The Lisbon Agreement: superficially reform of the existing situation, but in essence the Constitution?
The Lisbon Agreement signed in Lisbon on 13 December 2007 does not represent a new Treaty Establishing a Constitution for Europe – at least not in the formal sense. This agreement only changes, and does not supersede, the current European basic agreements, but on the other hand, the changes are in essence similar to those which would have resulted if the European Constitution had entered into force.
For this reason, most EU member states chose to ratify the Lisbon agreement in their parliaments – a hallmark of foreign treaties. For the Estonian parliament, this situation brings up the question of whether the draft legal act for the ratification of the agreement –or more precisely the Lisbon agreement itself, which is attached to the draft act – requires additional analysis before approval or whether the 2005 positions of the constitutional law working group for the Treaty establishing a Constitution for Europe (formed by the Riigikogu’s constitutional committee) are applicable with regard to the Lisbon Agreement? The writer believes that the parts of the Lisbon agreement that differ from the primary law valid in the European Union should be reviewed, because the valid law in the sense of “agreements that must be kept” (pacta sunt servanda)is already encoded into the Estonian rule of law by an act supplementing the Constitution. Thus the legal assessment must treat the provisions of the Lisbon Agreement that differ from both valid legislation as well from the treaty establishing a Constitution for Europe. There should not be too many norms which establish completely new law. One possible list of such provisions is provided by Annex 5 to the explanatory memorandum developed by the government to the draft legal act ratifying the Lisbon Agreement, which specifies the major amendments to the Lisbon Agreement compared to the Treaty establishing a Constitution for Europe. A legal analysis must undoubtedly be made before the Riigikogu ratifies the Lisbon agreement. The adopting of more thorough positions in the matter of how the Estonian Constitution and the act supplementing the constitution would function in a changed European Union would remain for future expert opinions to resolve.