.

[19]  According to the present Conservative-Liberal Democrat Coalition government the Act will ensure there is no further transfer of sovereignty or powers over the course of the next parliament. It will amend the 1972 ECA so that any proposed future treaty that transferred areas of power, or competences would be subject to a referendum on that treaty and finally would examine the case for a UK sovereignty Bill to make it clear that ultimate authority remains with Parliament.

[20]  Queen's Speech. Lords Hansard 25 May 2010

[21]  Jean-Claude Piris, The Lisbon Treaty: A legal and political analysis, (Cambridge University Press 2010) 1

[22]  Oh brave new world! Lisbon enters into force, 2010 267 EU Focus

[24]  Oh brave new world! Lisbon enters into force ibid

[25]  Oh brave new world! Lisbon enters into force ibid

[26]  Jean-Claude Piris, ibid, 122

[27]  Annexed to the Final Act of the Maasticht Intergovernmental Conference and later in the Amsterdam and Nice Treaties.

[28]  Jean-Claude Piris, ibid, 125

[29]  Adam Cygan, The parliamentarisation of EU decision making? The impact of the Treaty of Lisbon on national parliaments, (EU Law Review 2011)

[30]  John Freeborn, Lisbon Treaty text: Protocol 2 (Subsidiarity) (2009) www.politics.ie/forum/lisbon-treaty/100590-lisbon-treaty-text-protocol-2-subsidiarity.html

[31]  John Freeborn, ibid

[32]  Jean-Claude Piris, ibid, 128

[33]  Adam Cygan, ibid

[34]  Adam Cygan, ibid

[35]  Alain de Benoist, What is Sovereignty, (alaindebenoist.com/pdf/what_is_sovereignty.pdf)

[36]  Alain de Benoist, ibid

[37]  T. Christiansen 'Intra-Institutional Politics and Inter-Institutional Relations in EU: Towards Coherent Governance?' (n93) 148

[38]  Peterson and Shackleton (n70) 78

[39]  Although between 1 November 2014-31 March 2017 it is possible to request unanimity in place of QMV.

[40]  Jean-Claude Piris, ibid

[41]  Article 74 TFEU

[42]  Article 196(2) TFEU

[43]  Article 46(6) TEU, Article 77(3) TFEU, Article 153(2) TFEU respectively

[44]  Jean-Claude Piris, ibid, 110

[45]  Jean-Claude Piris, ibid, 111

[46]  Anne Palmer The Voluntary Withdrawal Clause. (2009)

[47]  Article 48 (2)

[48]            Article 48 (5) provides 'if after two years of the signing of the treaty, four fifths of the Member States have ratified the treaty, but one or more Member States have encountered difficulties in proceeding with ratification, the matter shall be referred to the European Council.'

[49]  Cameron's Veto

[50]  Les Faux Monnayeurs in Jean-Claude Piris, ibid, 335

[51]  When it comes to feelings, the real is no different to the imaginary.

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