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UNCLAS SECTION 01 OF 04 BRUSSELS 001522 
 
SIPDIS 
 
E.O. 12958: N/A 
TAGS: PREL PGOV EUN
SUBJECT:  THE TREATY OF LISBON: AN OVERVIEW OF FORTHCOMING EU 
 
REFORMS 
 
REF: (A) BRUSSELS 1414; (B) 2008 USEU BRUSSELS 892; (C)2008 BRUSSELS 
398; (D) 2008 USEU BRUSSELS 303 and previous 
 
BRUSSELS 00001522  001.4 OF 004 
 
 
SUMMARY 
------- 
 
¶1. (U) The Treaty of Lisbon, now scheduled to enter into force on 
December 1, is intended to streamline EU decision-making and to 
enhance EU effectiveness on the world scene through a series of 
institutional reforms.  Changes of key interest to the USG include 
the creation of two new positions: permanent President of the 
European Council (to chair top-level meetings of EU leaders), and 
High Representative of the Union for Foreign Affairs and Security 
Policy.  Other major reforms include the removal of the "pillar" 
structure (while retaining the consensus rule for EU decisions on 
foreign policy and security issues), expanding the use of qualified 
majority voting in the EU Council of ministers, and increased 
involvement by the European Parliament.  Many "Lisbon" reforms will 
require further internal EU adaptations to existing practices, and 
will take many months to implement. USG dealings with EU bodies must 
adapt accordingly. 
 
¶2. (U) This message is meant to provide a brief, non-exhaustive 
overview of major EU reforms that will take effect starting on 
December 1, 2009.  It should not be treated as explaining the 
operation of EU bodies and rules not affected by the reforms, for 
which USEU would refer to its "Introducing the EU" cable series.  A 
detailed analysis of Lisbon Treaty reforms affecting specific EU 
policy areas was previously provided in REFTELs.  END SUMMARY. 
 
AN AMENDING TREATY 
------------------ 
 
¶3. (U) The Treaty of Lisbon is an amending treaty consisting of 
changes to basic, existing EU texts; namely, the Treaty on the 
European Union (TEU) and the Treaty establishing the European 
Community (TEC), the latter of which will be renamed the "Treaty on 
the Functioning of the European Union" (TFUE).  "Lisbon" also 
contains a number of legally-binding Protocols and Declarations. 
The EU will henceforth, then, be governed by two consolidated 
treaties: 
 
-- The TEU, containing most of the EU institutional provisions, as 
amended by "Lisbon"; 
 
-- The TFEU, containing the existing substantive provisions on 
specific EU policies with implementing modalities and mechanisms, as 
amended by "Lisbon." 
 
Note:  Consolidated versions of the TEU and TFEU encompassing 
"Lisbon" changes are available from (http://eur-lex.europa.eu/Lex). 
 
NO MORE PILLARS; A SINGLE PERSONALITY 
------------------------------------- 
 
¶4. (U) The EU system currently comprises three legal pillars, of 
which only the European Community pillar (the "first pillar" -- 
roughly speaking, the economic pillar) has its own legal 
personality.  With the entry into force of "Lisbon," the 
three-pillar structure will formally disappear.  EU polices 
concerning economic integration, the Common Foreign and Security 
Policy (CFSP, the "second pillar") and the area of freedom, security 
and justice (some of them currently forming the "third pillar") will 
all be brought under a single legal framework.  However, the 
specificity of CFSP, by virtue of its primary relevance to national 
sovereignty, including defense policy, will be retained through the 
maintenance of its inter-governmental character and decision-making 
rules (consensus). 
 
¶5.  (U) The "Union" will replace and succeed the European Community 
(currently a subset of the EU), thus giving the EU a legal 
personality only conferred until now upon the European Community 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 - to become 
a member of international organizations.  Per the revised TEU, the 
Union as such will accede to the European Convention for the 
Protection of Human Rights and Fundamental Freedoms (ECHR), 
safeguarded by the Council of Europe's European Court of Human 
Rights in Strasbourg.  Though the full implications will only appear 
over time, a preliminary analysis suggests that the conferral of 
legal personality could bolster the EU's profile at the 
international level. 
 
CHARTER BECOMES LEGALLY BINDING 
------------------------------- 
 
¶6.  (U) The TEU, as amended by "Lisbon," provides a legal reference 
to the EU's Charter of Fundamental Rights listing political, social 
and economic rights for EU citizens.  The Charter, first proclaimed 
in 2000 as a political declaration, will thus become binding by 
 
BRUSSELS 00001522  002.4 OF 004 
 
 
acquiring treaty value.  The UK and Poland secured a derogation (an 
"opt-out") to prevent the EU Court of Justice as well as their own 
domestic courts from ruling that legislation and practices in the 
two countries are contrary to the Charter.  The Czech Republic in 
October 2009 was also granted a derogation from the Charter, in 
response to a demand from President Klaus before signing his 
country's "Lisbon" ratification act. 
 
TWO TOP-LEVEL JOBS CREATED 
-------------------------- 
 
¶7.  (U) Most important among "Lisbon" changes to the EU institutions 
are the provisions on the creation of two top-level positions, the 
holders of which will be key interlocutors of the USG.  A permanent 
President of the European Council will henceforth be appointed by EU 
leaders for a two-and-a-half year term (renewable once).  The 
nominee will chair the meetings of the European Council and prepare 
for them by facilitating consensus.  He/she will ensure the external 
representation of the Union at his/her level on issues concerning 
CFSP without prejudice to the powers of the High Rep (see below). 
The role will be defined via operational provisions and by the 
ability of the first appointee to work with Member State leaders and 
EU leaders, such as the Commission President and the rotating 
six-month Presidency.  The latter will be maintained and will 
continue to preside over specialized formations of the EU Council, 
the notable exception being external affairs. 
 
¶8.  (U) The permanent Presidency of the European Council will, in 
theory, provide a guarantee of consistency at top level.  The 
permanent President will be running meetings of the EU-27 heads of 
State and government.  The EU system under "Lisbon" will no longer 
operate with the chain of command that enables the current rotating 
Presidency of the European Council to rely on its own ministers and 
officials for the conduct of business at all levels of 
responsibility.  However, the six-month rotating EU Presidency will 
still chair lower-level bodies.  The incoming Spanish EU Presidency 
will spend much of its time establishing the future pattern of 
"Lisbon" in this regard. 
 
¶9. (U) To ensure greater consistency in EU foreign policy, the 
Treaty of Lisbon also creates a High Representative of the Union for 
Foreign Affairs and Security Policy, merging the positions of High 
Rep for CFSP (currently held by Javier Solana) and External 
Relations Commissioner (currently Benita Ferrero-Waldner).  The High 
Rep will also be a Vice-President of the Commission.  He/She will 
conduct the EU's CFSP, contribute to the development of such policy 
by submitting proposals, and implement the policy, doing likewise 
for the EU's security and defense policy (ESDP).  He/She will be 
assisted by a European External Action Service (EEAS), set "to work 
in cooperation" with the diplomatic services of the Member States 
and comprising "officials from relevant departments of the 
General-Secretariat of the Council and of the Commission as well as 
staff seconded from national diplomatic services of te Member 
States" (ref A). 
 
¶10. (U) The High Rep will chair the meetings of the "Foreign 
Affairs" Council, resulting from the splitting of the "External 
Relations" and "General Affairs" components of the current General 
Affairs and External Relations Council (GAERC).  How the High Rep 
will balance the roles of Commission VP and key player of CFSP/ESDP 
will be one of the most intriguing developments to watch. 
 
¶11.  (U) Based on "Lisbon," the President of the Commission will be 
officially "elected" (not just confirmed) by the European 
Parliament, acting on a proposal from the European Council.  As 
originally concluded and signed by the EU governments, the new 
treaty would have reduced the size of the Commission to a number of 
members corresponding to two thirds of Member States, effective in 
November 2014.  However, following a first (negative) Irish 
referendum and in order to persuade Irish citizens to revert their 
vote on "Lisbon" in a second referendum, EU leaders decided that the 
Commission shall continue to include one national of each Member 
State. 
 
MORE POWERS FOR THE EUROPEAN PARLIAMENT 
--------------------------------------- 
 
¶12. (U) The legislative powers of the European Parliament (EP) will 
grow under "Lisbon."  The existing co-decision procedure putting the 
EP on the same footing as the Council will be renamed "ordinary 
legislative procedure."  It will be used for the adoption of 
legislation covering a broad range of new areas, including the 
mechanism for the Member States' control of the Commission's 
implementing powers ("comitology").  Co-decision will also apply to 
intellectual property, energy policy (functioning of the market, 
renewable energies, interconnection) and new areas in Justice and 
Home Affairs (JHA).  The procedure will not apply to CFSP, defense, 
nor to other sovereign issues such as tax or operational police 
cooperation.  The EP will also gain new budgetary powers as "Lisbon" 
removes the distinction between "obligatory expenditure" (including 
the Common Agricultural Policy, on which the EP currently has no 
 
BRUSSELS 00001522  003.6 OF 004 
 
 
say) and non-obligatory expenditure.  (SEPTEL will explore "Lisbon" 
reforms on economic and regulatory matters.) 
 
¶13.  (U) The Treaty of Lisbon will limit the number of MEPs to 750 
plus 1 (the President) -- the current EP elected in June 2009 
numbers 736 members -- and will change the way in which EP seats are 
apportioned among Member States, based on an automatic method of 
calculation (but not until 2014).  "Lisbon" also expands the role of 
Member States' parliaments, giving them the ability to review 
Commission legislative proposals against the principle of 
"subsidiarity," whereby the EU does not take action unless it is 
more effective than action at national or local level. 
 
VOTING SYSTEM IN THE COUNCIL 
---------------------------- 
 
¶14.  (U) The Treaty of Lisbon not only expands the scope of issues 
on which the EU Council votes by qualified majority-voting (QMV), 
but it also modifies, albeit not for immediate application, the 
system of weighted voting used for the adoption of legislative 
proposals tabled by the Commission (but not for CFSP nor for 
sovereign areas such as taxation).  Current rules on QMV (i.e., 255 
votes needed out of a total of 345) will remain in place until 
October 31, 2014.  After that, a "double majority" system will take 
effect, under which adoption by QMV will require a vote of at least 
55 percent of the Member States corresponding to 65 percent of the 
total EU population.  Between November 1, 2014 and March 31, 2017, 
however, members of the Council may ask that a decision subject to 
QMV be adopted according to the old voting rules.  After 2014, 
Member States will also retain the possibility of invoking the 
"Ioannina compromise" allowing countries that fail to muster a 
blocking minority in the Council to suspend the decision under 
certain conditions. 
 
SECURITY AND DEFENSE MATTERS 
---------------------------- 
 
¶15. (U) The new treaty expands the scope of the European Security 
and Defense Policy (ESDP), renamed Common Security and Defense 
Policy (CSDP), by enlarging the so-called "Petersberg" 
military-civilian tasks to joint disarmament operations, military 
advice, assistance tasks, and post-conflict stabilization.   Mutual 
commitments are clarified through the inclusion of a "solidarity 
clause" (in the event a member state is the victim of a terrorist 
attack or of a natural or man-made disaster) and a WEU-inspired 
"common defense clause" (in the event of an armed aggression against 
a member's territory, when the other member states have an 
obligation of assistance by all means in their power).  The latter 
obligation does not affect the "specific character" of certain 
(read: neutral) EU member states or NATO agreements.  The scope of 
"enhanced cooperation" (allowing some EU countries that wish to work 
more closely together in a given area) will be extended to CFSP.  A 
new mechanism of "permanent structured cooperation" will be 
available to EU member states "whose military capabilities fulfil 
higher criteria and which have made binding commitments to one 
another in this area."  There will be a possibility for the Council 
"to entrust the implementation of a task to a group of Member 
States" to protect the Union's values and serve its interests. 
Though "Lisbon" maintains the prohibition on charging military or 
defense operational expenditure to the EU budget, there are 
provisions allowing exceptions for the urgent financing of 
initiatives concerning preparatory activities under the "Petersberg" 
tasks. 
 
JHA 
--- 
 
¶16.  (U) Of all EU policies, Justice and Home Affairs (JHA or -- in 
EU language - the creation of an area of justice, freedom and 
security) will likely experience the most dramatic changes.  More 
decisions will be taken using the "ordinary legislative procedure" 
(see above) in areas that had not yet been transferred to the 
Community domain, or the so-called "first pillar."  Police and 
judicial cooperation in criminal matters will become subject to the 
"Community" method and co-decision with the EP.  The extension of 
QMV and co-decision is coupled with safeguards to reassure Member 
States fearing the impact of the changes on their national systems. 
Hence the introduction of so-called "emergency brake" provisions for 
judicial cooperation in criminal matters.  Member States will retain 
the possibility of suspending measures threatening "fundamental 
aspects" of their judicial systems, and will (continue to) have the 
option of proceeding with "enhanced cooperation" (see above).  The 
UK, Ireland, and Denmark secured the right to "opt-out" from EU 
measures in JHA.  The new treaty paves the way for the establishment 
of a European Public Prosecutor to protect the financial interests 
of the EU. 
 
OTHER CHANGES 
------------- 
 
¶17. (U) The Treaty of Lisbon also provides for: 
 
BRUSSELS 00001522  004.6 OF 004 
 
 
 
-- A clear division of competences between the EU and its Member 
States, based on areas of exclusive EU competence (e.g. competition 
rules for the functioning of the internal market), areas of shared 
competence (e.g. social policy), and areas of supporting EU 
competence (e.g. education and culture); 
 
-- EU citizens to "take the initiative of inviting" the Commission 
to submit an "appropriate proposal" for a legal act "required for 
the purpose of implementing the treaties."  The initiative will 
require the approval of one million citizens from a significant 
number of Member States; 
 
-- The Court of Justice of the European Communities  (ECJ) to be 
renamed the "Court of Justice of the European Union" (CJEU). 
Foreign policy issues will continue to be excluded from the Court's 
jurisdiction.  The Court will have jurisdiction over matters 
concerning the EU area of Freedom, Security and Justice but not 
those concerning police and criminal cooperation.  Its junior 
tribunal will lose its "First Instance" qualifier and become the 
"General Court"; 
 
-- Formal EU competence to ensure the proper functioning of the 
energy market, energy supply and promotion of energy efficiency and 
renewables; 
 
-- The recognition of space policy as an area in which the EU has a 
shared competence with its Member States, thus giving the Commission 
clear authority to propose measures in this field; 
 
-- Priority status for the fight against climate change; 
 
-- A legal basis for EU recognition of the role of public services 
and services of general interest; 
 
-- A European Voluntary Humanitarian Aid Corps, to allow young 
people to assist victims of disasters worldwide. 
 
-- The inclusion of sport as an area where the EU will have the 
right to carry out actions to support, coordinate or supplement its 
Member States; 
 
-- A member country to withdraw from the EU in accordance with its 
own constitutional requirements, by way of a first-ever mechanism 
for negotiation and conclusion of a withdrawal agreement with the 
other Member States. 
 
COMMENT 
------- 
 
¶18.  (U) The entry into force of the Treaty of Lisbon ends a 
seven-year saga marked by the stunning failure of the 2004 draft 
Constitutional treaty and the refashioning of a painful consensus on 
treaty reforms.  The end-result could only be ratified by the EU-27 
at the price of further negotiations among Member States and 
concessions to opponents of integration.  A project originally aimed 
at the simplification of the EU constitutional order has finally 
given way to a rather opaque text, leaving EU governments and 
officials with a widespread desire to be done with institutional 
debates.  However, bargaining will continue on setting some 
implementing modalities of the reforms, starting with the exact 
profile of the new high-level jobs and the functioning of the EEAS. 
The impact of "Lisbon" on EU functioning - and the resulting effect 
on USG engagement with the EU and member states - will take many 
months to become apparent. 
 
MURRAY