Treaties of the European Union

Content

The two principal treaties on which the EU is based are the Treaty on European Union (TEU; Maastricht Treaty, effective since 1993) and the Treaty on the Functioning of the European Union (TFEU; Treaty of Rome, effective since 1958). These main treaties (plus their attached protocols and declarations) have been altered by amending treaties at least once a decade since they each came into force, the latest being the Treaty of Lisbon which came into force in 2009. Lisbon also made the Charter of Fundamental Rights legally binding, though that is not a treaty per se. The troubled ratification of Lisbon has meant there is little climate for further reform in the next few years beyond accession treaties, which merely allow a new state to join.

Treaty on European Union

Following the preamble the treaty text is divided into six parts.

The first deals with common provisions. Article 1 establishes the European Union on the basis of the European Community and lays out the legal value of the treaties. The second article states that the EU is "founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". The member states share a "society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail".

Article 3 then states the aims of the EU in six points. The first is simply to promote peace, European values and its citizens' well-being. The second relates to free movement with external border controls are in place. Point 3 deals with the internal market. Point 4 establishes the euro. Point 5 states the EU shall promote its values, contribute to eradicating poverty, observe human rights and respect the charter of the United Nations. The final sixth point states that the EU shall pursue these objectives by "appropriate means" according with its competences given in the treaties.

Article 4 relates to member states' sovereignty and obligations. Article 5 sets out the principles of conferral, subsidiarity and proportionality with respect to the limits of its powers. Article 6 binds the EU to the Charter of Fundamental Rights of the European Union and the European Convention on Human Rights. Article 7 deals with the suspension of a member state and article 8 deals with establishing close relations with neighbouring states.

Article 9 establishes the equality of national citizens and citizenship of the European Union. Article 10 declares that the EU is founded in representative democracy and that decisions must be taken as closely as possible to citizens. It makes reference to European political parties and how citizens are represented: directly in the Parliament and by their governments in the Council and European Council – accountable to national parliaments. Article 11 establishes government transparency, declares that broad consultations must be made and introduces provision for a petition where at least 1 million citizens may petition the Commission to legislate on a matter. Article 12 gives national parliaments limited involvement in the legislative process.

Article 13 establishes the institutions in the following order and under the following names: the European Parliament, the European Council, the Council, the European Commission, the Court of Justice of the European Union, the European Central Bank and the Court of Auditors. It obliges co-operation between these and limits their competencies to the powers within the treaties.

Article 14 deals with the workings of Parliament and its election, article 15 with the European Council and its president, article 16 with the Council and its configurations and article 17 with the Commission and its appointment. Article 18 establishes the High Representative of the Union for Foreign Affairs and Security Policy and article 19 establishes the Court of Justice.

Title 4 has only one article which allows a limited number of member states to co-operate within the EU if others are blocking integration in that field.

Chapter 1 of this title includes articles 21 and 22. Article 21 deals with the principles that outline EU foreign policy; including compliance with the UN charter, promoting global trade, humanitarian support and global governance. Article 22 gives the European Council, acting unanimously, control over defining the EU's foreign policy.

Chapter 2 is further divided into sections. The first, common provisions, details the guidelines and functioning of the EU's foreign policy, including establishment of the European External Action Service and member state's responsibilities. Section 2, articles 42 to 46, deal with military cooperation (including mutual defence).

Article 47 establishes a legal personality for the EU. Article 48 deals with the method of treaty amendment; specifically the ordinary and simplified revision procedures. Article 49 deals with applications to join the EU and article 50 with withdrawal. Article 51 deals with the protocols attached to the treaties and article 52 with the geographic application of the treaty. Article 53 states the treaty is in force for an unlimited period, article 54 deals with ratification and 55 with the different language versions of the treaties.

Treaty on the functioning of the European Union

The Treaty on the functioning of the European Union goes into deeper detail on the role, policies and operation of the EU. It is split into seven parts.

In principles, article 1 establishes the basis of the treaty and its legal value. Articles 2 to 6 outline the competencies of the EU according to the level of powers accorded in each area. Articles 7 to 14 set out social principles, articles 15 and 16 set out public access to documents and meetings and article 17 states that the EU shall respect the status of religious, philosophical and non-confessional organisations under national law.

The second part begins with article 18 which outlaws, within the limitations of the treaties, discrimination on the basis of nationality. Article 19 states the EU will "combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation". Articles 20 to 24 establishes EU citizenship and accords rights to it; to free movement, consular protection from other states, vote and stand in local and European elections, right to petition Parliament and the European Ombudsman and to contact and receive a reply from EU institutions in their own language. Article 25 requires the Commission to report on the implementation of these rights every three years.

Part 3 on policies and actions is divided by area into the following titles: the internal market; the free movement of goods, including the customs union; agriculture and fisheries; free movement of people, services and capital; the area of freedom, justice and security, including police and justice co-operation; transport policy; competition, taxation and harmonisation of regulations (note Article 101 and Article 102); economic and monetary policy, including articles on the euro; employment policy; the European Social Fund; education, vocational training, youth and sport policies; cultural policy; public health; consumer protection; Trans-European Networks; industrial policy; economic, social and territorial cohesion (reducing disparities in development); research and development and space policy; environmental policy; energy policy; tourism; civil protection; and administrative co-operation.

Part 4 deals with association of overseas territories. Article 198 sets the objective of association as promoting the economic and social development of those associated territories as listed in annex 2. The following articles elaborate on the form of association such as customs duties.

Part 5 deals with EU foreign policy. Article 205 states that external actions must be in accordance with the principles laid out in Chapter 1 Title 5 of the Treaty on European Union. Article 206 and 207 establish the common commercial (external trade) policy of the EU. Articles 208 to 214 deal with cooperation on development and humanitarian aid for third countries. Article 215 deals with sanctions while articles 216 to 219 deal with procedures for establishing international treaties with third countries. Article 220 instructs the High Representative and Commission to engage in appropriate cooperation with other international organisations and article 221 establishes the EU delegations. Article 222, the Solidarity clause states that members shall come to the aid of a fellow member who is subject to a terrorist attack, natural disaster or man-made disaster. This includes the use of military force.

Part 6 elaborates on the institutional provisions in the Treaty on European Union. As well as elaborating on the structures, articles 288 to 299 outline the forms of legislative acts and procedures of the EU. Articles 300 to 309 establish the European Economic and Social Committee, the Committee of the Regions and the European Investment Bank. Articles 310 to 325 outline the EU budget. Finally, articles 326 to 334 establishes provision for enhanced co-operation.

Part 7 deals with final legal points, such as territorial and temporal application, the seat of institutions (to be decided by member states, but this is enacted by a protocol attached to the treaties), immunities and the effect on treaties signed before 1958 or the date of accession.

Protocols, annexes and declarations

There are 37 protocols, 2 annexes and 65 declarations that are attached to the treaties to elaborate details, often in connection with a single country, without being in the full legal text.

There are 65 declarations attached to the EU treaties. As examples, these include the following. Declaration 1 affirms that the charter, gaining legal force, reaffirms rights under the European Convention and does not allow the EU to act beyond its conferred competencies. Declaration 4 allocates an extra MEP to Italy. Declaration 7 outlines Council voting procedures to become active after 2014. Declaration 17 asserts the primacy of EU law. Declaration 27 reasserts that holding a legal personality does not entitle the EU to act beyond its competencies. Declaration 43 allows Mayotte to change to the status of outermost region.

Euratom

As well as the two main treaties, their protocols and the Charter of Fundamental Rights; the Treaty Establishing a European Atomic Energy Community (Euratom) is still in force as a separate treaty.

Title one outlines the tasks of Euratom. Title two contains the core of the treaty on how cooperation in the field is to take place. Title three outlines institutional provisions and has largely been subsumed by the European Union treaties. Title four is on financial provisions and title five on the general and title six is on final provisions.

Amendment and ratification

The treaties can be changed in three different ways. The ordinary revision procedure is essentially the traditional method by which the treaties have been amended and involves holding a full inter-governmental conference. The simplified revision procedure was established by the Treaty of Lisbon and only allows for changes which do not increase the power of the EU. While using the passerelle clause does involve amending the treaties, as such, it does allow for a change of legislative procedure in certain circumstances.

The ordinary revision procedure for amending treaties requires proposals from an institution to be lodged with the European Council. The President of the European Council can then either call a European Convention (composed of national governments, national parliamentarians, MEPs and representatives from the Commission) to draft the changes or draft the proposals in the European Council itself if the change is minor. They then proceed with an Intergovernmental Conference (IGC) which agrees the treaty which is then signed by all the national leaders and ratified by each state.

While this is the procedure that has been use for all treaties prior to the Lisbon Treaty, an actual European Convention (essentially, a constitutional convention) has only been called twice. First in the drafting of the Charter of Fundamental Rights with the European Convention of 1999–2000. Second with the Convention on the Future of Europe which drafted the Constitutional Treaty (which then formed the basis of the Lisbon Treaty). Previously, treaties had been drafted by civil servants.

The simplified revision procedure, which applies only to part three of the Treaty on the Functioning of the European Union and cannot increase the powers of the EU, sees changes simply agreed in the European Council by a decision before being ratified by each state. The amendment to article 136 TFEU makes use of the simplified revision procedure due to the small scope of its change.

Any reform to the legal basis of the EU must be ratified according to the procedures in each member state. All states are required to ratify it and lodge the instruments of ratification with the Government of Italy before the treaty can come into force in any respect. In some states, such as Ireland, this is usually a referendum as any change to that state's constitution requires one. In others, such as Germany, referendums are constitutionally banned and the ratification must take place in its national parliament.

On some occasions, a state has failed to get a treaty passed by its public in a referendum. In the cases of Ireland and Denmark a second referendum was held after a number of concessions were granted. However, in the case of France and the Netherlands, the treaty was abandoned in favour of a treaty that would not prompt a referendum. In the case of Norway, where the treaty was their accession treaty (hence, their membership), the treaty was also abandoned.

Treaties are also put before the European Parliament and while its vote is not binding, it is important; both the Belgian and Italian Parliaments said they would veto the Nice Treaty if the European Parliament did not approve it.

Minor amendments not requiring ratification

The treaties contain a passerelle clause which allows the European Council to unanimously agree to change the applicable voting procedure in the Council of Ministers to QMV and to change legislation adoption procedure from a special to the ordinary legislative procedure, provided that no national parliament objects. This procedure cannot be used for areas which have defence implications.

The fourth amendment procedure is for changing status of some of the special member state territories. The status of a French, Dutch and Danish overseas territories can be changed more easily, by no longer requiring a full treaty revision. Instead, the European Council may, on the initiative of the member state concerned, change the status of an overseas country or territory (OCT) to an outermost region (OMR) or vice versa. This provision doesn't apply to special territories of the other member states.

Legend for below table: [Amending] – [Membership]

Ratified treaties

Legend for below table: [Founding] – [Amending] – [Membership]

Related treaties

Although not formally part of European Union law, several closely related treaties have been signed outside the framework of the EU and its predecessors between the member states because the EU lacked authority to act in the field. After the EU obtained such autonomy, the conventions were gradually replaced by EU instruments. Examples are the Naples Convention of 1967 (on customs cooperation, replaced by a new Convention in 1997 which has been ratified by all member states), Brussels Convention of 1968 (on jurisdiction in civil matters, replaced by the Brussels I Regulation in 2001), the Rome Convention on Contractual Obligations of 1980 (on choice of law in contractual matters, replaced by the Rome I Regulation in 2008 except in Denmark), and the Dublin Convention of 1990 (on asylum seekers, replaced by the Dublin II Regulation in 2003). Additionally, the Convention on the Mutual Recognition of Companies and Bodies Corporate was signed in 1968, but while 5 of the 6 then member states ratified it, it never entered into force due to the Netherlands' refusal to ratify the treaty. Likewise, the Convention for the European patent for the common market of 1975, and the Agreement relating to Community patents of 1989, which amended the 1975 Convention, were signed by all member states but never entered into force due to lack of ratification by all states.

Furthermore, Article K.3 of the Maastricht Treaty, which entered into force in 1993, authorized the European Communities to "draw up conventions which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements" under the newly created Justice and Home Affairs pillar, which was organised on an intergovernmental basis. The JHA was integrated into the EC structures as the area of freedom, security and justice with the Lisbon Treaty's entry into force in 2009. Concluded under these provisions were conventions on extradition procedures (never formally entered into force), customs procedures (replaced by a Council Decision in 2009), financial matters of the European Union (ratified by all member states), the Europol Convention of 1995 (came under the EU's competence with the Lisbon Treaty and replaced by a Council Decision in 2009), extradition (never formally entered into force), documentation in legal proceedings (never entered into force), corruption (ratified by all member states except Malta), matrimonial matters (never entered into force), driving (never formally entered into force) and cooperation on criminal matters (ratified by all member states except Greece, Italy, Ireland and Croatia; Iceland and Norway also apply some provisions) as well as a number of protocols to these agreements. During this time period, a convention on double taxation was also ratified by all member states.

Finally, several treaties have been concluded between a subset of EU member states due to a lack of unanimity. The Schengen Treaty and Convention were agreed to in 1985 and 1990 respectively in this manner, but were subsequently incorporated into EU law by the Amsterdam Treaty, with the remaining EU member states that had not signed the treaty being given an opt-out from implementing it. More recently, the Prüm Convention, European Fiscal Compact and Single Resolution Fund Agreement were signed as intergovernmental treaties. However, all three state that the intention of the signatories is to incorporate the treaty's provisions into EU structures and that EU law should take precedence over the treaty. As well, the agreements are open to accession by any EU member state. The Treaty Establishing the European Stability Mechanism was also signed and entered into force outside of the EU framework. However, a TFEU amendment was ratified which gives the ESM a legal basis in the EU treaties. An updated EMU reform plan issued in June 2015 by the five presidents of the Council, European Commission, ECB, Eurogroup and European Parliament outlined a roadmap for integrating the Fiscal Compact and Single Resolution Fund agreement into the framework of EU law by June 2017, and the intergovernmental European Stability Mechanism by 2025.

There are also European Union Association Agreements regulating special relationships with non-member states.

Signed treaties

The Agreement on a Unified Patent Court, although formally not part of the European Union treaties, was signed by 25 of the then 27 (Croatia has since acceded to the EU) member states of the Union respectively and is undergoing ratification.

Unified Patent Court

After two regulations creating a European Union patent with unitary effect utilizing enhanced cooperation were approved for 25 participating states (all but Italy and Spain) by the European Parliament on 11 December 2012 the documents were formally adopted as regulation E.U. 1257 and 1260 of 2012 on 17 December 2012, and entered into force in January 2013. However, the provisions will only apply once the related Agreement on a Unified Patent Court, which would create a common patent court for its members, enters into force. Due to a ruling by the Court of Justice of the European Union that the proposed Unified Patent Court (UPC) was not compatible with European Union law, the agreement calls for the court to be established by an intergovernmental treaty between the participating states outside the framework of the EU. The draft Agreement was published by the Council of the European Union on 11 January 2013, and was signed on 19 February 2013 by 24 EU member states, including all states participating in the enhanced cooperation measures except Bulgaria and Poland, while Italy, which did not join the enhanced cooperation measures, did sign the UPC agreement. The treaty is open for accession to all remaining EU member states, and Bulgaria subsequently signed the agreement on 5 March after finalizing their internal procedures. Meanwhile, Poland decided to wait to see how the new patent system works before joining due to concerns that it would harm their economy. While Italy is not participating in the unitary patent regulations, signing the UPC agreement will allow the new court to handle traditional European patents issued in the country. Entry into force for the UPC will take place after 13 states (including Germany, France and the United Kingdom as the three states with the most patents in force) have ratified the Patent Court agreement, but not before 1 January 2014.

Abandoned treaties

Following on from the success of the Treaty of Paris, efforts were made to allow West Germany to rearm within the framework of a European military structure in the form of a European Defence Community. The treaty was signed by the six members on 27 May 1952 and the Common Assembly began drafting a treaty for a European Political Community to ensure democratic accountability of the new army, but this treaty was abandoned when the Defence Community treaty was rejected by the French National Assembly on 30 August 1954.

Norway applied to join the European Communities/Union on two occasions. Both times a national referendum rejected membership, leading Norway to abandon their ratification of the treaty of accession. The first treaty was signed in Brussels on 22 January 1972 and the second in Corfu on 24 June 1994.

The European Constitution was a treaty that would have repealed and consolidated all previous overlapping treaties (except the Euratom treaty) into a single document. It also made changes to voting systems, simplified the structure of the EU and advanced co-operation in foreign policy. The treaty was signed in Rome on 29 October 2004 and was due to come into force on 1 November 2006 if it was ratified by all member states. However, this did not occur, with France rejecting the document in a national referendum on 29 May 2005 and then the Netherlands in their own referendum on 1 June 2005. Although it had been ratified by a number of member states, following a "period of reflection", the constitution in that form was scrapped and replaced by the Treaty of Lisbon.

After the negotiations to amend Article 136 succeeded in March 2011, the leaders of the EU came to an agreement on a permanent stability fund for the eurozone called the European Stability Mechanism on 11 July 2011. It was decided that the ESM would have a size of 500 billion euros, by replacing the non-permanent European Financial Stability Fund and the European Financial Stability Mechanism. However, as the European sovereign debt crisis worsened, the leaders decided not to ratify the treaty as they planned several changes in the ESM, thus scrapping the original concept. The subsequent version of the ESM treaty was signed on 2 February 2012.