Chapter 8: The TreatiesReturn to full list of chapter notes.
Almost all democratic bodies – whether states, international organizations, corporations, or some other kind of institution with members and a governing structure – are based on constitutions. These are documents that outline the purposes and rules of the body, and provide it with its legal authority.While the EU has no formal constitution as such, it has agreed a series of treaties – ranging from Paris in 1951 to Lisbon in 2009 – that have played almost the same role: they include declarations about the purposes and powers of the EU, and rules on the functioning of its institutions and on the obligations of its members. The attempt to agree a constitutional treaty in 2002–05 may have failed, but the remaining treaties have provided the necessary order and direction.
But just as many Europeans shy away from the term federalism for what it implies about loss of state sovereignty, so they shy away from the term constitution out of concern that it will confirm and make permanent that loss. It could be argued that the EU cannot establish real permanence until it agrees and governs itself on the basis of a constitution, and the difficulties of agreeing new treaties over the years have sparked regular cries of woe and warning of impending chaos. But the EU has managed regardless, Lisbon achieved most of what the constitutional treaty was designed to achieve, and it has been argued that a kind of constitutional equilibrium has now been achieved in Europe. It is unlikely that public or political opinion could stomach more changes any time soon, meaning that Lisbon may be the last treaty for many years to come.
- The EU does not have a constitution as such, but it has a body of treaties that have almost the same role, in the sense that they outline the rules by which the EU functions.
- The process of integration was guided initially by treaties agreed between sovereign states, but through a process of constitutionalization those treaties have since taken on most of the features of a constitution.
- There have been two phases in the development of the treaties: the first lasted until 1986 and was mainly intergovernmental with little public input or interest (influenced by an atmosphere of ‘permissive consensus’), while the second has been more open and affected by public debate.
- The process of treaty-drafting has mainly taken place in intergovernmental conferences, the meetings of which have been subject to more public and political pressure since the early 1990s.
- Lisbon may be the last major amendment to the rules of the EU for some time to come, given that most of the rules needed to allow it to function efficiently are now in place, and that ‘reform fatigue’ has settled in. It has also been argued that a plateau has been reached and that there is a ‘constitutional settlement’ that obviates the need for additional treaties.
- The major treaties are the foundations of the European legal order, but there have also been other agreements that have contributed to that order: these include accession agreements, agreements among subgroups of member states (such as Schengen and the Social Charter), the Charter of Fundamental Rights of the European Union, and the European Convention on Human Rights.