After the Lisbon rebuff

The EU can get on with its business as before but there is one problem ahead which requires attention now

The rejection of the Lisbon Treaty actually makes very little difference to the EU, aside from one potentially critical issue which will arise in November of next year – critical, if nothing is done about it in the meantime.

The rejection of the Treaty makes no difference, for instance, to the continued existence and operation of the European Defence Agency (EDA), which has been in existence since June 2004 (see following pages). The only difference is that the EDA is not made part of the European Constitution (although the depiction of the EU Treaties as a Constitution is avoided, this, essentially, is what they are).

Also, the existing Treaties allow for the adoption of changes to the jurisdiction to the European Court of Justice on Justice and Home Affairs matters, provided these are agreed unanimously.  There cannot formally be a full-time President of the European Council under the current Treaties, but there is nothing to stop the European Council (heads of government) or the council of Ministers agreeing to establish such a position informally. It would mean however that such a President could not formally chair European Council meetings, but this would hardly be a major issue.There is nothing to stop the council of Ministers opening its deliberations to the public (as would have been required by the Lisbon Treaty), nor nothing to prevent it deferring to the European Parliament on the additional issues that Lisbon would have required co-decision. Nor nothing to stop national parliaments making representations on draft EU legislation.

The post of High Representative of the EU for foreign policy already exists. And the confusion between the functions of the High Representative with the functions of the External Relations Commissioner and the rotating Council Presidency could be clarified by the Council itself and, where change is required, agreed informally.

The problem that arises in November 2009, unless action is taken in the meantime to avert it, concerns the Commission. The Nice Treaty requires that the number of Commissioners of the next Commission (that which will come into office in November 2009) shall be less than the number of Member States. Since there is no legal mechanism to enable this to happen, it is at least arguable that the next Commission will be improperly constituted, unless something is done in the meantime.

The significance of there being an invalid Commission is considerable. The Commission, while not the most important institution within the EU (that remains the Council), is the hub of the EU. It has sole responsibility for initiating EU legislation. It has a central role in relation to competition policy, a central issue for the EU, and several other functions. Were it not to be validly constituted, there would be considerable institutional chaos. For this to be avoided, there has to be an amendment to the existing Treaties passed by then which either (a) removes the requirement to reduce the number of Commissioners below the number of Member States, or (b) at least defers the issue until some future date. This amendment would have to be ratified by every Member State, in accordance with their constitutional requirements, which, in Ireland's case, would involve another referendum.