VZCZCXRO7029
RR RUEHAG RUEHAST RUEHDA RUEHDF RUEHFL RUEHIK RUEHKW RUEHLA RUEHLN
RUEHLZ RUEHPOD RUEHROV RUEHSR RUEHVK RUEHYG
DE RUEHBS #0295/01 0570803
ZNR UUUUU ZZH
R 260803Z FEB 08
FM USEU BRUSSELS
TO RUEHC/SECSTATE WASHDC
INFO RUEHZL/EUROPEAN POLITICAL COLLECTIVE
RHEHNSC/NSC WASHDC
RUEKJCS/SECDEF WASHDC
RUCNDT/USMISSION USUN NEW YORK
RUEHNO/USMISSION USNATO

UNCLAS SECTION 01 OF 03 BRUSSELS 000295 
 
SIPDIS 
 
SIPDIS 
 
DEPT FOR EUR/ERA 
DEPT ALSO FOR USTR 
 
E.O. 12958: N/A 
TAGS: PREL EUN PGOV ECIN ETRD PBTS
SUBJECT: EU TREATY OF LISBON - NO MORE PILLARS; A SINGLE LEGAL 
PERSONALITY 
 
REFS: (A) 2007 BRUSSELS 3488; (B) 2007 BRUSSELS 2473 
       (C) 2007 BRUSSELS 2001 
 
SUMMARY 
------- 
 
¶1.  With the entry into force of the Treaty of Lisbon (targeted for 
2009), the current three-pillar structure of the EU will formally 
disappear.  EU polices concerning economic integration, the Common 
Foreign and Security Policy (CFSP) and the area of freedom, security 
and justice will all be brought under a single legal framework, 
although the specificity of CFSP, including defense policy, will be 
retained through the maintenance of specific decision-making rules. 
The "Union" will replace and succeed the European Community 
(currently a suset of the EU), thus giving the EU as such the 
status of legal personality, which is only onferred until now upon 
the European Communit and EURATOM.  This recognition will not, by 
itself, entail any extension of the Union's powers.  However, it 
will allow the EU to sign treaties and -- subject to the Member 
States' agreement -- become a member of international organizations. 
 Though all implications will only appear over time, our preliminary 
analysis suggests that the conferral of legal personality could 
bolster the EU's profile at the international level. 
 
¶2.  This message, building on previous USEU reporting on the Treaty 
of Lisbon (REFTELS), is the second in a series that is meant to put 
forthcoming EU reforms in perspective and describe their impact on 
the United States' relations with the EU.  Other messages will 
follow that will focus specifically on foreign policy, defense, 
justice and home affairs, economic policy, and the role of the 
European Parliament and national parliaments.  End Summary. 
 
THE PILLAR STRUCTURE IS ABOLISHED 
--------------------------------- 
 
¶3.  A key feature of the failed draft Constitutional Treaty that was 
retained by the Treaty of Lisbon (ToL) negotiators is the removal of 
the current three-pillar structure as established under the Treaty 
of European Union ("Maastricht Treaty") that entered into force in 
¶1993.  Since then the three pillars -- the "Community" pillar, CFSP 
and police and judicial cooperation in criminal matters (the bulk of 
Justice and Home Affairs issues currently forming the "third 
pillar") -- have been functioning on the basis of different 
decision-making procedures and legal instruments.  Doing away with 
the pillars implies that "The Union shall replace and succeed the 
European Community," as stated in the revised Article 1 under the 
common provisions of the revised TEU. 
 
¶4.  The establishment of a single structure as originally designed 
under the draft Constitutional Treaty could also have implied 
getting rid of the special rules and legal instruments that have 
been created over time for handling the non-Community issues. 
However, anxious to reaffirm the specificity of CFSP, the ToL 
negotiators clearly stated that "the Common Foreign and Security 
Policy is subject to specific procedures defined by the European 
Council and the Council acting unanimously" (except where otherwise 
stated) and that "the adoption of legislative acts shall be 
excluded" from CFSP (article 11.1 TEU).  A Declaration annexed to 
the ToL further clarifies that the provisions of CFSP "do not give 
new powers to the Commission to initiate decisions nor do they 
increase the role of the European Parliament" in such matters.  In 
practice, the "second pillar" will thus be maintained de facto with 
its specific set of decision-making rules. 
 
¶5.  The single framework will allow for the adoption of more 
decisions using the ordinary legislative procedure 
(qualified-majority voting in the Council and co-decision with the 
European Parliament) in areas related to freedom, security and 
justice that have not been transferred yet to the Community domain, 
or so-called "first pillar."  Visa, asylum and immigration issues 
are already governed by the "Community method" of decision-making, 
under which the Commission makes a proposal to the Council and the 
European Parliament, which eventually adopt it as a piece of 
legislation.  The ToL will pave the way for substantial changes in 
JHA matters (to be detailed in a separate message), although some 
specificities and exceptions will be retained here as well, 
including comprehensive "opt-outs" for some countries that could 
lead to an increased lack of uniformity in the application of the EU 
legal order. 
 
THE EU ACQUIRES LEGAL PERSONALITY 
--------------------------------- 
 
¶6.  The issue of the legal personality has long been a subject of 
debate among scholars and practitioners of the EU.  At present, only 
 
BRUSSELS 00000295  002 OF 003 
 
 
the two remaining Communities - the European Community and EURATOM 
-- have legal personality.  In this sense, legally binding 
agreements concluded by the EC (European Community) are signed on 
behalf of one or both of the existing Communities.  As an 
illustration, the WTO Agreement was concluded by the member states 
individually as well as the European Communities, not by the EU.  In 
the daily practice of international relations, non-EU states are 
interacting with two organizations (the Communities) and a third 
entity ,the EU, which is often seen as encompassing the EC and the 
Member States when acting collectively in an area of member state 
competence.  The EU lacks the legal status of the two Communities. 
This has been a source of confusion that has always been resented -- 
some would say nurtured -- by EU officials themselves. 
 
¶7.  With the formal removal of the pillar structure and the creation 
of a single framework, the ToL introduces a single legal personality 
for the European Union (Article 32 of TEU).  By becoming a subject 
of international law, the EU as such will technically be able to 
conclude international agreements in all its areas of competence, 
buy or sell property, go to and be summoned to court, and -- subject 
to the Member States' agreement -- become a member of international 
organizations.  In other words, the EU - like the EC before it -- 
will finally be able to take action and assume responsibility on 
behalf of its Member States. 
 
¶8.  The conferral of the legal personality to the EU will go on a 
par with a single procedure for the conclusion of international 
agreements.  Under that procedure (detailed in Article 188n of the 
Treaty on the Functioning of the European Union, or TFUE), the 
Council authorizes the opening of negotiations on the basis of 
recommendations from the Commission or (when the agreement envisaged 
relates exclusively or chiefly to CFSP) the High Representative of 
the Union for Foreign Affairs and Security Policy.  The Council 
appoints the Union negotiator or head of the EU's negotiating team. 
The Council may also address guidelines to the negotiator and set up 
a special committee to be consulted during the conduct of the 
negotiations.  The Council ultimately then also adopts a decision 
authorizing the conclusion and the signing of the agreements. 
 
¶9.  Under the new Treaty, the European Parliament (EP) must give its 
"consent" ((by a majority of votes cast) to association agreements 
or those on accession by the Union to the European Convention for 
the Protection of Human Rights and Fundamental Freedoms, as well as 
the agreements: 
 
-- Covering areas subject to the ordinary legislative procedure (QMV 
and co-decision) or the special legislative procedure where consent 
by the EP is required; 
 
-- Having important budgetary implications for the Union; 
 
-- Establishing a special institutional framework by organizing 
cooperation procedures. 
 
(In other cases - such as trade cooperation agreement with non-EU 
countries, the EP is simply consulted.  In this respect, the TFUE 
has only marginally expanded the EP's right of "assent" on 
international agreements, although the expansion of the co-decision 
procedure itself potentially expands the EP's role.  The 
above-described procedure does not apply to agreements relating 
exclusively to CFSP). 
 
¶10.  Per Article 6 of the revised TEU, the Union as such will accede 
to the European Convention for the Protection of Human Rights and 
Fundamental Freedoms (ECHR).  The TFEU also provides that accession 
to the ECHR will be agreed by the Council acting unanimously, with 
the act concluding the agreement to be ratified by all Member States 
in accordance with their respective constitutional requirements. 
 
¶11.  The single legal personality may also have an impact on the 
role of EC delegations in third countries that are currently under 
the authority of the Commission.  Subject to practical arrangements 
to be defined in the months ahead, those delegations (numbering over 
120 around the world and managed by Commission DG RELEX) will be 
placed under the authority of the High Rep for Foreign Affairs and 
Security Policy, who will combine the responsibilities of the 
current RELEX Commissioner and the current High Rep for CFSP.  This 
could lead to an assertion of the EU's "institutional image" in the 
world at large and encourage the heads of those delegation offices 
to assert a politico-diplomatic profile, e.g. in African and Asian 
countries. 
 
¶12.  To make the EU's mandate clear, a declaration annexed to the 
ToL states that the legal personality may not "in any way authorize 
the Union to legislate or to act beyond the competencies conferred 
 
BRUSSELS 00000295  003 OF 003 
 
 
upon it by the Member states in the Treaties."  In other words, 
legal personality may not lead to calling into question the division 
of competencies between the EU and its Member States.  By 
implication, the Member States remain free to conclude international 
agreements within those areas remaining in their exclusive 
competence, and will be necessary joint participants with the EU in 
agreements which include provisions touching on areas of joint or 
exclusive Member State competence. 
 
COMMENT 
------- 
 
¶13.  The removal of the pillar structure is intended to make the EU 
constitutional order easier to understand, to provide for better 
legal certainty and to increase the EU's effectiveness vis-`-vis the 
outside world.  But the first practical effect of this change is to 
significantly broaden the scope of agreements the EU had been able 
to enter into, from just those within the competence of the 
Community (the old "first pillar") to now any agreement falling 
within the areas of justice and home affairs and common foreign and 
security policy (although agreements under the latter can only be 
concluded through unanimity).  Though some implications of the 
reforms described in this message will only appear over time, a 
preliminary analysis suggests that by conferring legal personality 
on the EU as such the new treaty will likely enhance the affirmation 
of the Union's identity at international level, including 
potentially in the United Nations generally, as opposed to just the 
UN technical agencies, where the EC is already active as either an 
observer or, in a few instances (WTO, FAO), a member. 
 
WOHLERS