The clock ticks for treaty change

Size of Commission has to be addressed and eurozone crisis prompts minor treaty change.

For the European Union, the experience of drawing up the Lisbon treaty and having it ratified in 27 member states was so traumatic that at the end of 2009 the prevailing sentiment was that there was no further appetite for treaty change.

Yet a little more than a year after the Lisbon treaty came into effect it is already plain that Lisbon is not the final word.

The eurozone crisis has thrown up a need – in the eyes of Germany at least – for the treaty to be amended so that it explicitly permits a bail-out mechanism. The text of a treaty change has been agreed by the European Council and sent to national capital for the start of ratification. The member states are already ratifying (in as low-key a manner as possible) a change to rewrite the provisions of Lisbon in order to increase the size of the European Parliament by 18 MEPs.

The Parliament is about to vote on a wish-list of further changes, including a contentious plan to have 25 members of the Parliament elected from a transnational electoral list. Although the member states are under no obligation to accede to the Parliament’s wishes, there are further changes to the treaty to come.

Ireland’s guarantees

The most clear-cut of these are guarantees that Ireland was offered, after Irish voters had rejected the Lisbon treaty in a referendum in June 2008. Ireland was offered a protocol to the treaty that would guarantee the neutrality of Ireland and give assurances of Irish sovereignty over decision-making on abortion and taxation. Those assurances were needed, Ireland argued at the time, to ensure that the electorate would, at the second attempt, vote in favour of the Lisbon treaty. The voters duly obliged in a referendum in October 2009, but the EU has yet to deliver those assurances in legal form.

And there is a further promise that was made to Ireland, which may yet become a bone of contention, that the size of the college of European commissioners would not be reduced.

The Lisbon treaty, as it had been drafted and as it took effect on 1 December 2009, ordained a reduction from the current position of one commissioner for each member state. The treaty says: “As from 1 November 2014, the Commission shall consist of a number of members…corresponding to two-thirds of the number of member states, unless the European Council, acting unanimously, decides to alter this number.

“The members of the Commission shall be chosen from among the nationals of the member states on the basis of a system of strictly equal rotation between the member states, reflecting the demographic and geographical range of all the member states. This system shall be established unanimously by the European Council in accordance with Article 244 of the Treaty on the Functioning of the European Union [which sets out the principles for rotation].”

But in December 2008, the government leaders agreed to revisit this bit of the Lisbon treaty.

“On the composition of the Commission, the European Council recalls that the Treaties currently in force require that the number of Commissioners be reduced in 2009. The European Council agrees that provided the Treaty of Lisbon enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national of each member state.”

So much for the conclusions of the European Council, which are a statement of intent rather than a legal decision. So far, there has been no alteration to the provision that would set the next European Commission at 18 commissioners and there is some disagreement about what “the necessary legal procedures” might be.

The minimalist position, espoused by the European Commission and Ireland, among others, is that all that is required is a unanimous decision of the European Council on a text.

The principle of reduction

But there are others – lawyers and Eurosceptics among them – who argue that agreeing a form of words in the European Council would not suffice, that a protocol would have to be attached to the Lisbon treaty. These critics say that the treaty intended a reduction and that, although it provided a way to alter the exact number of commissioners, that provision cannot be used to revoke the principle of a reduction.

Jean-Claude Piris, who was head of the legal service at the Council of Ministers when the Lisbon treaty was agreed and at the time of the European Council of 2008, writes in his book on the Lisbon treaty that those opposed to the minimalist position argue that the context of the phrase allowing the European Council to alter the size of the Commission has to be taken into account.

“According to them, this phrase does not allow the European Council to change the principle itself of a reduced Commission, as its purpose is to enable the European Council to reduce further the number of commissioners when the EU is enlarged to include more member states, so as to be able to keep to a reasonable number of commissioners.”

What is remarkable is that the European Council has not yet decided what course of action should be taken. The Lisbon treaty as it stands would reduce the size of the college from November 2014, meaning that the arrangements would have to be in place by the time of the European Parliament elections in June 2014, which set in train the procedures for appointing the next Commission. Those appointments cannot happen if there is no clarity about the number of people being appointed and from which countries.

If only a European Council decision is required, then it could be left very late. But if a treaty revision is required, then the text would have to be prepared soon, because ratification can be a drawn-out process, as the experience with the Lisbon treaty showed. A text would need to be agreed by, at the latest, the summer of 2012.

Until the member states attempt the minimalist course, they cannot know whether it will succeed. Nor can they know whether it will be the subject of a legal challenge.

Derk-Jan Eppink, a Belgian MEP from the European Conservatives and Reformists group, is one of those who argues that altering the size of the Commission “would require a treaty change” and possibly referendum votes as well, though that is a matter for each individual member state. He warns of a “public backlash” if no votes are held on the changes.

Croatia’s accession

There is a school of thought that treaty changes might be attached to the accession treaty that will admit Croatia to membership of the EU. But the negotiations with Croatia have not been moving as swiftly as some had assumed that they would, so there are risks involved.

One EU diplomat said: “It could be a problem if there is no [Croatian] accession treaty by the end of the year.”

The process of ratifying the Lisbon treaty was, for many politicians and officials, both in the EU institutions and in the member states, a bruising, unhappy experience. Since December 2009, the collective response has been not to stir things up again. But postponing decisions indefinitely is not an option.