April 28, 2008
The EMI must consider the Lisbon Treaty equivalent to a Constitution, although there are states who are reluctant to contemplate such a comparison. Any modification of the Treaty/”Constitution” must be subject to demanding conditions. However, its modification should not be, for all practical purposes, impossible. For this reason, the EMI must propose that the Treaty can be modified with the approval of 4/5 of the states, which is indeed a demanding condition. Those states not in agreement with the 4/5 will always have the option of opting in, a system which has proved very effective in the past.
The problem is art. 48 TUE (Lisbon). This article is the successor of the corresponding article in the Draft Treaty. This means that in practice, it maintains the principle of unanimous decision for any modification in the Treaty, although it does not state this explicitly. Admittedly, the article rhetorically speaks about needing 4/5 of states in favour of “examining the question”, and it also talks about a 2-year delay before implementing any decision. However, this should be taken with a pinch of salt.