The Lisbon Treaty and the constitutionalisation of the European Union

When final result showed 67.1 per cent of Irish voters in favour of the Lisbon Treaty, with 32.9 per cent voting against, Irish political elites were visibly relieved. Irish Taoiseach Brian Cowen celebrated that ‘today we have done the right thing for our own future and the future of our children’ (Euractiv, 3 October 2009). Irish Foreign Minister Michael Martin concurred: ‘I am delighted for the country.’ Thus, fortunes reversed by a massive 20 per cent swing towards the ‘yes’ campaign compared to the first Lisbon referendum in June 2008. Voter turnout was up by 6 per cent to reach 58 per cent. European Commission President José Manuel Barroso celebrated that the support for the treaty ‘shows the value of European solidarity and I am really glad with the result we are receiving from Ireland … it shows the very positive response that Europe is bringing to the economic and financial crisis.’ In agreement, Guy Verhofstadt, leader of the Liberal ALDE group in the European Parliament and former Belgian Prime Minister expressed his joy:

Jerzy Buzek, President of the European Parliament, even suggested that ‘Europe is back on track’ (Euractiv, 3 October 2009).

However, the road to the entry into force of the Lisbon Treaty has been very long and hard. The aim of this section is to establish the larger context in which the Lisbon Treaty has been negotiated, before analysing its precise details related to the AFSJ. The Lisbon Treaty has evolved out of the rejected ‘Treaty establishing a Constitution for Europe’ and is part of what is commonly referred to as the process of treaty reform. This includes all EU treaties from the Treaty of Rome (1957) to the Single European Act (1986), the Maastricht Treaty (1992), the Amsterdam Treaty (1997), and the Nice Treaty (2001). However, very soon after the Nice Treaty was signed, the so-called ‘post-Nice process’ was launched to start a significant debate about the future of Europe (Christiansen and Reh, 2009). Christiansen (2008) suggests that this debate about a ‘European Constitution’ was deeply embedded in an active process of politicisation by EU elites, in particular the inclusion of language, symbols and other trappings of statehood in that particular treaty. The outcome of this debate was first included in the Convention on the Future of Europe, which provided the blueprint for the Constitutional Treaty (CT). However, when the treaty was rejected in two separate referenda in France and the Netherlands in 2005, a ‘period of reflection’, followed by another Intergovernmental Conference (IGC), led to the Lisbon Treaty, signed on 13 December 2007.

Christiansen and Reh analyse the process of treaty reform as a process of ‘constitutionalisation’ (Christiansen and Reh, 2009, p. 4) on the basis of three major premises: (1) constitutionalisation is a continuous process whereby Europe’s normative basis is being transformed driven by formal and informal, explicit and implicit mechanisms, with each reform being connected to the previous one, (2) treaty reform is an important mechanism behind constitutionalisation, amongst others, and (3) constitutionalisation is a struggle between various actors over institutional choices overlapping with EU policy-making. Further, they distinguish between three different key mechanisms in this process: (1) formal and explicit constitutionalisation, which is the process most closely modelled on the domestic constitution-founding experience, leading to a ‘European finalité’ (the Constitutional Treaty falling into this category), (2) formal and implicit constitutionalisation, which is the process which generates an ‘EU constitutional order’ through international treaties whereby the legal order increasingly moves away from traditional international law (successive EU treaties from Rome, to Maastricht, Amsterdam, Nice and Lisbon), and (3) informal and incremental constitutionalisation, which de facto move the EU’s legal order towards a constitutional order without relying on EU treaty reform (such as European Court of Justice verdicts).

Christiansen and Reh (2009) conclude that the process of formal and explicit ‘constitutionalisation’ failed. This links to the argument advanced by Christiansen (2008) that the experiment of ‘politicisation’ of treaty reform was unsuccessful. The constitutional debate had been a radical departure from the previous practice of avoiding politicisation at all costs. Yet, the success of the Lisbon Treaty indirectly confirms also the failure of the Constitutional Treaty. Reforming the treaties of the EU is possible only under conditions of low politicisation, despite the lessons of Nice which had seemed to indicate that a greater involvement of the European public would be beneficial for the European integration project (Christiansen, 2008).

How did the EU reach this point at which Lisbon, the failure of the formal and explicit constitutionalisation, would be seen as a success in Brussels? At the very minimum it is still a formal and implicit step towards greater European integration via treaty reform. Initially, the outcomes of Nice were perceived as questionable, in both content and process in which they had been negotiated. The actual experience of the final summit was damaging, when negotiators bargained for three entire days (and nights) over the final issues, and were perceived to be more concerned with individual member state interests than ‘European’ interests as a whole. Consequently, the Nice summit ended in Declaration 23, intended to launch a wider debate about the ‘Future of Europe’ (Christiansen, 2008, p. 40). Belgium, the EU Council Presidency in the second half of 2001, ensured a ‘maximalist’ interpretation of the post-Nice process. The decision to entrust the preparation of an Intergovernmental Conference (IGC) to a Convention was taken in Laeken (Norman, 2003, p. 24). This Convention started in February 2002 and produced the first incomplete draft of the Constitutional Treaty (CT) on the 13 June 2003 in time for the Thessaloniki Council a week later. Subsequently, the Convention gained two more sessions to finish by 10 July 2003 for some ‘purely technical’ (ibid., p. 301) work. Under the Irish Presidency, the IGC finally approved the CT on the 18 June 2004.

The participants of the Constitutional Convention were of considerable significance. Valery Giscard d’Estaing, a former French President, was nominated as the chairman of the Convention, with Jean-Luc Dehaene and Guiliano Amato, former Prime Ministers of Belgium and Italy respectively, as vice-chairs. Sir John Kerr, a former UK Permanent Representative with excellent connections to the British establishment, was appointed as Secretary General. Thus, the Convention had considerable and clear political and administrative leadership (Christiansen, 2008, p. 40). The Convention was composed of national governments, members of the European Commission, and members of national parliaments and the European Parliament. While members of the Convention organised themselves in different sectoral working groups, the Convention can be seen as a top-down affair with the ‘Presidium’, bringing together the twelve key members of the Convention, steering the drafting of the treaty (ibid., p. 40).

In the end, the Convention managed to set the agenda decisively for the Constitutional IGC. The IGC had the formal powers to decide on treaty reform, and followed the Convention in most respects. The Italian Presidency during the IGC in the second half of 2003 followed more or less a strategy of avoiding reopening individual articles. While it practically failed in December 2003, it handed over the same strategy to the Irish Presidency, which succeeded in June 2004. However, as Christiansen suggests (2008, p. 41), given the constitutional aspirations of the CT, the Convention created significant public interest in a large number of member states, which subsequently made referenda a much-used method of ratification. Spain, France, the Netherlands, Britain, Ireland, Luxemburg, Portugal, Sweden, Denmark, and Poland all agreed to hold referenda in order to ratify the CT. However, during their respective referenda, on 29 May 2005 France voted ‘No’ with 55 per cent, on 1 June 2005 the Netherlands voted ‘No’ with 62 per cent, and, subsequently, Britain froze ratification of the Treaty on 6 June 2005. Subsequently, the feeling across member states became clear that France and the Netherlands were so central to the European integration project that the treaty would have to be renegotiated, deemed necessary and possible (ibid., p. 42). The Commission identified a gap in the communication between the EU and its citizens, which was aimed to be filled through a programme of dialogue between citizens and elites, the so-called ‘Plan D’.

The European Council summit of 17 and 18 June 2005 decided that a ‘reflection period’ lasting until 2007 was necessary, which would enable a renegotiation of the Treaty before the June 2009 European Parliamentary election. As a result of this reflection, the Lisbon Treaty was signed by the Heads of State or Government in December 2007. While the precise AFSJ content of the signed Lisbon Treaty will be discussed in the next section, it is notable that the vast majority of provisions of the CT were also included in the Lisbon Treaty (LT). This is especially remarkable for the AFSJ (Donnelly, 2008).

However, how important are supranational actors in EU Treaty reform? Christiansen (2002) challenges aspects of Moravcsik’s theory of liberal inter-governmentalism (1998) in this context. He explains the limits of ‘intergovernmental bargaining’, as the process of treaty reform includes a wider process of issue-framing, agenda-setting, decision-making, as well as implementation and legitimation. This implies that the whole policy process prior to the Intergovernmental Conference can be seen as part and parcel of the bargaining itself. Indeed, taking this point seriously, this book examines the role of European institutions is in both arenas: (1) the policy-making in the AFSJ as outlined in the previous chapters, and (2) treaty reform and the AFSJ in this chapter. Yet, ‘can faceless bureaucrats, unelected and without power of purse or sword really influence the decisions of powerful nationstates? Are we seeing the emergence of a “new statecraft” grounded in international networks managed by supranational political entrepreneurs?’ (Moravcsik, 1999a).

Moravcsik (1999a) certainly questions whether unelected bureaucrats without financial and legal enforcement powers would actually be able to influence political decisions made by national governments. Yet, this debate has produced different outcomes (Haas, 1958, 1964, 1967; Lindberg, 1963; Lindberg and Scheingold, 1970, 1971; Puchala, 1971, 1984; Moravcsik, 1999a; Hix, 1994, 1998; Pollack, 1997a, b, 2003; Tallberg, 2002, 2003, 2006, 2008; Beach, 2004b, 2005a; Stone Sweet and Sandholtz, 1997, 1998; Stone Sweet et al., 2001; Kaunert, 2005, 2007, 2009). When examining the role of European institutions in detail, notably through the prism of Supranational Political Entrepreneurship (SPE), this book builds on the conceptual framework put forward by John Kingdon (1984).

This chapter investigates the role of EU institutional actors at the treaty level in the process of constructing an ‘AFSJ’. What is the role of the European institutions, in particular the Commission, in this treaty-building process? This chapter argues that the Commission in particular (through alliances with other institutional actors during the Convention phase) managed to incrementally contribute to a shift in norms. This shift derived from the policy-making level from 1999 onwards. It manifested itself specifically during the negotiations of the Constitutional Treaty and the subsequent renegotiation of the Lisbon Treaty. Here, the Commission acted with the support and the use of other supranational actors during the Convention, without which this result would have been difficult, if not impossible, to obtain. Thus, the role of EU institutional actors is significant for as long as they act in unison. Firstly, the chapter will deal with the main advances of the Constitutional Treaty which resulted in the Lisbon Treaty. Subsequently, the role of the Commission and other EU institutional actors will be examined. Finally, this will lead to an overall evaluation.

The Lisbon Treaty, the Constitutional Treaty and the AFSJ

Monar (2005) claims that future historians are likely to regard the EU’s creation of the AFSJ as one of the most significant developments in the European integration process. He bases these claims on three considerations. Firstly, the creation of the AFSJ touches upon essential functions and prerogatives of the modern nation-state. Secondly, the area touches upon a number of very sensitive political issues. And thirdly, the area is now one of significant growth and development of EU action.

But what precisely are the advances with regards to the Lisbon Treaty (LT)? Whatever the achievements of the treaty in other areas, the main focus of this section is on the relevant part of the AFSJ institutional architecture in the LT. The following section will analyse the finally agreed text of both the Constitutional Treaty and it will substantiate the argument that the Lisbon Treaty remained substantially the same ‘beast’ as the Constitutional Treaty (CT), at least regarding the AFSJ, though it even went beyond its advances.

The final draft of the CT relied very significantly on the report produced by the Working Group X of the Convention (CONV 426/02), which provided the rationale for the draft treaty section. The final outcome (Conference, CIG 87/04, 2004) in this section was not significantly different from the draft. An analysis of the final report of the working group (CONV 426/02) confirms that the normative question of whether the EU should be legislating is now settled for decision-makers. The introduction starts by referring to the normative rationale of the Tampere conclusions:

Again, this emphasises the main objectives put forward by Tampere. Yet, it even goes one step further when proclaiming a ‘proper sense of European Public Order’ (ibid., p. 2).

General provisions

The Lisbon Treaty amends two separate bodies of treaties: (1) the Treaty on European Union (TEU), and (2) the Treaty on the Functioning of the Union (TFEU). The latter, replacing the current Treaty establishing the European Community (TEC), contains the title ‘AFSJ’. It includes five chapters and brings together the currently dispersed AFSJ policies (Carrera and Geyer, 2008).

Article 3(2) TEU (formerly Article I-3 CT; Conference, CIG 87/04, 2004, p. 15) elevates the ‘AFSJ’ to become an objective with the same status as the Internal Market (Article 3 (3) TEU).

The very first time in the history of the EU, the AFSJ has been legally attributed the same status as the single market.

EU legal competences in the AFSJ are now clarified. Article 4(2j) TFEU (formerly Article I-13 CT; under B. Specific amendments, pp. 46-47) puts the area as one of shared competences. Article 2(2) TFEU (formerly Article I-11(2) CT; under B. Specific amendments, p. 45) stipulates:

The article thus states that once the Union has legislated in the area, member states are bound to that legislation, which creates a pre-emptive legal effect. Thus, member states can no longer exercise full legal sovereignty in the area from that point onwards.

Furthermore, the Lisbon Treaty creates a simplified decision-making procedure (Carrera and Geyer, 2008). Firstly, the pillar structure will be formally abolished, which results in the communitarisation of the areas of criminal justice, policing and terrorism. Secondly, the standard decisionmaking procedure in the AFSJ will be co-decision according to article 294 TFEU (present Article 251 TEC) and qualified majority voting (QMV) in the Council. This gives the European Parliament joint decision-making power. Thus, an important number of measures concerning issues like border controls, immigration and asylum, will be taken by qualified majority vote in the Council. The Commission will be given the exclusive power to propose legislation. In criminal justice and policing legislation, the latter power is shared with a quarter of the member states. This is in line with the stipulations in the CT (Article III-396). In addition, national parliaments will be more involved in the EU’s AFSJ policies. The Lisbon Treaty goes beyond the Constitutional Treaty in relation to national parliaments’ role in scrutinising the principles of subsidiarity and proportionality.

Thirdly, the disappearance of the pillar structure leads to a commonality of legal instruments between titles that were formerly pillar one and pillar three. In the LT, this is achieved under the name ‘ordinary legislative procedure’. It is important to note that for the first time the Union can use the ‘ordinary legislative procedure’ in principle for the whole area. But rather than a case-by-case approach, as agreed in the Amsterdam Treaty, this is the first time that it is recognised as a principle. Nonetheless, instead of using the new terms of the CT, i.e. European laws, European framework laws, European regulations, the LT will retain the traditional community instruments, i.e. regulations, directives, decisions, etc. The Amsterdam instruments, i.e. framework decisions, common positions, conventions, etc., will disappear. Judicial control will be expanded by applying the normal court rules on the European Court of Justice’s jurisdiction to all AFSJ matters in all member states (including the possibility for all national courts or tribunals to send questions to the ECJ).

Finally, the legal status of the Charter of Fundamental Rights of the Union will be clearer for the majority of member states. The new Article 6 TEU will provide a cross-reference to the Charter on Fundamental Rights which renders the Charter directly legally binding for the European institutions, Union bodies, offices and agencies as well as member states when they implement Union law (except those that have exceptions to various degrees, such as Britain, Ireland and Poland). This will put EU actors and member states under a clear legal obligation to ensure that fundamental rights are respected and will thus strengthen the freedom dimension of the AFSJ.

Asylum, migration, and civil law

In the areas of asylum, migration and external border controls (art. 77-80TFEU), significant new competences are transferred to the EU level (Carrera and Geyer, 2008). Legally, according to the Amsterdam and Nice Treaties, it is only possible to legislate on minimum standards for asylum measures. Given that the Tampere conclusion demanded a much broader objective, this requires a legal change of the treaties to make it possible. Thus, this involves a further transfer of competences to the EU level. The Lisbon Treaty (as well as the Constitutional Treaty) provides the competence to adopt, acting in accordance with the ordinary legislative procedure, laws for a uniform status of asylum valid throughout the Union, a uniform status of subsidiary protection, a common system of temporary protection, common procedures for the subsidiary protection, standards for reception conditions (formerly only minimum standards), and partnership and co-operation with third countries for the purpose of managing inflows of people. These are identical to the new objectives of the Tampere, and are now enshrined in the Lisbon Treaty.

The areas of migration and illegal migration bring similar new competences for the EU, in particular the combating of trafficking in persons, which did not even feature in the Convention draft. In addition, according to the LT (and previously the CT), incentives for integration measures for third-country nationals can now be legislated by the EU. Both treaties also provide for a burden-sharing mechanism within the EU member states.

Similarly, the competences of the Union in civil law matters have increased. Firstly, the Lisbon Treaty and the Constitutional Treaty provide the EU with competences over cross-border civil matters based on the principle of mutual recognition. The list of objectives has been clearly expanded. However, despite the general simplification of decision-making procedures, family law remains outside this communitarised framework, and maintains the old unanimity rule in the Council and the Parliament consultation procedure. In fact, it is one of the last remaining intergovernmental areas of the AFSJ. This relates to the fact that the concept of family still remains very differently understood in the different member states – notably with regard to same-sex marriage. Going beyond the intergovernmental character in the Constitutional Treaty, the Lisbon Treaty makes this provision even slightly more intergovernmental by including a provision requiring the Commission to notify national parliaments regarding proposals in this area. This provision also provides national parliaments with an effective veto right by making their opposition known within six months.

Criminal justice, policing and counter-terrorism

The Lisbon Treaty (as well as previously the Constitutional Treaty) constitutes a big leap forward towards the full communitarisation, i.e. the full transfer of the competences to the Union level, for the area of criminal justice, policing and counter-terrorism (Articles 82-89 TFEU). The provision regarding procedural criminal law, which is often mentioned as one of the cornerstones in developing mutual trust among member states, stipulate the following:

• Article 82(1a, b, c) TFEU opens up the legal possibility to establish rules and procedures to ensure the recognition of all forms of judgements and judicial decisions throughout the union, to prevent and settle conflicts of jurisdiction, and to support the training of the judiciary.
• Article 82(2a, b, c, d) TFEU provides the competences to establish minimum rules in criminal matters with a cross-border dimension. This concerns the admissibility of evidence, the rights of individuals in criminal procedure, the rights of victims of crimes, and any other aspect of criminal procedure for which the Council has adopted a unanimous European decision in advance.
• Hence, this includes potentially every aspect of criminal procedure, as long as the Council identifies a cross-border dimension. This catch-all paragraph gives the legal possibility to extend Union competences in the field of procedural criminal law quite far.

Article 83 TFEU opens up the legal possibility for the union to establish minimum rules concerning the definition of criminal offences and sanctions. It then lists the areas where these definitions would fall into: terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, arms trafficking, money laundering, corruption, counterfeiting of means of payments, computer crime and organised crime. This list is significantly more inclusive than the Amsterdam Treaty. In addition, the Council can adopt a unanimous European decision to include more crimes to this list. This is again the same catch-all clause as in procedural criminal law, which can push EU competences quite far.

Consequently, the area of criminal justice has been effectively communitarised, and the EU has acquired legal competence over a whole set of new areas. These are legally extendable without a change in the LT, but by unanimous Council decision. Therefore, the normative +question has been conclusively answered for this aspect of the AFSJ; indeed, for EU and national decision-makers, the EU should be legislating in the area.

However, there is a drawback to this in the area due to the so-called ‘emergency brake’ and ‘accelerator’ procedures – two of the compromises of the Constitutional Treaty IGC, which have been slightly modified for the Lisbon Treaty (‘less brake and more accelerator’).

• Paragraph 3 of Article 82 and 83 TFEU provides the ‘emergency brake’ in both the aforementioned articles. A member of the Council can refer the framework law to the European Council – which decides by unanimity and thus keeps some form of veto – but only if an aspect of that law affects a fundamental aspect of its criminal justice system. The framework law then remains suspended for four months. Yet, this provision is restrictive, and the European Court of Justice (ECJ) could potentially establish case law regarding the definition of what constitutes a fundamental aspect of a national system. In the CT, the European Council could decide to terminate the suspension and continue the negotiations, or demand a new draft. However, in the LT, the European Council ‘shall, within four months of the suspension (after discussion and in case of consensus), refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure’.
• Paragraph 4 provides for the so-called ‘accelerator’. If after the four months no decision can be made by unanimity (CT and LT), or after twelve months no new framework has been adopted (not in the LT anymore), then an accelerated form of enhanced co-operation can start. This means that nine member states (LT; one-third of the member states in the CT) could go ahead and adopt the legislation for themselves. Authorisation would be automatically granted through the fulfilment of this paragraph. De facto, this means that the national veto will no longer exist in the area of criminal justice. Yet, instead of a veto, this area creates a de facto ‘opt-out’ possibility for every member state – with restrictions possibly established by a future ECJ decision.

According to Article 87 TFEU, the EU shall establish police co-operation involving all the member state’s competent authorities, including police, customs, and law enforcement. According to the ordinary legislative procedure, the EU may establish measures concerning the collection, storage, processing, analysis, and exchange of relevant information, as well as support for the training of staff and staff exchange, and common investigative techniques in the detection of serious forms of crime. According to the special legislative procedure (i.e. unanimity in the Council), the EU may also establish operational co-operation between the above authorities. In the original CT, this was a strict unanimity provision, which meant this operational co-operation had not been communitarised. However, the Lisbon Treaty goes a step further than the Constitutional Treaty, and introduces an element of the accelerator analysed for the area of criminal justice. In the absence of unanimity in the Council, nine member states may send this measure to the European Council, which needs to send it back to the Council after four months. In case of continuing disagreement, nine member states may then proceed on the basis of enhanced co-operation, and the authorisation for enhanced co-operation is deemed to apply automatically. This means, in the area of operational police co-operation, these are the first attempts at communitarisation, though through the mechanism of enhanced co-operation. Thus, the Lisbon Treaty is a significant advance to the Constitutional Treaty in the area of operational police co-operation, which was already an advance to the Amsterdam and Nice Treaties in the area of data exchange.

In addition, the status of Europol has been strengthened in both the LT and the CT – though much more cautiously – as Europol no longer just facilitates co-operation. Its future mission indicates that it will support and strengthen action by member state police authorities. This implies a wider mandate than before. The precise extent of this mandate will be determined by the ordinary legislative procedure (LT). Again, this implies the EU should legislate in the area; not to replace national police, but to complement it. In addition, Europol will become fully accountable to the European Parliament together with national parliaments. However, any operational activity must be in agreement with national police authorities, and coercive measures are excluded from their list of responsibilities.

Furthermore, the Lisbon Treaty (as well as the CT) creates the legal possibility of establishing a European Public Prosecutor out of Eurojust under Article 86 TFEU. Initially, the competences of such a prosecutor would be related to crimes affecting the financial interests of the Union. However, paragraph 4 provides the legal possibility to amend the competences by a unanimous European decision to include serious crimes with a cross-border dimension. This paragraph was added in the CT Intergovernmental Conference and did not feature in the original Convention draft. The function of such an office would include the investigation, prosecution and bringing to justice the perpetrators and accomplices of serious crimes. It would exercise the functions of a prosecutor in a national court. This would be decided unanimously by the Council with the consent of the European Parliament. However, the Lisbon Treaty goes even beyond the Constitutional Treaty. In paragraph 1 (Article 86 TFEU), two new paragraphs have been added to circumvent the unanimity requirement through the ‘accelerator procedure’ in order to establish this European Public Prosecutor. Again, as the case above, in the absence of unanimity in the Council, nine member states may send this measure to the European Council, which needs to send it back to the Council after four months. In case of continuing disagreement, nine member states may then proceed on the basis of enhanced co-operation, and the authorisation for enhanced co-operation is deemed to apply automatically. This means the likelihood of establishing a European Public Prosecutor is much increased in the Lisbon Treaty compared to the Constitutional Treaty. Thus, the Lisbon Treaty is a significant advance in this area.

Indeed, were such an institution created at any point in time – for which there is now a legal competence of the Union – this would be the most radical step towards a ‘European Public Order’. The Charter of Fundamental Rights is now also included in the LT and can be considered an integral part of the new legal framework. By fully incorporating the Charter, the treaty clearly creates a better basis for the comprehensive protection of fundamental rights at the EU level. Despite the insistence by the British government to make it ‘toothless’, most Commission lawyers interpret it as very powerful. In fact, they are expecting important future judgements by the European Court of Justice (interview COM 10). All advances taken together, define important elements of a foundation stone of an emerging European Public Order.

Finally, the introduction of an explicit principle of solidarity into the context of AFSJ legislation is one of the most significant innovations of the Lisbon Treaty. The creation of a solidarity clause can have important implications on the AFSJ. The clause stipulates that in the case of a terrorist attack or a natural or man-made disaster the Union shall act jointly to mobilise all instruments at their disposal. It clarifies how this procedure would occur in practice. Firstly, it would require a European decision by the Council on a proposal from the Commission and the High Representative for Foreign Affairs for cases with military implications. In addition, the European Council is now legally required to regularly assess the threats facing the Union in order to take effective action. One could imagine scenarios where a ‘man-made disaster’ could mobilise either the police or the judiciary within the EU. Clear avenues have opened so that this legal competence could be used not only for catastrophes, but also for terrorist attacks and, thus, present emerging opportunities for a European Public Order to resemble more closely to a European Homeland Security.

In conclusion, the normative question has now been conclusively answered as a political consensus of decision-makers; the EU should be legislating in the AFSJ. Why? The political aims are clear and enshrined in the Lisbon Treaty. The substantial legal advances underline the fact that, for decision-makers, the EU should legislate in the AFSJ. The area is one of shared competences between the EU and the member states – which effectively transfer highly significant competences to the EU level. This occurred throughout all substantial parts of the area: asylum, migration, civil and criminal law, and even to some extent police co-operation. Indeed, the AFSJ has experienced its biggest advances in historical terms. The AFSJ is the ‘big winner’ of the Lisbon Treaty.

The role of the EU institutions

This section will analyse the role of the European Commission, acting to initiate and push for a process of normative change among EU decisionmakers, as well as concrete institutional change, which is both part of its role as a supranational policy entrepreneur.

Prior to the Convention: Commission entrepreneurship by officials?

According to Sir Adrian Fortescue (1995), then the Director of the General Secretariat of the Commission and later the first head of the JHA Directorate of the Commission, in the early days the Commission had been under close scrutiny by the European Parliament and by the Council of Ministers, but for opposing reasons. On the one hand, member states tended to see the Commission as a competence-maximising institution that, in their view, lacked credible expertise in the area. On the other hand, the European Parliament tended to see the Commission’s ambitions as too modest, and suspected it of pleasing member states too much.

Consequently, Fortescue (1995) argues that it needed to square the circle, not to be torn between these different expectations in the process of establishing its credibility. This was initially done through communication papers rather than legislative proposals in order to open the public debate on some subjects and in order to work against the prevailing image of working behind closed doors. In the abstract, this can be seen as attempts to change underlying norms rather than jumping into the bargaining directly.

At the beginning of co-operation in the 1980s, the European Commission had to force its way into the area and had to push strongly for any role at all. The key moment in the evolution of the EU’s role in the area of Justice and Home Affairs, according to Fortescue (interview COM 25), was, when in 1985, instead of just talking about the internal market as a place in which goods and services circulated, the Commission was the first to start putting forward the phrase ‘Europe without frontiers’. This can be demonstrated by examining Lord Cockfield’s famous 1985 White Paper on completing the internal market (Commission (85) 210 final).

The Commission started to focus institutionally on ‘Europe without borders’ in 1989 when it appointed Fortescue (interview COM 25) and one other person to begin thinking through the consequences of getting rid of frontier controls. Fortescue’s initial small team of people was transformed into what came to be known as the Justice and Home Affairs Task Force, but it was still located in the Secretariat General. Initially, the Commission had to bring in national experts from the member states. This created a network of great advantage for the Commission in its strategy. This link between the national and supranational was vital in order to establish trust and legitimacy vis-à-vis member states.

However, in the early days, the Commission had limits imposed upon what it could do legally; in particular, its usual right of initiative had to be shared with the member states, thus not being able to guarantee that its proposals rather than the ones suggested by member states received attention. The Commission was consequently forced to always table a better and more competitive proposal than any member state would and could. The interviews with permanent representations of twenty-four member states confirmed the fact that the Commission was able to do this during the Tampere programme (interviews PR 1 to PR 24). Indeed, each member state confirmed that the proposals of the Commission, in general, were of much higher quality than any other state’s proposal. This implies that there was a clear and widespread acknowledgement of the expertise that the Commission had acquired over the years.

This was particularly attributed to Commissioner Vitorino (1999-2004 Commission), but it was largely confirmed by member states representatives in to be present throughout the Commission services. All permanent representations (interviews PR 1 to PR 24) unanimously confirmed that it did not matter that the Commission had to share their right of initiative because it would almost always table the proposal of the highest quality anyway. In addition, the Commission scored very highly regarding its negotiations skills throughout the Tampere process (interviews PR 1 to PR 24 and NGO 1 to NGO 11). This is particularly true for the Commissioner Vitorino, who was unanimously applauded for his efforts by everyone – all member states and all NGOs. Thus, there is a unanimous acceptance of the central role of the Commission in the future direction of the AFSJ (interviews PR 1 to PR 24).

Yet, the Commission’s position also depends on its legitimacy towards civil society, and on the input it receives from civil society. Indeed, it worked very hard over the years to build up good relations with the plethora of nongovernmental organisations (NGOs) in the field of AFSJ (interviews NGO 1 to NGO 11). There are instances where important actors of NGOs had even become important members of the services in the Commission (interview COM 16). Consequently, this led to a widespread support for a communitarisation of AFSJ matters by NGOs (interviews NGO 1 to NGO 11). In addition, NGOs provided it with invaluable supplementary input of information through informal information channels and job changes. Consequently, they represented an important ally for the Commission, and were thus invited to participate in the Future of Europe debate for civil society in parallel with the Convention that drew up the first draft of the Constitutional Treaty. This gave increased weight to the Commission’s position in the Convention and perceived legitimacy.

The European Commission had another strong natural ally throughout the years in its efforts to supranationalise the AFSJ with the European Parliament (interviews EP 1 to EP 5) and the Committee on Citizens’ Freedoms and Rights, Justice and Home Affairs (Commission des libertés et des droits des citoyens, de la justice et des affaires intérieures, LIBE). The alliance with the European Parliament is of particular importance regarding the LT, as a significant number of MEPs were also in the Convention that drafted the CT. The EP, as the only directly elected institution of the EU, was best placed to support changes to the treaties on the grounds of efficiency, accountability and democracy, and support the Commission in its efforts. From the interviews (EP 1 to EP 5, COM 1 to COM 25, PR 1 to PR 24), it is important to note that the relations between the Parliament and the Commission are perceived to be very good by both sides, contrary to the relations between the Parliament and the Council. It also helped that the Commissioner Vitorino (1999-2004) had previously been the chairman of the LIBE Committee in the European Parliament (1994-1999). His knowledge, skills and political credit with the EP have been vital elements of the Commission’s success.

In conclusion, the normative advancements of the AFSJ can be directly related to the strategy employed by the Commission throughout the 1990s, but in particular its constructive role during the Tampere programme. It adopted a strategy of pragmatism and trust-building and was very successful with it. It is evident from the interviews that the Commission has managed to manoeuvre itself into the centre of the area and managed to create and maintain trust from all sides. It has managed to establish trust with the twenty-seven member states, as well as maintain the trust it had been endowed with by civil society represented by the plethora of NGOs in Brussels. Moreover, it had its natural ally – the European Parliament – by its side in this battle.

The run-up to the Convention, 2002-2003

Why was the IGC prepared by a Convention for the first time in the history of the EU? According to Christiansen (2002), this is important in order to appreciate the role that the Commission played in the process of treaty-building. Derek Beach (2005a), in his comparative study across five different EU treaties, suggests the fact that the ‘convention method’ was used before a subsequent IGC was already quite a revolutionary procedural change (ibid., p. 178). According to Beach (ibid.), this method had been pushed by the Commission, the European Parliament, and federalist-oriented governments. The work of the Convention was divided into three phases: (1) listening from the start in early 2002 until the summer of the same year, (2) studying working groups’ discussions until autumn 2002, and (3) the final or deliberation phase until June 2003.

But what was the chain of events that led to this establishment? In 2001, the words ‘convention’ and ‘constitution’ were becoming buzzwords amongst decision-makers and were gradually gaining acceptance. The decisive move towards the Convention occurred during the second half of 2001 under the Belgian Presidency. Building on the rhetorical legacy of the aforementioned speeches, Belgian Prime Minister Verhofstadt managed to establish agreement on a Convention with the Laeken Council declaration of 15 December 2001 (ibid.).

Peter Ludlow (2002) demonstrates how two Commission documents were closely knit with the eventual Council declaration for the establishment of the European Convention. While the Laeken declaration appeared to condemn the EU for its problems, as a consequence the mandate for reform became rather wide. It portrayed Europe as being at a crossroads, claiming that the unification of Europe was near. A number of challenges were drawn out; in particular, how to bring EU citizens closer to the EU, how to better divide and define the competences of the EU, how to simplify the legal instruments, how to increase democracy, transparency and efficiency, and how to reorganise the treaties of the EU into one single constitution. It also set out the working mechanism of the Convention.

The most important Commission document mentioned in the Laeken declaration is the ‘White Paper on Governance’ (2001). A close examination of it reveals that it prepared some ground for the debate. It suggested better involvement of and more openness to citizens by the EU institutions, better policies, global governance, and refocused institutions. A large part of the document was on the Commission itself and how it can improve without any treaty change. Nonetheless, it asserted that the Commission alone cannot improve European governance (Commission, 2001, p. 9). Change required concerted action by all the European institutions, all its member states and civil society at large. And it defined five principles of good governance: openness, participation, accountability, effectiveness, coherence. In essence, this was an anticipation of the Laeken declaration.

Let us also recall the context of the Laeken declaration. It was only a number of months after the attacks of 11 September 2001. In speaking to the European Parliament, the commissioner responsible for Justice and Home Affairs and the Commission representative in the Convention, Antonio Vitorino, remarked soon afterwards:

In the aftermath of the terrorist attacks, the European Commission managed to construct European integration as a necessary policy tool to fight terrorism, as demonstrated in Chapter 4. Therefore, one must deduce that the European Commission was far from unimportant in framing the issues that went on to dominate the Convention. It constructed itself into the centre of the fight against terrorism on the one hand, and the fight for democracy and transparency on the other.

During the Convention, 2002-2003

But what was the role of the European Commission during this Convention? The notion of the Commission playing an important role in the Convention has been popularly caricatured by journalists who tend to cite the supposedly failed ‘Penelope’ feasibility study led by Commission President Romano Prodi (BBC, 5 December 2002). It is perceived as an attempt that antagonised member states rather than convinced them. Peter Norman (2003, p. 162) seems to echo those concerns. He describes how the Commission was internally divided over which drafts to push – its first contribution or Penelope.

Norman argues that the Commission’s first document for the Convention (COM (2002) 247 final) was far from comprehensive. Yet, a close reading of both of the aforementioned documents with a focus on the AFSJ reveals another highly significant fact which raises doubts over the common interpretation of these by journalists. In fact, the documents could be described as focused and prioritising – with fewer but more important objectives. The main focus of the first document was the AFSJ. At the beginning, it argued that Europe had achieved a lot, in particular enlargement and the introduction of the euro. Then it prioritised the AFSJ as well as the Charter of Fundamental Rights. It also asserted that integration in the AFSJ was strongly desired by public opinion. Consequently, the document spelled out a clear policy goal – the full communitarisation of the area.

Similarly, the ‘Penelope’ feasibility study of December 2002 can also be seen in this light, if one reads the parts on the AFSJ. Other than creating a supposed federalist vision of the EU, the study prioritised the AFSJ yet again. The aims and objectives were very much in line with the conclusions of the working group in the Convention. In fact, the draft articles in the document were not significantly different from the Convention draft. In some parts, the document even fell below the Convention draft in its ambitions. Needless to say, it did not contain some of the major compromises of the IGC of early 2004. Nonetheless, it was a highly significant paper for the AFSJ, which makes it difficult to sustain the argument that both the May and December studies of 2002 did not somewhat influence to debate in the Convention – at least for the AFSJ. The important question is – to what extent?

Derek Beach (2005a) examined the role of the different EU institutions during the Convention and the following IGC. His analysis provided a mixed picture of the Commission’s leadership during the Convention. On the one hand, he suggests that the Penelope study ‘alienated even its allies’ (ibid., p. 199). On the other hand, he asserts that the Commission was able to influence better when playing a low-profile and realistic role. He suggests its successes included the Charter of Fundamental Rights.

Besides all the available policy documents, there is further significant evidence of the Commission’s importance during the Convention:

Firstly, the choice of which commissioner would represent the institution in the Convention was not accidental, but rather led by a clear choice of priorities. Antonio Vitorino was chosen due to his prior involvement in the Convention which led to the Charter of Fundamental Rights, but also due to his legal expertise, and his responsibility and long-standing expertise in the AFSJ (interview COM 10). Overall, this was a reflection of the priorities of the Commission for the Constitution which was demonstrably reflected in their earlier documents. And it certainly did no harm that he was very well respected amongst member states (interviews PR 1 to PR 24), as demonstrated above.

Secondly, the commissioner’s attendance record was impeccable and unsurpassed, thus providing ample opportunity to push the Commission’s viewpoint. The Working Group X on the AFSJ met nine times from September to December 2002 (CONV 256/02). The Convention Secretariat provides the minutes of the meetings and the participants who attended. Examining all these documents, one may notice two people who attended every meeting. One was the chairman of the Working Group X, John Bruton, who had to attend every meeting in his chairing capacity. The second was the commissioner responsible for the AFSJ, Antonio Vitorino, who also attended every meeting. From this one can deduce that at the very least he acquired the best grasp of the ongoing negotiations. But more likely, this provided significant opportunities to push the Commission’s arguments, both during the official debate and more informally with the individual working group members. It is not a huge surprise if constant attendance finally pays off in terms of substantive policy gains.

Thirdly, the selection of experts was favourably inclined towards the Commission’s arguments. Amongst others, these included Mr de Brouwer, who was responsible for asylum and migration in the Commission, and Mr de Kerchove from the Council Secretariat, responsible for criminal justice and well known amongst decision-makers for his positive views towards further integration (interviews PR 1 to PR 24), now the EU’s counter-terrorism coordinator. In addition, experts included EU representatives from Eurojust. Moreover, federalist-inclined academic scholars were also invited, such as Professor Henri Labayle, who has previously made forceful legal arguments for full communitarisation of the area. This certainly underlined the arguments already presented by the European Commission. In essence, the sum of all these people represented a policy community which was closely knit and favourably inclined towards further communitarisation of the AFSJ. Hence, as suggested by Kingdon (1984), in the problem stream where problems are defined, one can empirically encounter a close-knit policy community in which a supranational policy entrepreneur can shape the way problems are defined.

The intervention by Antonio Vitorino during the deliberation and his recommendations (Convention, 2002, WGX-WD14) were in line with previous documents and the advice given by his civil servants. The interventions advocated a full communitarisation of the AFSJ, including a common policy on asylum, a European immigration policy, a genuine area of justice both in civil and criminal law matters, enhanced police and judicial cooperation and full judicial oversight by the European Court of Justice. The Commission also submitted a document (Convention, 2002, WGX-WD27) on the European public prosecutor. In his changes to the final working group report draft (Convention, 2002, WGX-WD30), Antonio Vitorino reiterated some of the Commission priorities, including the EU Public Prosecutor and the policy objectives of the AFSJ. The Franco-German intervention (Convention, 2002, WGX-WD32) by Foreign Ministers Joseph Fischer and Dominique de Villepin resembled the prior contribution by the Commission.

But where in the debate do the final working group report and the final draft of the AFSJ article stand? Overall, the Commission had a significant impact first on the debate, then on the working group report, and finally on the final draft. The final outcome (Conference, 2004) for the AFSJ was not significantly different from the Convention draft. The final Convention draft relied significantly on the report produced by the Working Group X of the Convention (Convention, 2002, CONV 426/02), which provided the rationale for the draft treaty section. In turn, the working group report resembled the interventions of the European Commission. Thus, one can clearly trace the impact of the interventions made by the Commission.

Overall, Working Group X on the AFSJ proposed sweeping changes. It reinforced the drive for simplification of the treaties by proposing a common legal framework bringing all treaty provisions under a single title. It pushed for simplification of decision-making mechanisms, which meant a qualified majority vote in the Council in co-decision with the European Parliament. All major parts of the AFSJ were significantly strengthened. Mutual recognition of judicial decisions was eventually enshrined in the treaty, as advocated by the Commission. In order to make this possible, some legal harmonisation was included with regards to criminal and civil judicial co-operation – again in line with the Commission proposals.

In addition, there was consensus that unanimity voting in the Council could not be sustained after enlargement. To the annoyance of Commissioner Vitorino, the Commission now has to share its right of initiative with a quarter of the member states in parts of the former third-pillar areas. However, this is a small price to pay given that all interviewees suggest that the sharing of the right of initiative did not influence the Commission in a negative way (interviews PR 1 to PR 24). Even the Commission agreed with this assessment internally (COM 10). The working group report was divided over whether to create a European Public Prosecutor, but the final draft included the possibility of establishing one and hence fulfilled one of the most crucial aims of the Commission in the area (interview COM 10).

In conclusion, in the light of the evidence presented, one must deduce that the Commission with its representative, Antonio Vitorino, played a highly significant role during the Convention. It provided significant input papers before the Convention and shaped the discussion, despite some misunderstandings caused by Penelope. Indeed, the AFSJ had been a top priority from the beginning, which lasted until the end. Vitorino demonstrated a great amount of determination, full participation and a constant engagement in the debate. The Convention draft can certainly be seen as a victory for the Commission. Did member states change that during the course of the IGC?

During the CT Intergovernmental Conference, 2003-2004

The Intergovernmental Conference is the most difficult part to analyse for any researcher of the EU due to the lack of open source documents. In essence, this project had to rely on comparing the version of the draft before the IGC to the final version of the Constitutional Treaty. This was triangulated with some interviews (in particular COM 10), and some of the media coverage – which did not focus much on the details of the AFSJ.

IGCs are based upon Article 48 of the TEU (Beach, 2005a, p. 8). Governments of any member states may propose to the Council to amend existing treaties. They are convened either by agreement in the Council under Article 48 TEU, or by a binding legal commitment included in the treaty. In the case of the CT, it was convened due to both the Laeken declaration and the commitment in the Nice Treaty. There are no formal provisions for how the agenda for an IGC should be prepared; here the agenda was already set by the Convention draft. Nonetheless, IGCs are formally outside of the institutional framework of the EU, thus effectively being an international/ intergovernmental negotiation. While there are EU norms governing IGCs, all internal documents are under diplomatic secrecy.

How did the media report on the negotiations for the EU constitution with regards to the AFSJ? When the IGC started in September 2003, convention member expressed the hope the conference would only rubber-stamp the conventional draft. Nonetheless, media commentators suggested ‘the constitution was in tatters’ when the first summit in December 2003 under the Italian presidency failed due to the lack of compromise on voting weights (Economist, 16 December 2003). The Economist commented that after eighteen months of hard work by 105 delegates from twenty-five countries in the Convention, member-state negotiations collapsed by lunchtime on Saturday 13 December. The main disagreements had been between France and Germany on one side and Spain and Poland on the other over voting arrangements. At that point in time, this suggested the British had kept their so-called red lines. The Italian presidency accepted Tony Blair’s insistence that member state countries keep their vetoes, amongst others, in judicial cooperation. This would suggest that the British had succeeded in redrafting parts of the articles on the AFSJ. A week prior to the summit, The Economist (11 December 2003) also suggested that Britain had strong reservations about the Charter of Fundamental Rights, and that the UK, Ireland, Sweden and Denmark also opposed the European Public Prosecutor and further criminal law harmonisation. Apparently, these issues did not end the negotiations.

An interview with a senior Commission official present at the negotiations in the Convention and during the IGC (COM 10) confirms that the British delegation had been the biggest obstacle in finding a solution for the outstanding issues in the AFSJ. According to him, they were supporting the Convention proposals during the Convention, which included a general move towards qualified majority voting throughout the area coupled with codecision with the European Parliament. They also supported the jurisdiction of the European Court of Justice. During the Italian presidency in late 2003, the British delegation rediscovered their dislike of some of the advances in the area. In particular, this included the European Public Prosecutor (to which they had acquiesced previously), the move to qualified majority voting in the Council in the area of criminal justice, and the legal inclusion of the Charter of Fundamental Rights. Indeed, they had succeeded in redrafting some of the aforementioned articles, though not as fundamentally as the newspapers would suggest.

In February 2004, the European constitution was ‘back from the dead’ (Economist, 5 February 2004). During the Irish Presidency, the negotiations had been quietly resurrected with a low-profile strategy by claiming that they were not able to do it until a year later. This is in contrast to the high-profile strategy by the Italians, absolutely wanting a deal under their Presidency. The Economist suggests that the parties who blocked a deal in December 2003 were then ready to talk again. By March 2004, all twenty-five member states had committed themselves to agreeing on a final text for the Constitution by their next summit on 17 and 18 June 2004 (Economist, 26 March 2004). Now with the Spanish and Polish delegation looking more likely to compromise on voting, the British red lines could become more difficult to maintain.

In the interview, the senior Commission official (COM 10) argues that the British delegation had again become the biggest obstacle just before the summit. Despite the fact that the media at the time claimed the UK was opposed to the European Public Prosecutor, the official asserted that the British had already accepted its inclusion just before the summit. Similarly, a solution for the legal inclusion of the Charter of Fundamental Rights had already been found as well – and the British agreed to the compromise. The remaining sticking point was therefore the move to qualified majority voting in the area of criminal justice. The British insisted on their principled opposition to it, while the Commission insisted that unanimity would be unacceptable. A large number of member states agreed with the Commission’s arguments.

A compromise solution was found in the form of a so-called ‘emergency brake’. The British wanted the latter to work in a way that would have meant that any member state could have blocked QMV by shifting the decision upwards to the European Council and its unanimity rule – on the legal grounds of a fundamental of national law being under threat. This would have effectively meant a continuation of unanimity in a different way. The Commission was fiercely opposed to that solution and the official predicted that the final solution would be different. He predicted – prior to the summit – that the eventual solution would also include an accelerator procedure. This would mean a member state could initially block QMV in the area of criminal justice. Yet, at the European Council, the decision would have to be sent back to the Council of Ministers within a tight deadline. The Commission was particularly insistent on this deadline. After that point, the accelerator would kick in – and the formerly blocking member state would be effectively excluded from the legislative procedure. Therefore, the fact that the prediction by the Commission official became a reality in June 2004 – only a month after the interview took place – is a highly significant piece of evidence. It clearly points to how closely involved Commissioner Vitorino was in the solution finding at the IGC, and how influential he was in pushing through his solutions. The remainder of the AFSJ institutional architecture did not change significantly compared to the Convention draft.

‘Finally, a Constitution – Now the hard part’ (Economist, 22 June 2004); ‘A difficult birth’ (Economist, 24 June 2004). Those headlines express the feelings of commentators after the agreement on the treaty. While the EU summit in Brussels did not nominate a Commission President on 18 June 2004, nonetheless it agreed on the Constitutional Treaty. The articles on the AFSJ remained significantly intact compared to the conventional draft, in particular due to the negotiation skills of Commissioner Vitorino and his staff. It has become apparent how much the Commission acted as an SPE throughout the whole constitutional process.

During the reflection period, 2005-2007

During their respective referenda, on 29 May 2005 France voted ‘No’ with 55 per cent, on 1 June 2005 the Netherlands voted ‘No’ with 62 per cent, and, subsequently, Britain froze ratification of the Treaty on 6 June 2005. The immediate reflex of the EU institutions was to persist with the ratification process, including Luxemburg with a ‘yes’ vote. However, as mentioned before, France and the Netherlands were so central to the EU that the treaty had to be renegotiated.

While the Commission developed the so-called ‘Plan D’ to improve communication between the EU and its citizens, the European Council Summit of 17 and 18 June 2005 decided that a ‘reflection period’ lasting until 2007 was necessary. This could then enable a renegotiation of the Treaty before the June 2009 European Parliamentary election. The Council conclusions (Luxembourg Presidency, 18 June 2005) asserted that the ratification would continue after a reflection period of one year. The conclusions alluded to the fact that ten member states by then had already successfully concluded ratification procedures. The Council, however, did not call into question the attachment of EU citizens to the construction of Europe. It was agreed that those member states wishing to continue ratification during this reflection period were free to do so, while other member states might respond differently. The Council decided to respond to all developments and make an overall assessment of the national debates on how to proceed by June 2006.

Despite this official reflection amongst member states in the hope of better domestic conditions for renegotiation and ratification, a possible renegotiation of the Constitutional Treaty was very much helped along by EU-level factors. These pre-empted the CT to some extent, and therefore made it easier to portray the Lisbon Treaty as less radical, especially in the AFSJ. Thus, in fact, it was possible to portray it as only a ‘mini-treaty’ in Sarkozy’s words, or as it was called until the signing, a ‘reform treaty’. This argument relies on two developments in 2005. Firstly, the so-called ‘Hague programme’ pre-empted the ratification of the CT to a large extent. Secondly, landmark decisions of the European Court of Justice on 16 June and 13 September 2005 created case law that solidified the advances made in the area of criminal justice. This legal precedent made ratification of the CT less necessary in order to achieve a similar institutional architecture. Consequently, the treaty could be portrayed as less significant, and thereby ratifiable through parliament.

The Hague Programme

One of the key outputs of the Dutch Presidency of the EU in the second half of 2004 was the adoption of a new multi-annual programme, referred to as ‘the Hague programme’ on the AFSJ. It provided a new agenda for building on the recent policy and legislative achievements of the Tampere programme (1999-2004).

The programme abolished the requirement of unanimous voting in the Council on all EU immigration and asylum law, except illegal immigration. This also meant co-decision powers for the European Parliament. The exception was family law, which would still remain under unanimity. In fact, the programme itself did not abolish the voting requirements, as it is not legally binding and only a political commitment to act. The actual change in the decision-making rules was made by a Council decision, as it was urged by ‘the Hague programme’. The Hague Programme pre-empted some of the innovations of the CT as it was based on the its compromises. The legal advances followed the relevant provisions of the Amsterdam Treaty and the Nice Treaty (Peers, 5 November 2004), which provided a so-called passerelle clause. As these legal changes brought about by ‘the Hague programme’ preempted the ratification of the CT, the need to ratify the same treaty to change the decision-making in the area of asylum and migration was much reduced.

European Court of Justice decisions

Furthermore, on 16 June and on the 13 September 2005, the European Court of Justice (ECJ, 16 June 2005) issued two groundbreaking judgments, which changed the legal instruments available in the area of criminal justice significantly. The so-called ‘Pupino case’ before the ECJ (ECJ, 16 June 2005) concerned an Italian nursery school teacher accused of maltreating a five-year-old child.

The judgement stated that a Council framework decision concerning police and judicial co-operation in criminal matters must be respected in a national criminal court case. Commission spokesman Martin Selmayr suggested consequently that this was a historic decision which would considerably strengthen the legal instruments available in the field of police and judicial co-operation in criminal matters (Euractive, 18 June 2005). Under the EU treaties as per Amsterdam and Nice, framework decisions adopted under the third pillar have no such direct effect – they cannot normally be directly invoked by individuals in national courts. However, the European Court of Justice (ECJ) pointed out that framework decisions are binding on member states in that they have a bearing on the interpretation of national law. Mueller (16 June 2005) explains how this fundamentally altered the legal instruments available for the EU in the area of criminal and judicial cooperation, one of the biggest advances of the CT (de facto de-pillarisation). This judgement significantly altered the legal instrument that were available under the previous treaties and changed them into instruments that are very close to what is available under the CT. This means, effectively, that the ECJ introduced elements of a de facto de-pillarisation.

The ECJ (ECJ, 16 June 05) noted in its verdict that the framework decision was adopted on the basis of the EU Treaty provisions regarding police and judicial co-operation in criminal matters, which means its jurisdiction to give a preliminary ruling, was subject to a declaration by a member state to accept that jurisdiction – which Italy made. The ECJ decided that the formulation of what is meant by a framework decision is sufficiently close to that of a ‘Community directive’ in the first pillar – despite its acknowledgement of the intergovernmental nature of the third-pillar instruments. It further stated that the second and third paragraphs of Article 1 of the Treaty on the European Union marked a new stage in a process of creating an ever closer union among the peoples of Europe. As it would be difficult for the Union to carry out its task effectively if the principle of loyal co-operation did not require third-pillar instruments to be binding (as directives are), they therefore would have to become binding. Thus, the court deduced that national law had to be interpreted as far as possible in the light of the wording of framework decisions. This effectively turned framework decisions into directives, which pre-empted the ratification of the CT to some extent.

Furthermore, the second landmark decision by the European Court of Justice (ECJ, 13 September 2005) also changed the nature of the legal instruments and decision-making procedures in criminal justice along the lines suggested by the CT (Castillo Garcia, 2005). In 2002, the Commission had tabled a proposal to step up environmental protection through the application of criminal sanctions in case of severe pollution after the oil tanker Prestige sank off the Galician coast of Spain. Brussels asked for environmental offences to be incorporated into the EC Treaty as part of its exclusive powers (‘first pillar’). But member states in the EU Council of Ministers later amended the proposal and decided that environmental crime should instead be treated by EU member state governments on an ad hoc basis (‘third pillar’). The landmark judgement by the European Court of Justice granted the Commission the power to require criminal sanctions for environmental offences. By finding that the adoption of criminal penalties in areas of Community policies was a matter for Community law – and not for intergovernmental co-operation – the judgement conferred on the European Parliament a decisive role in the adoption of such measures, whenever they are made in a field governed by co-decision. One of the major institutional consequences of this judgment was that the co-decision procedure would apply in areas which were previously subject to a procedure of unanimous voting in the Council and EP consent. This is a significant step forward towards the communitarisation of the area of criminal justice.

Both judgements put together meant that third-pillar legal instruments had become like first-pillar instruments, and confirms the idea of a de facto de-pillarisation. This made it much easier for member states to argue that, while the ‘reform treaty’ was important for EU decision-making, in fact, the changes were only minor. While the changes in the AFSJ dimension had been very significant indeed, the policy entrepreneurship by the European Court of Justice, acting on a request by the Commission, made it easier to present abolition of the pillar structure as a modest endeavour. Thus, this increased the likelihood of the renegotiation of the treaty to succeed at the end of the reflection period.

Renegotiation, the Second IGC, 2007, and ratification of the Lisbon Treaty, 2009

As a result of the reflection period, the Lisbon Treaty was signed by the Heads of State or Government in December 2007. A number of domestic factors made this signing more likely. Firstly, France elected Nicolas Sarkozy as President, who argued successfully for a smaller ‘reform treaty’ in the French presidential (May 2007) and parliamentary elections (June 2007). He suggested that he would choose to ratify this ‘mini-treaty’ by parliament. Given that France presented the most significant stumbling block to ratification of the CT, this became a formidable chance for the EU to maintain the momentum for treaty reform. EU political elites still regarded treaty reform as necessary, but following Sarkozy, they argued that the new treaty should not be presented as a constitutional project, but rather a ‘mini-treaty’. Ratification of an ‘ordinary’ treaty was perceived to be more easily achievable. This resulted in a strategy of active depoliticisation of negotiations towards a ‘reform treaty’ (Christiansen, 2008, p. 42).

Due to this official strategy to depoliticise the new ‘reform treaty’, efforts made by the Finish Presidency with the support of the European Commission in 2006 to introduce some of the communitarising provisions of the CT did not receive a majority of member states in its support (Donnelly, 2008). This attempt aimed to bring in QMV in the Council and co-decision with the Parliament through the back-door route of the passarelle clause in the Amsterdam and Nice Treaties. Yet, these suggestions were resoundingly denied out of fear that it might have made it less likely to renegotiate a ‘reform treaty’. It would have also meant that the increase in EU AFSJ competences would have been lost, as well as the ECJ jurisdiction.

Under the German Presidency of 2007, rapid progress was made to renegotiate what was eventually to become the Lisbon Treaty, which included all major AFSJ provision from the CT, and even went further, as explained in the second section of this chapter (including even the Prüm Convention acquis). In addition to positive domestic conditions with the fresh election of French President Sarkozy, a number of other coincidental factors also helped. Firstly, it is often easier to agree on a raft of measures in a treaty, where different interests of member states are balanced against each other, than to agree on specific AFSJ provision (as attempted during the Finish Presidency). In addition, UK Prime Minister Tony Blair had announced his forthcoming resignation from government, which may have provided him with more room for manoeuvre to take political decisions that his successor would have to implement (Donnelly, 2008, p. 21). Finally, German Chancellor Angela Merkel proved to be an expert and very skilled negotiator, especially to overcome Polish obstructions against the new voting procedure. The fact that the German ‘Grand Coalition’ proved much more stable than expected added a sense of leadership from Germany.

However, despite some Polish obstructions by President Kaczynski, it was in fact (again) the British delegation that had again become the biggest obstacle just before the IGC summit. Within the British domestic political debate, the extension of the Community method to the AFSJ was widely under attack for infringing British national sovereignty, despite the safeguards that were already in the CT (Donnelly, 2008, p. 22). While the Lisbon Treaty communitarises the AFSJ for most member states, the British government insisted a generalised opt-in/opt-out from all newly communitarised parts of the AFSJ. At the back of this concession to Britain, Ireland also received the same protocol due to its ‘common law’ position (or the possibility of an Irish referendum, in other words). This significant new opt-in/opt-out mechanism, even in areas that Britain and Ireland had not previously received such a mechanism,¹ meant that the Lisbon Treaty was a ‘different beast’ to the Constitutional Treaty, at least in the British and Irish version. In the British context, this was a vital concession to make the domestic argument against holding a referendum as a method for ratification, subsequently often used by PM Gordon Brown to ensure British ratification. Given the British historical record of opting into almost all measures outside the Schengen framework, it is doubtful whether this will make a concrete difference for Britain, but it might provide its government with a stronger hand in any future AFSJ negotiations.

Reacting to the first Irish referendum: persuading Ireland to vote again

Unfortunately, again, referenda appeared as crucial obstacles in the way of ratifying the Lisbon Treaty. This treaty can enter into force only after it has been ratified by all of the twenty-seven EU member states. The first Irish ‘no’ vote (53 per cent) in a referendum on the Lisbon Treaty on 12 June 2008 made ratification of the treaty uncertain. Subsequently, Eurosceptic commentators (again) called for abandonment of the treaty, as indicated by the main headline in The Economist (20 June 2008): ‘Just bury it.’ However, in sharp contrast to the aftermath of the ‘no’ votes in France and the Netherlands, no member state stalled ratification. To reinforce this point, the European Council encouraged all member states to continue ratifying the Lisbon Treaty (Die Presse, 10 September 2008).

This meant that Ireland (similarly to the situation after the first Nice referendum) became the most significant and obvious obstacle to ratification. Fifty-three per cent of voters rejected the Lisbon Treaty either because of a tangible lack of knowledge about the treaty or because they felt they had not been properly informed. Consequently, this became one of the most important issues for the Irish government to tackle. Several other reasons for the ‘no’ vote included widespread fears about the alleged ‘militarisation of Europe’ and its impact on Irish neutrality, as well as ethical issues pushed by ultra-Catholic pressure groups, such as alleged threats to the restrictive Irish abortion laws and laws outlawing euthanasia. One of the main cited reasons for voting ‘no’, however, was the envisaged reduction in the size of the European Commission.

Subsequently, this presented the EU (Die Presse, 10 September 2008; EUobserver, 31 July, 4, 18 September 2008) with only one realistic option of persuading Ireland to vote again, along the lines of the Nice Treaty, which also had to be voted on twice. For such an event, options of how the Irish electorate might be persuaded to ratify (Die Presse, 10 September 2008) were the following:

• The European Council could decide to revert back to the principle of ‘One country – one commissioner’, if the Treaty of Lisbon was approved, contrary to the provisions of the Nice Treaty (which obliges the number of commissioners to be reduced).
• The Irish could receive special protocol assurances of their neutrality, their tax sovereignty and their abortion regulatory sovereignty (though unaffected by the Lisbon Treaty).
• The Irish could receive an all-encompassing opt-out from all defence cooperation to assure it of its neutrality (to counter the scare strategy of the ‘no’ side to depict a ‘militarisation of Europe’)

Given the fact that there was absolutely no appetite for renegotiating the Lisbon Treaty (again) amongst other EU governments, the Irish government decided to enter into non-treaty negotiations, in which it secured a series of legal guarantees. At the EU summit on 18-19 June 2009, the Taoiseach, Brian Cowen, received a declaration designed to reassure the Irish principal reservations derived from the first referendum (Hierlemann, 2009). The European Council clarified that Ireland’s abortion laws remained intact and would not be affected by the Lisbon Treaty. Furthermore, Ireland would keep its right of tax sovereignty and its traditional policy of military neutrality. Furthermore, the European Council confirmed that every member state would continue to be able to nominate its own commissioner if and when the Lisbon Treaty would come into force. In addition, it adopted a ‘Solemn Declaration on Workers’ Rights, Social Policy and other Issues’. These decisions are legally binding coming into effect the day of the entry into force of the Lisbon Treaty. To ensure full treaty status for these guarantees, they will be attached as a protocol to the Lisbon Treaty after the ratification of the next accession treaty (Hierlemann, 2009).

This resulted in an overwhelming success for the ‘yes’ campaign, as indicated at the beginning of this chapter. ‘The Irish people have spoken with a clear and resounding voice.’ Taoiseach Brian Cowen called the Irish vote a ‘declaration of intent to remain at the heart of Europe’; 67.1 per cent of the Irish electorate voted in favour of the Lisbon Treaty, while 32.9 per cent voted against. This represents a 20 per cent swing to the ‘yes’ side, when compared to Ireland’s rejection of the Lisbon treaty in June 2008 (EUobserver, 3 October 2009). As a result, Jerzy Buzek, President of the European Parliament, even suggested that ‘Europe is back on track’ (Euractiv, 3 October 2009). Nonetheless, there were other hurdles to overcome still.

Further obstacles: from Karlsruhe to Warsaw and Prague

Prior to the Irish referendum, the German Constitutional Court had to decide whether the Lisbon Treaty could be seen as compatible with the German ‘Basic Law’, i.e. the German Constitution. The Second Senate of the Federal Constitutional Court decided on 30 June 2009 that the Act Approving the Lisbon Treaty (Zustimmungsgesetz zum Vertrag von Lissabon) was compatible with the Basic Law (BVG, 30 June 2009). In contrast, the Court ruled the ‘Act Extending and Strengthening the Rights of the Bundestag and the Bundesrat in European Union Matters’ (Gesetz über die Ausweitung und Stärkung der Rechte des Bundestages und des Bundesrates in Angelegenheiten der Europäischen Union) unconstitutional; it ruled that it infringed the German Basic Law (Grundgesetz, GG). The reasoning provided in its ruling has been mainly the alleged facts that Bundestag and Bundesrat would not have been accorded ‘sufficient rights of participation in European lawmaking procedures and treaty amendment procedures’. As a consequence, although it was proclaimed that ‘Das Grundgesetz sagt “Ja” zum Vertrag von Lissabon,’ the German Constitutional Court ruled that that the accompanying laws passed by the Bundestag to incorporate the Lisbon Treaty needed to be revised before German ratification could be completed (BVG, 30 June 2009). Hoffmann (2009) argues that the seventy-two pages of ‘small print’ by the judges turned the ‘Ja zu Lissabon’ effectively into a ‘Ja, aber …’.

The ruling led to strong differences of opinions in Germany. The former Foreign Minister Joschka Fischer criticised the verdict strongly; ‘Karlsruhe simply does not like the EU’s progress towards deeper integration’ (Die Zeit, 9 July 2009). The Second Senate of the Constitutional Court ‘had attacked the phantasmagoric vision of a European “federal state”’ merely in order to lend legitimacy to its view that in future European integration policy would not be formulated in Berlin by democratically legitimated bodies, that is, the German government, the German Parliament and the Federal Council, but by the court in Karlsruhe (Die Zeit, 9 July 2009). European Commission President Barroso also expressed concern at the judgement by Germany’s constitutional court on the Lisbon Treaty, fearing it could undermine the ‘European project’. President Barroso elaborated that the judgement raised ‘very important and sensitive issues in terms of the competence of the EU and other competences, namely on the understanding of the principle of subsidiarity’ (EUobserver, 15 July 2009). He continued to state that the judgement was ‘extremely important’ for the way member states ‘understand respect for Community law’.

Hoffmann (2009) suggests that the Court used its Lisbon verdict to expand on its 1992 Maastricht decision, in which the Maastricht Treaty was declared compatible with the Grundgesetz, yet the Constitutional Court claimed a legal supervisory role over potential infringements by the EU into areas of German national competences. Yet, this verdict aims to contain European integration in a ‘list of areas that have always been deemed especially sensitive for the ability of a constitutional state to democratically shape itself (Hoffmann, 2009): (1) criminal law, (2) the use of force (police and military), (3) fiscal policy, (4) the social state, and (5) cultural policies including education, family and religious law and laws regulating religion. While the list seems arbitrary, the verdict makes no attempt to provide reasons behind this selection.

Since the verdict, the German Bundestag reconvened for a special session before the elections in September 2009 in order to amend the accompanying laws as demanded by the Lisbon verdict. In September 2009, just before the Irish referendum on 2 October 2009, the Bundestag and Bundesrat passed three new laws in relation to the co-operation between the government and the Parliament, as well as three new laws in relation to the co-operation between Bundestag and Bundesrat on EU matters. The laws, in line with the Court verdict, require explicit instruction by the legislature for the government to act in areas of the passerelle and flexibility clauses. As a consequence of these new laws, German President Horst Köhler signed the Lisbon Treaty at the end of September 2009, and the German ratification documents were deposited in time before the Irish referendum. However, the new rules of the game as stipulated by Karlsruhe will have clear consequences for future German EU policy: (1) the German government will find European policy (more) complicated, and (2) debates in the Bundestag and the Bundesrat will become more strongly focused on EU matters. Every German Chancellor will have to bear in mind the Eurosceptic consequences of this Karlsruhe ruling.

However, the last remaining obstacles to the ratification of the Lisbon Treaty were to be found in Warsaw and Prague, where Presidents Kaczynski and Klaus had refused to sign the Lisbon Treaty prior to the Irish referendum on the basis that ‘the Treaty was dead’. Nonetheless, on the 10 October 2009, the Polish President Lech Kaczynski signed the Ratification Act of the Lisbon Treaty, which concluded a long and painful ratification process in Poland (Zwolski, 2009). While the President had waited for the result of the second Irish referendum, despite the fact that the Polish parliament ratified the Treaty already in April 2008, ultimately he did not give the impression that he would block the ratification process in Poland. In a ‘pro-European ceremony’, with the Commission President Barroso and the European Parliament President Buzek present, he finally ratified the Lisbon Treaty.

This left the Czech Republic as the last country not to ratify the treaty under the strongly Eurosceptic President Klaus. Kratochvil and Braun (2009) suggest that the resistance to ratifying the Lisbon Treaty cannot be explained due to a particularly Eurosceptic public opinion; Eurobarometer polls indicated that the Czech population belongs to the EU mainstream. They suggest that the political elites in the Czech Republic are rather specific. The Civic Democratic Party (ODS), on the right, is commonly described as being Eurosceptic. However, President Klaus has become one of the ‘heroes’ of pan-European Euroscepticism.

The Lisbon Treaty was ratified in both chambers of the Czech parliament during spring 2009. Yet, in this ratification process, the Treaty was brought to the Czech Constitutional Court three times, each time with a clear verdict in favour of the treaty. During the first challenge by Klaus-loyal senators to the Constitutional Court, the senators posed six specific objections to the Treaty (Kratochvil and Braun, 2009): (1) the division of competences, (2) the flexibility clause, (3) the passerelle clause (which also caused problems in Germany), (4) EU legal personality for international agreements, (5) the increased competences of the EU in the former third pillar, and (6) the status of the Charter of Fundamental Rights. President Klaus put the argument forward to the Czech Constitutional Court that the Treaty would give the EU a competence – competence through the flexibility clause and the so-called passerelle, which enables smaller revisions of the treaty without the normal process of treaty ratification. The general argument put forward by President Klaus and his loyal supporters is based on the assumption that the Lisbon Treaty moves the EU one step further towards becoming a state.

However, finally, as the Lisbon Treaty was approved by both chambers of the Czech parliament, only two actors remained: the Czech Constitutional Court and President Klaus. In the end, the Czech Constitutional Court found three times in favour of the Lisbon Treaty. In its first verdict, the outcome was decided by a seven-to-zero decision in favour of the Lisbon Treaty. The Czech Constitutional Court clearly did not follow the German Constitutional Court in its Euroscepticism. The court examined whether the treaty was compatible with the Czech constitution for a final time at a hearing on 27 October 2009, two days before a crucial EU summit in Brussels. As with the other challenges in the past, the Czech Constitutional Court gave its positive verdict shortly after this hearing. Yet, once the Constitutional Court decided in favour of the Lisbon Treaty, the political pressure became substantial on President Klaus; some parts of the Czech political elite even advocated his removal from office in case he did not want to sign the treaty.

Although the Czech parliament ratified the treaty in May 2009, President Klaus initially refused to sign the Lisbon Treaty until after the second Irish referendum in October 2009. Subsequently, he refused to sign suggesting his hands were tied until the final verdict of the Czech Constitutional Court. However, in addition to this, Klaus created another unexpected obstacle for ratification by demanding that the Czech Republic needed an opt-out from Lisbon Treaty’s charter of fundamental rights due to fears of property claims by expelled former refugees from the Sudetenland. Klaus suggested that he wanted to ensure that, by ratifying the Lisbon Treaty, the Czech Republic would not open the door to a mass of claims on Czech property from ethnic Germans expelled from the former Czechoslovakia after 1945, or from their descendants. In order to de-escalate this stand-off between Klaus and the rest of the EU, the Czech Prime Minister Fischer agreed that his government was willing to discuss a possible solution to this situation with its European partners during the EU summit at the end of October 2009. In return, Klaus agreed to sign the Lisbon Treaty quickly after the Czech Constitutional Court approved the treaty: ‘The Lisbon Treaty cannot be stopped any more … the process is already too far advanced to be stopped … I will not wait for a potential new British government to call for a referendum … They should have done something about this earlier’ (Tagesschau, 17 October 2009). Thus, the Czech government agreed to draft a declaration that would satisfy objections raised by the Czech President Klaus.

Intense political pressure, from EU partners and the Czech political elites ensured that he would keep his promise. After intense consultations between the Czech government and its European partners, and strong criticism of Klaus, this pressure paid off. Former President Havel, for instance, criticised him very strongly for his role in obstructing the ratification process. He suggested his successor Klaus was damaging the country’s name in Europe by refusing to sign the Lisbon Treaty. He stated that Klaus’s attitude ‘was dangerous’ (BBC, 15 October 2009). French President Sarkozy also criticised the Klaus’ refusal to sign the Lisbon Treaty and warned him of the repercussions. ‘Decision time is coming for him and it will not be without consequence … and whatever happens, this issue will be resolved by the end of the year’ (BBC, 15 October 2009).

Thus, shortly after the Czech Constitutional Court’s positive ruling, Klaus finally completed the ratification process for the Lisbon Treaty in the Czech Republic. Having received legal assurances in the form of a declaration at the EU Council Summit at the end of October 2009, Klaus finally decided to sign and fulfil his legal obligation according to the Czech Constitution. While he was certainly not in a hurry with his signature, all the conditions that he defined as necessary for his signature (the Irish yes, the Court’s approval, and the EU Council declaration) were in place. As a consequence, Klaus signed the treaty, which was subsequently ratified by the Czech Republic as the last member state to ratify. The Lisbon Treaty entered into force on the 1 December 2009.

Evaluating the role of EU institutions as supranational policy entrepreneurs

The purpose of this section is to evaluate to what extent the European institutions have played the role of a supranational policy entrepreneur. A close examination of the summary of results substantiates the degree of success of the European institutions, in particular the Commission, as a supranational policy entrepreneur in the AFSJ dimension of the Lisbon Treaty. Antonio Vitorino in particular – the commissioner responsible for the AFSJ from 1999-2004 – and his organisation qualify for this category. The Commission achieved significant policy advances in the institutional architecture of the area. This was often due to the valuable negotiation skills of Commissioner Vitorino and his staff. However, especially during the reflection period in the run-up of the Lisbon Treaty, the European Court of Justice also displayed clear signs of policy entrepreneurship, prompted by the action of the Commission. It is clear that an alliance of European institution is often necessary to advance European integration.