The Two (or Three) Treaty Solution: The New Treaty Structure of the EU

Abstract

The Treaty of Lisbon is essentially an amending Treaty; it amended the Treaty on European Union and EC Treaty, renaming the latter the Treaty on the Functioning of the EU (TFEU). These amendments are major ones and include the replacement of the EC by the EU. Nevertheless, 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 through amendment, as has happened many times before. This decision was obviously predominantly driven by the need to demonstrate first that the Treaty of Lisbon is something different from the Constitutional Treaty (and that the public voice evidenced in the negative referendums on the Constitution had been heard), and second that the new Treaty does not in fact make major constitutional changes to the status quo (and that therefore new referendums did not need to be held). On the other hand, the innovations resulting from the 2004 IGC and reflected in the Constitutional Treaty were indeed to be incorporated into the TEU and TFEU. Is the Treaty of Lisbon then merely about presentation, public relations, a purely cosmetic adjustment given that the text of the resulting two Treaties is very similar in essentials to the Constitutional Treaty? This chapter first of all examines the two Treaty solution as established by the Treaty of Lisbon, and then focuses on the legal relationship between the two Treaties, comparing this structure to the prior relationship between the EU and EC Treaties as well as to the Constitutional Treaty. In a final section it addresses the somewhat anomalous and ‘forgotten’ position of the Euratom Treaty which is actually a third Treaty in this two-Treaty picture. The conclusion is that the two Treaty solution offered by the Treaty of Lisbon is in fact rather different both from the Constitutional Treaty and – to an even greater extent – from the status quo ante of the pre-Lisbon Treaties. It is more than a purely cosmetic exercise (it does not just disguise the Constitutional Treaty) but at the same time it produces results significantly different from the pre-existing Treaty structure. Some crucial questions as to the precise relationship between the two Treaties are left unanswered and the Euratom is in a decidedly ambiguous position.