Lisbon Treaty and EU Constitution

capital of Portugal treaty and EU ConstitutionTo what extent do the reforms enshrined by the capital of Portugal Treaty enhance the genuineness of the European northern?The European Court of Justice (ECJ) in the avant-garde Gend en Loos- show window pointed knocked out(p) that he European unification (EU) is and remains a bran- cutting juristic order of inter subject field law.1 Therefore we can non grasp genuineness in the alike way as nation tell aparts, where concepts such as a collective identity and a constitution be benefaction. The EU is sui generis of its own kind, unmatched and unique in the world, fundamentals like supremacy, direct and indirect effect, and state li might argon bow so neither the way in which some other(a) inter field of study organisations derive their authenticity is suitable in the case of the EU.2 Throughout my readings I found out that there argon galore(postnominal) theories, and difference of opinions of what authenticity in t he context of the EU would involve because of its mingled internal structure and way of functioning. I sh every aim to explore why legitimacy in the context of the EU is so fit and how, from a legal perspective, this is been reached by the Lisbon Treaty.The integration of the EU from the beginning of the fifties when the Treaty of Paris was signed, especi every last(predicate)y the increasing of EU competency since 1992, savings bank the current Treaty of Nice, has been developed so far that the penis states comp championnt its decision-making powers with the EU as well as accept policies coming from the EU. When a system has decision-making powers in a wide range of policy competence it is important that it possess legitimacy.3The failed Constitutional Treaty nominateenda in France and the Netherlands in 2005 were an unthought-of event that had damaging effect to the plans of the EU for its integration and prior to this the citizens for example of Denmark (Treaty of Maast richt 1992), Ireland (2001Treaty of Nice) and Sweden (EMU 2003) had also voted prohibitly which had the effect that developments for EU citizens gave the image that the EU institutions ar inefficient, not transp bent and unaccountable.4 This and the fact that the EU keeps reforming its Treaties, especially since 1986 Single European Act, presumes a legitimacy crisis.5Amongst scientists many theories developed to attempt to erectify the legitimacy of the EU.6 There has been a tendency to combine the concepts of classless deficit and legitimacy crisis.7 elected deficit is that where decisions are moved from national sevenss and the citizens where decisions are taken by well-bred servants behind closed doors and laws are made via agreements mingled with all member states whereby it is impossible for an individual country, playing al unmatched, to pip or lurch an EU law where citizens vote and influence at national level has no guaranteed effect upon what occurs at EU level .8 Its remarkable that just about scientists could not agree on the existence of a pick out deficit despite the concern of EU officials and national politicians. In 2001 the armorial bearing published its seminal White Paper on European G everywherenance in which it based its sweeping marriage proposals for EU institutional reform on principles of computable governance, including openness, participation and swear outableness. 9 These principles were described as the underpinning of democracy, not only for the Member States, scarcely also for the unification. Also in this year the Laeken Declaration on the time to come of the EU was adopted which noted that the EU derives its legitimacy from the participatory set out it projects, the aims it pursues and the powers and instruments it possesses as well as from its egalitarian, simple and efficient institutions.10 Nevertheless, the document set forth a lengthy list of questions illustrating the need to increase the repu blican legitimacy of the EUs institutions.11 The Member States recognized the need to improve and to monitor the pop legitimacy and enhancer of the Union and its institutions, in order to tot them close set(predicate) to the citizens of the Member States.12 They agreed to convene a raw inter authoritiesal conference (IGC) in 2004 in order to agree the necessary changes in the Treaties.13According to Sharpf, a political scientist who is basically in the for front of European studies and whos concepts are frequently used in literature when legitimacy is discussed, legitimacy is the relation between the ruler and the ruled. Citizens determines must(prenominal) be reflected and incorporated in the decision-making system.14 semipolitical systems can only reach legitimacy when they beget the competence or the power to decide how it leave be governed, which guarantees that the government is of the multitude, by the people and for the people.15 Sharpf thus has identified three i mportant types of legitimisation with regard to the EU. Output legitimacy refers to government for the people where support is granted on the basis of change efficiency in provision of dandys and services, as well as an increase European problem-solving subject and where the legitimacy is derived from interest of the people.16 Input legitimacy refers to government by the people with main features like direct legitimation by dint of the elected European fan tan citizens participation and consultation and better transparency in taking decisions so where policies and choices must be a comment of the go forth of people.17 Borrowed legitimacy refers to government of the people where indirect legitimation finished the member states and their representative representatives operating at different levels.18 The borrowed and the output theories are difficult to justify legitimacy in the light of the EU though there are scientist who disagree, as we will see later on.19 And from the in a higher place mentioned we can draw among others a conclusion that much emphasis to reduce participatory deficit will increase the legitimacy of the EU. Therefore a need for a greater input legitimacy which is related to change magnitude citizen participation, better representation, improved accountability and efficient and transparent decision-making procedures has been viewed as one possible solution.The EU can be divided into two parts. An intergovernmental structure20 which includes the European Council and the Council of Ministers and the regulatory structure21 which includes the European sevens, European Central Bank (ECB) and the ECJ. Moravcsik and Majone emphasizing that military strength is one of the proper mean to legitimise the EU, so the output legitimacy is the best way to do this.22An intergovernmental component, where international features control (European Council, Council of Ministers, and the warrant and leash pillars of the TEU), and a communitaria n component where supranational features are most evident (European fan tan and Courts, Commission, and the policies and activities included in the first pillar of the TEU). no, even if it is true that the democratic character of the Member States is According to Moravcsik the EU does not deal with democratic deficit in the intergovernmental part23 simply because of its distinctive objectives where the preferences and the power of the states are important, where the policies are the result of states bar pass watering and where supranational shares are of less importance to policy outcomes. The EU is either a state nor a federation or a confederation and it avoids any risk of becoming a technocratic superstate.24 That needs the vista and requirement of legitimacy different. The legitimacy of the EU system is derived from indirect accountability of the nation state where indirect democracy is enforced through the ratification from the treaties by democratically accountable govern ments.25 Constitutional checks and balances, indirect democratic deem by national governments, and the increasing powers of the European Parliament are sufficient to ensure that the EU policymaking is, in nearly all cases, clean, transparent, effective and politically responsive to demands of European citizens.26Moreover because of its simple and limited organisation, EU does not need the input legitimacy to become legitimate. The EU, broadly speaking, does not tax, spend, implement, constrain or, in most areas, monopolistic public authority. It has no army, police, and intelligence capacity, and a miniscule tax base.27 Yet the EU enjoys sufficient democratic support. The institutions are supported by either direct or indirect accountability. The European Parliament is comprised by directly elected representatives and it is increasingly taking over powers from the Commission. Moreover it can control the legislative proposals from the Commission, by rejecting or proposing amendment s to the Council. The Council of Ministers, which is more powerful, also enjoys democratic accountability and responsibility for policy outputs. Commissioners and the judges of the European Court of Justice are chosen by directly elected national governments. The power is also vertically divided between the Commission, Council, Parliament and Court, and then horizontally between local, national and transnational levels. Thereby a concurrent majority is necessary for any action to be initialised. The ability of the EU to operate at bottom the areas of its competence is also constrained. The powers of the administrator, legislative and judicial system are secernate in order to prevent abuse of power. The multi-level spin of decision-making and the plurality of executives all constitute checks and balances found to prevent arbitrary actions. The democratic deficit discussion has only emerged because of nurseing idealistic views of input dimensions of democracy on the EU. The leg itimacy is sufficient in the current situation because of member states democratic legitimacy and the numerous procedures installed to prevent the EU from bolting away to become a technocracy.There are however elements that are not supported by indirect democracy. The regulatory element of the EU refers to these institutions.According to Majone the regulatory element achieves legitimacy by non-majoritarian forms of democracy. This model has to do with protecting minorities from the majority by distributing the powers between institutions instead of placing it in the hands of the majority. The European regulators neither test nor take instructions from any Government. They are independent from direct democratic control simply because they are not elected and ask miniature or no direct accountability. Although this implies a democratic deficit it unsounded can be legitimate. National governments, which has power for a specific period, localise on short term problems which usuall y do not bring vast term effect. The energy to produce the best policies lacks because of the time aspect. This causes believability problems within the member states, hence it was better that decision-making powers have been delegated to independent institutions of the EU. The areas where the powers have been delegated to these institutions, are the like areas as on national level. At the same time, acts of government can be perceived as legitimate for what they achieve which is called the substantive legitimacy. Independent agencies can produce legitimate decisions as long as they create welfare for all, whilst only elected officials can make legitimate decisions where welfare is re-distributed.F. Scharpf, Governing in Europe Effective and Democratic? (Oxford 1999)IN LIBRARY Adam Smith Library Politics F100 SCHARA. Arnull, access the EUs function and Legitimacy Deficit in A. Arnull D. Winscott, Accountability and Legitimacy in the EU (Oxford, 2002),D. Chalmers et al., Europe an Union Law Text and Materials (Cambridge, 2006),D. Chalmers G. Monti, European Union Law Updating Supplement (Cambridge, 2008),P. Craig G. de Burca, EU Law Text, Cases and Materials 4th edn. (Oxford, 2007),A. Moravcsik, In Defence of the Democratic Deficit Reassessing Legitimacy in the EU (2002) 40 Journal of Common securities industry Studies 603.Majone, G. (1998) Europes Democratic Deficit. European Law Journal, Vol. 4, No. 1, pp. 5-28.Scharpf, Fritz (1994) Community and Autonomy Multilevel Policy-Making in the European Union, Journal of European Public Policy 1(2) 219-42Scharpf, Fritz (1997) Economic Integration, Democracy and the benefit State, Journal of European Public Policy, 4(1) 18-36Obradovic, Daniela (1996) Policy Legitimacy and the European Union, Journal of Common food market Studies 34(2) 191-221Roles in the legislative and executive processes need to be clearer Eu institutions and all those involved in evolution and implementing EU policy at whatever level mus t pardon and take responsibility for what it does in Europe it implies that institutional and decision-making structures should be unbroken as simple as possible seeA. Arnull, Introduction the EUs Accountability and Legitimacy Deficit in A. Arnull D. Winscott, Accountability and Legitimacy in the EU (Oxford, 2002), 2-3.Efficiency (institutions)Easier decision-makingUse of qualified majority voting (QMV) is extended to new areas, and becomes the general rule which means an increasing decision-making of the Union.28 Redefined as 55% of member states, comprising at least fifteen of them, representing 65% of the population and a cylinder block minority must include four Member States.29 This new QMV will not become effective forwards 2014, and Member States whitethorn compensate to have recourse to the Nice voting rules until 2017.30 However, the Ioannina compromise applies, and emergency brakes are made available in selected areas.31 This means member states counterbalance of ve to despite the application of the co-decision procedure, for instance in relation to the coordination of national social security measures systems a Member State may refer the matter to the European Council where important aspects of its social security system would be affected by a legislative draft.32One UnionThe Lisbon Treaty confers legal nature expressly on the EU, giving it the capacity to compute into legal relationships with other parties in its own right. But the European Community (in relation to the first pillar) has always had express legal genius and the EU implicitly has had legal personality to the extent that it has the power to enter into international agreements under terms 24 and 38 of the current TEU. Conferring legal personality expressly on the Union will have the effect that the other attributes such status, such as the ability to join international organisations or to take, or be subject to, proceedings in international tribunals, will apply to the EU in the areas currently covered by the second and triplet pillar.33Enhanced cooperationAlready exists under the current Treaties were it is possible for a group of Member States to harmonise law and integrate further than all of the member states as a collective group.34 The most important changes in the Lisbon Treaty which are reflections of changes already made in other contexts, namely the fact that the rules on enhance cooperation are consolidated in the TFEU (instead of having a specific set of rules for deepen cooperation in each pillar), is due to the fact that the pillars are absorbed into the EU.35 Regarding the role of the institutions in the procedure for enhanced cooperation, it can be said that the Commission and the European Parliament gain powers, especially in the field of PJCCM (consent of the EP instead of mere consultation). However, a separate procedure remains in place for the CFSP. 36 A truly new element is the emergency exit procedure in the area of PJCCM.37Eu ropean CouncilIs a newcomer in the list of formal EU institutions.38The chairwoman of the Council is elected for 2.5 years (renewable once) by the European Council on QMV.39 The President chairs the European Council, drive(s) forward and ensures the preparation and continuity of its work.40 At his level and in that capacity, s/he ensures the external representation of the Union on issues concerning its common outside(prenominal) and security policy, without prejudice to the powers of the High Representative of the Union for Foreign personal business and protective covering Policy.41CommissionEnsures the Unions external representation, with the exception of the common foreign and security policy, and other cases provided for in the Treaties.42 President is elected by European Parliament, and nominal by the European Council by QMV taking account of the result of parliamentary elections.43 The number of Commissioners will be reduced to two-thirds of the number of Member States aft (prenominal) 2014, unless the European Council decides otherwise.44 The college includes the New High Representative for Foreign Affairs and Security Policy (HR CFSP) as one of Commission Vice President (VP).45 The HR CFSP/ VP of the Commission is double-hatted. It combines functions of current HR for CFSP and Commissioner for External Relations, though his/her exact portfolio remains to be clarified, both within the Commission and the Council, and in relation to the presidents of the Commission and the European Council, respectively.46 HR is head of the new European External follow out Service whose activities remain to be determined by a specific Council decision.47ParliamentsNational ParliamentsBecome guardians of the subsidiarity principle. It may force the Commission to regard a legislative proposal on the grounds of a recess of subsidiarity (yellow card).48 The matter may end up being referred to the Council and Parliament (orange card), and may even lead to proceedings be fore the Court of Justice49Involved in the scrutiny of Europols activities and the evaluation of Eurojusts activities50European ParliamentExpanded legislative powers thanks to the extension of the co-decision procedure and through enhanced influence in a renewed budgetary procedure.51 It has a determining(prenominal) role in electing the President of the European Commission and also installs the in all Commission, including the HR CFSP/ VP.52 Its composition is 750 members maximum + 1 president. Revised distribution of seating room which entails a degressive proportionality, minimum threshold of six MEPs per Member State, and maximum of ninety-six seats.53 Exact distribution to be decided by the European Council54AccountabilityClarification of competencesThe Lisbon Treaty is much more diaphanous in attributing competences. Arts. 4(1) and 5 TEU state the fundamental principles relating to competences. In addition, it is stated (twice) that competences not given to the EU remain with the Member States. The TFEU contains a special surname on Categories and areas of Union Competence.55 This title mentions, and defines, different types of competences and it lists the (most) relevant areas. Like the present Treaties, the Lisbon Treaty does not provide a list of negative competences, i.e. of areas where EU law can never have any influence.56 step-down of the Unions instrumentThe main changes provided for in the Lisbon Treaty are on the one hand, the various legal instruments that are used in the present 2nd and 3rd pillars are abolished, while on the other hand, a distinction is made between legislative and non legislative acts.57 The instruments are listed in Art. 288 TFEU regulations, directives, decisions, recommendations and opinions were only the definition of decision is amended.Citizen valuesCitizens rights in electionsThe only change made to Art. 19 EC consists of the fact that the words acting nemine contradicente on a proposal from the Commission are replaced by acting unanimously in accordance with a special legislative procedure.58Citizens inauguralThe following picture emerges from a comparison between the current article 21 EC and its equivalent in the TEU and TFEUArt. 21 EC all citizen of the Union shall have the right to petition the European Parliament in accordance with word 194. Every citizen of the Union may apply to the Ombudsman established in accordance with clause 195. Every citizen of the Union may salve to any of the institutions or bodies referred to in this phrase or in Article 7 in one of the languages mentioned in Article 314 and have an answer in the same language.Art. 11(4) TEUNo less than one million citizens who are nationals of a significant number of Member States may take the beginning(a) of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is unavoidable for the purpose of imp lementing the Treaties.Art. 24 TFEUThe European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall adopt the provisions for the procedures and conditions undeniable for a citizens initiative within the meaning of Article 11 of the Treaty on European Union, including the minimum number of Member States from which such citizens must come. Every citizen of the Union shall have the right to petition the European Parliament in accordance with Article 227 TFEU. Every citizen of the Union may apply to the Ombudsman established in accordance with Article 228 TFEU. Every citizen of the Union may write to any of the institutions, bodies, offices or agencies referred to in this Article or in Article 13 of the Treaty of European Union in one of the languages mentioned in Article 55(1) of the Treaty on European Union and have an answer in the same language. transparencyA new epithet II of the TEU concerns democratic principle s.59 It requires the EU institutions to give citizens and representative associations the opportunity to make known and publicly exchange their views regarding all areas of EU action.60 It expressly requires an open, transparent and regular dialogue with representative associations and civil society.61It requires also, among other things, that the Commission shall use up out consultations with parties in order to ensure that EU actions are transparent.62As for the institutions, it requires the Council to meet in public when it deliberates and votes on a draft legislative act, with no exceptions provided for.63Article 15 of the TFEU which replace Article 255 of the current EC Treaty, would deal in more detail with the issue of openness. First of all, all of the institutions, bodies, offices and agencies of the EU has to conduct their work as openly as possible, in order to promote good governance and ensure the participation of civil society.64 The European Parliament has to meet in public, as well as the Council when considering and voting on legislative acts.65 The rules concerning the adoption of legislation on access to documents will now apply to all EU institutions, bodies, offices and agencies, instead of just the Council, Commission and European Parliament.66 The current article 286 EC Treaty which requires the European Parliament and the Council to adopt selective information protection legislation applying to the EU institutions within the scope of the first pillar only applies now to the current third pillar as well, along with the public authorities of Member States.67 However, the new Treaty Article does not apply to the adoption of legislation brass the private sector.The new Article 298 TFEU would provide first of all that EU institutions, offices, bodies and agencies shall have the support of an open, efficient and independent European administration. Next, there is a new legal power to adopt regulations to that end.This could be a legal base to adopt rules on access to EU information as distinct from access to EU documents, and to adopt rules relating to other aspects of the EUs current Transparency Initiative, including rules on the regulation of lobbyists and on consultations. Some of these issues are addressed in the European Ombudsmans proposed Code of Conduct on good administration, which has been approved in some form by some EU bodies and institutions already.Finally, the Treaty of Lisbon would specify that the EUs Charter of Rights will have the same legal value as the Treaties (Article 6 TEU). The Charter includes the right of access to documents, the right to good administration (which arguably encompasses the right to open administration, including access to information) and the right of data protection.This could possibly enhance the enforceability of those rights within the EU legal system.C-26/62 Van Gend en Loos v Nederlandse Administratie der Belastingen (1963) ECR1.D. Chalmers et al., European Union Law Text and Materials (Cambridge, 2006), 52Obradovic, Daniela (1996) Policy Legitimacy and the European Union, Journal of Common Market Studies 34(2) 193Obradovic, Daniela (1996) Policy Legitimacy and the European Union, Journal of Common Market Studies 34(2) 192-1931951/52 Paris, 1957/58 Rome, 1986/87 SEA, 1992/93 Maastricht, 1997/99 Amsterdam, 2001/03 Nice, 2007/09 LisbonD. Chalmers et al., European Union Law Text and Materials (Cambridge, 2006), bekijk dit ffObradovic, Daniela (1996) Policy Legitimacy and the European Union, Journal of Common Market Studies 34(2) 191-221Een van de boeken dat uitlegd wat democratic deficit is (majone 14/15)European Commission (2001a) European Governance a White Paper, COM (2001) 428 finalLaeken Declaration (2001) Laeken Declaration on the Future of the European Union, 15 December 2001, SN 300/01ADD1ibidP 9 of accountabilitysharpsharpsharpsharpsharp clever agencies that are independent of direct political controlwhere international features dominate (European Council, Council of Ministers, and the second and third pillars of the TEU),P 605 MoravcikArticle 16(3) TEU, Article 294 TFEUD. Chalmers and G. Monti, European Union Law Updating Supplement (Cambridge University Press, 2008) 27.Article 16 TEU, Protocol No 36 on transitional provisions, Articles 3 and 4.Declaration No 7 on Article 48 TFEU. Article 48 TFEU.By bulky Britain European Union Committee, The Treaty of Lisbon an impact assessment (10th line 2007-08 Volume 1 Report), 33. cast to a higher place n. 31, p 6Article 20 TEU referring to Articles 326-334 TFEU.Articles 82(3), 83(3), 86(1), 87(3) TFEU.Article 15 TEU, Articles 235 and 236 TFEU.Article 27(3) TEU.Article 15(6) TEU.ibid(Art. 17(1) TEU)Article 17(7) TEU, Declarations No 6 and 11.(Art 17(5) TEU, Declaration No 10)ibidArticle 18 TEU, Declarations No 6 and 12Article 27(3) TEU.Art. 12(b) TEU)Art. 8 of Protocol No 2 on the application of the principles of subsidiarity and proportionality.Articles 88(2) and 85(1) TF EU respectively.(Art. 314 TFEU)TEU Declarations No 6 and 11See above n. 31, p 2814(2) TEU Declaration No 4(Arts. 2-6). TFEUArticles 288, 289 and 290 TFEU.Art. 22 TFEUSee above 31, p6Article 11(1)TEUArticle 11(2) TEUArticle 11(3) TEUArticle 16(8) TEUArticle 15(1) TFEUArticle 15(2) TFEU, Article 16(8) TEUArticle 15(3) TFEUArticle 16 of the TFEU