From the Convention on the Future of Europe via the Failure of the Treaty Establishing a Constitution to the Lisbon Treaty

Periodic revision of the EU Treaties occurs as a result of the agreement and ratification of an amending Treaty by the Member States, acting unanimously.50 The internal operation of the EU system has a momentum and sophistication that transcends that found in an orthodox international organization, but the process of Treaty revision, achieved externally by the choices made by the Member States, is the moment at which the EU’s roots as a Treaty-based system of which the Member States are the masters is most vividly recalled and asserted. Typically the process of negotiation occurs at an intergovernmental conference, which eventually yields a text that is open to ratification by all the Member States according to their particular domestic constitutional arrangements. This was the pattern that led to the amending Single European Act (which entered into force in 1987), the Maastricht Treaty (1993), the Amsterdam Treaty (1999), and the Nice Treaty (which after some delay entered into force in 2003).

It was increasingly felt that this process was conspicuously elite-driven, and the behind-closed-doors nature of Treaty revision began to be condemned as one element in mounting popular dissatisfaction with and alienation from the EU’s endeavours. In December 2001, when the European Council met in Laeken in Belgium, it decided to convene a Convention on the ‘Future of Europe’. This was

Lisbon’ (2012) 19 JEPP 238. I take the chance here to repeat my thanks to my co-author Borja Garcia for his detailed understanding of the pattern of the negotiation and also his brilliant insight into the lessons to be learned.

50 See now TEU, Art 48.

designed to prepare the ground for the next intergovernmental conference in a way that would be calculatedly more transparent and inclusive than had applied under previous practice. It was hoped that this would make the process a good deal more appealing and, under an optimistic diagnosis that held that the more people knew about the EU’s operation the more they would feel positively engaged with it, ultimately more legitimate. The Convention held its inaugural session under the chairmanship of Valery Giscard d’Estaing in February 2002. Representatives of heads of state and government, the core of a conventional intergovernmental conference, were joined by representatives of the Parliament, the Commission, national Parliaments, and candidate accession countries. This was the planned wider participatory model.

The Convention’s working method was initially founded on eleven working groups.5i They concluded their reports by early 2003, allowing a complete draft Treaty to be knitted together in the spring and then submitted to the European Council in Rome in July 2003. Laborious negotiation followed and some detailed amendments were made to the text, but in June 2004 a Treaty establishing a Constitution for Europe was agreed by the Member States and then signed in Rome in October 2004. Much of what was at stake concerned improving the comprehensibility and presentation of what had already been done in the name of the EU, not in effecting radical change. The name was misleading too—called a Constitution, it was in form and in law simply a Treaty. It was hoped and, by some, it was expected that use of the language of a Constitution would cut through the rising popular resistance to the elite-driven nature of the project. The opposite reaction proved to be the reality. In France and the Netherlands ‘no’ votes were recorded in popular referenda in 2005 and so those states, founder members of the EU, could not ratify the Treaty establishing a Constitution. It was placed on ice pending a so-called ‘period of reflection’, and then abandoned.

In 2007 there emerged what would become the Treaty of Lisbon. In substance it had a lot in common with the Treaty establishing a Constitution, so the Convention’s work was not wasted. The basic intent remained the improved operation of the existing system, not a radical overhaul. But the new text was presented with aggressive modesty as just another incremental revision of the Treaties. It abandoned the label ‘constitution’ and dropped some other more ambitious trappings embraced by the Convention on the Future of Europe, such as a motto and an anthem for the EU.52 The main purpose of the calculatedly low-key emergence of the Lisbon Treaty was precisely to avoid the awkward need to secure popular approval by referendum. In fact only in Ireland was the Treaty put to this test. It failed it in 2008 but passed in a second run in 2009. The Treaty of Lisbon also had to survive inquiry by several constitutional courts in Member States anxious lest ratification should [1]

violate domestic constitutional standards^3 but it eventually passed these tests too. The amending Treaty of Lisbon entered into force at the beginning of December 2009. Since then the EU has been founded on two treaties of equal value, the Treaty on European Union and the (longer and intricately detailed) Treaty on the Functioning of the European Union.

Article 165 TFEU was one of the Lisbon Treaty’s innovations. But where did sport fit into the process of negotiation that ran through most of the decade, from the Convention on the Future of Europe, which opened in early 2002, to the entry into force of the Lisbon Treaty in late 2009?

  • [1] 1 Documentation is available at accessed 29 November 2016. 52 European Council Presidency Conclusions, the constitutional concept which consisted inrepealing all existing treaties and replacing them by a single text called Constitution is abandoned’ (June 2007).
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