THE TREATY OF LISBON

This factsheet presents the background and essential provisions of the Treaty of
Lisbon. The objective is to provide a historical context for the emergence of this latest
fundamental EU text from those which came before it. The specific provisions (with
article references) and their effects on European Union policies are explained in more
detail in the factsheets dealing with particular policies and issues.

LEGAL BASIS
Treaty of Lisbon amending the Treaty on European Union and the Treaty
establishing the European Community (OJ C 306, 17.12.2007); entry into force on
1 December 2009.

HISTORY
The Lisbon Treaty started as a constitutional project at the end of 2001 (European
Council declaration on the future of the European Union, or Laeken declaration), and
was followed up in 2002 and 2003 by the European Convention which drafted the Treaty
establishing a Constitution for Europe (Constitutional Treaty) (1.1.4). The process
leading to the Lisbon Treaty is a result of the negative outcome of two referenda on
the Constitutional Treaty in May and June 2005, in response to which the European
Council decided to have a two-year ‘period of reflection’. Finally, on the basis of the
Berlin declaration of March 2007, the European Council of 21 to 23 June 2007 adopted
a detailed mandate for a subsequent Intergovernmental Conference (IGC), under the
Portuguese presidency. The IGC concluded its work in October 2007. The Treaty was
signed at the European Council of Lisbon on 13 December 2007 and has been ratified
by all Member States.

CONTENT
A. Objectives and legal principles
The Treaty establishing the European Community is renamed the ‘Treaty on the
Functioning of the European Union’ and the term ‘Community’ is replaced by ‘Union’
throughout the text. The Union takes the place of the Community and is its legal
successor. The Lisbon Treaty does not create state-like Union symbols like a flag or
an anthem. Although the new text is hence no longer a constitutional treaty by name,
it preserves most of the substantial achievements.

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No additional exclusive competences are transferred to the Union by the Lisbon
Treaty. However, it changes the way the Union exercises its existing powers and some
new (shared) powers, by enhancing citizens’ participation and protection, creating a
new institutional set-up and modifying the decision-making processes for increased
efficiency and transparency. A higher level of parliamentary scrutiny and democratic
accountability is therefore attained.
Unlike the Constitutional Treaty, the Lisbon Treaty contains no article formally
enshrining the supremacy of Union law over national legislation, but a declaration was
attached to the Treaty to this effect (Declaration No 17), referring to an opinion of the
Council’s Legal Service which reiterates consistent case-law of the Court.
The Lisbon Treaty for the first time clarifies the powers of the Union. It distinguishes
three types of competences: exclusive competence, where the Union alone can
legislate, and Member States only implement; shared competence, where the Member
States can legislate and adopt legally binding measures if the Union has not done so;
and supporting competence, where the EU adopts measures to support or complement
Member States’ policies. Union competences can now be handed back to the Member
States in the course of a treaty revision.
The Lisbon Treaty gives the EU full legal personality. Therefore, the Union obtains the
ability to sign international treaties in the areas of its attributed powers or to join an
international organisation. Member States may only sign international agreements that
are compatible with EU law.
The Treaty for the first time provides for a formal procedure to be followed by
Member States wishing to withdraw from the European Union in accordance with their
constitutional requirements, namely Article 50 TEU.
The Treaty of Lisbon completes the absorption of the remaining third pillar aspects
of the area of freedom, security and justice (FSJ), i.e. police and judicial cooperation
in criminal matters, into the first pillar. The former intergovernmental structure ceases
to exist, as the acts adopted in this area are now made subject to the ordinary
legislative procedure (qualified majority and codecision), using the legal instruments
of the Community method (regulations, directives and decisions) unless otherwise
specified.
With the Treaty of Lisbon in force, the European Parliament is able to propose
amendments to the Treaties, as was already the case for the Council, a Member
State government or the Commission. Normally, such an amendment would require
the convocation of a Convention which would recommend amendments to an IGC (the
European Council could, however, decide not to convene such a Convention, subject
to Parliament’s consent (Article 48(3) TEU, second paragraph)). An IGC could then be
convened to determine amendments to the Treaties by common accord. It is, however,
also possible to revise the Treaties without convening an IGC and through simplified
revision procedures, where the revision concerns the internal policies and actions of the
Union (Article 48(6) and 48(7) TEU). The revision would then be adopted as a decision
of the European Council, but might remain subject to national ratification rules.

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B. Enhanced democracy and better protection of fundamental rights
The Treaty of Lisbon expresses the three fundamental principles of democratic equality,
representative democracy and participatory democracy. Participatory democracy takes
the new form of a citizens’ initiative (4.1.5).
The Charter of Fundamental Rights is not incorporated directly into the Lisbon Treaty,
but acquires a legally binding character through Article 6(1) TEU, which gives the
Charter the same legal value as the Treaties (4.1.2).
The process of the EU’s accession to the European Convention on Human Rights
(ECHR) was opened when the 14th protocol to the ECHR entered into force on
1 June 2010. This allows not only states but also an international organisation, i.e.
the European Union, to become signatories of the ECHR. Accession still requires
ratification by all states that are parties to the ECHR, as well as by the EU itself.
Negotiations between Council of Europe and EU representatives led to the finalisation
of a draft agreement in April 2013, which, however, was deemed incompatible with
Article 6 TEU by the Court of Justice of the European Union in its Opinion 2/2013.
Further negotiations will be necessary before accession can take place.
C. A new institutional set-up
1. The European Parliament
Pursuant to Article 14(2) TEU, the EP is now ‘composed of representatives of the
Union’s citizens’, not of representatives of ‘the peoples of the States’.
The EP’s legislative powers have been increased through the ‘ordinary legislative
procedure’, which replaces the former codecision procedure. This procedure now
applies to more than 40 new policy areas, raising the total number to 73. The assent
procedure continues to exist as ‘consent’, and the consultation procedure remains
unchanged. The new budgetary procedure creates full parity between Parliament and
the Council for approval of the annual budget. The multiannual financial framework has
to be agreed by Parliament.
The EP now elects the President of the Commission by a majority of its members on a
proposal from the European Council, which is obliged to select a candidate by qualified
majority, taking into account the outcome of the European elections. The EP continues
to approve the Commission as a college.
The maximum number of MEPs has been set at 751 with citizens’ representation being
degressively proportional. The maximum number of seats per Member State is reduced
to 96 while the minimum number is increased to 6. On 7 February 2018, Parliament
voted in favour of reducing the number of its seats from 751 to 705 after the UK’s
departure from the EU and re-distributing some of the seats to be freed up among those
Member States that are slightly under-represented[1] (1.3.3).
The UK left the EU on 1 February 2020. As of this date, the new composition of 705
MEPs has been applied. Of the 73 seats vacated by the UK’s withdrawal, 27 seats have
been reallocated to better reflect the principle of degressive proportionality: the 27 seats

[1]European Parliament resolution of 7 February 2018 on the composition of the European Parliament (OJ C
463, 21.12.2018, p. 83).

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have been distributed to France (+5), Spain (+5), Italy (+3), Netherlands (+3), Ireland
(+2), Sweden (+1), Austria (+1), Denmark (+1), Finland (+1), Slovakia (+1), Croatia
(+1), Estonia (+1), Poland (+1) and Romania (+1). No Member State has lost any seats.
2. The European Council
The Lisbon Treaty formally recognises the European Council as an EU institution,
responsible for providing the Union with the ‘impetus necessary for its development’
and for defining its ‘general political directions and priorities’. The European Council
has no legislative functions. A long-term presidency replaces the previous system of
six-month rotation. The President is elected by a qualified majority of the European
Council for a renewable term of 30 months. This should improve the continuity and
coherence of the European Council’s work. The President also represents the Union
externally, without prejudice to the duties of the High Representative of the Union for
Foreign Affairs and Security Policy (see below).
3. The Vice-President of the Commission / High Representative of the Union for
Foreign Affairs and Security Policy (VP/HR)
The VP/HR is appointed by a qualified majority of the European Council with the
agreement of the President of the Commission and is responsible for the EU’s common
foreign and security policy, with the right to put forward proposals. Besides chairing
the Foreign Affairs Council, the VP/HR also has the role of Vice-President of the
Commission. The VP/HR is assisted by the European External Action Service, which
comprises staff from the Council, the Commission and national diplomatic services.
4. The Council
Lisbon maintains the principle of double majority voting (citizens and Member States).
However, the previous arrangements remained in place until November 2014; since
1 November 2014, the new rules apply.
A qualified majority is reached when 55% of members of the Council (in practice,
15 states out of 27), comprising at least 65% of the population, support a proposal
(Article 16(4) TEU). When the Council is not acting on a proposal from the
Commission or the VP/HR, the necessary majority of Member States increases to 72%
(Article 238(2) TFEU). To block legislation, at least four Member States have to vote
against a proposal. A new scheme inspired by the ‘Ioannina compromise’ allows 55%
(75% until 1 April 2017) of the Member States necessary for the blocking minority to
ask for reconsideration of a proposal during a ‘reasonable time period’ (Declaration 7).
The Council meets in public when it deliberates and votes on a draft legislative act.
To this end, each Council meeting is divided into two parts, dealing respectively
with legislative acts and non-legislative activities. The Council Presidency continues
to rotate on a six-month basis, but there are 18-month group presidencies of three
Member States in order to ensure better continuity of work. As an exception, the Foreign
Affairs Council is continuously chaired by the VP/HR.
5. The Commission
Since the President of the Commission is now chosen and elected taking into
account the outcome of the European elections, the political legitimacy of the office
is increased. The President is responsible for the internal organisation of the college

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(appointment of commissioners, distribution of portfolios, requests to resign under
particular circumstances).
6. The Court of Justice of the European Union
The jurisdiction of the Court is extended to all activities of the Union with the exception
of the CFSP. Access to the Court is facilitated for individuals.
D. More efficient and democratic policy-making with new policies and new
competencies
Several so-called ‘passerelle clauses’ allow a change from unanimous decision-
making to qualified majority voting and from the consultation procedure to codecision
(Article 31(3) TEU, Articles 81, 153, 192, 312 and 333 TFEU, plus some passerelle-
type procedures concerning judicial cooperation in criminal matters) (1.2.4). In
his 2017 State of the Union speech, Commission President Juncker announced
initiatives to move away from the unanimity rule in a number of areas by using the
passerelle clauses. As a follow-up, the Commission adopted two proposals; one in
September 2018 to move from unanimity to qualified majority voting in selected areas of
Common Foreign and Security Policy[2], followed by another in January 2019 proposing
a similar shift for selected tax policy issues[3].
In areas where the Union has no exclusive powers, at least nine Member States can
establish enhanced cooperation among themselves. Authorisation for its use must be
granted by the Council after obtaining the consent of the European Parliament. On
CFSP matters, unanimity applies.
The Lisbon Treaty considerably strengthens the principle of subsidiarity by involving
the national parliaments in the EU decision-making process (1.2.2) (1.3.5).
A certain number of new or extended policies have been introduced in environment
policy, which now includes the fight against climate change, and energy policy, which
makes new references to solidarity and the security and interconnectivity of supply.
Furthermore, intellectual property rights, sport, space, tourism, civil protection and
administrative cooperation are now possible subjects of EU law-making.
On the common security and defence policy (CSDP) (5.1.2), the Lisbon Treaty
introduces a mutual defence clause which provides that all Member States are obliged
to provide help to a Member State under attack. A solidarity clause provides that
the Union and each of its Member States have to provide assistance by all possible
means to a Member State affected by a human or natural catastrophe or by a terrorist
attack. A ‘permanent structured cooperation’ is open to all Member States which commit
themselves to taking part in European military equipment programmes and to providing
combat units that are available for immediate action. To establish such cooperation, it
is necessary to obtain a qualified majority in Council after consultation with the VP/HR.

[2]Communication from the Commission to the European Council, the European Parliament and the Council
of 12 September 2018, A stronger global actor: a more efficient decision-making for EU Common Foreign
and Security Policy (COM(2018) 0647).
[3]Communication from the Commission to the European Parliament, the European Council and the Council
of 15 January 2019, Towards a more efficient and democratic decision making in EU tax policy (COM(2019)
0008).

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ROLE OF THE EUROPEAN PARLIAMENT
See 1.1.4 for Parliament’s contributions to the European Convention and its
involvement in previous IGCs. With respect to the 2007 IGC, leading to the signature
of the Treaty of Lisbon, Parliament for the first time sent three representatives to the
conference under the Portuguese presidency.
Almost a decade after the signature of the Lisbon Treaty, Parliament acknowledged that
some of its provisions were not being exploited to the fullest. As a response thereto, on
16 February 2017 it adopted a resolution on improving the functioning of the European
Union by building on the potential of the Lisbon Treaty[4], which puts forward a number
of recommendations on how to unblock this potential in order to enhance the Union’s
capacity to tackle current global challenges.
On the same day, Parliament also adopted a resolution on the possible evolution of
and adjustments to the current institutional set-up of the European Union[5], suggesting
concrete proposals for treaty reforms.

Ina Sokolska / Eeva Pavy

02/2020

[4]European Parliament resolution of 16 February 2017 on improving the functioning of the European Union
building on the potential of the Lisbon Treaty (2014/2249(INI)) (OJ C 252, 18.7.2018, p. 215).
[5]European Parliament resolution of 16 February 2017 on possible evolutions of and adjustments to the
current institutional set-up of the European Union (2014/2248(INI)) (OJ C 252, 18.7.2018, p. 201).

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