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The Lisbon Treaty and the New Framework for EU Foreign Affairs

Konstantinos Margaritis is a Ph.D. candidate at the National and Kapodistrian University of Athens Faculty of Law. For his doctoral research, he is examining the protection of fundamental rights under the Lisbon Treaty. He writes on the changes in the field of external affairs under the Lisbon Treaty and the impact they will have on the EU as an international actor...

The Lisbon Treaty, earlier known as the Reform Treaty, was designed to reorganize and restructure the constitutional framework of the EU by amending the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) [PDF]. The aim, as stated in the preamble, is "to complete the process started by the Treaty of Amsterdam and by the Treaty of Nice with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action." While the full effect of the Lisbon Treaty is not yet completely understood, looking at the institutional changes that impact the field of external affairs allows for a heightened understanding of the EU as an international actor.

In terms of legal framework, between 1993 and 2009, the EU consisted of three pillars. This system consisted of the European Community, the Common Foreign and Security Policy, and Justice and Home Affairs, which respectively dealt with matters of economics, foreign policy and criminal justice. However, when the Lisbon Treaty entered into force, the EU consolidated the three-pillar system and adopted one legal personality.

To replace the foreign policy pillar, Title V of the TEU was introduced with the Lisbon Treaty. The general provisions of the text set forth the basic objectives of the Union, in terms of creating a framework for more coordinated external action. These provisions heavily emphasized unifying concepts, such as the promotion of democracy and the rule of law, respect of human rights and dignity in the wider world.

Furthermore, in response to the absence of a coordinated foreign policy, the Lisbon Treaty expanded the role of the High Representative of the Union for Foreign Affairs and Security Policy in an effort to coordinate foreign policy. The holder of this position is responsible for organizing EU policy in matters of external action, and speaking for the EU on matters of common foreign and security policy. Furthermore, the High Representative chairs the Council of EU Foreign Ministers and sits in the European Commission. In short, the High Representative serves as a foreign minister for the entire EU, allowing for the more cohesive development and expression of the Union's common foreign and security policy. While the High Representative represents the Union in the international arena, it is always in close cooperation with member states' diplomatic missions. Furthermore, the centrality of unity in the development and expression of foreign policy is reflected in the fact that the High Representative is responsible for trying to resolve diplomatic problems among the Union's member states.

Also contributing to increased coordination is the fact that as an international actor with a legal personality, the EU may conclude international agreements with other countries or international organizations. By crystallizing this, the Lisbon Treaty simplified the conditions under which and the process through which the Union concludes agreements. As article 216 of the TFEU mentions, the Union may also conclude international agreements in case of necessity in order to achieve one of its objectives. According to article 218 of the TFEU, the council keeps the initiative, and recommendations need to be submitted by the commission and the High Representative if the agreement is related to common foreign and security policy. The role of the European Parliament has increased. When the council adopts a decision concluding an agreement under paragraph six, it needs the parliament's consent in some cases, and the parliament's opinion in all the other cases where the agreement is related to common foreign and security policy.

The Lisbon Treaty also provides for increased coordination in terms of the protection of its citizens' personal data. Before the treaty went into force, the TEU did not provide any legal basis for data protection. However, the Lisbon Treaty not only recognized a subjective right to the protection of personal data, Article 39 of the TEU now establishes that specific rules will be laid down by the council on the protection of personal data processed by member states in the area of common foreign and security policy.

In the field of common commercial policy, the power of the European Parliament has also increased under the Lisbon Treaty, as the new article 207 of the TFEU enhances the role of parliament concerning decisions taken in the executive. The Union also enjoys exclusive competence in this area, giving it the sole power to determine the course of the Union's trade with developing countries, which includes areas such as tariffs, trade subsidies, import quotas and voluntary export restraints.

The objectives in the development cooperation area have been modified. The main objective now is to fight poverty. Article 208 of the TFEU highlights the primacy of that goal in stating that the "Union development co-operation policy shall have as its primary objective the reduction, and in the long term, the eradication of poverty." The Union has the power to conclude international agreements for the purpose of development. Furthermore, it has the power to take measures with regard to financial assistance when needed.

Another example of the increased coordination and consolidation of power fostered by the Lisbon Treaty is article 214 of the TFEU, which deals with humanitarian aid. The amendments contain provisions for ad hoc assistance, relief and protection, for people in developing countries that are victims of natural or manmade disasters. In the area of humanitarian aid, the Union is again endowed with the power to conclude international agreements with respect to the principles of international law and human rights.

As explained in the Annual Report 2010 on the European Community's Development and External Assistance Policies and their Implementation in 2009, the EU was the largest provider of development aid. In fact, the EU was responsible for more than half of global official development assistance, which is calculated at €48.2 billion. Furthermore, the EU has developed policies for financial assistance throughout the world. Under the program named V-FLEX, during 2009 and 2010 some €215 million were committed to assist 11 African and two Caribbean countries in combating economic crisis and shortfalls in their national budgets.

The EU's dedication to the protection of human rights is demonstrated from an institutional perspective by its prospective accession to the European Convention on Human Rights (ECHR). The ECHR sets minimum standards and seeks to provide a European framework for the protection of human rights. Furthermore, widely accepted human rights form the basis for mandatory rules that parties have no freedom to derogate from. Accordingly, all EU legal acts have to be adopted in accordance with the level of protection guaranteed by the ECHR. As such, the EU submits its legal acts to be examined by the European Court of Human Rights, a supra-national court specialized in human rights protections.

Another novelty of the Lisbon Treaty concerns the provisions on common security and defense policy. As in other areas of external action, the purpose of the Lisbon Treaty amendments in the area of defense is to harmonize the policy of the member states in terms of security and defense and to promote cooperation. For example, Article 42 of the TEU refers to the situations in which the EU may use military force on missions outside the Union. Those situations "shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistant tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including post-conflict stabilization." Apart from a clearer codification of when the use of military force is appropriate, the Lisbon Treaty provided for the concept of enhanced cooperation in the area of defense policy. This allows for a minimum of nine EU member states to establish advanced cooperation in an area within the EU's competence without requiring the involvement of other member states. Lisbon also provides the framework for the development of a permanent structured cooperation in defense, which would allow member states with higher-level militaries to form a permanent defense structure under EU structures.

Although serious steps have been taken towards a common Union defense policy, the EU's ability to function independently of member states under the Lisbon Treaty is still limited. Every decision in the area of common defense policy has to be taken by the European Council acting unanimously, and every member state must adopt those decisions in accordance with their own constitutional requirements. Furthermore, each member state's decisions regarding defense policy must be respected. This requires high levels of political will, as achieving complete consensus in an issue as divisive as defense policy is not easily accomplished. A perfect example of this is the ongoing Libya conflict. The lack of consensus has inevitably led to the lack of a common defense policy. On the basis of their different interests, the EU's major military powers have adopted completely different measures for dealing with the promotion of peace and stability in Libya. France and the UK have approved a strategic plan that includes military intervention, while Germany has abstained from any kind of military operation and in turn has favored greater political pressure.

The changes underlined above seem to develop a new EU strategy for the international arena. Under the new institutional framework, the Union is able to act with heightened autonomy and, as such, it demonstrates a united and more highly integrated policy in its external affairs. New unifying concepts are also focused on to achieve strategic coordination in terms of development, the promotion of the rule of law and human rights, and the battle against poverty. Furthermore, these uniting policies aid in the creation of a more positive profile of the Union in the world and in accomplishing alliances with developing countries. As the solidarity clause dictates "the Union and its member states shall act jointly in a spirit of solidarity." Going forward, the course of the Union will be determined by the political will of its member states, their decisions in how to deal with the challenges of the twenty-first century and their approaches to the new framework established by the Lisbon Treaty.

Konstantinos Margaritis holds an LL.M. in International and European Public Law from Tilburg University in the Netherlands and has an LL.B. from Democritus University of Thrace in Greece. He is a member of Heraklion Bar Association, and is an associate at Antonios I. Bitzarakis Law Firm.

Suggested citation: Konstantinos Margaritis, The Lisbon Treaty and the New Framework for EU Foreign Affairs, JURIST - Dateline, July 24, 2011, http://jurist.org/dateline/2011/07/konstantinos-margaritis-lisbon-treaty.php.

This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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