The Meaning of the Treaty of Lisbon How it Differs from the Constitutional Treaty (and Why it Matters) Ian Cooper

The Treaty of Lisbon The problem of comparison The genesis of the Treaty of Lisbon Keeps substantive reforms of Constitutional Treaty, but abandons “constitutional concept” Vast similarities, small differences Two broad themes emerge: De-Constitutionalized Treaty Stricter Competence Regime

A “De-Constitutionalized” Treaty Changes Constitutional Treaty Treaty of Lisbon Symbolic Reference to Symbols of EU (Flag, Anthem, Motto, Holiday) Omission of Reference to Symbols Rhetorical “Citizens and States of Europe…” “High Contracting Parties…” Termino-logical “Treaty Establishing a Constitution” “Laws”, “Framework Laws” “Union Minister for Foreign Affairs” “Treaty” “Regulations”, “Directives” “High Representative of the Union for Foreign Affairs and Security Policy” Of Form Repeal/Replace Previous Treaties One Treaty Charter of Fundamental Rights, Primacy incorporated into text Amend Previous Treaties Two Treaties Cross-Referenced to external sources

A Stricter Competence Regime Treaty of Lisbon strengthens: Recognition of national constitutional identity Principle of conferral (limited powers) Limits on EU in areas of shared competence Limits on use of flexibility clause Subsidiarity control mechanism Limits on expansion through treaty amendment Limits on expansion through fundamental rights doctrine

Conclusions Numerous small changes between the two documents add up to difference in kind Changes concern fundamental relationship between EU and Member States; all point in one direction Rejection of constitutional federalism in favour of constitutional pluralism Retreat signals a change in the trajectory of European integration