Lisbon, Treaty of – Legal Foundations and Significance
Der Treaty of Lisbon is a key milestone in the development of the European integration process, which has decisively advanced the contractual foundations of the European Union (EU). It was signed on December 13, 2007, and entered into force on December 1, 2009, following the completion of the ratification process. The Treaty of Lisbon comprehensively revised the previous basic treaties (Treaty on European Union, Treaty establishing the European Community), and fundamentally reshaped the institutional and substantive structures and competences of the EU.
Background and Objectives
Need for Reform in the European Union
With the enlargement of the EU, especially through eastern enlargement in 2004 and 2007, there was a significant need for reform regarding decision-making processes and the Union’s effectiveness. The original Constitutional Treaty (2004) failed due to resistance in France and the Netherlands, so an alternative solution was created with the Treaty of Lisbon. The aim was to make the EU more efficient, democratic, transparent, and capable of action.
Contractual Foundations
The Treaty of Lisbon essentially consists of two sources of primary law:
- Treaty on European Union (TEU)
- Treaty on the Functioning of the European Union (TFEU)
Additional protocols and declarations, which are considered binding parts of the Treaty, also apply.
Institutional Innovations
Strengthening and Restructuring of the Institutions
The Treaty of Lisbon placed a focus on the institutional architecture of the European Union. Key changes include:
- Permanent President of the European Council: Introduction of a permanent President of the European Council (term two and a half years, renewable once), instead of the previous six-month rotation.
- High Representative of the Union for Foreign Affairs and Security Policy: Creation of a new role to consolidate foreign policy competences. The High Representative is also Vice-President of the Commission.
- Reduction and restructuring of the Commission: The number of Commissioners was set in the long term to two-thirds of the Member States (with the possibility of deviation by the European Council).
- Strengthening of the European Parliament: Co-decision (ordinary legislative procedure) became the rule, and Parliament was granted extensive budgetary and legislative competences.
- Changes in the European Council and Council of the EU: Introduction of the double majority principle for voting, whereby voting weights are based on population size and the number of Member States.
Sources and Nature of Law
Integration and Expansion of the Union’s Legal System
The Treaty of Lisbon emphasized the legal capacity of the EU explicitly and replaced the former ‘three pillars’ structure with a single legal personality. This step led to a clearer distinction between the competences of the EU and its Member States.
Extended Competences and Principles
- Catalogue of competences (Arts. 2-6 TFEU): Clarification of exclusive, shared, and supporting competences.
- Principle of conferral: The EU may only act in areas for which it has been expressly conferred competence by the Treaties.
- Principle of subsidiarity and proportionality: Explicitly anchored in Art. 5 TEU; monitored by national parliaments.
Legal-systematic Innovations
Legal protection and jurisdiction
With the Treaty of Lisbon, the rights of individuals before the Court of Justice of the European Union (CJEU) and other Union courts were expanded:
- Individual rights to bring actions: Eased access requirements for annulment actions initiated by individuals.
- Increased oversight: Introduction of new monitoring rights for Member States and national parliaments.
- Charter of Fundamental Rights: The Treaty made the Charter of Fundamental Rights of the European Union binding (Art. 6 TEU), thereby giving fundamental rights constitutional status in Union law.
Legislative Procedures and Legal Acts
- Ordinary legislative procedure (co-decision): Standard procedure for legislation; Parliament and Council are equal partners.
- Pending procedures and special legislative procedures: Clearly defined alternatives with restricted participation rights.
- Legal acts: New classification into regulations, directives, decisions, recommendations, and opinions; see Art. 288 TFEU.
Deepening of Policies and Policy Areas
Common Foreign and Security Policy (CFSP)
- Expansion of external competences: The EU is granted broader powers in foreign policy.
- Role of the High Representative: Combination of Council Presidency and Vice-President of the Commission.
- Limited powers: CFSP remains essentially with the Member States on core issues, with institutional control being limited.
Justice and Home Affairs
- Area of freedom, security, and justice: Significant communitarization of police and judicial cooperation.
- Abolition of old arrangements: The old third pillar (Justice and Home Affairs) was fully integrated.
Democracy, Transparency, Participation
Promotion of democracy and citizens’ rights
- European Citizens’ Initiative (Art. 11 TEU): Direct public participation by proposing legislation if sufficient support is garnered.
- Enhanced participatory rights of national parliaments: Improved monitoring of subsidiarity.
Transparency requirements
- Increased transparency obligations for institutions as well as explicit requirement for publication of Council and Parliament documents.
Significance for National Law and Constitutional Jurisprudence
Relationship with national law
- Primacy of Union law: The Treaty of Lisbon confirms the primacy of Union law over national law, a fundamental issue that remains the subject of supreme court decisions.
- Participation rights of Member States: The role of Member States and the preservation of national identities (Art. 4 II TEU) remain expressly protected.
Implementation and Oversight
- The Treaty regulates the Procedures for accession, amendment, and withdrawal (specifically Art. 50 TEU – first explicit possibility of withdrawal from the Union).
Summary and Outlook
The Treaty of Lisbon marks a fundamental paradigm shift in the European integration process and forms the current legal constitution of the European Union. The main innovations are the simplification and restructuring of the contractual foundations, the strengthening of parliamentary and civil rights, the consistent expansion of fundamental rights protection, and the adjustment of institutional structures to the requirements of a Europe with 27 or more Member States. With its clearly defined areas of competence, extended legal protection instruments, and transparent procedures, the Lisbon Treaty shapes current conduct, legislation, and jurisdiction at the European level in a sustainable manner.
Frequently Asked Questions
What specific legal innovations did the Treaty of Lisbon bring for Union law?
The Treaty of Lisbon brought a large number of significant legal innovations for Union law. One of the most important changes was the creation of a single legal basis by abolishing the previous pillar structure (European Communities, Common Foreign and Security Policy, Police and Judicial Cooperation in Criminal Matters) and consolidating them into a unified legal structure of the European Union. For the first time, the Charter of Fundamental Rights of the European Union was accorded legally binding status on the same level as the Treaties, thereby incorporating individual fundamental rights positions into Union law. In addition, the legislative competence of the European Parliament was strengthened through the extension of the ordinary legislative procedure (formerly co-decision procedure), while at the same time national parliaments were given greater influence on the decision-making process of the EU through oversight and participation rights. The Lisbon Treaty also codified, for the first time, the possibility for a Member State to withdraw from the EU (Art. 50 TEU), thus creating a clear legal basis for an orderly withdrawal process.
How did the Treaty of Lisbon shape the legal personality of the European Union?
With the entry into force of the Treaty of Lisbon, the European Union was explicitly granted legal personality (Art. 47 TEU). This means that the EU is now independently capable of acting under international law, can conclude legally binding treaties with third countries and international organizations, and can bring and defend cases before international courts. Among other consequences, the previously existing European Communities were dissolved or integrated into the EU, resulting in legal clarity and coherence. The EU’s institutions can now act in the Union’s name and enter into binding legal obligations. The conferral of legal personality is a fundamental element that significantly enhances the EU’s capacity to act in international law.
What is the significance of incorporating the Charter of Fundamental Rights into primary law through the Treaty of Lisbon?
With the Treaty of Lisbon, the Charter of Fundamental Rights of the European Union (2000) became legally binding and was incorporated into the EU’s primary law with equal rank to the Treaties (Art. 6 para. 1 TEU). This has far-reaching consequences: All Union institutions and the Member States, when implementing Union law, are now directly bound by these fundamental rights. The European Court of Justice (CJEU), by elevating the Charter, has the power to review compliance and has used the Charter as a standard for interpreting and reviewing Union acts. This established an effective system of fundamental rights protection within Union law, enhancing both legal clarity and the enforceability of fundamental rights.
What role do national parliaments play in the EU’s legislative process according to the Treaty of Lisbon?
The Treaty of Lisbon has significantly strengthened the role of national parliaments in the EU legislative process (Art. 12 TEU and Protocols No. 1 and 2). In particular, the so-called early warning system for subsidiarity was introduced, allowing national parliaments to deliver opinions on Commission legislative proposals within an eight-week deadline, especially regarding the subsidiarity principle. If a sufficient number of national parliaments raise objections (the so-called ‘yellow card’), the Commission must review its proposal. This has created an additional oversight mechanism to ensure democratic legitimacy and compliance with subsidiarity and proportionality principles.
How did the Treaty of Lisbon change the Union’s system of competences?
The Treaty of Lisbon introduced, for the first time, a clear and systematic allocation of competences (Arts. 2-6 TFEU). The Union’s competences are bindingly divided into exclusive, shared, and supporting competences. In areas of exclusive competence (e.g. customs union, competition rules, common commercial policy), only the EU may legislate, while in shared competences (e.g. internal market, environment), both the Union and Member States may act—national competence persists only where the EU has not exercised its powers. Supporting competences allow the EU only supplementary measures without regulatory authority. This division brings greater transparency and legal certainty in distinguishing between Union and national law.
What changes have there been in the qualified majority voting system in the Council since the Treaty of Lisbon?
The Treaty of Lisbon introduced the so-called ‘double majority’ in the Council of the European Union (Art. 16 TEU, Art. 238 TFEU): For a qualified majority, a majority of at least 55% of the Member States representing at least 65% of the total EU population is required. This rule came fully into force following a transitional period in 2014. Its purpose is to ensure fair and efficient decision-making processes and to provide appropriate consideration for both larger and smaller Member States. The Treaty of Lisbon also specifies in which policy areas unanimity is still required and in which qualified majorities suffice, making the legislative process overall more efficient.
What are the legal effects of Article 50 TEU on Member States and the Union?
With Article 50 TEU, a legally codified procedure for the voluntary withdrawal of a Member State from the European Union was established for the first time. A Member State may declare its intention to withdraw to the European Council. Subsequently, the Union negotiates an agreement with this State governing future relations. Two years after notification of withdrawal, the withdrawal becomes effective automatically, unless an extension is agreed. As a consequence, Union law no longer applies to that State, its membership rights and obligations end, and the EU’s legal order is adjusted accordingly. The inclusion of the withdrawal clause is a major legal flexibilization of Union law and, especially due to Brexit, of high practical importance.
