The Treaty of Lisbon: in accordance or against the Constitutions of the Member States?

The Czech Republic was the last country to ratify the Treaty of Lisbon. After long
controversies and negotiations, the European Union can function, starting with the beginning
of December, according to the long-debated document. Considered to mark a new stage in
the process of creating an even closer union among the peoples of Europe, in which decisions
are taken as openly as possible, and as closely as possible to the citizens 1 the Treaty amends
the Treaty of Maastricht and the Treaty of Rome, by introducing a series of regulations
considered to limit the sovereignty of the member states, according to the eurosceptics.
Although it cannot be argued that this point of view is groundless, it can be seen as
inconsistent, since this limitation was necessary in order to implement a new perspective of
the role the Union plays both in international relations and in domestic policies of the member
states. As a consequence, the Treaty shall act as a constitution (although not being considered
as such) of this peculiar federation of states, with the maintenance the subsidiarity principle.
This essay shall provide a short insight on those dispositions which have implications
on the constitutional principles of the Member States, especially on the issue of sovereignity.
Since the Constitutional Courts, which have the power of judicial review in the
Member States that confronted several seemingly incompatibilities with their national
fundamental laws of the Treaty of Lisbon disagreed with this supposition, this decision was
taken as an argument for not opposing the ratification. However, at least some of these
particular cases should be discussed, since they have given a highly constitutional significance
to the Treaty.
As stated in the press release of the German Federal Constitutional Court, the Treaty of
Lisbon was consistent with the Basic Law. On the other hand, by mentioning that the
Bundestag and the Bundesrat have not been accorded sufficient rights of participation in
European lawmaking procedures and treaty amendment procedures2, the Court determined
1

Consolidated Version of the Treaty on European Union, Title I, Article 1, in Official Journal
of the European Union, Vol. 51, 2008, p.17
2

Federal Constitutional Court Press Office-, Press release no. 72/2009 of 30 June 2009,
available online at http://www.bundesverfassungsgericht.de/en/press/bvg09-072en.html,

the reconsideration of the amendments tackling this issue. There can also be observed the
tendency to impose a narrow understanding of the Treaty articles concerning the transfer of
national powers, as Germany tried to maintain as much as possible of its sovereignty.
Another country trying to impose the same narrow understanding of the amendments
brought by the Treaty of Lisbon on the two previous Treaties was the Czech Republic. This
tendency can be observed in the decision of the Czech Constitutional Court, although not
considering the Treaty inconsistent with the Constitution, there is a clearly stated that a
transfer of powers to an international organization will be unconstitutional: The transfer of
powers of bodies of the Czech Republic to an international organization under Art. 10a of the
Constitution of the Czech Republic (the "Constitution") cannot go so far as to violate the very
essence of the republic as a democratic state governed by the rule of law, founded on respect
for the rights and freedoms of human beings and of citizens, and to establish a change of the
essential requirements of a democratic state governed by the rule of law (Art. 9 par. 2 in
connection with Art. 1 par. 1 of the Constitution)3.
As shown in these two Constitutional Courts` decisions, one of the most controversial
amendments of the Treaty were those concerning the increase in power of the EU institutions
and the role of national Parliaments at EU level (the possibility of the national Parliament to
oppose an EU initiative). This prerogative of the national Parliaments can be understood as a
way in which the Member States can still have a say in case of incompatibilities with their
national principles.
There are several core elements that have to be taken into account when talking about
this fundamental treaty of the European Union, which have high implications on the own
constitutions of the member states.
Since there has been mentioned the intention to be as close as possible to its citizens,
the Treaty of Lisbon gives them the possibility to have legislative initiative, as long as they
exceed the number of one million and are representing a significant number of Member

last accessed on the 12th of November, 2009

3

Czech Constitutional Court, Judgment of November 26th 2008, available online at

http://angl.concourt.cz/angl_verze/doc/pl-19-08.php, last accessed on the 12th of
November, 2009

States4. As the legislative power was granted to citizens by constitution only within a state
and it makes European Citizenship have its practical and immediate result.
Moreover, by ensuring the equality of its citizens, but stating at the same time that
citizenship of the European Union shall be additional to national citizenship and shall not
replace it5, the Union provides a rule-of-law framework for its citizens, mentioning at the
same time the importance of national citizenship and complying by this to the national
Constitutions. On the other hand, it uses the principle of non-discrimination, characteristic to
fundamental laws, fact that can be an argument in favor of considering the Treaty of Lisbon a
constitutional one.
By creating the institution of High Representative of the Union for Foreign Affairs and
Security Policy, who shall represent the interest of the Union at international level, and by
stating that the Member States shall comply with the Union`s action in this area 6, a high
limitation of the Member States foreign policy is delegated to the EU, limiting the
constitutional prerogatives of the states in this matter. In order to have a certain control on
foreign policy, unanimity vote shall be used in order to take decisions concerning these
policies of the EU. In contrast, many other policy issues shall require qualified majority
voting, fact that will again increase the federal powers of the EU. In short, the decisionmaking prerogative will be mainly in the hands of the Heads of Governments of the Member
States.
Since the Lisbon Treaty prevails even when confronted to the national laws, there shall
be the need to enact several changes to the national constitutions in order to eliminate any
kind of conflict between the two documents. This issue can prove to be extremely difficult in
the case of rigid constitutions, since the members of the national Parliaments might oppose
this changes and this might lead to the creation of a image of the EU as opposing the
constitutional principles of the states, and, as a consequence, opposing the people of these
states.
On the other hand, the decision of the Constitutional Courts (at least in the states
where such decisions were requested), revealed the fact that considering the Treaty of Lisbon
inconsistent with national Constitutions is a matter of interpretation: it is the interest of each
4

Idem1, p. 23

Idem1, p. 22

Idem1, p. 32

of the parts involved that will be the one setting the perspective of interpretation. As long as
the interest is the common good of the citizens for both each Member State and the EU, the
perspective shall be the same.