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This chapter addresses the scope of the Common Fisheries Policy (CFP) from three angles. After a brief introduction, it looks at the species and products covered by the CFP, known as the ‘material scope’. Then it considers the CFP's geographical scope, i.e., the land and maritime areas to which the CFP applies. Thirdly, it addresses the ‘personal scope’ of the CFP, meaning the various entities to which the CFP applies. Although the chapter focuses on the EC Treaty, it also considers the potential effects of the Treaty of Lisbon on the CFP's material and geographical scope.

This chapter describes the final element of the convergence of European public law around the legitimating structures and normative principles of the postwar constitutional settlement: national parliamentary scrutiny of European policy making. The chapter begins by describing the pivotal change in European public law—the vast expansion of supranational regulatory power with the Single European Act (SEA) of 1986—as well as the failure of the European Court of Justice (ECJ) to police that expansion through the subsidiarity principle in the 1990s. This policing function thus fell to the Member States themselves, and it is in that regard that national parliamentary scrutiny took on greater importance. European scrutiny mechanisms had existed in certain countries (notably Denmark and the United Kingdom) as early as the 1970s. Nevertheless, it was not until after the vast expansion of supranational regulatory power in 1986, continuing through the effort to reform the democratic foundations of integration into the 2000s, that national parliamentary scrutiny became a significant element of integration law and politics. In the 2000s, moreover, attention to the national parliamentary role translated into significant changes in supranational law. The so-called ‘subsidiarity early-warning mechanism’ of the now-defunct Constitutional Treaty, carried over to the Treaty of Lisbon, built directly on the national developments of the prior two decades. The chapter concludes that national parliamentary scrutiny reflects both the importance of mediated legitimacy in European governance as well as its ‘polycentric’ constitutional character.

This chapter analyzes the last stage of the reform process: the role of the German Presidency in managing the reform crisis by proposing the Treaty of Lisbon and the subsequent reaction by the Irish government and voters. On 21 June 2007 the political leaders met in Brussels and agreed on a reform proposal replacing the Treaty Establishing a Constitution for Europe, which had been rejected by the Dutch and French voters two years earlier. The deal brokered by the German Presidency maintained the overwhelming majority of the reform issues proposed under the compromised Constitutional Treaty. The chapter examines why the Presidency favored such an encompassing reform while knowing that its ratification would be far more uncertain compared to the less ambitious proposal called a “mini-treaty” that had been circulating at the time. This is the last episode of the trial-and-error story in which a strategic, risk-taking leader finally managed to turn failure into success.

This chapter first challenges the nexus between constitutionalism and nationhood, arguing that like the nation states, which are also the outcome of integration processes merging regions into states, the EU must accommodate difference and that until now she does so by veiling constitutionalism. It then argues that the current problems of the Union resulting from the rejection of treaty revisions stem from the citizens' lack of trust in organs of supranational and national representation, and that this wont is fuelled by the colliding systems of representation simultaneously based on supranationalism and on intergovernmentalism. It discusses the citizens' ambivalences regarding their trust in European institutions as they surface in public opinion polls, and interprets them as a misfit of expectations and results of European politics. Finally, it discusses the democratic potential offered by the Treaty of Lisbon to bridge the gap between representatives and represented through a combination of enhanced parliamentarism and citizens' involvement. Despite all the shortcomings and paradoxes created by the IGC, the ‘Treaty of Parliaments’, it is argued that it would indeed mark a significant turn in European constitutionalism.

This chapter compares the policy and political outcomes that followed from the institutional structures generated by the European Convention, the Treaty of Lisbon, and the default outcome of a failure of negotiations during the process of European integration, the Treaty of Nice. The institutions produced under these different arrangements empowered different actors to create the policies of the EU. The comparison is based on the theory of veto players and is aimed at demonstrating the potential differences in policy outcomes for the EU had future policies been made in each of these institutional settings. In particular, it focuses on the effects of different institutional arrangements on the democratic deficit and the extent to which they strengthen the capacity of the judiciary powers and the bureaucracy to create policies independently from electorally accountable actors.

The Treaty of Lisbon is essentially an amending treaty; it amended the Treaty on European Union and the EC Treaty. The amendments have been significant, but we do not see, as the Constitutional Treaty proposed, a complete replacement of the previous treaties with a new legal instrument. Instead we have the impression of incremental change. This decision, to retain the two treaty structure of the present constitutional architecture, was almost entirely driven by the need to demonstrate that the new Treaty was something different from the Constitutional Treaty (and that the public voice evidenced in the negative referendums had been heard), and that the new Treaty did not in fact make major constitutional changes (and new referendums did not need to be held). But is the ‘two treaty solution’ to the constitutional impasse in fact a purely cosmetic exercise and what are its legal implications? This chapter will examine the two treaty solution resulting from the Lisbon Treaty and the legal relationship between the two Treaties. Its conclusion is that the two treaty solution is in fact rather different both from the Constitutional Treaty and — to an even greater extent — from the pre-Lisbon treaties. It is more than a purely cosmetic exercise, but at the same time produces results significantly different from the pre-existing two treaty structure.

This chapter first addresses the question how far it can be said that the second pillar already forms part of the ‘new legal order’ established by the EC Treaty. It then considers whether the Constitution contained and the Treaty of Lisbon contains proposals that would helpfully move the CFSP in the direction of communitarization, by examining the potential applicability of primacy and direct effect in the second pillar and analysing the role that is proposed for the High Representative of the Union for Foreign Affairs and Security Policy (HRUFASP). Finally, the origins of the dichotomy between EC external relations and the CFSP are traced, and it considers whether this dichotomy accurately reflects the current legal and political situation of EU foreign policy.

This chapter describes the positions of a diverse set of actors relevant to the analysis of the multistage reform process, which began in autumn 2003 and resulted in the Treaty of Lisbon in autumn 2009. These include decision makers who actively shaped either the outcome or the decision-making process and the veto players who defined the set of feasible reforms. Using the issue-specific preferences of political leaders on sixty-five reform topics, the chapter identifies a two-dimensional space with one contested dimension on the expansion of the EU's jurisdiction and a second on the reform of institutional rules. Drawing on various data sets, it locates other domestic actors within this reform space. These positions are the starting point for the subsequent analysis of the decisions of political leaders to announce popular votes, to delegate bargaining power, and to perform their agenda-setting tasks in finding compromise solutions.

This chapter covers the institutional development of EU Justice and Home Affairs (JHA) law. The chapter examines all of the historical development of the institutional framework, while providing interpretation of the current rules as set out in the Treaty of Lisbon. It next looks at issues of EC and EU competence, the rules concerning the non-participation of some Member States from aspects of JHA cooperation, and the inclusion of some non-Member States (Norway, Iceland, Switzerland, Liechtenstein) in aspects of those rules. The chapter also provides an overview of the rules concerning human rights protection in EU law; the division and overlap between the rules concerning JHA cooperation and other areas of EU law; the use of the EU budget to fund JHA cooperation; and the external relations aspects of JHA cooperation. The chapter focusses on the general JHA institutional framework, as well as the institutional issues of particular relevance to immigration and asylum law. This includes the issues of particular relevance to civil law, since it has traditionally been bracketed with immigration and asylum issues.

This chapter analyses the role of democratic accountability in the Union's foreign policy, focusing on democratic accountability within the CFSP. It should, however, be pointed out that the involvement of the European Parliament in Community decision-making is most far-reaching in the legislative sphere. The European Parliament is not much involved in the executive aspects of Community policies, and its exclusion from the executive aspects of the CFSP, therefore, does not represent as stark a contrast as it might appear. The possibilities for judicial control by the Court of Justice within the sphere of the CFSP are also considered.

This concluding chapter summarizes key themes and considers the implications of the Treaty of Lisbon both generally and specifically against the background of Europe's future policy agenda. It argues that under the rules of the Treaty of Lisbon, Europe is better prepared than it would be under the Treaty of Nice. The Lisbon reforms are likely to help political leaders overcome their internal conflicts more efficiently and agree on more effective policies. Yet the world does not wait on Europe getting its act together. Europe has to cope with the social tensions emerging from demographic change and its high public debt and fiscal crisis. The question about its borders has not been answered, and other countries keep knocking on Europe's doors. In either of these contexts, major reforms will reappear on the agenda. Once a crucial coalition of political leaders supports further reforms, the present institutional rules will, sooner or later, be changed once again. While there is no single recipe for success, the events leading to the Treaty of Lisbon have shown that Europe can indeed achieve the seemingly impossible.

The Treaty of Lisbon profoundly changed the scope and operation of the common commercial policy (CCP). These changes can be analysed and categorized in constitutional terms relating to horizontal and vertical distribution of powers, that is, Union vs Member State competence, voting procedures in the Council and parliamentary participation in the decision-making process. Furthermore, the CCP is now subject to the overall value-driven framework of the Union's external policy (Article 205 TFEU). An in-depth analysis of the proposed provisions on the common commercial policy shows that the Union competence in this field will increase, covering trade in services, intellectual property rights and investment (Article 206 TFEU). Nevertheless, some elements of control remain through unanimous voting requirements in the Council (Article 207(4) TFEU). At the same time, the role and importance of the European Parliament will increase. However, the reduction of the competence of the Member States will result in a reduced role of national parliaments. Furthermore, the European Parliament will also only exercise limited control over the European Commission. Therefore, while the Treaty of Lisbon will make the common commercial policy more coherent, its achievement concerning democratization is mixed.

This chapter analyses the specific legal framework governing the Common Security and Defence Policy (CSDP). This is set out in the Treaty of Lisbon, which entered into force on 1 December 2009. Both the Lisbon Treaty and the process which led to its drafting and entry into force are underpinned by a strong emphasis on the façade of the Union's constitutional architecture. The CSDP is central to this process not only in the light of its topicality and the importance attached to it by the EU leaders as a matter of principle, but also given its position, the disappearance of which the main political actors are keen to stress. The analysis in this chapter suggests that all the exercise in constitutional reordering does not alter the unique position of CSDP within the new configuration.

This chapter focuses on the scope of the Common Foreign and Security Policy (CFSP), and its delimitation from other EU external policies. Although the Treaty of Lisbon introduces some important modifications in that respect, much of the analysis concerns the law as it has evolved under the previous versions of the Treaty on European Union (TEU) and of the EC Treaty. The structure of the analysis is as follows. It explores the Treaty language concerning the objectives of the CFSP, and the competences conferred upon the EU institutions to pursue those objectives, in contrast with other external competences. It then further examines the delimitation of competences, on the basis of an analysis of the case law of the Court of Justice on (old) Article 47 TEU. That is followed by an attempt to interpret the new delimitation provision, (current) Article 40 TEU. From the issue of delimitation, the chapter moves to the concept of consistency between the various areas of external action.

This chapter focuses on exclusivity as the expression of the loyalty principle in the field of external relations. It discusses conflict resolution in internal community matters and community external relations, and categories of competences in the Treaty of Lisbon. It is argued that while both primacy and exclusivity were derived from the principle of loyalty in Article 10 EC, the effect of the two principles is different. Primacy provides a conflict rule for internal policies whereby Community law takes precedence over Member State law in case of conflict and to the extent of that conflict. Exclusivity provides a conflict rule predominantly for external policies and imposes an obligation on the Member States not to enter into any international agreements that could affect the Community's exclusive competences.

One of the defining features of the European Union is parliamentary involvement in its decision-taking procedures — a feature closely connected to some of the Union's other defining features, such as its lawmaking capacity, and also to early aspirations towards a more federal system. This involvement is twofold: first, having its own elected parliament — unique for an international structure — and through specific provisions in the Treaty (and a developing practice within Member States) to involve national parliaments. Initially, however, the involvement of parliaments was at the margins. The role of the European Parliament was essentially consultative, while the national parliaments had no recognized role under the Treaties and were, in most Member States, not heavily involved in European matters. This chapter gives a brief summary of how this has changed, notably through successive treaties that have taken the European Parliament from a talking shop to a co-legislature with the Council. It also describes the rights of COSAC, the declarations and subsequently protocols on national parliaments, culminating in the so-called ‘yellow card’ and ‘orange card’ procedures under the Treaty of Lisbon. It evaluates the likely effects of these changes. Mention is also made of the occasions when national parliaments and the European Parliament have worked together to seek changes to the EU system, notably the Parliamentary Assizes in Rome in 1990 and the 2002–03 Convention on the Future of Europe.

This chapter looks into the historical background of the European Union’s (EU’s or Union’s) current commitment to human rights, by retracing the evolution of the EU from an economic community to a more political union based on shared fundamental values. The chapter aims at driving home three core messages that are essential for this volume, namely: (i) the Union’s internal and external human rights engagement have come about in parallel, and have grown somewhat organically, over the past fifty years, before becoming fully constitutionally engrained and intertwined in the Treaty of Lisbon; (ii) the EU’s gradual rapprochement to human rights was driven both by considerations of enhancing the Union’s internal legitimacy (constitutional checks and balances, assuring protection rights to citizens, safeguarding cohesion within an ever more diverse Union) and external legitimacy (being a responsible actor in the world, contributing to peace and stability); and (iii) in spite of all human rights-related provisions in the Treaty of Lisbon, the EU’s competence structure has not adequately followed through on these developments. The Union’s competences up to today remain primarily socio-economic in nature, with very limited law-making and enforcement powers in the area of human rights proper, resulting in an asymmetry that undermines the Union’s potential to effectively deliver on its own human rights commitments.

This chapter describes how the first procedural impossibility of reforming European institutions was removed. It examines how the Convention leadership was able to structure an unprecedented constitutional process to reach a timely and successful outcome. Given that even intergovernmental conferences, despite months of preparations, sometimes fail to produce results, the failure of negotiations in the Convention was a distinct possibility. Another realistic possibility would have been an “anarchic” document in which different parts would have reflected the prevalence of different majorities. The reason that the European Convention was able to avoid both these outcomes and produce a constitution was the agenda control exercised by the praesidium and particularly by the Convention president, Valéry Giscard d'Estaing, who was able to produce results through strategic leadership. Understanding that the European Convention was an exceptional event made possible by the combination of a creative, consistent, and overpowering agenda-setting process and the impasse created by the status quo (Treaty of Nice) explains how we came to an EU constitution, and why subsequently it became difficult to move away from this document in the Treaty of Lisbon.

This chapter explores the complex tapestry of citizenship in the European Union context, and examines how discourses of citizenship illuminate both the nature of European integration and the process of gradual constitutionalization. The intention is to re-evaluate the role played by citizenship in the evolving processes of Union polity-formation, and the connection between citizenship and the various dynamics of constitution-making. The chapter has three substantive sections which examine the complex and dynamic relationship between citizenship of the Union, the free movement dynamics underpinning EU law, and concepts of citizenship in a wider constitutional context. The chapter finds that there is a tension between citizenship of the Union, as part of the EU’s ‘old’ incremental constitutionalism based on the constitutionalization of the existing Treaties, and citizenship in the Union, where the possibilities of a ‘new’ constitutionalism based on renewed constitutional documents have yet to be fully realized.