Home 觀念平台 林宜亭:The Institutional Changes in the EU after the Treaty of Lisbon

林宜亭:The Institutional Changes in the EU after the Treaty of Lisbon

Christine Ie-Ting Lin
Universiteit Leiden, MIRD


To understand the institutional design of the EU, one often encounters the problems on the names of the organs and their competences under the Union.  The institutional design of the EU contains seven main organs of the EU[1], and they fall into three main powers: executive, legislative and judicial, with the control power serves supportive tasks to the Union[2].  This article will examine the changes of the EU after the Treaty of Lisbon[3] came into force in three parts, the balance of power between the executive and legislative, the powers of judicial organ, and the effects given by a new international legal personality after the ToL.

As the ToL originated as a substituted plan to the failure due to the veto in France and the Netherlands in 2005 to the European Constitution, the Reform Treaty proposed in 2007 aims on a more generally agreed Union policies including reducing the seats in the European Parliament and the introduction of the President of the European Council and the High Representative of the Union for Foreign Affairs and Security[4].


The Balance of Power between the Executive and Legislative in the EU


Art. 13 of the TEU states the structure of the EU organs in which they shall all serve their functions in achieving the common goods of the people and member states of the Union.  The following section aims on the comparison of the competence of the executive and legislative branches of the EU after the ToL and their balance of power with the European Council representing the former and the European Parliament representing the latter power.   


The European Council has become an independent organ that carries out prominent functions in the EU after the ToL[5], and it comprises not only the head of government as well as the head of the state in the case of France[6], and the President of the European Council, the High Representative, and the President of the Commission[7].


The selection of the President of the European Council bears resemblance as the Secretary-General of the United Nations, in turns of the candidates of this position require the support of powerful states but not himself a national of the most powerful ones.  The selection of Herman van Rompuy but not Tony Blair as the first President after the enforcement of the ToL shows that the member states rather preferred a chairman who serves more like a mediator, but not a de facto leader among the head of governments in the European Council[8].  And the given role of the newly established High Representative serves as a delegate of the EU to other international entities, including third states and other international organisations[9].


The European Council remains it political leading position in the Union according to the Lisbon Strategy with its resolutions not having any legal binding effects and not taking parts in the legislative process[10].  The European Council is a motor in the integration; it should also serve to solve the more sensitive political problems alongside the integration process. The European Council is meanwhile the treaty reviser of the Union and key role in the appointment in EU’s personnel matters.


As for the European Parliament, it enjoys the budgetary power, legislative powers, scrutiny of the executive, and the appointment and dismissal of the Commission[11].   Although the Parliament does not enjoy the monopoly in legislation in the EU, it shares the legislative competence with its legislative counterpart, the Council[12], the ToL grants the Parliament more prominent role than before.


Previously, the decision-making mechanisms under the EU had been categorised according to the issue stated into consultation, assent, cooperation, and coedecision[13].  The ToL further enhances the power of the Parliament by placing most issues under the codesicion process and that is in the favour of the Parliament.  The previous four decision-making mechanisms are now put into ordinary legislative procedure and special legislative procedure, and the three other methods than codecision belong to the latter.   By doing so, the Parliament enjoys more power than before because of the increasing actual participation in law making, and obtaining veto power in certain areas[14].


Despite the increasing competence of the Parliament, the funding ideas of the direct popular election of the Parliament might be jeopardise by the voting behaviour of European citizens in the member states.  Ideally, the direct popular election of the members in the European Parliament aims on a representation of the EU citizens beyond their nationality, but on the basis of ideologies[15].  Whilst what the elections reflect in reality is largely the review for the national government from its people.  This is a notable issue during the European integration process of how do people in the EU take their two identities, as a national citizen and as a EU citizen, and the judgment on the different levels of governance.


Overall, the European Council and the European Parliament are largely benefited by the ToL by expanding their competences, and for these two organs, their primary tasks should be promoting the further development of the Union by the European Council and enhancing its basis in general participation from the direct popular election.


The Powers of the Judicial Organ: from the Court of Justice of the EC to the Court of Justice of the EU


The judicial power of the EU is where the separation of power among the Union comes to be most plain, that it solely lies in the Court of Justice of the EU[16].  The organs of the Court of Justice of the EU comprise the Court of Justice, the General Court[17], and the Civil Service Tribunal[18].  There is relatively little change in the institutional design and competence of the Court of Justice, the court remains its three main functions including reviewing the legality of acts[19], establishing infringements[20], and giving preliminary rulings[21].


As the judicial organ of the EU, the Court of Justice serves its functions in the balance of power in reviewing the legality of act of any other EU organs, and the EU organs[22] are also able to bring cases in front of the Court to review the legality of acts.  Natural and legal persons are also eligible in bring cases in front of the Court after the exhaustion of local remedies provided by the national governments, and the national legislations should not be against the legal provisions and principles of the EU under any case.


In addition, the jurisdiction of the Court of Justice of the EU includes the review of the legality of all EU organ acts except the conducts relevant to the common foreign and security policy[23].  The Court has limited jurisdiction on the issues concerning the issues of judicial cooperation in criminal matters and police cooperation.  As the Court bears the same features of most of the international courts that they requires the voluntary assistance of states to perform the enforcement of law out of the absence of its own enforcement agencies[24].


The Treaty of Lisbon: A New International Legal Personality


Other than the institutional changes based on the ToL within the EU, another meaningful effect provided by the treaty is that the ToL is de jure creating a international legal personality for the EU itself.   By establishing a supranational organisation based on a constitution-like treaty, the domestic legal hierarchy and political system have now a new order[25].  The ToL grants the EUT and EUFT not only the equal legal hierarchy, but also states that the EU being the successor of the EC[26], without question is a subject in international law and hence possesses international legal personality.


After the ToL came into effect, the obstacles originated from the “three pillars foundation” of the EU and the Union itself exists merely as a political roof without international legal personality ever since the Maastricht Treaty were mostly tackled.  The EU becomes a brand new union with its legal status internationally, being a supranational organisation that is able to participate in international affairs with full membership of other international organisations[27] and engage treaties with other entities as a party.  A full international legal personality opens more doors for the EU to participate international affairs, this also refers back to the second pillar of the EU, the common foreign and security policy.


This also gives new tasks to the member states of the EU since foreign policies is greatly based on states’ sovereignty and interests whilst there continued to exist differences among national interests within the Union.  Whether the future behaviours of the EU and its member states in other international organisations being in consistence leaves a question mark on the page.   In particular, in high politic issues such as the peacekeeping missions, how will the EU members pose in EU peacekeeping projects and UN peacekeeping projects can be a interesting question to ask, not only on the yes-no level, but also the extend of participation in the missions.




Without the wording of “constitution”, the ToL still retains the essences of the European Constitution, such as the international legal personality of the Union, the goals and principles of the Union and a more important role for the European Council and the European Parliament.  The ToL reaffirms the values, founding purposes and goals of the EU, and the upcoming changes in 2014[28] also enhance the role of the parliaments of the member states[29], protections on fundamental rights[30] and the subsidiary principle of the Union.  All these will imposes further developments on the operation of the common market within the EU and the Union’s influence as a whole internationally.


As the former Secretary-General of the The Council of European Municipalities and Regions[31] Jeremy Smith points out, a huge progress on the local participation in which is one of the spirits of the European Constitution[32] is succeed by the ToL.  Smith also indicates that a more general participation within all levels of the Union can lead to a better solution to the issues faced by the EU, and the operation of the EU should not be confined with a top-down creation.


The institutions do not easily fit into the categories according to the separation of power as mentioned previously, although the EU performs legislative, executive and judicial functions with no formal separation of powers doctrine in-built into the EU constitution[33].  It should be never overlooked that the balance of power within the EU rests not only within the institutions; there exists also the balance of power between the Union itself and the member states[34].

[1] Art. 13(1) of the Treaty on European Union, hereinafter referred as the TEU.

[2] Herman Lelieveldt and Sebastiaan Princen, The Politics of the European Union, Cambridge: Cambridge University Press, 2011, pp. 75.

[3] Hereinafter referred as the ToL.

[4] Art. 18 of the ToL. Hereinafter referred as the High Representative.

[5] Phil Syrpis, The Treaty of Lisbon, Industrial Law Journal, No. 37, 2008, pp.222

[6] supra at 2, pp. 56.

[7] Art. 15 of the TEU.

[8] Supra at 2, pp. 52.

[9] Supra at 5, pp. 224.

[10] Supra at 2, pp. 57.

[11] Supra at 2, p. 67.

[12] Art. 14(1) of the TEU.

[13] Art. 48 and 49 of the TEU.

[14] Art. 19 of the Treaty on the Functioning of the European Union, hereinafter referred as the TFEU.

[15]supra at 2, pp.54.

[16] Ibid, pp. 73.

[17] Previously the Court of First Instance.

[18] Art. 19(1) of the TEU.

[19] Art. 261 of the TFEU.

[20] Art. 258 of the TFEU.

[21] Art. 267 of the TFEU.

[22] Including the member states, European Parliament, Council and Commission.

[23] Art. 275(1) of the TFEU.

[24] Supra at 2, pp. 75.

[25]http://www.iiea.com/blogosphere/lisbon-treaty-enters-into-force-a-brave-new-europe-is-born?gclid=CKe1_frsq64CFUG_3godvn70RQ, last visited 2012/02/18

[26] Art. 1 of the TEU.

[27] Henry G. Schermers and Niel M. lokker, International Institutional Law (4th ed.), Leiden: Martinus Nijhoff Publishers, 2012, pp. 62-64.

[28]Including reducing the number of the commission members, a new provision on the details of the competences of the institutions.

[29] Treaty of Lisbon, Protocol (No 1) on the role of national Parliaments in the European Union.

[30] The EU joining the European Convention on Human Rights as a treaty party, according to Art. 6 and 54 of the TEU.

[31] hereinafter referred as the CEMR.

[32] http://www.ccre.org/en/communiques/view/65, last visited 2012/02/19

[33] John Fairhurst, Law of the European Union (8th ed.), London: Pearson, 2010, pp.88.

[34] Art. 258 of the TFEU.

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