Alliance des Démocrates Indépendants en Europe

Nevertheless, in theory, according to the current treaties, the Community could oppose to world free-trade policy thanks to the Article 27 TEC which could be a legal basis for common actions of protection of trade against free-trade policy or relocations. The Lisbon Treaty does not bring any revolution towards free-trade policy. But once again, it removes barriers which obstructed it, and strengthens institutional elements which will accentuate the drift of the two last decades.

1) The Lisbon Treaty gives legal personality to the EU

The new article 47 TEU : "The Union shall have legal personality" leads naturally to a single representation in the international negotiations and a single seat in all the International organisations (UNO, WTO etc).

2) The Lisbon Treaty weakens the position of the minority States which would like to protect themselves

- it eliminates completely from the common commercial policy the concept of "shared competences" between the Community and its Member States. The common commercial policy will become, according to the future Article 3 TFEU, an "exclusive competence", i.e. a field where "only the Union can legislate and adopt legally binding acts, the Member States which can do so by themselves only if they are entitled by the Union, or to implement the Union acts". It was already the case in the commercial field. This now becomes the general rule;

- the LT almost dismantles the currently exemption from the current Article133-6 TEC (Rome) which stipulates that "the agreements in the field of the trade of the cultural and audio-visual services, education services, and social and human health services" depends on the "common agreement of the Member States" (i.e. unanimity).

The new article 207 TFEU stipulates that these agreements pass by a majority, except:

- for the agreements covering the cultural and audiovisual services, if they are likely to undermine the cultural and linguistic diversity of the Union ;

- for the agreements on the social education and health services, if they are likely to disturb seriously the organisation of these services at the national level.

This new formulation actually eliminates the essence of the protection that unanimity got before. Indeed, as Commissioner Lamy explained, the burden of proof is reversed : to have the duty to use the unanimous procedure against a Commission proposal in these fields, the Council will have to prove the existence of a threat ; and among the Council, the States which feel threaten will have convince the majority of the others. All that is far from being acquired, in view of the blur of the definition of the possible threats...

Moreover, it must be stressed that in front of this risk of arbitrary from the Commission, each State cannot oppose a national right of veto. There is no safeguard for him, except to the Court of Justice, of which one knows all risks (remembering in particular, that it defends the Union laws before those of the States).

3) The Lisbon Treaty widens the objective of the progressive abolition of the restrictions on the international trade on a world level.

This objective appears in current Article 131 TEC (Rome). The LT adds a progressive abolition of the restrictions "on direct foreign investments", in the new article 206 TFEU. One sees here reappearing the objective of the old Multilateral Agreement on Investment (MAI) that has been rejected few years ago, and that an anonymous hand seeks to reintroduce surreptitiously at the level of the European treaties.

The article 207 TFEU keeps the unanimity for the adoption of an international agreement covering direct foreign investments, when this agreement contains provisions which would have required unanimity at the internal level to be adopted. However unanimity for the adoption of internal rules is increasingly restricted by the successive treaties, including by the LT itself.

4) The Lisbon Treaty strengthens the position of the free-trade institutions

In the whole of the treaty, the procedure of supranational decision is strengthen (it be what one call officially "a bigger effectiveness of procedure of decision"). In all the procedures, the position of the Commission is enhanced.

It must be stressed that, in the current circumstances, the extension of the qualified majority in the commercial policy, as performed by the LT, leads to free-trade policy.

Indeed, due to the differences between their economies, Member States are not all concerned in the same way or at the same moment. Thus, the European institutions can play more easily of the differences between the States, knowing that the free-trade ideology without regulation is the Eu ideology for many reasons :

a) majority of Member States are in favour,

b) "internal free-trade policy" such as it is mentioned in the current Article 25, faded on the general approaches of the European civil servants who seem to consider today that any customs barrier, whether it is internal or external to the Community, is in itself condemnable,

c) the European institutions, the procedures of the common commercial policy, in their current organisation, are too far away from people and are therefore sensitive to the pressures of the officials or of the financial special interest groups (2600 groups of experts lead by industrial lobbies are in charge of preparing the Eu legislation instead of our National Parliaments...) ;

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To conclude, a possible response/reform would be the recognition of a right of veto in each national Parliament. There is nothing in the draft Treaty, except the only exit for a country with the right of secession, that of course nobody wishes to use (the right of secession thus becomes a quite convenient theoretical counterpart to the daily "flaying" of our national democracies...). It is clear that the reluctant States to free-trade policy will be increasingly captive of these procedures, and will have to await a general change of policy of the 27...which is not for tomorrow.

Christophe Beaudouin