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The Lisbon Treaty: Who is Europe Still Trying to Impress?

JURIST Guest Columnist Virginia Keyder, currently teaching European Union law at Bogazici University and Sabanci University in Istanbul, Turkey, says that the Lisbon Treaty on European Union reform that has just entered into force is much more than meets the eye, especially as regards its implications for fundamental rights and EU military policy...

Now that everything that could possibly be said has been said about the new bodies wandering Europe's opaque corridors of power, isn't anyone interested in what this Lisbon Treaty that created these positions actually says? If non-Europeans know little about it, Europeans know even less. If Tony Blair's short run as 'man most likely to succeed' in hooking up with the US is over, how will the Lisbon Treaty itself continue this privileged relationship?

Let me count the ways. Some basic info: this Treaty, like its Amsterdam predecessor, is really two treaties: the 58-article Treaty on European Union (TEU) and the 358-article Treaty on the Functioning of the European Union (TFEU), plus 37 protocols and 65 declarations, for simplification. Keeping in mind that the purpose in setting up the original European Economic Community (EEC) in 1957 was to avoid future wars by integrating the economies of the founding six member states, using their particular strengths to create a peaceful and prosperous Europe, it comes as no little surprise to see its progeny display such an emphasis on undemocratic power, has-been neo-liberalism, and military aspirations.

Democracy first. Does anyone really believe that simply by giving already castrated national parliaments access to a total dud of a 'principle,' namely subsidiarity (which ranks up there with derivatives for ease of explanation) to express themselves, provided eight of them can agree within eight weeks of 'being informed,' is democracy (now known as 'good governance')? See Article 12 TEU, Article 3 TFEU and Protocol 1).

Then there's the 'citizens initiative.' The second pillar (this organization loves pillars) of the new democracy provides in Article 11(4) TEU "Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties." These are the treaties that no citizen was permitted to vote on, by the way.

Europeans need to face the fact that the EU Commission (where all legislation is initiated, lest the great unknowing think this happens in parliaments) takes its cues from lobbies, not citizens. And just in time American lobbies (victims of their own success in Washington where the lobbies are now inside the tent, doing what tent insiders do) are in town. Unlike in their previous habitat, these lobbies are totally unregulated in Brussels. No one dares to ask who they are, who their clients are, or how much they are paid. The two-year old voluntary register attracted everyone from the Aberdeen Fish Producers Organization to Young Friends of the Countryside. Lobbies representing Business Software Alliance (BSA), Record Industry Association of America (RIAA), Motion Picture Association of America (MPAA), and various big pharma groups, deftly cloak demands for strong intellectual property protection and extra-judicial enforcement (the last real hold that western powers have on the world economy) with national security jargon and Europeans seem none the wiser or worse .

As for neo-liberalism, most Europeans will be surprised to learn that social services, health, and education are now part of the Common Commercial Policy (an exclusive EU competency under Art. 3(e) TFEU), and may therefore be the subject of binding, possibly secret negotiations (the new Anti-Counterfeiting Trade Agreement is ostensibly about intellectual property, but its 'national security' aspects have been stressed as justification for maintaining absolute secrecy about its contents), with (guess which) countries who feel such services, like everything else, should exist only if they are profitable. Article 207 TFEU provides that only where EU commercial agreements "risk seriously disturbing the national organization of such services and prejudicing the responsibility of Member States to deliver them", will they be subject to unanimity in Council voting. Otherwise they may be decided by qualified majority, with decisions to privatize services able to be made against the will of entire blocks of Member States.

And finally, the nasty little secret about Common Foreign and Security Policy's (the second 'pillar' of the outgoing TEU) new military prowess. The creation of the European Defense Agency in 2004 was a direct result of lobbying by multinational defense companies to procure a larger chunk of EU research funds by claiming the distinction between military and civil research was expensive and artificial. These same corporations were later asked to essentially draft EU defense policy. Articles 42 through 46 TEU 'constitutionalize' this perspective. While Article 11 of the outgoing Amsterdam Treaty stated that the goals of CFSP are the defining and implementing of policies covering all areas of foreign and security policy, the objectives of which shall be: "to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the UN Charter, to strengthen the security of the Union in all ways, to preserve peace and strengthen international security in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders, to promote international cooperation, to develop and consolidate democracy and the rule of law and respect for human rights and fundamental freedoms."

Lisbon restates these objectives in Article 24 as follows:
1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence…

2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.

3. The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area. The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
One has to ask, where did all the stuff about democracy, fundamental rights and the rule of law disappear to?

The salient features of new Articles 42 — 46 TEU put meat on the bones of the new EU militarism as follows:

1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.

2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements…

3. Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities…

5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 44.

6. Those Member States whose military capabilities fulfill higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 46. It shall not affect the provisions of Article 43.

7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.

Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.

Article 43

1. The tasks referred to in Article 42(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories…

Article 44

1. Within the framework of the decisions adopted in accordance with Article 43, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.

2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.

Article 45

1. The European Defence Agency referred to in Article 42(3), subject to the authority of the Council, shall have as its task to:

(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;

(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;

(c) propose multilateral projects to fulfill the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;

(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;

(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.

2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.

Article 46

1. Those Member States which wish to participate in the permanent structured cooperation referred to in Article 42(6), which fulfill the criteria and have made the commitments on military capabilities set out in the Protocol on permanent structured cooperation, shall notify their intention to the Council and to the High Representative of the Union for Foreign Affairs and Security Policy.

2. Within three months following the notification referred to in paragraph 1 the Council shall adopt a decision establishing permanent structured cooperation and determining the list of participating Member States. The Council shall act by a qualified majority after consulting the High Representative.

3. Any Member State which, at a later stage, wishes to participate in the permanent structured cooperation shall notify its intention to the Council and to the High Representative.

The Council shall adopt a decision confirming the participation of the Member State concerned which fulfills the criteria and makes the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation. The Council shall act by a qualified majority after consulting the High Representative. Only members of the Council representing the participating Member States shall take part in the vote.

A qualified majority shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union.

4. If a participating Member State no longer fulfills the criteria or is no longer able to meet the commitments referred to in Articles 1 and 2 of the Protocol on permanent structured cooperation, the Council may adopt a decision suspending the participation of the Member State concern...
European citizens didn't want this Treaty granting expansive military powers to Brussels any more than they want the SWIFT Agreement under which personal data on all their banking and other financial transactions will be handed over to the US (where the concept of data protection hardly exists), or the ultra-secretive ACTA agreement (which recently leaked documents show to include not only Sarkozy's extra-judicial internet disconnection on the basis of reported downloads but the infamous US law criminalizing the tweaking of software code to circumvent US content-industry mandated technological IP protection). Because Brussels knew European citizens wanted none of these, they specifically weren't asked. As Charlie McCreevy (Commissioner for Internal Market) has famously stated, "I think all of the politicians of Europe would have known quite well that if a similar question had been put to their electorate in a referendum the answer in 95 per cent of countries would have been 'No' as well."

Post-democratic Europe is a reality. In addition to creating a totally non-transparent, non-democratic EU, powers (aka 'competences') handed over to Brussels have gone a long way to destroying real national democracy (in which citizens not only vote, but have reason to believe their vote means something) as well, as masterfully articulated in the June 30, 2009 decision of the German Constitutional Court on the constitutionality of Germany's ratification of the Lisbon Treaty. Subsequent to this, as they say, the pig has been declared kosher.

There is no going back to a Europe of nation states. Economic integration is too far along, and its effects have enriched and enlivened Europeans and their economies. But Lisbon is not the way. Europe needs real democracy both for itself — because the alternative of having rulers who follow the increasingly military, greed-led power that the US has become is a huge step backwards — and in order to defend the concept and practice of democracy around the world. There are real human values at stake here. Remilitarizing Europe and cloaking it in crackpot neo-liberalism is not the solution, it is the problem.

Virginia Keyder teaches European Union law at Bogazici University and Sabanci University in Istanbul, Turkey.

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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