Born from the ashes of the draft EU Constitutional Treaty, which was notoriously extinguished by the referenda held by France and the Netherlands in 2005, and entering into force on 1 December 2009, the Lisbon Treaty has profoundly reshaped the landscape of the European Community (or, as it is now called, the European Union), both in terms of institutional architecture and policies. Commonly perceived as a milestone in the process (and history) of EU integration and governance, it is no surprise that the Treaty of Lisbon has attracted a great deal of attention and Professor Paul Craig's The Lisbon Treaty: Law, Politics, and Treaty Reform is among the best examples of the vast and growing body of legal literature specifically devoted to analysing it. Although Craig does not explicitly set out the aim of the book (strangely enough, in fact, there is no introductory chapter), it provides an analysis of the changes introduced by the Treaty of Lisbon in the legal and institutional framework of the European Union.
The book is organized into eleven chapters and begins with an historic journey that goes from the Nice Treaty to the Lisbon Treaty, through the Constitutional Treaty and its demise after the negative French and Dutch referenda. This is because, as Craig rightly points out (p. 1), an understanding of the reform process is crucial to better understanding the Lisbon Treaty. In this respect, the EU Constitutional Treaty plays a pivotal role and, indeed, Craig refers to the Constitutional Treaty throughout the entire book to explain and analyze the changes introduced by the Lisbon Treaty.
The following two chapters are devoted to the legislative process and to the executive power. In Chapter 2 the author presents the new law making process and assesses the impact of these innovations on democracy in the EU. As regards legislative acts, the author remarks that the Lisbon Treaty has certainly rendered the system more parliamentary than before but notes that obstacles still remain to the realisation of input democracy in the EU. As regards delegated acts and the role that Comitology committees play in this field, Craig observes that, although the provisions on hierarchy of norms were designed to simplify matters, the consequences will be, instead, “increased institutional complexity in relation to the committees that inhabit the EU world” (p. 77). In Chapter 3 the focus is on executive power, one of the major subjects of discussion and negotiations during the preparation and the drafting of the draft Constitution, which still remains one of the features of the Lisbon Treaty. Craig discusses the topic by putting it into the context of the broader political significance of the distribution of powers between the Commission, Council and European Council.
In Chapter 4 the author looks at the impact of the Lisbon Treaty on the judicial architecture of the EU. It must be said that judicial protection is certainly a minor field of innovation. However, some important changes worth mentioning here are the modification of the rule of standing in actions of annulment against a regulatory act and the extension of the Court's jurisdiction to the entire field of the area of justice, security and freedom. Craig's overall view is that, even if the few amendments introduced are positive, the failure to embark on a wider and more considered reflection on the disposition of power between the courts is a missed opportunity.
Chapter 5 focuses on the division of competences (exclusive, shared and supporting/coordinating) between the EU and Member States in the light of the changes introduced by the Lisbon Treaty. Craig notes that the creation of categories of competences inevitably will bring borderline problems between exclusive and shared competence: for example, ambiguities are to be found regarding the relationship between competition rules (exclusive competence) and internal market (shared competence). Similar problems, continues Craig, can arise also between shared competence and the category of supporting, coordinating, or complementary action. He mentions, as an example of the possible intersection of different competences, the area of social policy.
The Lisbon Treaty has rendered the Charter of Fundamental Rights legally binding and also imposed an obligation on the EU to join the European Convention on Human Rights. These themes are discussed in Chapter 6, with the vast majority of the analysis dedicated to the Charter. However, rather than analysing the content of the rights conferred by the Charter, Craig rightly focuses the discussion more on the issues of interpretation and application of the Charter within the EU legal framework. Particularly interesting is, for example, the in-depth examination of the reach of the Charter with regards to the Member States. Article 51(1) states that the Charter provisions are addressed to the Member States only when they are implementing Union law. Craig suggests that the provision should be interpreted extensively, in the sense that the Member States are bound by the Charter whenever they act within the scope of EU law and not only in their role of agents in the application of EU law (for example, when they are implementing an EU directive).
Chapter 7 provides a clear account of the categories of legal acts as they result from the Lisbon Treaty, in particular legislative, delegated and executive instruments, and also offers some interesting comments on their political dimension. Worth recalling here are the author's doubts about the capacity of the categories to capture the totality of the ways in which legal norms are made.
The following three Chapters relate to specific policies. In Chapter 8, Craig looks at the Lisbon Treaty and at its impact on the interaction between social and economic aspects of EU policies. He notes that if there are arguments to affirm that increased general attention has been given to the social aspects in the values and objectives pursued by the EU, it is also true that, looking at the subject-matter provisions in the Treaty on the Functioning of the European Union, changes are minimal and therefore it could be argued that there is continuity with the past. The removal of the Third Pillar, introduced with the Treaty of Maastricht, and the bringing of the Area of Freedom, Security, and Justice into the main body of the TFEU is discussed in Chapter 9. The focus is mostly on principles and rules concerning asylum, borders, immigration and criminal law, while civil law and procedure is only marginally treated. Chapter 10 discusses EU external action, the Common, Foreign and Security Policy (CFSP) and the Common Security and Defence Policy (CSDP). Craig analyses the pre-existing provisions and the innovations introduced by the Lisbon Treaty in these fields. The analysis confirms that the major change in relation to EU external action is the possibility, contemplated in Article 216 TFEU, to make international agreements. With regard to the CFSP/CSDP, the major novelty must be found in the creation of the High Representative and the extended presidency of the European Council.
In the final eleventh Chapter, Craig addresses, rather shortly, the themes of enhanced cooperation and Treaty revision. It also includes some final comments.
The book under review is an authoritative guide to the Lisbon Treaty. With a neat and easy-to-follow style, Craig brings the reader to the heart of the changes introduced in the EU legal order. One of the main merits of the book is the decision to explain the current provisions in the context of the last decade of reforms and political debates on the European integration process. This helps the reader less familiar with the recent history of EU law to understand and to put in context the Lisbon Treaty and its impact on the EU institutional framework.
A minor quibble with the book is that there is no clear road map given for the reader. Even a short introductory chapter to lay out the structure of the book would have been helpful to the reader. Similarly, a final overall conclusion, in this reviewer's opinion, would have added to the undoubted value of this work. One may also question the order of some of the chapters. Indeed the seventh Chapter on the categories of legal acts should, in this reviewer's view, have followed the Chapter on law making process, and the discussion on the European courts and judicial protection should have been put towards the end of the book. But these are very minor criticisms.
In conclusion, The Lisbon Treaty: Law, Politics, and Treaty Reform is one of the finest legal analyses of the Lisbon Treaty. With its accuracy of information as well as high quality analysis, it is easy to predict that Craig's work will become essential reading for scholars and practitioners wishing to understand this Treaty and current EU law.
