Hmmm, I'm sure I promised either here or at Y Barcud Oren that I'd post my European Law essay on the difference between the Lisbon Treaty and the EU Constitution, but I can't find the promise. Still, thanks to the surprisingly effective wonders of cut-and-paste, please find enclosed 1,400 words of legally analysed goodness...
The entry into force of the Treaty of Lisboni on December 1st, 2009, was the culmination of a decade-long process of reform that started with the failed Constitutional Treatyii. Much of the rhetoric surrounding Lisbon in the UK has focused on the question of whether it is entirely or substantially the same as the Constitutional Treaty, making that comparison an important issue for academic lawyers.
From their outsets the two processes involved were very different. In establishing the Convention on the Future of Europe, the Laeken Declarationiii asked the convention to consider; simplification of the treaties, division of powers in accordance with subsidiarity, the status of the Charter of Fundamental Rights of the European Unioniv and the role of the institutions and of national parliaments within the institutional structure.
The Berlin Declaration, however, merely stated an aim of “placing the European Union on a renewed common basis”. And while the Convention spent eighteen months of plenary sessions considering the questions before it, Berlin's aims were achieved by way of a rapidly executed intergovernmental conference.
This difference is reflected in the structures of the respective treaties. The Constitutional Treaty would have replaced the existing treaties with a single document organised in an entirely new fashion. Lisbon, by contrast, is an amending treaty in the same way as Maastricht, Amsterdam and Nice and leaves the existing treaties in place, albeit with the Treaty Establishing the European Community renamed the Treaty on the Functioning of the European Union (TFEU). An unfortunate result of this structure is that there are now three different numbering systems for the treaties; the original system, the Amsterdam system and now the Lisbon Systemv.
The clear intent of the Berlin process was to ensure that the most important reforms proposed in the Constitutional Treaty were enacted and the content of Lisbon is testament to that goal. Certainly, fundamental organisational changes such as the transfer of legal personality from the Community to the Union, reform of the pillar structure and changes to the institutions such as the reallocation of seats in the European Parliament have largely survived.
Equally, the structural differences in the Lisbon Treaty do have an effect on even these most basic of reforms. The Constitution, for example, would have abolished the pillar structure outright, with a single treaty governing all three areas equally. But while Lisbon firmly integrates Police And Judicial Co-operation In Criminal Matters with the European Community in the TFEUvi, the Common Foreign And Security Policy remains within the Treaty on European Union and subject to specific rules of its ownvii. As a result, CFSP remains more intergovernmental in nature and does not become subject to the jurisdiction of the European Court of Justice as PJCC does.
One of the more obvious omissions from Lisbon is, ironically, an element of the Constitutional Treaty which changed very little, namely the explicit statement that Union law has primacy over the law of member states. This was already well-established in jurisprudence, dating back to Costa v Enelviii and its predecessorsix, but was not explicitly stated in the treaties. Lisbon, by contrast, merely provides a declaration that the case law exists and is unaffected by its absence from treaties themselvesx.
Further differences between the treaties resulted from the negotiated compromises required to ensure assent to Lisbon by various member states. Poland were a key player in this, achieving something of a resurrection of the Ioannina Compromise in relation to qualified majority voting and obtaining a Advocate General post by way of an expansion of that role. The failed Irish referendum of 2008 also led to significant concessions, notably the retention of the existing system of one Commissioner per member state; further guarantees on policy matters including abortion, taxation and neutrality are also due to be added to Lisbon by way of a protocol to Croatia's accession treaty due to be concluded by 2011. Ireland and the United Kingdom had also already obtained an opt-out from changes to qualified majority voting in PJCC matters.
The negotiation process also threw particular light on the changed status of the Charter of Fundamental Rights of the European Union. This would have been fully incorporated as Part II of the Constitution, but under Lisbon it is merely elevated to a position equal to that of the TEU and TFEU. Furthermore, while the Charter's new status is generally intended to give make it binding, this is not the case for Poland and the United Kingdom as confirmed by protocol. During the ratification process the Czech Republic sought confirmation that the Charter would not apply retrospectively, particularly to claims by Germans expelled from the former Czechoslovakia after World War II and this was subsequently confirmed.
Of all the differences between Lisbon and the Constitution, however, it is perhaps the very word constitution that is most conspicuous by its absence. As a change of approach it informs pretty much everything else that follows it, removing the driver towards a single document and opening the door, at least philosophically, to the amending treaty process that begat Lisbon. Politically it was also hugely important; between the elevation of the status of the symbols of the union (e.g. the flag and the anthem) and the terminology surrounding the President of the European Council and the Minister for Foreign Affairs, there was a great deal of popular criticism of the quasi-national status accorded to the Union by the Constitutionxi. With the terminology softened to refer to a treaty rather than a constitution and to the High Representative of the Union for Foreign Affairs and Security Policy, such criticism was substantially mollified.
It is vital to recognise, however, that the removal of the word constitution does not in any way prevent Lisbon from being one. Organisations of all shapes, sizes and purposes have a document or documents that govern the relationship between their members, be it the Articles of Association for shareholders in a company, the constitution of a social society or sporting club or the formal written constitution of a country. All of these fall within the general definition of a constitution, whether they purport to ascribe national status or otherwise.
The constitutional status of the Treaties of Rome was thus established long before the Constitutional Treaty was envisioned; the ECJ had referred to the EC Treaty as such in Parti Ecologiste Les Verts v European Parliamentxii and in a later opinion stated that the treaty, “...nonetheless constitutes the constitutional charter of a Community based on the rule of law”xiii. Regardless of the terminology employed, any later revision of that treaty was bound to retain that status, whether for the Community or, as now post-Lisbon, for the Union.
Ultimately, then, it should be no surprise that Lisbon is as similar to the Constitutional Treaty as it is, given that both processes needed to cover the same ground. It is difficult in those circumstances to justify the assertion that ratification of Lisbon is discredited by its similarity to the Constitutional Treaty; the opposition to the latter was based not on its status as a constitutional document for the Union but on the broader, quasi-national aspects of its approach. Moreover, in the case of the United Kingdom the assertion became necessary in the pursuit of the technical challenges to ratification in which context the asserters were not especially concerned with the practical, as opposed to purely textual, veracity of their assertionxiv. Either way, it is clear that the transition from the Constitutional Treaty to Lisbon has introduced substantial changes that will have real implications for the operation of the Union going forward; whether those changes improve matters remains, at this early stage, to be seen.
iTreaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community,  OJ C306/1
iiTreaty Establishing a Constitution for Europe,  OJ C316/1
iiiLaeken Declaration on the Future of the Union,  SN 273/01
ivCharter of Fundamental Rights of the European Union,  OJ C364/1
vSteiner, J. and Woods, L., “EU Law”, 2009, 10th Ed., Oxford: Oxford University Press
viPeers, S., “EU Criminal law and the Treaty of Lisbon”,  33(4) EL Rev 507
viiCraig, P., “The Treaty of Lisbon: Process, Architecture and Substance”,  33(2) EL Rev 137
viii6/64, Flaminio Costa v ENEL,  ECR 585
ix26/62, Van Gend en Loos v Nederlandse Administratie der Belastingen,  ECR 1
xGriller, S. and Ziller, J. (eds), “The Lisbon Treaty: EU Constitutionalism without a Constitutional Treaty?”, 2008, Vienna: Springer-Verlag
xiKumm, M., “Why Europeans will not embrace constitutional patriotism”,  IJCL 117
xii294/83, Parti Ecologiste ‘Les Verts’ v European Parliament,  ECR 1339
xiiiOpinion 1/91,  OJ C110/1
xivR, on the application of Wheeler v Office of the Prime Minister, Secretary of State for Foreign and Commonwealth Affairs and Speaker of the House of Commons,  EWHC 1409