European Union (Amendment) Act 2008

Background

The European Union (Amendment) Act 2008 (EUAA) was introduced as a precursor to the United Kingdom’s ratification of the 2007 Treaty of Lisbon. As such, the EUAA 2008 makes a series of amendments to existing domestic legislation concerning the recognition and ratification of the Lisbon Treaty, including modifications to the European Communities Act 1972 so as to include the Lisbon Treaty within the list of ‘Community Treaties’, as well as other amendments to the 1972 Act designed to give the Lisbon Treaty legal force within the United Kingdom. The principal effect of the EUAA 2008 is, therefore, to ensure that the Lisbon Treaty is granted overriding legislative force with respect to past and future domestic legislation.

The Treaty of Lisbon

The Treaty of Lisbon is an international agreement between member states of the European Union, entered into in Lisbon, 2007, which amends the two treaties which form the constitutional foundation of the Union; the Treaty of Maastricht (now referred to as the ‘Treaty on the European Union’) and the Treaty of Rome (now referred to as the ‘Treaty on the Functioning of the European Union’). The Lisbon Treaty also modifies some of the ancillary treaty protocols that attach to the Maastricht and Rome accords.

Purpose of the Treaty

As is indicated above, the Treaty of Lisbon is primarily an ‘amending’ Treaty, in that it seeks to streamline the operation of existing treaty provisions and the operation of important European Union institutions, such as the Commission, the Council of Ministers and the European Parliament; it is not intended to be read as a fully autonomous text. The Treaty of Lisbon itself gives its stated aim as being to “complete the process started by the Treaty of Amsterdam [1997] and by the Treaty of Nice [2001] with a view to enhancing the efficiency and democratic legitimacy of the Union and to improving the coherence of its action”.

Notable Institutional Amendments

European Central Bank

Under the Treaty of Lisbon the European Central Bank is elevated to the status of a full institution, with the European Council being given the right to appoint presidents by the mechanism of a qualified majority vote.

European Council

The European Council is also elevated to the status of a full institution and is separated in its function from the Council of Ministers and the procedure for appointing a President is set out, as well as limitations on reappointment. The Treaty of Lisbon provides that the Council is to set the ‘strategic priorities’ of the Union and is expected to engage in practical crisis management. The Council also plays a key role in appointing members to other important Union institutions, including the Commission, members of the Board of the European Central Bank and the High Representative of the Union for Foreign Affairs and Security Policy.

European Commission

Formerly the Commission of the European Communities, the newly renamed European Commission is reduced in size from one Commissioner per member state to one Commissioner per two thirds of member states, with a new system of equal rotation over time.

The European Parliament

The legislative power of the European Parliament is enhanced by the Treaty of Lisbon, which extends the co-decision procedure exercisable with the Council of Ministers to include most policy areas. The procedure itself is also modified and renamed as ‘ordinary legislative procedure’. In those areas which require ‘special legislative procedures’ the Parliament now generally retains the power of veto over a Council measure, and vice versa.

The Treaty also alters the manner in which MEP seats are allocated between member states. There is no longer a prescribed number, with the power to apportion MEPs now being set by the European Council, acting on the initiative of the European Parliament but otherwise autonomously. The Treaty does, however, provide that the number of MPs to be degressively proportional to the population of each member state.

Article 50

Perhaps the most important amendment introduced by the Treaty of Lisbon, particularly in light of recent events, is the procedural process for leaving the European Union set out in Article 50.

Prior to the enactment of Article 50 the Treaties of Rome and Maastricht made no provision for the voluntary withdrawal of a member state from the European Union, which was considered previously to be legally possible but fraught with technical difficulties. Article 50 now enshrines the ability of member states to exit the Union by providing that “Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.”

This unilateral right to withdraw has recently been invoked by the United Kingdom following the so-called ‘Brexit’ referendum, and the negotiated withdrawal provided for by Article 50 is now underway.