LECTURE ON EUROPEAN UNION LAW- TREATY OF LISBON:

Types of treaties:

 traité-loi= a treaty including exhaustively all the requisite rules of law;

 traité-cadre= a treaty containing provisions relating to the functioning of the institutions and decision-making + basic substantive rules which have to be complied with by the Community and the Member States;

 traité-fondation or traité-constitution= a treaty in which a substantial corpus of rules has been formulated

Primarily, the European Union was based on three treaty-established European Communities:

1-The European Coal and Steel Community (ECSC);

2-The European Community (EC) and

3-The European Atomic Energy Community (Euratom or EAEC).

The Treaty establishing the European Coal and Steel Community (The Treaty of Paris or ECSC)- signed in Paris on April 18, 1951 by Belgium, the Netherlands, Luxembourg, France, Italy and Germany; came into force on July 23, 1952 for a period of 50 years it came to an end on July 23, 2002 (the Community expired on this date). In the Treaty the six Member States agreed to transfer the administration of two basic industries to an independent supranational institution= the High Authority, empowered to take decisions binding both on the MS and on coal and steel undertakings. The Treaty established a common market in coal and steel all import and export duties and charges having equivalent effect + quantitative restrictions on the movement of products + all measures discriminating between producers, purchasers or consumers or interfering with the purchaser’s free choice of supplier were abolished and prohibited. Aim of the Treaty: ensuring orderly supply of coal and steel to the market, equal access to sources of production, resource utilisation (+ supervision over Germany in this respect), the growth of international trade, co-operation between MS in the sector of coal and steel.

Idea launched by:

*Jean-Monnet (a senior French servant);

*Robert Schuman (French Foreign Minister) the Schuman Declaration of May 9, 1950- a governmental plan, proposal to establish a new form of organisation of States in Europe= a supranational Community (among others, to reinforce the political clout of the western European States in the face of Soviet expansionism in central and eastern Europe) + to avoid a third resurgence of the German war machine.

The Treaties of Rome (there were two such treaties):

The Treaty establishing the European Economic Community (EEC)- signed in Rome on March 25, 1957 (for non-defined period of time), entered into force on January 1, 1958; Main aim of the Treaty: the establishment of the common market and the progressive approximation of the Member States’ economic policies (e.g. Art. 3 of the EEC Treaty looking forward to the achievement of four economic freedoms- free movement of goods, persons, services and capital (including payment) + the approximation of the laws of the Member States for the proper functioning of the common market + the establishment of a common customs tariff and a common commercial policy towards third countries + securing free competition by preventing undertakings and Member States from frustrating the common market + adoption of common policies in agriculture and transport + coordination of the MS’s economic policies.

The Treaty establishing the European Atomic Energy Community (Euratom or EAEC)- signed in Rome on March 25, 1957 (for non-defined period of time), entered into force on January 1, 1958; Aim of the Treaty: creation of the conditions necessary for the speedy establishment and growth of nuclear industries (e.g. introduction of common policies on research, safety standards, investments and installations, supplies of ores and fuels, international relations of nuclear energy) + introduction of a common market in the nuclear energy field.

The Treaty establishing a Single Council and a Single Commission of the European Communities (The Merger Treaty)- signed on 8 April 1965 and entered into force on 1 July 1967; Aim of the Treaty: establishing single executive bodies of the three existing Communities (i.e. of the European Coal and Steel Community, European Atomic Energy Community and the European Economic Community): the Council and the Commission. Each Community remained legally independent but shared common institutions and were together known as the European Communities. The Merger Treaty which was later abrogated by the Amsterdam Treaty is regarded as the real beginning of the modern European Union.

The Single European Act (SEA)- signed in 1986 by the Community MS on February 17 at Luxembourg and February 28 at the Hague, came into force on July 1, 1987; Aim: establishment (completion) of a common/ internal market it added to the EEC Treaty an Art. 8a which heralded the achievement by December 31, 1992 of “an internal market”, defined as “an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured in accordance with the provisions of this Treaty”.

*It can be stated that a common/ internal market was a first stage towards a single market (it was limited initially to a free trade area with relatively free movement of capital and of services, without yet the reduction of the rest of the trade barriers). The European Economic Community (which was an economic union with a customs union) was the first example of a both common and single market.

The Treaty on European Union (TEU; EC Treaty or the Maastricht Treaty)- signed on 7 February 1992 the name “European Economic Community” was replaced by the name “European Community” because the sphere of action of the Community was extended beyond the “economic” area (enlarged competences of the Community); among others, there were: decision to introduce from 1997 on but no later than 1 January 1999, an economic and monetary union between MS fulfilling the necessary conditions for the adoption of a single currency.

The Treaty of Amsterdam- signed on October 2, 1997 simplified the three Community Treaties (by renumbering the articles of the EC Treaty) + was limited to some changes in the institutional structure of the Community.

The Treaty of Nice- signed on 26 February 2001; The main aim of the Treaty: reform of the institutions of the Community/ European Union before the “big” enlargement.

The Treaty establishing a Constitution for Europe (TCE, commonly referred to as the European Constitution or as the Constitutional Treaty)- signed on 29 October 2004; The treaty was not fully ratified (18 MS ratified it but the rejection of ratification of the Treaty by French and Dutch voters in referenda in May and June 2005 resulted in bringing the ratification process to an end); the Treaty was supposed to create a consolidated constitution for the European Union.

The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (called the Treaty of Lisbon or the Lisbon Treaty; initially known as the Reform Treaty)- it is a reform treaty, i.e. a treaty amending Treaties constituting the European Union: mainly the Treaty on the European Union, Treaty establishing the European Community and also the Treaty establishing the European Atomic Energy Treaty. Its adoption is an aftermath of the rejection of the Constitutional Treaty. The Treaty was signed on 13 December 2007 in Lisbon (on behalf of the Republic of Poland by the Prime Minister Donald Tusk and the Minister of Foreign Affairs Radosław Sikorski, in the presence of the President Lech Kaczyński). This Treaty was concluded for indefinite period of time. Its deputy is (traditionally) the government of the Republic of Poland. The tempo of ratification was satisfying until 2008 (until July the Treaty was ratified by 22 MS). The problem arose with the negative outcome of the referendum in Ireland (12 June 2008). Although the Irish government announced it will hold another referendum, it was clear that the Treaty of Lisbon would not come into force on 1 January 2009. In this case, the European Council called out all the remaining MS to immediately complete the ratification procedure. At the same time (i.e. during the meeting on 18-19 June 2009), the European Council gave political and legal guarantees to Ireland in the areas which caused its doubts when it came to the referendum (tax policy, protection of right to life, education and family, the policy of neutrality, some social issues and labour rights). The second referendum held in Ireland on 2 October 2009 resulted in willingness to ratify the Treaty. The problems with ratification of the Treaty appeared also in other MS, such as: Germany, Poland and Czech Republic. In Germany the complaint on the constitutionality of the Treaty was brought to the Federal Constitutional Tribunal (the judgement of the Tribunal of 30 June 2009 concerning determination of the rules of co-participation of Bundestag and Bundesrat in defining German position in the European Council and the Council of the EU). The appropriate statutory amendments made in September resulted in the ratification of the Treaty by the German President on 25 September 2009. In Poland the statute entitling the President to ratify the Treaty was adopted in spring 2008 but the President preferred to wait with signing the ratification documents until the outcome of the second Irish referendum. A few days after the referendum, i.e. on 10 October 2009, the President of Poland signed the ratification documents. In Czech Republic the eurosceptic President Vaclav Klaus was postponing the moment of signing the ratification documents due to the subsequent complaints being brought to the Constitutional Tribunal. Additionally, President Klaus required the guarantee that the entry into force of the Treaty of Lisbon and giving the legal character to the Charter of Fundamental Rights of the European Union will not enable the submission of claims towards Czech Republic by Germans from the area of Sudetes (Mountains) who were dislodged after WWII from Czech Republic on the basis of the Benes decrees. During the meeting of the European Council on 29-30 October 2009 the solution to this problem was agreed. It was agreed that there will be a special Protocol attached to the Treaty on EU and the Treaty on the functioning of the EU (with the moment of the nearest accession treaty) on the basis of which Czech Republic will join the Polish- British Protocol concerning the application of the Charter of Fundamental Rights of the European Union. On the 3 November 2009 the Czech Constitutional Tribunal reaffirmed the constitutionality of the Treaty of Lisbon and on the same day President Klaus signed the ratification documents. The Treaty of Lisbon came into force on 1 December 2009 and comprises two treaties (their consolidated versions): the Treaty on European Union (new version although the same name) and the Treaty on the functioning of the European Union.

The reforms introduced by the Treaty of Lisbon demonstrate a compromise that refers to the rejection of the Constitutional Treaty which aspired to the status of a “Constitution for Europe”. This aspiration regarded as a first step in the creation of a European state to the detriment of the MS’s sovereignty. By contrast, the Treaty of Lisbon was created as a purely reform treaty, concluded between EU MS in order to amend the international agreements establishing it. In the Treaty of Lisbon there is no reference to the term “constitution” this process is called a “deconstitutionalisation” of the reform treaty. It was achieved by, for example, extending and specifying provisions determining unambiguously the status of the MS as the creators of the European integration process and authors of treaties establishing the European Union, as well as by determining provisions specifying competences of the European Union (EU as an international organisation and not as a kind of a European state); resignation from terms like “constitution”, “Union Minister for Foreign Affairs”, “European framework law”, provisions on the establishment of symbols of the European Union such as a flag or an anthem (however, a group of 16 MS attached to the Treaty of Lisbon a Declaration number 52 where: “Belgium, Bulgaria, Germany, Greece, Spain, Italy, Cyprus, Lithuania, Luxemburg, Hungary, Malta, Austria, Portugal, Romania, Slovenia and the Slovak Republic declare that the flag with a circle of twelve golden stars on a blue background, the anthem based on the ‘Ode to Joy’ from the Ninth Symphony by Ludwig van Beethoven, the motto ‘United in diversity’, the euro as the currency of the European Union and Europe Day on 9 May will for them continue as symbols to express the sense of community of the people in the European Union and their allegiance to it.”), etc.