4 EuConst 1 (2008)

handle is hein.journals/euroclv4 and id is 1 raw text is: 








                              Editorial



THE  DIFFERENCE

On  13 December  2007,  after a remarkable acceleration of the process under the
German   and Portuguese presidencies, representatives of the member states put
pen to paper and signed the Treaty of Lisbon. Much of the ensuing debate, both
in legal circles and among the general public, has centred on its abandonment of
the 'constitutional concept'. Indeed, the June 2007 European Council decided to
relinquish the idea of a single text repealing the existing treaties and to delete all
terminological references to the C-word, and concepts reminiscent thereof, such
as the denominations 'Minister of Foreign Affairs', 'laws' and 'framework laws'.
Likewise, there was to be no mention of the symbols of the EU such as the flag,
the anthem or the motto. The primacy of EU  law would be down-ranked  to the
status of a declaration recalling the existing case-law of the EU Court of Justice.
And  thus it was formalised in Lisbon.
   Now  what of the 'constitutional concept'? For this Review the matter has some
urgency If Lisbon's so-called 'abandonment of the constitutional concept' would
indeed affect the constitutional reality of the Union, this could in turn affect the
constitutional analysis in which this Review is versed. This is our question: are
constitutional discourse and analysis of the Union's evolution as good methods as
they were at the time of the conclusion of the Constitutional Treaty in 2004?
   To answer this question it is best to consider the whole of the difference be-
tween Rome  and Lisbon, not just the claimed abandonment of the constitutional
concept. And to acknowledge  that this difference, even if hard to capture, is real
and significant. We shall demonstrate that constitutional analysis of the Union is
indeed as good as it was, by using it to pinpoint and qualify the difference be-
tween Rome   and Lisbon in constitutional terms.
   In a purely legal reading the difference between the two Treaties is lost or made
a matter of cosmetics. The House of Commons  Foreign Affairs Select Committee
indeed concluded that

   there is no material difference between the provisions on foreign affairs in the
   Constitutional Treaty which the Government made subject to approval in a refer-
   endum  and those in the Lisbon Treaty on which a referendum is being denied.'

   1 Third Report on Foreign Policy Aspects of the Lisbon Treaty, HC 120-I, 20 Jan. 2008
European Constitutional Law Review, 4: 1-5, 2008
@ 2008 TM GASSER PRESS and Contributors           doi:10.1017/S1574019608000011

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