The ratification process of the Lisbon Treaty was much smoother than expected. The referendum in Ireland is the test for the treaty.
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The ratification process of the Lisbon Treaty is supposed to end by January 1, 2009, so that the new treaty enters into force in early New Year. That is the best envisaged plan, prepared together with the treaty itself. In case of any problems, the new treaty should not enter into force later than the elections for the European Parliament, which are scheduled for June 2009. As it is already June 2008 and EU is approaching the magical date of January 1, 2009, it is worth assessing how the ratification process of the Lisbon Treaty is going on.
For the treaty to enter into force, it needs to be ratified in all 27 EU member states. Every member has its own ratification procedure; most commonly used methods which allow states to ratify treaties are referenda or parliamentary votes. The European Constitution failed to be ratified in two of the four plebiscites that were organized in 2005. The French and the Dutch referenda proved that this mean of ratification of a European treaty is a very risky business that jeopardizes entire political process. For this reason, the leaders of the EU decided that the referendums should be avoided wherever it was possible. As a consequence, the Lisbon Treaty is ratified mainly by parliaments and there is only one referendum scheduled in Ireland on June 12, 2008.
By June 10, 2008 15 national parliaments and the European Parliament have allowed for ratification of the Lisbon Treaty. The fifteen are: Hungary, Malta, Slovenia, Romania, France, Bulgaria, Poland, Slovakia, Portugal, Austria, Denmark, Lithuania, Latvia, Germany and the Luxembourg. The treaty has also been already approved by 6 out of 10 parliaments in Belgium, the British House of Commons and one chamber in the Netherlands. It seems therefore, that half way through, over half of the work has been already done. Out of 49 parliamentary votes necessary for the treaty to enter into force, 28 were already taken. The parliamentary ratification is therefore completed in 57%.
Yet, this smooth process faces a few challenges. The first type of challenges is a referendum. One is to take place in Ireland in a few days. Current polls do not predict any easy victory for the “yes” camp. Therefore the entire process of 49 parliamentary votes may end up in a trashcan, should the 50th vote in a referendum be negative. The results of the Irish vote will be known on Friday the 13th. Only then we will see if this is a good or a bad omen for the European integration.
Apart from Ireland, there was, or sometimes still is, a shadow of a referendum in countries like the United Kingdom, Denmark, the Netherlands or recently also in Italy. The British case is almost certainly solved, as the House of Commons voted already in favor of the Lisbon Treaty. The “almost” comes from an unknown British reaction to a possible “no” vote in Ireland. It is worth mentioning, that the House of Lords is supposed to vote on the treaty the following week after the Irish referendum. The Danish shadow of a referendum was solved during the works on the Lisbon Treaty. Danish experts closely monitored the writing of the text in order to avoid any wording which would make the referendum in Denmark compulsory. This created a situation, when Denmark is one of very few EU members (with the Netherlands), which strongly believes that the new treaty does not include any transfer of sovereignty to the EU level. The Danish parliament finished its ratification process on 24 April; on 29 May the Danish ratification ended completely with ratification deposition.
The Dutch and Italian cases have different leverage. For once, those states did not finalize their ratification process yet. There are some politicians in both countries calling for referenda; yet unlike the UK or Denmark, the chances for having a plebiscite in any of those states look slim.
The second type of a challenge is legal. So far there are cases in national constitutional tribunals in two countries, Germany and the Czech Republic. Both cases challenge the treaty by arguing, that the document undermines their national sovereignty principles. In Germany the case was presented to the Constitutional Court. What remains unknown for the moment is a) if the Court accepts the case; b) if the Court decides the treaty is unconstitutional; and c) if the German president will wait with the German deposition of ratification to the Court’s decision. Surely, it is still possible that the Court decides not to take the case or to dismiss the claim of unconstitutionality. The unknown is the timeframe and the reaction of the German president. Together, the entire situation does not yet jeopardize the treaty itself, but only endangers the smooth ratification process. Hence, the likelihood of the treaty entering into force on January 1, 2009 is lower as we are approaching the date, and there is no answers coming from the German institutions.
The Czech legal case is of a similar nature. Also here the deadlines for decisions to be taken remain unknown. There are two differences in the Czech case, though. First, if the Constitutional Court of the Czech Republic decides the treaty to be unconstitutional, the Czechs can change their constitution to be more accommodating for the treaty (this is impossible in Germany). Second, the Czech Republic is to hold a presidency in the first half of 2009. One of the reforms introduced by the Lisbon treaty is to limit the rotating EU presidency’s role. Hence, it seems to be in a Czech national interest to postpone the entering into force of the Lisbon Treaty, so that the government in Prague holds a full-scale rotating presidency.
Other challenges ahead of the treaty are still unknown. They often come up when ratification approaches in a given member country. For example the treaty is contested in Finland’s Aland Islands on the grounds of economic rights. According to the Finnish law, the local parliament in the Aland Islands has to agree to the Lisbon Treaty, too. If not, the ratification could face problems in Finland; hence endangering the entire process in Europe. However, the likelihood of this happening is reasonably low.
In general, to date, the ratification process of the Lisbon Treaty was much smoother than expected. Yet, the most important upcoming challenge is in Ireland. The referendum on 12 June is the test for the treaty. It can be presumed, that if the Irish vote is positive, the treaty eventually enters into force some time in 2009, though probably not on 1 January. However, should the Irish vote be negative, the entire process needs to be revisited with either a re-vote in Ireland or any other solution proposed by the Irish government and the European Council in late June 2008.