The Negotiations for the Constitutional Treaty

• The Negotiations for the Constitutional Treaty
• The ratification process and the period for reflection
• The relaunch of the Treaty reform process: the compromise reached at the European Council of 21-22 June 2007
• Domande frequenti sul Trattato di Lisbona

The Negotiations for the Constitutional Treaty

The Laeken European Council on 28 February 2002 convened the Convention on the future of Europe, with a mandate to propose a "Constitution for European Citizens". The Convention—Chairman Valèry Giscard d’Estaing and Vice-Chairmen Jean Luc Dehaene and Giuliano Amato—was given the task of preparing the Intergovernmental Conference, which opened in Rome on 4 October 2003.
For the first time ever a "democratic-representative" method was applied to treaty revision, and this brought the exclusively intergovernmental system to an end. Indeed, the Convention represented a forum, not only for the various governmental motions of member countries, but also for the representatives of national parliaments and Union institutions, as well as the contributions of various representatives of the civil society (socio-economic organisations, religious organisations, NGOs).
After 16 months of work the Convention produced a Draft Constitutional Treaty that the European Council considered a suitable foundation for launching the Intergovernmental Conference, in pursuance of article 48 of the EU Treaty. The Intergovernmental Conference opened on 4 October 2003 under the Italian Presidency of the European Council and closed on 18 June 2004 under the Irish Presidency. The 10 accession countries participated on an equal par with member countries, and the three candidate countries (Bulgaria, Romania and Turkey) participated as observers in all the meetings. The Italian Presidency’s approach was transparent and the European Parliament was more fully involved in this Intergovernmental Conference than in the previous ones. There was periodic interaction with national parliamentary representatives and for the first time ever all the documents presented during the negotiations were widely publicised and fully available for consultation.
Accompanying the formal opening of the IGC was the adoption of the Declaration of Rome, which asserted the priority goal of respecting the Convention’s mandate and refused to entertain the notion of negative compromise and minimalist solutions that would be incomprehensible to the public.
The Italian Presidency was unable to achieve complete agreement on the draft Constitutional Treaty at the meeting of Heads of State and Government on 12 and 13 December as a result of persistant disagreement over the extension of the qualified majority vote and its method of calculation. After a phase of reflection following the close of the Italian Presidency, on 25 - 26 March 2004 the European Council re-launched Constitutional negotiations, after which, on 18 June 2004 the EU Heads of State and Government reached agreement on the Treaty draft presented by the Irish Presidency.
Prime Minister Ahern of Ireland publicly acknowledged the excellent work done by Italy, which had helped its Irish colleagues to confront the few remaining unsolved issues without reopening the negotiations on all the other issues. In full recognition of Italy's role and in continuity with the Treaty for the European Economic Community (signed in Rome 25 March 1957), the ceremony for the signing of the Constitutional Treaty took place in Rome on 29 October 2004.

Ratification phase and period of reflection

Next came the phase in which member states were called upon to ratify the Treaty. In Italy this took place on 7 April 2005 with the signing by the President of the Republic of the law authorising ratification that followed the predominantly favourable vote in the Chamber of Deputies (Lower House) on 25 January 2005 and in the Senate on 6 April 2005.
Although 18 nations ratified the Constitution, this phase was not completed as a result of the negative outcome of the referendums held in France (29 May 2005) and in The Netherlands (1 June 2005). After these events the European Council of 16/17 June 2005 decided to launch a period of reflection.
The European Council of 15/16 June 2006 established that the German Presidency of the first semester of 2007 would present a progress report to the European Council based on a series of broad-based consultations with member states along with a forecast of possible future developments. This report was then to be studied by the European Council and used as the basis for further decisions on how to pursue the reform process, with the stipulation that all necessary initiatives were to be undertaken no later than the second semester of 2008.
Within the context of the solemn declaration adopted in Berlin on 25 March 2007, European leaders undertook to give new impetus to integration and the construction of a stronger Europe capable of meeting the global challenges of the future. As a result of the pressure brought to bear by Italy the final part of the declaration included a reference, even though it was already implicit, to 2009 as the deadline by which to complete the reform.

Re-launch of the Treaty reform process: the compromise of the 21-22 June 2007 European Council

In accordance with the mandate it had received one year earlier, the German EU Presidency presented its own progress report, on the basis of which the European Council of 21-22 June 2007 decided to convene a new intergovernmental conference with a detailed mandate.
The IGC was launched during the GAERC of 23 July 2007 and its work concluded with the Summit of Heads of State and Government of 17-18 October 2007 with the definition of the last remaining outstanding aspects. This summit called for insertion into the new Treaty of the innovations envisaged by the Constitutional Treaty through amendments to the two Treaties in Force, the TEU and the TEC (renamed the Treaty on the Functioning of the European Union).
The compromise that was struck, while envisaging the formal de-constitutionalisation of the Treaty of Rome of October 2004, made possible the substantial preservation of the institutional reform package envisaged, in accordance therefore with the limitations established by the Italian government.
The Treaty of Lisbon that modified the Treaty on European Union and the Treaty Establishing the European Community was signed on 13 December 2007 in Portugal’s capital city.
The Treaty of Lisbon introduces a large number of amendments to the two treaties in force, which in many cases has led also to the transfer from one to the other of pre-existing laws, thereby profoundly altering their nature. The Treaty on European Union (TEU) now contains the underlying principles and common laws of the Union system, as well as provisions regarding CFSP/ESDP, while the Treaty Establishing the European Community (which became the Treaty on the Functioning of the European Union/TFEU) contains both policies (excepting CFSP/ESDP) and detailed provisions on institutions and procedures. This re-distribution and reformulation of many laws is a response to a call for rationalisation and increased legibility, which will be more evident once the treaty texts are combined, with a final effect not unlike that of the Constitutional Treaty. The Constitution time limits, Law and Framework Law and the article on the Union’s symbols (with the exception of the Euro) have been eliminated, although the symbols will continue to be applied in practice (as recognised in a statement signed by 16 Member Countries) as well as the article on the primacy of Community law (however, a special statement recognises that that primacy is a fundamental and firmly incorporated principle in the jurisprudence of the Court of Justice).

The Union Minister of Foreign Affairs has been renamed the European Union High Representative for Foreign Affairs and Security Policy. As opposed to the Constitutional Treaty, the Charter of Fundamental Rights is not included in the Treaty of Lisbon but a special law gives it the “same legal value as the treaties”. With the inclusion of the adaptations already agreed on in the context of the Constitutional Treaty, the Charter was newly released by the Presidents of the three Strasbourg institutions on 12 December 2007. European citizen rights are newly specified and reinforced. In particular, a special initiative was also instituted allowing at least one million citizens to urge the European Commission to present an appropriate proposal.
The biggest innovation concerns the overall architecture of the Union, its institutions and how they function. Putting an end to the distinction between “Community” and “Union”, from now on there will be a European Union only (which “replaces and succeeds the European Community”) with a single legal personality. The new system also eliminates the “pillar” structure on which the Union has stood since the Maastricht Treaty, while nevertheless retaining some of its specific procedures. A stable Presidency of the European Council has been established, who presides over and facilitates the work of the aforementioned High Representative for Foreign and Security Policy, which will avail itself of the new European External Action Service made up of Commission and Council officials and Member State diplomats. A double majority voting system (55% of States and 65% of the population) in the Council is to go into effect as of November 1st 2014 (it will be possible to apply the current system upon individual Member State request up until 31 March 2017).  Beginning in 2014 the number of Commissioners will be reduced to a number equal to 2/3 of Member States on a rotation basis. The European Parliament is probably the institution that has most been strengthened. Ordinary law-making procedures have been made uniform (co-decision with qualified majority vote in the Council) which ensures the full involvement of the Strasbourg institutions in matters in which they have thus far had only a marginal role (e.g. the area of freedom, security and justice, agricultural and trade policies). New laws have been introduced regarding its composition, which is to be reduced to a total of 751 members. Debates over the new distribution of seats amongst the various Member States that was held parallel to the debate on the reform treaty, saw Italy committed to asserting the need to conform to the a provision that it be representative, in a decreasingly proportional manner, of European citizens and not of the resident population in the Union’s Member States. The informal summit of 17-18 October 2007 reached a compromise solution on the composition of the European Parliament for the 2009-2014 legislature, establishing an additional seat to be attributed to Italy, bringing us up to 73 seats (identical to the number envisioned for the UK). Italy’s position is also confirmed in a special declaration.
Regarding the existing provisions of the Constitutional Treaty, the role of national parliaments and the procedures for monitoring application of the principles of subsidiarity and proportionality have been additionally reinforced. The division of competences between the Union and Member States has also been clarified and specified.

In particular, the protocol on the role of national parliaments establishes a series of obligations to inform and measures of transparency that should enable the parliaments of Member States to fully exercise control over their respective governments. As for the Constitutional Treaty it was agreed that the timetable for examination of draft legislative acts by national parliaments be extended (from 6 to 8 weeks), before they are added to the agenda of the Council in the context of a legislative procedure. In terms of monitoring proportionality and subsidiarity, in addition to the “early warning” mechanism foreseen by the Constitutional Treaty in favour of Member State parliaments, the Treaty of Lisbon adds a further procedure that specifies that “any national parliament or any chamber of a national parliament may, within eight weeks from the date of transmission of a draft legislative act, in the official languages of the Union, send to the Presidents of the European Parliament, the Council and the Commission a reasoned opinion stating why it considers that the draft in question does not comply with the principle of subsidiarity”. The reasoned opinions of national parliaments and of the Commission must be submitted to the Union legislature (Council and Parliament) which is able to block the proposal with a majority of the European Parliament votes and of 55% on the members of the Council. National parliaments can request verification of respect for the principle of subsidiarity by the Court of Justice.
The protocol on the role of national parliaments provides for the organisation and promotion of regular inter-parliamentary cooperation with the Union, and the possibility of a conference of organisations specialised in Community and European affairs to submit contributions it deems useful and to organise interparliamentary conferences on specific matters falling within the scope of ESDP and CESP. National parliaments are then recognised as having a special role in relation to the Treaty revision procedures.

On the level of policy, the exceptions thus far envisaged for the area of freedom, security and justice have been eliminated, which has been integrated into the ordinary legislative system, although with some peculiarities. Several legal bases are created or reformulated (external representation of the euro, energy, civil defence, administrative cooperation, sport, tourism, protection of animals). As for financial and budgetary aspects a multi-year financial plan has been institutionalised. On the level of economic governance the innovations of the Constitutional Treaty have been absorbed and the Eurogruppo institutionalised. Some improvements over the Constitutional Treaty are introduced  in matters of energy and the environment.
All the provisions of the Constitutional Treaty on Common Foreign and Security Policy and European Security and Defence Policy (in which context the possibility is envisaged of “permanent structured cooperation”). These innovations, along with the aforementioned institution of a stable Presidency of the European Council and of a High Representative for Foreign Affairs and  Security Policy, as well as the Union’s single legal personality, will permit the Union to be more present, cohesive and effective on the international scenario.

The Treaty of Lisbon went into effect on December 1st 2009, following its ratification by all 27 Member States.  Ratification took place in the parliaments of all Member States (in Italy with a unanimous vote in the Upper House, or Senate, on 23 July 2008, and in the Lower House, or Chamber of Deputies, on 31 July 2008) excepting Ireland, where it was obligatory to hold a popular referendum, the negative outcome of which in June 2008 led to postponing the Treaty’s entry into force (January 1st 2009). A second referendum was held on 2 October 2009 following the 18-19 June 2009 European Council’s approval of special legal guarantees in matters of family law, the right to life, education, direct taxation, social policies, workers rights, public services, neutrality and European security and defence policy.

Also contributing to the delay in the Treaty’s entry into effect was the complex ratification  procedures in the Czech Republic, which was completed after the second referendum in Ireland, once that country was allowed to “opt-out” of the Charter of Fundamental Rights like the UK and Poland.

In response to eurozone tensions resulting from the international economic-financial downturn, and availing itself of the simplified revision procedures provided in TUE art. 48, par. 6, the European Council issued a ruling on March 2011 (2011/199/EU) amending TFEU art. 136, introducing a mechanism to safeguard the financial stability of the euro known as the European Stability Mechanism (ESM). The ESM, which only the eurozone Member States stipulated in July 2011 by means of a treaty, will replace the EFSM (European Financial Stabilisation Mechanism) and the EFSF (European Financial Stability Facility) after June 2013. This amendment is the first step toward a more organic enhancement of the EU’s economic governance in response to the eurozone tensions.