The Treaty of Lisbon
This fact sheet presents the background and essential provisions of the Treaty of Lisbon. The objective is to provide historical context for the emergence of this latest fundamental EU text from those that came before it. The specific provisions (with article references) and their effects on EU policies are explained in more detail in the fact sheets dealing with particular policies and issues.
Legal basis
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community (OJ C 306, 17.12.2007); entry into force on 1 December 2009.
History
The Treaty of Lisbon started as a constitutional project at the end of 2001 (European Council declaration on the future of the European Union, or Laeken Declaration) and was followed up in 2002 and 2003 by the European Convention which drafted the Treaty establishing a Constitution for Europe (Constitutional Treaty) (1.1.4). The process leading to the Treaty of Lisbon is a result of the negative outcome of two referendums on the Constitutional Treaty in May and June 2005, in response to which the European Council decided to have a two-year ‘period of reflection’. Finally, on the basis of the Berlin Declaration of March 2007, the European Council of 21 to 23 June 2007 adopted a detailed mandate for a subsequent Intergovernmental Conference (IGC), under the Portuguese Presidency. The IGC concluded its work in October 2007. The Treaty was signed by the European Council in Lisbon on 13 December 2007 and has been ratified by all Member States.
Content
A. Objectives and legal principles
The Treaty establishing the European Community is renamed the ‘Treaty on the Functioning of the European Union’ (TFEU) and the term ‘Community’ is replaced by ‘Union’ throughout the text. The Union takes the place of the Community and is its legal successor. The Treaty of Lisbon does not create state-like Union symbols like a flag or an anthem. Although the new text is, hence, no longer a constitutional treaty by name, it preserves most of the substantial achievements.
No additional exclusive competences are transferred to the Union by the Treaty of Lisbon. However, it changes the way the Union exercises its existing powers and some new (shared) powers, by enhancing citizens’ participation and protection, creating a new institutional set-up and amending the decision-making processes for increased efficiency and transparency. It therefore brings a higher level of parliamentary scrutiny and democratic accountability.
Unlike the Constitutional Treaty, the Treaty of Lisbon contains no article formally enshrining the supremacy of Union law over national legislation. However, a declaration was attached to the Treaty to this effect (Declaration 17). It explains how EU law takes precedence over national law in accordance with well settled case-law of the Court of Justice of the European Union.
The Treaty of Lisbon clarifies the powers of the Union for the first time. It distinguishes between three types of competences: exclusive competence, where the Union alone can legislate, and Member States can only implement; shared competence, where the Member States can legislate and adopt legally binding measures if the Union has not done so; and supporting competence, where the EU adopts measures to support or complement Member States’ policies. Union competences can now be handed back to the Member States in the course of a Treaty revision.
The Treaty of Lisbon gives the EU full legal personality. Therefore, the Union obtains the ability to sign international treaties in the areas of its attributed powers or to join an international organisation. Member States may only sign international agreements that are compatible with EU law.
For the first time, the Treaty provides for a formal procedure to be followed by Member States wishing to withdraw from the EU in accordance with their constitutional requirements, namely Article 50 of the Treaty on European Union (TEU).
The Treaty of Lisbon completes the absorption of the remaining third pillar aspects of the area of freedom, security and justice, i.e. police and judicial cooperation in criminal matters, into the first pillar. The former intergovernmental structure ceases to exist, as the acts adopted in this area are now made subject to the ordinary legislative procedure (qualified majority and codecision), using the legal instruments of the Community method (regulations, directives and decisions), unless otherwise specified.
With the Treaty of Lisbon in force, Parliament is able to propose amendments to the Treaties, as was already the case for the Council, a Member State government or the Commission. Normally, such an amendment would require the convocation of a convention which would recommend amendments to an IGC. The European Council could, however, decide not to hold such a convention, subject to Parliament’s consent (Article 48(3) TEU, second paragraph). An IGC could then be convened to determine amendments to the Treaties by common accord. It is, however, also possible to revise the Treaties without convening an IGC, as well as through simplified revision procedures, where the revision concerns the internal policies and actions of the Union (Article 48(6) and 48(7) TEU). The revision would then be adopted as a European Council decision but might remain subject to national ratification rules.
B. Enhanced democracy and better protection of fundamental rights
The Treaty of Lisbon expresses the three fundamental principles of democratic equality, representative democracy and participatory democracy. Participatory democracy takes the new form of a citizens’ initiative (4.1.5).
The Charter of Fundamental Rights is not incorporated directly into the Treaty of Lisbon, but acquires a legally binding character through Article 6(1) TEU, which gives the Charter the same legal value as the Treaties (4.1.2).
The process of the EU’s accession to the European Convention on Human Rights (ECHR) was opened when the 14th protocol to the ECHR entered into force on 1 June 2010. This allows not only states but also an international organisation, i.e. the EU, to become signatories of the ECHR. Accession still requires ratification by all states that are parties to the ECHR, as well as by the EU itself. Negotiations between Council of Europe and EU representatives led to the finalisation of a draft agreement in April 2013, which, however, was deemed incompatible with Article 6 TEU by the Court of Justice of the European Union (CJEU) in its Opinion 2/13. In October 2019, the Commission told the Council of Europe it was ready to restart negotiations. Formal negotiations resumed in October 2020, and the negotiators reached a provisional agreement on a revised draft accession agreement in March 2023.
The revised agreement covers all issues raised by the CJEU except one, concerning jurisdiction over the EU’s common foreign and security policy (CFSP). The EU has committed to resolving this issue internally[1].
C. A new institutional set-up
1. The European Parliament
Under Article 14(2) TEU, Parliament is now ‘composed of representatives of the Union’s citizens’, not of representatives of ‘the peoples of the States’.
Parliament’s legislative powers have been increased, as the scope of the former codecision procedure, now renamed ‘ordinary legislative procedure’, was significantly enlarged. It now applies to more than 40 new policy areas, raising the total number to 85. The assent procedure continues to exist as ‘consent’, and the consultation procedure remains unchanged. The new budgetary procedure creates full parity between Parliament and the Council for approval of the annual budget. The multiannual financial framework has to be agreed by Parliament.
Parliament now elects the President of the Commission by a majority of its members on a proposal from the European Council, which is obliged to select a candidate by qualified majority, taking into account the outcome of the European elections. That is, in this case, according to Article 238 (2) TFEU, the qualified majority refers to at least 72% of Member States representing at least 65% of the EU population. Parliament continues to approve the Commission as a college.
The maximum number of MEPs has been set at 751, with citizens’ representation being degressively proportional. The maximum number of seats per Member State is reduced to 96, while the minimum number is increased to six. On 7 February 2018, Parliament voted in favour of reducing the number of its seats from 751 to 705 after the UK’s departure from the EU and re-distributing some of the seats thereby freed up among those Member States that were slightly under-represented (1.3.3).
The UK left the EU on 1 February 2020. Between this date and the beginning of the 10th parliamentary term in 2024, the new composition of 705 MEPs was applied. Of the 73 seats vacated by the UK’s withdrawal, 27 seats have been reallocated to better reflect the principle of degressive proportionality: the 27 seats have been distributed to France (+5), Spain (+5), Italy (+3), the Netherlands (+3), Ireland (+2), Sweden (+1), Austria (+1), Denmark (+1), Finland (+1), Slovakia (+1), Croatia (+1), Estonia (+1), Poland (+1) and Romania (+1). No Member State has lost any seats.
European Council Decision (EU) 2023/2061[2] sets the number of representatives in Parliament – 720 in total – elected in each Member State for the 2024–2029 parliamentary term based on recent demographic developments. The 15 additional seats were allocated to France (+2), Spain (+2), the Netherlands (+2), Austria (+1), Denmark (+1), Belgium (+1), Poland (+1), Finland (+1), Slovakia (+1), Ireland (+1), Slovenia (+1) and Latvia (+1).
2. The European Council
The Treaty of Lisbon formally recognises the European Council as an EU institution, responsible for providing the Union with the ‘impetus necessary for its development’ and for establishing its ‘general political directions and priorities’. The European Council has no legislative functions. A long-term presidency replaces the previous system of six-month rotation. A qualified majority of the European Council elects the President for a once-renewable term of 30 months (two and a half years). This should improve the continuity and coherence of the European Council’s work. The President also represents the Union externally, without prejudice to the duties of the High Representative of the Union for Foreign Affairs and Security Policy (see below).
3. The Vice-President of the Commission / High Representative of the Union for Foreign Affairs and Security Policy (VP / HR)
The VP / HR is appointed by a qualified majority of the European Council with the agreement of the President of the Commission and is responsible for the EU’s CFSP, and has the right to put forward proposals. Besides chairing the Foreign Affairs Council, the VP / HR also has the role of Vice-President of the Commission. The VP / HR is assisted by the European External Action Service, which comprises staff from the Council, the Commission and national diplomatic services.
4. The Council
The Treaty of Lisbon maintains the principle of double majority voting (citizens and Member States). However, the previous arrangements remained in place until November 2014. Since 1 November 2014, the new rules have applied.
A qualified majority is reached when 55% of members of the Council (in practice, 15 states out of 27), comprising at least 65% of the population, support a proposal (Article 16(4) TEU). When the Council is not acting on a proposal from the Commission or the VP / HR, the necessary majority of Member States increases to 72% (Article 238(2) TFEU). To block legislation, at least four Member States have to vote against a proposal. A new scheme inspired by the ‘Ioannina compromise’ allows 55% (75% until 1 April 2017) of the Member States necessary for the blocking minority to ask for reconsideration of a proposal during a ‘reasonable time period’ (Declaration 7).
The Council meets in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting is divided into two parts, dealing respectively with legislative acts and non-legislative activities. The Council presidency continues to rotate on a six-month basis, but there are 18-month group presidencies of three Member States in order to ensure better continuity of work. As an exception, the Foreign Affairs Council is continuously chaired by the VP / HR.
5. The Commission
Since the President of the Commission is now chosen and elected taking into account the outcome of the European elections, the political legitimacy of the office is increased. The President is responsible for the internal organisation of the college (appointment of commissioners, distribution of portfolios, requests to resign under particular circumstances).
6. The Court of Justice of the European Union
The jurisdiction of the Court is extended to all activities of the Union with the exception of the CFSP. Access to the Court is facilitated for individuals.
D. More efficient and democratic policymaking with new policies and new competencies
Several passerelle clauses allow for a change from unanimous decision-making to qualified majority voting and from the consultation procedure to codecision (Article 31(3) TEU, Articles 81, 153, 192, 312 and 333 TFEU, as well as some passerelle-type procedures concerning judicial cooperation in criminal matters) (1.2.4). In his 2017 State of the Union speech, Commission President Juncker announced initiatives to move away from the unanimity rule in a number of areas by using the passerelle clauses. As a follow-up, the Commission has adopted four communications, proposing to enhance the use of qualified majority voting instead of unanimity in the fields of the CFSP (September 2018), tax policy (January 2019), energy and climate policy(April 2019) and social policy (April 2019). These communications aim to render decision-making more prompt, flexible and efficient where an EU competence already exists.
In areas where the Union has no exclusive powers, at least nine Member States can establish enhanced cooperation among themselves. The Council must authorise its usage after obtaining Parliament’s consent. On CFSP matters, unanimity applies.
The Treaty of Lisbon considerably strengthens the principle of subsidiarity by involving the national parliaments in the EU decision-making process (1.2.2) (1.3.5). A certain number of new or extended policies have been introduced in both environment policy, which now includes the fight against climate change, and energy policy, which makes new references to solidarity and the security and interconnectivity of supply. Furthermore, intellectual property rights, sport, space, tourism, civil protection and administrative cooperation are now possible subjects of EU lawmaking.
On the common security and defence policy (5.1.2), the Treaty of Lisbon introduces a mutual defence clause, which provides that all Member States are obliged to provide help to a Member State under attack. A solidarity clause provides that the Union and each of its Member States have to provide assistance by all possible means to a Member State affected by a human or natural catastrophe or by a terrorist attack. A ‘permanent structured cooperation’ is open to all Member States that commit themselves both to taking part in European military equipment programmes and to providing combat units that are available for immediate action. To establish such cooperation, it is necessary to obtain a qualified majority in the Council after consultation with the VP / HR.
Role of the European Parliament
See 1.1.4 for Parliament’s contributions to the European Convention and its involvement in previous IGCs. With respect to the 2007 IGC, leading to the signature of the Treaty of Lisbon, Parliament, for the first time, sent three representatives to the conference under the Portuguese Presidency.
Almost a decade after the signature of the Treaty of Lisbon, Parliament acknowledged that some of its provisions were not being used to the fullest. Therefore, on 16 February 2017 it adopted a resolution on improving the functioning of the European Union by building on the potential of the Lisbon Treaty, which puts forward a number of recommendations on how to unblock this potential in order to enhance the Union’s capacity to tackle current global challenges.
On the same day, Parliament also adopted a resolution on the possible evolution of and adjustments to the current institutional set-up of the European Union, suggesting concrete proposals for Treaty reforms.
The EU has lately faced several crises, particularly in relation to Brexit, the rule of law, the multiannual financial framework, the COVID-19 pandemic and the Russian invasion of Ukraine. The handling of these crises has again exposed shortcomings in the current system of governance, and the lack of efficient decision-making has contributed to a decrease in public support for the European project. In response to current challenges, on 10 March 2021, the EU institutions launched the Conference on the Future of Europe, designed to give citizens a say on how to reshape the EU and increase the effectiveness and transparency of its decision-making procedures. On 9 May 2022, the Conference concluded its work, which resulted in 49 proposals, some of which require changes to the EU Treaties. Consequently, Parliament adopted a resolution on the call for a convention for the revision of the Treaties on 9 June 2022; a resolution on the implementation of the passerelle clauses in the EU Treaties on 11 July 2023 and a resolution on proposals for the amendment of the Treaties on 22 November 2023. By urging the European Council to call for a convention to revise the Treaties, Parliament is attempting to modernise legislative procedures to address current challenges and enhance EU effectiveness.
This fact sheet was prepared by the Policy Department for Justice, Civil Liberties and Institutional Affairs.
Katharina MASSAY-KOSUBEK