How has the Lisbon Treaty changed state sovereignty in the EU?

Konstantinos Athanasiadis

PhD Programme PT/PS

LUISS Guido Carli University

Word count: 6.144

Abstract

The EU is often portrayed as a unique experiment in the transformation of state

sovereignty. Jean Monnet was convinced that a super-state could be established in

order to eradicate war and violence once and for all from the European continent.

Since the Treaties of Paris and Rome, the EU has progressed significantly marching

towards federalisation. This is most evidently crystallised in the process of

constitutionalisation and the Europeanisation of the Member State’s legal order.

Nevertheless, state sovereignty conceived as both legal and political, remains the rule

of the day as enshrined in the principle of conferral. The Lisbon Treaty, whilst

emerging out of the failed Constitutional Treaty, did not manage, to change a lot to

the direction of supranationalisation but it did provide the institutional tools for it.

The EU remains a partially federal entity without a coercive capacity, and where the

locus of sovereignty is still embedded in the state.

Introduction

“This sovereignty [peoples’] today is completely destroyed, because the European

Union has deprived us of territorial sovereignty, economic sovereignty, fiscal

sovereignty, and legislative sovereignty” (The Voice of Russia 2014).

In an interview to the Voice of Russia, Marine Le Pen, leader of the extreme right

French party, Front National, seizes the opportunity to burst against the EU.

Undoubtedly, her words appeal to Eurosceptics across Europe that espouse the same

anti-integrationist discourse against what they perceive as a violation of national

sovereignty.

These criticisms were heightened dramatically during the period of the sovereign debt

and the European banking sector crises. Anti-popular austerity measures and spending

cuts in the countries of the European periphery on the one hand, and contributions of

the European taxpayers for the sake of European solidarity on the other, nurtured a

spirit of disillusionment, where populist forces found a fertile ground to endorse anti-

European agendas.

Controversies surrounding the concept of sovereignty became more acute in the post-

Lisbon era as the latter found itself between the hard and rock place of growing Euro-

scepticism and further European integration. The words of Marine Le Pen reveal in a

sense the absurd, Protean, and intangible character of sovereignty. In the quotation

mentioned above, sovereignty looms large as a non-unitary concept; it is territorial,

economic, fiscal and legislative at the same time.

Interestingly, Le Pen’s discourse reflects -albeit in a populist and simplistic manner-,

the multifaceted physiognomy of European integration. The EU project is not limited

solely to fiscal control and monetary policies. Its aspects vary considerably to

embrace policies that pertain to education, foreign policy or roaming charges across

the Union.

Moreover, the discourse employed by Le Pen echoes the thorny trajectory of

negotiations and compomises that culminated into the formulation of the Lisbon

Treaty. It is against the background of the failed Constitutional Treaty that the Lisbon

Treaty unfolded as an effort to alleviate fears of an over-expanding supra-national EU

that encroaches more upon national sovereignty. Therefore, the Lisbon Treaty could

be depicted as a conundrum that forwards the process of constitutionalisation, whilst

entrenching squarely national sovereignty in its provisions.

This paper will argue that the Lisbon Treaty did not markedly alter the content of

sovereignty in the EU: yet it offered the necessary tools for further federalisation,

whilst highlighting the contradictions embedded in the project. Thus, the paper will

first question the concept of sovereignty. It will then proceed by exploring the

distinctive content of sovereignty within the EC/EU framework. It will conclude that

the Lisbon Treaty did not change much in the foundations of national sovereignty but

it created a fertile ground for further federalisation.

The concept of sovereignty

The substance of sovereignty is quintessentially puzzling. This is partially owed to the

fact that its procedural and definitional ramifications embrace both the internal but

also the external sphere. Thus, its implications are echoed in different fields of study

such as political science, international relations, law and economics.

Moreover, sovereignty remains a highly disputed but greatly sought quality by states

since it implies an array of rights and duties within the international society.

Significantly, it acts as a form of validation: an entity is admitted into the ‘exclusive

club’ of the most successful form of political organisation that is the Nation-State.

Nation-State and sovereignty unfolded as intrinsically intertwined expressing in the

most vivid fashion the birth of modernity.

Historically, sovereignty traces its roots to medieval Europe which was defined by a

plethora of feudal kingdoms, city-states and principalities whose authority frequently

overlapped. The notion of medievalism (Bull 1977) captures exactly this complicated

grid of overlapping and interlocking authorities. As Robert Jackson argues,

sovereignty “is an expedient idea worked out by kings and other rulers, and their

representatives and agents, in response to the novel circumstances of the sixteenth-

and seventeenth- century Europe…The rulers of early modern Europe initially came

up with the idea in their repudiation of the overarching authority of the pope, who was

then theocratic head of Latin Christendom. Their successful assertion of sovereignty

was a way of escape from papal authority, an act of secession. They also asserted their

sovereign authority in relation to rival authorities within their claimed jurisdictions

and in relation to their subjects (2007, p. xi).

Hence, the expression cujus regio eius religio, came to signify the beginning of a new

era, that of sovereign statehood. The Peace Treaty of Westphalia (1648) marked the

end of medievalism and the transition to new forms of organisation based on

exclusion, where the sovereign be he the king or the prince would rule freely over its

subjects without external interference. This would remain so until the end of the Cold

war, the intensification of global transactions and the expansion of human rights as

standard of civilisation (Donnelly 1998) that would erode the inviolability of the

borders through trade, democracy promotion and external intervention. Nevertheless,

sovereignty “is still recognizably the same basic idea that it was in the sixteenth and

seventeenth century” (Jackson 2007, p. 2) implying supremacy and authority within a

territorially delimited land.

This basic idea entails essentially two features: a legal and a political. Legality refers

to the existence of a constitution as a point of reference or as James indicates as a

token that “a government is under way” (1999, p.462). Independence as aspect of

sovereignty is strongly related to the body of laws enshrined in the constitution: first,

it separates the state from other similar units. Therefore, “a sovereign government is

usually said to be a ‘free’ government in the sense that is free from all foreign

authority and law except that to which it has consented or otherwise subjected itself:

for example, by means of a treaty” (Jackson 2007, p.10). Second, it confers

legitimacy upon the state as the incumbents govern according to the rule of law,

which is embedded in the constitution. Hence, sovereignty viewed from the aspect of

constitutional independence implies also a sense of accountability to the citizenry

Third, it explicitly states the nature and the type of the polity, no matter how this

might be interpreted and manifested into practice.

Alan James adds a fourth point in the understanding of sovereignty as constitutional

independence, which pertains to the external ramifications of constitutionalism.

Specifically, the constitution underscores the international capacity of the state to

come into terms with other exclusive territorial units and international bodies “for the

international society admits only those governed entities which are sovereign in the

sense of being constitutionally independent” (1999, p. 462).

Hence, the international society is composed by a mosaic of constitutionally based

states that partake to what Friedmann called the ‘constitutionalisation’ of the law of

nations, which started with the League of Nations and continues still within the

institutional and legal framework of the United Nations (Fassbender 2003, p. 130).

Viewed from this legalistic perspective, sovereignty under international constitutional

law implies ultimately equality in the conduct of international relations between states

but also “legal authority and autonomy” as “defined and guaranteed by the

constitution of the international community” (Ibid. p. 131).

On the other hand, sovereignty is characterised also by its deeply political nature.

Max Weber captured accurately this aspect of sovereignty by describing it as the

monopoly of legitimate use of power by the state. His student Carl Schmitt believed

that sovereignty is being better conceived in the province of exception: sovereign is

the person who holds the ultimate power to decide on the juridical order under

conditions of duress (Strong 2005, p. xx-xxi). “Sovereignty presupposes that there are

no limits on the exercise of state power at any point within a sovereign’s jurisdiction”

(Jackson 2007, p.17). Thus, the sovereign state wields the Hobbesian swords of

justice “against domestic threats” and of war “against foreign threats” (Ibid.).

In the realm of the political, sovereignty is perceived as the ultimate authority within a

polity. The sovereign, which is the central state, is able to employ coercion but also

offer public goods such as security through the enforcement of law and welfare.

Therefore, state capabilities are preponderant as factual manifestation of sovereign

statehood. According to Kenneth Waltz, the state “decides for itself how it will cope

with its internal and external problems, including whether or not to seek assistance

from others and in doing so to limit its freedom by making commitments to it” (Waltz

1979, p. 96). Thus, realists argue in favour of degrees of sovereignty which are

inherently defined by interests.

Therefore, Stephen Krasner calls sovereignty as an example of “organized

hypocrisy”: “Westphalian sovereignty has always been violated. At times rulers

adhere to conventional norms or rules because it provides them with resources and

support (both material and ideational). At other times, rulers have violated the norms,

and for the same reasons. If rulers want to stay in power and to promote the security,

material, and ideational interests of their constituents, following the conventional

practices of Westphalian and international legal sovereignty might or might not be an

optimal policy” (Krasner 1999, p. 24).

Yet this line of reasoning ignores the fact that a great number of states in the

international society lack the capacities to compromise their sovereignty according to

some kind of raison d’ être. This is evidently illustrated in the case of juridical states

or quasi-states (Jackson 1993) that emerged out of the long process of decolonisation.

Whilst juridical states are recognised as such by the other members of the society of

states thus being members of international regimes such as the UN, they fall short of

controlling their territory, enforcing the law and enacting regulations. Sovereignty

understood as authority is already compromised since its main means of articulation,

power, is hardly existent.

Despite the dearth of coercive capacity, juridical states are deemed equal due to

constitutional independence that is recognised internationally. Interestingly, juridical

states reveal clearly the legal and political nexus that constitutes sovereignty. States

such as Somalia are sovereign because they have a legal capacity, a constitution that

defines the main components of statehood that are territory, government and people.

Nevertheless, Somalia could not be used as an example of effective sovereignty since

its statehood is fragmented into mini-states that are autonomous from the central

authority, which is identified with the government. Thus, external actors, state and

non-state alike, can easily penetrate its territory without paying any costs.

Evidently then, sovereignty becomes an absolute attribute: you are sovereign or not.

You have the legal capacity to conclude agreements, have diplomatic representation,

enjoy the rights and fulfil the obligations that arise from being a sovereign state

because of precisely this quality. Alan James underlies that sovereignty is also

unitary. “Constitutional independence means that no other entity is customarily in the

position of being formally able to take decisions regarding either the internal or

external affairs of the territory in question” (1999, p. 464). But since decisions are

made, implementation is subsequently required as reflected in the empirically

manifest coercive capacity of the state. Hence, the conceptualisation of an ideal type

of sovereignty would entail the integration of both the legal and the political into a

single organic set.

Sovereignty and the European Union before Lisbon

Sovereignty was divined, as mentioned above, in Europe. The nation-state sprang out

of this concept to expand globally as the most successful product of European

modernity. Thus, sovereignty and modernity came to seal a whole era. Unsurprisingly

though, an alleged deconstruction of the Nation State commenced where it first

mushroomed: in the heart of Europe.

The European Union and its predecessors, the European Coal and Steal Community

(ECSC), the European Atomic Energy Community (EURATOM) and the European

Economic Community (EEC), hailed the beginning of a postmodern era, where

national sovereignty was to be reconciled for the sake of peace, prosperity and

democracy in a war-torn, traumatised European continent.

In due course, the European project signified the most advanced experiment of

integration and thus elimination of national sovereignty, as most expressly crystallised

in the introduction of the common currency, the free movement of people, goods and

capital and a common pan-European electoral procedure. The consolidation of those

features led many scholars to attribute to sovereignty in the EU characterisations such

as ‘mixed’ (Bellamy 2003), ‘late’ (Walker 2003), and ‘pooled’ (Williams 1990).

These definitional efforts notwithstanding, the end of national sovereignty among the

EU Member-States would be a rather premature and ambitious statement to make.

The EU progressively embraced a lot of sectors thus obtaining its own dynamic and

logic. The European legal order or as more broadly known, the acquis communitaire,

reflects this trend towards a European supra-national order, where the EU legal order

rules supreme over the national ones.

Yet, the EU remains still a deeply political project since its evolution depends on the

will of the states. Therefore, characterisations that could appositely define the entirety

of the European structure tend to be usually biased in favour of certain aspects of the

European scaffolding thus ignoring others. As Kurtulus argues “it may be claimed

that the notions of ‘pooled’, ‘shared’, or ‘joint exercise of sovereignty’ are attempts at

answering a question, that can reasonably be left to the competent treatment of a

fortune-teller” (Kurtulus 2005, p. 151).

This exaggeration manifestly depicts the difficulties of defining the essence and

substance of sovereignty within the EU. Yet a good starting point would be a

comparison with what the initiators of the ECSC and EEC had in mind, when they

embarked upon this collective endeavour.

Jean Monnet believed that “there will be no peace in Europe if the states are

reconstituted on the basis of national sovereignty…. The countries of Europe are too

small to guarantee their peoples the necessary prosperity and social development. The

European states must constitute themselves into a federation” (Talbott 2014). Finance

and commerce seemed to him the most appropriate areas to initiate the erection of a

federal entity as it was in those realms that “independence and sovereignty are most

contingent, and where interdependence is most beneficial and comes most naturally to

all parties” (Ibid.). According to Strobe Talbott, Monnet was an admirer of American

federalism as this system proved capable of countering “the depredations of the Great

Depression” (Ibid.). Thus, the ECSC should develop into a super-state with

centralised power instead of an entity that delegated powers to “subsidiary and self-

governing units” (Ibid.).

But the two leading figures of the endeavour, Konrad Adenauer and Robert Schuman

opted for a more restrained and pragmatist formulation in order to describe the

fledgling project: “By the signature of this Treaty, the participating Parties give proof

of their determination to create the first supranational institution and [to lay] the true

foundation of an organized Europe.” (Ibid.).

Since the conclusion of the Treaties of Paris (1951) and Rome (1957), the European

polity has evolved far beyond the single supra-national institution that the High

Authority incarnated. On the other hand, the EU has made steps towards the building

of a more federal structure based on supra-national institutions. Nevertheless, it fell

short of establishing a ‘United States of Europe’. Indeed, Jean –Claude Piris defines

the EU as a partially federal entity (2010 p. 331).

If, for Monnet, US federalism was the ideal type as aforementioned, then the EU

would have to develop the legal and political structures that characterise such types of

polities by addressing key asymmetries embedded in it. In this vein, integration or

federalisation in the pre-Lisbon era were characterised by advanced supra-national

procedures such as those included in the first (Community) pillar but also more

intergovernmental ones e.g. social policy, decision-making that did not menace the

core features of national sovereignty.

From a legal viewpoint, pre-Lisbon Europe lacked a constitution that would

significantly symbolise constitutional independence as token of empirical statehood.

On the other hand, a constitution would signal utterly the supremacy of the supra-

national entity but also its drive towards a federal European state. Nevertheless, as

Fabbrini notes, the absence of a formal constitution was counterbalanced by the

existence of a material constitution. “A material constitution consists of the social

practices (derived from political conventions, historical traditions or specific judiciary

regulations) recognized as the basic norms of a given society…[It] is the juridical

expression of higher-order principles (such as supremacy of Community law or direct

effect of Community law on individual citizens) established by the European Court of

Justice (ECJ) since the 1960s and recognized as such by the Member States and their

citizens” (2008, p. 459).

Thus, the constitutionalisation of the EC/EU evolved as a social fact that was

articulated partially in the ECJ’s jurisprudence. The ECJ has managed to entrench

itself as an independent institution that monitored the proper implementation of the

treaties through the doctrines of supremacy and direct effect. As Sweet (2005 p. 47)

explains, this springs out of Art. 234 of the Treaty of Rome: the ECJ acquires the right

to issue preliminary rulings on the correct interpretation of the treaties that in turn

have to be heeded by the national courts which in turn confirm[ed] the EU’s sovereign

status (Walker 2003, p.12). Thus, the constitutionalising dynamic which unraveled in

due course, engendered new centres of authority or a sort of neo-medievalism with

overlapping institutional and regulatory hubs. This heteronomy inevitably questioned

the categorical character of sovereignty as enshrined in its absolute and unitary nature.

Nevertheless, the EC/EU’s sovereign status was undermined by the interpretation

provided by national courts on the basis of this judicial order. For example, the

German Federal Constitutional Court ruled on the Treaty of Maastricht that “the

European Union and its institutions…may exercise only those powers expressly

transferred to them by the Bundestag…The Court emphasizes the sovereignty of

Germany and qualified all authority of the Union as derived from the Member States

(Wieland 1994, p. 263). Hence, the ECJ did not have the Kompetenz Kompetenz

which was preserved for the state as conferred upon the Union, which was the true

and only source of authority.

Moreover, the institutional expression of the EU’s supranational legal order was

reflected in the secondary legislation issued by the European Commission under the

rubric of regulations and directives. Both had direct applicability thus modifying the

national legal order and utterly europeanising it through the subsequent necessary

legislative amendments. Yet, the pillar structure introduced by the Treaty of

Maastricht, as subsequently modified by the Treaties of Amsterdam and Nice, created

legal disputes regarding the extent of the competencies allotted to the Commission.

The principle of subsidiarity enacted in the Treaty of Maastricht stated explicitly that

the “Community shall act within the limits of the powers conferred upon it by this

Treaty and of the objectives assigned to it therein” (Art .5 TEC 1992).

From a political point of view, the pre-Lisbon EC/EU lacked some essential features

that pertain to federal states. First, decisions were to a large extent met with

unanimity, thus constraining further constitutionalisation of the EU, whilst privileging

veto players. Second, EC/EU lacked the coercive capacity of a state in the form of an

army or a police.

Specifically, under the Treaty of Amsterdam, unanimity would be required within the

Council in the following key areas: common foreign and security policy (CFSP) (Art.

23 (1), 24, 28), police and judicial cooperation (Art. 34 (2) (a), (b) and (c), 41), social

security (Art. 137 (3), 144), economic policy (Art. 100 (1), (2)), monetary policy (Art.

105, 111 (1), free movement of worker (Art. 42). The Treaty of Nice, which amended

the Treaties of Maastricht and Rome, “was able to remove from unanimity to QMV

only 27 (and not the most important) of the 75 remaining items [that required

unanimity]” thus endorsing what Tsebelis and Yataganas call ‘policy stability’ in the

Council (2002 p. 294).

Furthermore, EU’s authority is not buttressed by coercive power as an instrument to

enforce its decisions and control its borders. Whilst Europol was founded in 1999 to

become the EU’s law enforcement agency, its mandate focuses on the support of the

Member States’ respective agencies (Europol 2014). Janice Thomson considers

policing as one of the most important functions of the state translating into the

“exclusion of other states and the extraction of coercive capabilities from domestic

actors” (1995, pp. 225-226). The EU did not have any of the aforementioned

capacities in the pre-Lisbon era. On the other hand, a burgeoning European army

established within the framework of a common defence policy depended largely on

the capabilities of the Member States whilst subsumed under the umbrella of NATO

(European Union External Action, 2014).

Hence, the EC/EU could be grasped as a polity that through increasing

constitutionalisation presented some elements of quasi-statehood. The doctrines of

primacy and direct effect of community legislation conferred upon EU institutions,

institutional autonomy and legal authority over the Member-States and its citizens.

The separation of powers and the plethora of check-and-balances endorsed were

reminiscent of federal states such as the US. Nevertheless, sovereignty perceived as

constitutional independence is compromised by the principle of conferral. Finally, the

pre-Lisbon EC/EU was not endowed with any coercive capacity on the legitimate use

of force.

Sovereignty and the Lisbon Treaty

The Lisbon Treaty (2009) also known as the Reform Treaty is the compromised

institutional outcome of the ambitious but failed Constitutional Treaty. It is against

the background and the objectives invested upon the Constitution for Europe, that the

Treaty of Lisbon acquired its final shape and content.

Specifically, the Constitutional Treaty was the wishful attempt by European elites to

offer EU citizens a point of reference in terms of an imagined unified polity against

what was remarked as lack of legitimacy, coherence and transparency. Significantly,

the Constitutional Treaty aimed at furthering European integration by enhancing

federalising tendencies of the EU project in realms such as legislative decision-

making, foreign policy and judicial cooperation. Moreover, it aspired to act as token

of a social contract between EU citizens, their governments and the EU supranational

technocracy.

The negative results in the French and the Dutch referenda led to the abrupt

termination of any expectations for such a federalising leap. Therefore, the Lisbon

Treaty emerged under the spotlight of an increasingly widespread anti-European

suspicion thus walking on a tight rope: first, to restructure the institutional

architecture of the, -until then- EC/EU, and second, to proceed by moderating any

nuances towards a European super-state.

Hence, the Lisbon Treaty encompasses important continuities but it also introduces

preponderant changes in relation to the latest Treaty, that of Nice. On the one hand,

the Lisbon Treaty preserves the supra-national dynamic developed before its coming

into fruition in certain sectors but also brings about some drawbacks. Therefore, it

establishes new opportunity windows towards further integration but at the same time

provides for loopholes that could constrain the evolution of the project. Hence,

national sovereignty perceived, as aforementioned in terms of constitutional

independence, supremacy and authority is not at stake.

On the juridical front, the doctrines of direct effect and supremacy of Community law

are preserved deepening further the process of constitutionalisation or what Pernice

coins ‘multilevel constitutionalism’ (2009, pp. 352-353). Specifically, the merging of

the three pillars under a unique structure brings the Area of Freedom, Security and

Justice (AFSJ) under the umbrella of EU law and the scrutiny of the ECJ. Hence, the

latter is henceforth competent to rule on acts dealing with the AFSJ (Craig 2010, p.

146), which as a matter of fact reflects a shift from intergovernmentalism to more

supranational realms. The de-pillarisation of the EU under the Lisbon Treaty helps to

entrench better the doctrine of supremacy in what was before juridical red lines for the

ECJ such as foreign policy and the AFSJ (Ibid. p. 150).

Yet, the Lisbon Treaty fails to elaborate on the issue of the competence-competence,

which might spark frictions in the future between the European Courts and the

national ones. This is crucial given the verdict of the German Federal Constitutional

Court, which defines the EU as “an association of sovereign states and, hence, a

secondary political area” (Schorkopf 2009, p. 1220). Hence, the Member States are

viewed as the basis of the Community law, marking continuity with the previous

juridical regime. Still, the Court’s verdict includes a ‘sovereignty list’, which dictates

concrete domains that cannot be “communitarized” such as “citizenship, the civil and

military monopoly on the use of force, revenue and expenditure including external

financing…” (Ibid. p. 1224).

In the same vein, the Lisbon Treaty reiterates in a sense the federalisng dynamic

inherent in the multi-layered stratification of the EU by confirming the validity of the

principal of conferral. Specifically, Article 5(1) and (2) TEU stipulate that “the limits

of the Union competences are governed by the principle of conferral...” whilst under

the latter principle “the Union shall act only within the limits of the competences

conferred upon the Member States in the Treaties to attain the objectives set out

therein. Competences not conferred upon the Union in the Treaties remain with the

Member States”.

Regarding the issue of competences, Craig notes that shared competence “is the

default position both formally and substantively in the Lisbon Treaty” (2010, p. 188).

Therefore, Member States pursued to retain a grip within a broad range of issues,

leaving into the exclusive competence of the Union those issue-areas pertaining to the

former Community pillar. Nevertheless, given the problem of demarcation of

competences, Member States’ volition will be determined to an extent by the legal

norms issued by the Union (Ibid.). Thus, there is indeed some ground for more EU

regulation in areas, where the Member States have not exercised their authority yet,

thus ushering to a further deepening and dissemination of European legal norms.

Yet, the principle of subsidiarity (Art. 5 (3) TEU) is maintained and supplemented by

the introduction of a new monitoring mechanism or alternatively a new layer of

authority, the national parliaments. Henceforth, national parliaments can scrutinise

EU legislation by submitting reasoned opinions on potential violations of the principle

of subsidiarity. Ultimately, this new mechanism could impede further integration on

the grounds of a national loss of sovereignty depending to a large extent on the mood

vis-à-vis EU at a given conjuncture.

In the realm of decision-making, the European conundrum tends to work in favour of

an advanced supranationalism since Qualified Majority Voting (QMV) was

significantly endorsed in areas where unanimity prevailed before within the Council.

Therefore, in about forty additional issue-areas such as judicial cooperation in

criminal matters (Art, 82 (1), (2) TFEU), police cooperation (Art. 87 (2) TFEU),

coordination of social security for migrant workers (Art. 48 TFEU), decision-making

switches henceforth to the ordinary legislative procedure (codecision with the

European Parliament)

Nevertheless, unanimity is preserved in some crucial areas within the European

Council, which are also to be found in the ‘sovereignty list’ verdict of the German

Federal Constitutional Court such as social security and social protection (Art. 153

(2), establishment of a common EU defence (Art. 42 (2)) and importantly the

flexibility clause, which enables the EU to act beyond the power of action conferred

upon it by the Treaties -if the objective pursued so requires-. (Art. 352 TFEU).

Moreover, the EU acquires a unitary legal personality, which can crucially ameliorate

its visibility and credibility in the future (Art. 47 TEU). Although the former EC could

conclude agreements with external actors in order to boost the objectives embedded in

the Community pillar, the Lisbon Treaty stipulates that agreements concluded under

the Treaties shall be “binding on the institutions of the Union and on its Member

States (Art. 216 (2) TFEU) thus expanding its scope to the intergovernmental former

second pillar of CFSP (Piris 2010, p. 88). Therefore, the EU obtains some additional

state-like qualities that refer to its capacity of coming into terms with non Member-

States and international organisations.

Thus, the EU is recognised as a legitimate actor by other members of the international

society that accept to negotiate and come into terms with it. Recognition is

significantly an essential component of sovereignty as it implies fulfilment of some

necessary conditions in order to lawfully enter into the society of states such as

constitutional independence and authority. Therefore, the legal personality of the EU

highlights its unique Janus-faced nature: it is not an international organisation but also

not a state. Its legal personality highlights the contradictory evolution of its sovereign

qualities as its freedom of action is reconciled in the Declaration no. 24 of the ICG

concerning the EU personality (Ibid. p. 87) which renders it accountable to Member

States.

Furthermore, the Lisbon Treaty does not endow the EU with a coercive capacity such

as an army. It nevertheless, contains a flexibility clause to advance a ‘permanent

structured cooperation’ between willing Member States in the realm of CSDP (Art. 42

(6) and 46 TEU). Hence, the Treaty establishes a favourable framework for a deeper

federalisation in sectors that are governed essentially by intergovernmentalism in line

with the spirit of variable geometry which defines the AFSJ realm (Schengen area)

and the Eurozone.

Nevertheless, flexibility as it was implemented during the EU sovereign debt crisis

creates concerns as regards conformity with EU law and consolidation of “shared

perceptions of common understanding” among Member States (Chatzistavrou 2014,

p. 100). The problematic employment of flexibility and enhanced cooperation is

coupled with the possibility that “any Member State may decide to withdraw from the

Union in accordance with its own constitutional requirements” (Art. 50 TEU). Piris

remarks that this provision of withdrawal is “politically very significant, as it does

clarify…that the Union is actually a voluntary association between states which

remain sovereign as to the question of whether or not they remain in that association”

(2010, p. 111) or alternatively if they have the ultimate authority to decide on their

external relations.

Hence, the Lisbon Treaty could be viewed as a cornerstone in the evolution of

European integration. It provides the legal instruments upon which willing Member

States can proceed towards a further federalisation. The management of the European

financial crisis though demonstrated the following: first, the Member States will

define the future of the EU and hence a more reconciled national sovereignty. Second,

the Lisbon Treaty revealed clearly the asymmetries embedded in the EU scaffolding

that might be reproduced through the wrong utilisation of enhanced cooperation and

flexibility. Therefore, the Lisbon Treaty marks an institutional crossroad, which could

lead to a more federal EU, a more fragmented one or in a loose association of states

that opt for a cooperation à la carte.

Conclusion

Sovereignty is a highly controversial concept. This is most markedly highlighted in its

dual nature which entails both legal and political elements of empirical statehood. On

the one hand, sovereignty implies autonomy and independence as enshrined in a legal

text of higher order such as the constitution. On the other hand, sovereignty is

buttressed on a legal monopoly of power upheld by the central state. It is the coercive

capacity that allows the state to extract taxes, enforce laws when consent is absent and

provide collective goods such as security.

The EU could be therefore perceived as a partially federal entity in constant evolution.

Constitutionalisation engenders a legal order that is hierarchically higher than the

national one as inculcated in the doctrines of primacy and direct effect of the ECJ.

The regulatory output of the EU institutions enriches national legal orders with

externally produced norms thus leading to a Europeanisation of the national law. The

Lisbon Treaty, as a matter of fact confirmed this trend albeit underscoring the

principal of conferral. The EU is an association of states and thus the national legal

orders are the basis of Community law.

On the other hand, the Lisbon Treaty enhanced the supranational character of the

project by establishing codecision and QMV as the rules of the day in the EU

legislative procedures. Nevertheless, the EU is not endowed with a coercive capacity,

which crucially deprives it of an important quality of factual statehood. Yet, the

Lisbon Treaty provides those instruments for further cooperation through flexibility

schemes of variable geometry. It is the responsibility of European elites to decide if

the federalisation will move forward or rather the EU will end up as a loose

association of states who align at will.

If Jean Monnet’s dream of a superstate is the end point of a European realist-idealist

axis then the EU lies somewhere in the middle. If national sovereignty is unitary and

absolute then it is still the rule of the day: but it is now nested in a broader multi-

layered framework of overlapping authorities, which limits its scope. Yet, judicial and

political elites in Europe will determine the future of sovereignty in Europe.

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