The EU of the Twenty-First Century

18.11.1 The Lisbon Treaty

After this setback to the cause of European Union, another step forward was taken on December 13, 2007, with the signing of the Treaty of Lisbon, which superseded the Constitutional Treaty of 2004.

The Treaty of Lisbon abolished the three-pillar structure, and for the first time the European Union became an entity with legal personality, which it means it can establish and enforce international law distinct from that of its member states.^[1241] It also reinforces democracy by giving more power to the European Parliament, by approving the right of European citizens to present legislative initiatives upon the gathering of one million signatures, and by enforcing the Charter of Fundamental Rights of the European Union.

However, as far as the integration process is concerned the abolition of the “pillar” structure did not entail the “Communitization” of the Common Foreign and Security Policy at which the intergovernmental method is aimed. Similarly, although the areas of police and judicial cooperation in criminal matters have been integrated into the regime of ordinary law, specific procedures, where member states retain significant powers, continue to be applicable to them (Weber 2012, 311-322).

18.11.2 A Legally Complex Integration

The Treaty of Lisbon has marked a considerable step forward, but it has not ended the integration process. Thus, the European Union, unlike the United States, continues to grope towards real unity.^[1242] Besides political and economic difficul­ties, an important part of the problem is that, legally speaking, the integration is extremely complex.

18.11.2.1 The Absence of a Common Supranational Constitution

The legal consequence of the fact that the EU has not followed the Convention Method in a federalist approach (Oberhuber 2006, 90-119), but relies on the Community and Intergovernmental methods, is that the national constitutions of the 28 member states take legal precedence over the European treaties. This means that every time a step towards integration is taken at the treaty level the procedure for implementing it is long and complex, as every state maintains full constitutional sovereignty over the matter. Ratification procedures become long, complex, and uncertain, as a single member country can halt the whole process, and sometimes it is necessary to provide for opt-out solutions for certain states to reach a final agreement. The result is that decision-making is inefficient, but there is a serious constitutional deficit caused by the disconnect between those who manage EU affairs and the wider public (O’Neill 2009, 8). The result is that the EU’s acquis communautaire has become extremely complex.

18.11.2.2 The Accretion of Treaties, or the Legislative Labyrinth

of the Acquis Communautaire

As far as legislation is concerned, the complexity of European Community Law is overwhelming. One only needs to look at the Treaty of Lisbon, whose defining legislative feature is that it cannot be read alone, because it consists of a series of amendments to previous accords. (1) The European Union Treaty (Maastricht 1992) (2) The European Community Treaty—now called Treaty on the Functioning of the European Union (signed in Rome in 1957 and which created the EEC, amended by the Lisbon Treaty) (3) The European Atomic Energy Community Treaty (also signed in Rome in 1957) (4) The Charter of Fundamental Rights of the European Union (signed and promulgated in the year 2000, for the first time becoming binding after the entry into force of the Treaty of Lisbon on December 1, 2009, which is one of the most important innovations of the latter reform).

In summary, in order for one to ascertain the laws to which we citizens of the EU are subject, i.e. to understand the scope of the EU’s acquis communautaire, one has to examine no less than four treaties: two from 1957, one from 1992, and another from 2000, the amended (consolidated) version coming on December 1, 2009—a truly maddening legislative task. It is especially exasperating when one compares it to the mere nine articles of the 1787 United States Constitution, a model of succinctness.^[1243]

On this point mention should be made of the essential task of the European Court of Justice in furthering integration through the application of the acquis communautaire—which must be considered at least as important as the intervention of the U.S. Supreme Court in consolidating federalism in the American Union, in what has been called the “constitutionalization” of EC Law (Martinico 2013, 3-10).^[1244]

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