Irish Referendum Practice from McKenna (1995) to McCrystal (2012): How Irish Governments behaved unconstitutionally in serving the EU agenda

By Anthony Coughlan

We will fix that Stalinist body” … Comment by the late Brian Lenihan TD on the then Referendum Commission, Autumn 2001, in the lead-up to the second Nice Treaty referendum.

And How They Fixed It:
In December 2001 the Fianna Fail Government then in office put a Bill through the Oireachtas (Legislature) amending the 1998 Referendum Act so as to remove from the statutory Referendum Commission its function of setting out in a fair and neutral manner the relevant arguments for and against any proposed constitutional amendment. This was done on the last day before the Oireachtas rose for the Christmas holidays that year, when all stages of the relevant Bill were pushed through the Dail and Seanad in one day, with two days notice to the Opposition. Because of these circumstances this move went virtually unnoticed by the Irish media at the time.

1. Irish Citizens as Legislators: Continue reading

Deputy Thomas Pringle’s Constitutional Challenge in Ireland to the ESM Treaty

Friday 15  June 2012

“We need more Europe, not just a currency union but also a so-called fiscal union – in the area of budget policy. Above all else we need a political union. That means that step-by-step in the future we have to give up more powers to Europe and grant Europe more oversight responsibilities. . .   We cannot stand still because one or other [member state] does not want to.

-  German Chancellor Angela Merkel, ARD TV, EUobserver, Open Europe, 7 June 2012
* * *

The most effective way for Ireland to get relief on its Stat and banking debts is for the Supreme Court to concede the validity of Deputy Thomas Pringle’s claim that a referendum is constitutionally necessary on the ESM Treaty which sets up a permanent bailout fund for the Eurozone and  on the Article 136 TFEU amendment to the EU Treaties which authorises that.

If the Government wishes to obtain real bargaining power vis-à-vis the Eurozone, Ministers should be secretly praying for the success of Deputy Pringle’s constitutional challenge, which  opens in the High Court on Tuesday 19 June… Even if it is impossible for Ministers to indicate any such desire publicly for fear of annoying  the German, French and other Eurozone Governments.

Ireland has a veto on the Article 136 TFEU amendment  to the EU Treaties under which the 27 EU Member States authorize the 17 Eurozone States to establish a “Stability Mechanism”  if that is needed to safeguard the stability of the euro area  as a whole.

The Government is afraid to use that veto however and is anxious that the media and general public are not aware of its timidity.

By his public-spirited and patriotic action Deputy Pringle and his legal team are inviting the Courts to order that this veto be used  and that a referendum be held on the ESM Treaty and the Article 136 authorisation  before Ireland can permit a permanent Eurozone bailout fund to be set up lawfully under the EU Treaties and  to be constitutionally permissible under Bunreacht na hEireann.

By his action  moreover Deputy Pringle and his legal team are seeking to defend the integrity of EU law and the EU Treaties in face of the manifest attempt by Germany, supported by France, to use the ESM Treaty to make the Eurozone captive to Franco-German State interests and to carve out a legal-political way  to what French President Nicolas Sarkozy called for last November: ”A Federation for the Eurozone and a Confederation for the rest of the EU”.

The Irish Government has been pushing three hugely important matters through the Dail and Seanad in June, with minimal attention by RTE, the news media  or print media, taken up as they are with the fortunes and misfortunes of  Deputy Mick Wallace and the Irish soccer team in Poland.

These three matters, which are being pushed through the the Oireachtas by means of guillotined debates with  virtually no local media coverage are:

(a) Ireland’s approval of the Article 136 TFEU amendment to the EU Treaties authorising the establishment of a Stability Mechanism for the Eurozone;

(b) Ireland’s ratification of the ESM Treaty setting up a permanent bailout fund for the Eurozone  as this Stability Mechanism, to which the State must contribute €1.3 billion down-payment in five tranches over the next 18 months and €9 billion in callable capital thereafter;  and (c)  The ESM Bill 2012  which bring the provisions of the ESM Treaty into domestic law so that taxpayers can be made finance Ireland’s future contributions to the ESM over the years and decades ahead.

For those interested,  the Tale of Two Treaties by Cork solicitors Joe Noonan and Mary Linehan [taleoftwotreaties.tumblr.com]  describes accurately and objectively the relation between the ESM Treaty,  the Fiscal Stability Treaty on which we voted in the recent referendum, and the Article 136 TFEU amendment to the EU Treaties which authorizes the ESM Treaty and on which Ireland has a constitutional veto because all changes to the EU Treaties  must be by unanimity.

Below is an outline of the principal constitutional  and legal reasons why ratification of  the ESM Treaty and the Article 136 TFEU amendment require a referendum in Ireland.

_____

WHY RATIFICATION  OF THE ESM TREATY AND THE ARTICLE 136 TFEU AMENDMENT WHICH AUTHORISES THAT TREATY UNDER EU LAW  REQUIRE A REFERENDUM IN IRELAND

1.)   Article 3 TFEU of the EU Treaties, which have been constitutionally agreed by all 27 EU Member States,  provides that monetary policy for the countries using the euro is a matter of “exclusive competence” of the EU as a whole.

It is not therefore open to the 17 Member States of the Eurozone to attempt effectively to diminish the competence of the Union by establishing among themselves a Stability Mechanism entailing a net €500-billion permanent bailout fund to lend to Eurozone governments as envisaged in the ESM Treaty.    This ESM fund, to which Ireland would have to make heavy contributions for the indefinite future, would trench significantly on monetary policy for the euro area.

The Stability Mechanism envisaged in the ESM Treaty is effectively an attempt to find a way round the “no bailouts” provision of Article 125 TFEU, whereby it is forbidden for the EU to take on the debt of Member States or for Member States to take on the debt of other Member States.   It also breaches other EU Treaty articles.

The ESM Treaty if ratified as it stands would effectively amount to an attempt to open a legal-political path to what France’s President Nicolas Sarkozy called for last November, namely,  “A Federation for the Eurozone and a Confederation for the rest of the EU”.

The banking union, fiscal union and political union which Chancellor Angela Merkel and others have recently called for to help save the Monetary Union are envisaged as being for the 17 Eurozone countries  rather than for the 27-Member EU as a whole.

If successfully brought about, they would be erected  on the basis of or in parallel with the ESM Treaty  and the Fiscal Stability Treaty.

A radical step of the kind envisaged in the ESM Treaty, which would henceforth run the Economic and Monetary Union on the basis of quite a different set of rules from those of the current EU Treaties, may only lawfully be taken by means of the “ordinary”  EU treaty amendment procedure of Art.48.2 TEU.

It cannot lawfully be done by means of a mere “Decision” of the European Council of Prime Ministers and Presidents under the “simplified” EU treaty amendment procedure of Art.48.6 TEU.  The latter procedure is meant to deal with minor technical amendments to the EU Treaties, but it is currently being used by the governments of the 17 Eurozone countries in an attempt to alter radically the character of the EMU by ratifying the ESM Treaty as it stands.

2.)  How can it be lawful for the ESM Treaty to permit a permanent bailout fund to be established for the 17 Eurozone countries when the express terms of the Article 136 TFEU amendment, agreed by all 27 EU Governments, authorises a Stability Mechanism only if that is established unanimously by the Eurozone States, as the general provisions of EU law require, viz: “THE Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area AS A WHOLE ” (emphasis added).

The Art.136 amendment to the EU Treaties does not say that “Member States”, meaning SOME of them, may establish a Stability Mechanism, but rather “THE Member States”, namely ALL  of them (In French “Les” Membres rather than “Des” Membres).

Yet the ESM Treaty which has been concluded among the 17 provides that the Stability Mechanism which  it seeks to establish may come into being once States contributing 90% of the capital of the proposed fund have ratified the treaty. The eight largest Eurozone States, a minority of the 17, can therefore establish this Stability Mechanism, while other Eurozone States which may badly need assistance from it are excluded.

How then can this be a Stability Mechanism “for the euro area AS A WHOLE”, as Article 136 TFEU, which still has to be constitutionally approved by all 27 EU Member States, requires?

Likewise the Fiscal Stability Treaty – the Treaty on Stability, Coordination and Governance in the EMU – on which Irish voters voted on 31 May  and which cross-refers to the ESM Treaty, provides that it can come into force when it is ratified by 12 Eurozone Members.  Does not this treaty also require unanimous ratification by all 17 Eurozone Members before it can lawfully bind them under EU law?

The “enhanced cooperation” provisions of the EU Treaties (Art.20 TEU and Arts. 326-334 TFEU) provide a means whereby a sub-group of EU States which wish to cooperate more closely among themselves in areas of non-exclusive Union competence may do this under specific rules that are laid down in these Articles. The provisions of the ESM Treaty do not accord with these rules, but purport to authorize the Eurozone States to act outside the ambit of the treaties in relation to matters that are within the exclusive competence of the Union.

3.)   How can the ESM Treaty be lawfully ratified by July 2012, as is the stated intention of the 17 Eurozone governments involved, when the Decision of the European Council to amend Article 136 TFEU of the EU Treaties  to authorise a Stability Mechanism states that it  does not have legal effect, once it has been constitutionally approved by all 27 EU Member States, until 1 January 2013?

Does not this mean that any treaty purporting to establish an ESM before 2013 is legally void?  ESM Treaty No.1 which was signed by Eurozone Finance Ministers in July 2011 but was never sent round for ratification, conformed to the 2013 time-frame set by the Art.136 TFEU authorisation, whereas ESM Treaty No. 2 which was signed by EU Ambassadors on 2 February 2012 does not.

This is further evidence of how the exigencies of a political response to the financial crisis by some Eurozone States puts them in breach of the EU Treaties law and therefore of the Irish Constitution.

4.)    EU Member States may only sign international treaties which are compatible with EU law. The EU Court of Justice has made clear that intergovernmental agreements cannot affect the allocation of responsibilities defined in the EU Treaties. The provisions of the ESM Treaty and the Fiscal Stability Treaty which involve the EU Commission and Court of Justice in the detailed implementation of the proposed ESM go well beyond what is permissible under the current EU treaties and are therefore unlawful.

Last Post of Referendum: If you haven’t yet voted, please read this…

  • John Corcoran (ICTA) writes in an email: At 8.25 am yesterday morning Paul Krugman and John Corcoran spoke simultaneously on BBC radio and advised the Irish people to vote No in the Fiscal Treaty Referendum.  John spoke on BBC radio ulster and Paul on BBC radio 4.  Both are distinguished former students of the London School of Economics.   Please join with John and Paul and ensure a No vote today.  If you click on the podcast link… you can hear the interview.
    John Corcoran, M.Sc. Economics London School of Economics and Political Science.
    Spokesperson, Irish Commercial Tenants Association;
  • David McWilliams / Irish Independent – The fiscal treaty will only make things worse: The situation in the eurozone is not getting any better. The fiscal treaty, by imposing austerity on an already enfeebled economy, will make things worse, prompting more capital flight. Rolling the snowball down the hill is not an honest option.
    Mightn’t it be better to open the negotiations properly now?
  • Forpras Financial SolutionsWhy vote NO to the Fiscal Stability Treaty? Why are our Irish politicians telling us to vote YES? Are you aware that the ESM (European Stability Mechanism) isn’t even setup and yet Portugal, Spain and Greece need immediate bailing out? Where will all this funding come from? Well, more and more taxes will be needed to pay for all these bailouts and ofcourse the vicious circle of Ireland having to borrow to help bailout itself out and our partners. Every cent borrowed needs to be repaid with excessive interest rates. The government tells us not to worry as they have agreed with their collegues in the EU that we will be permitted to pay these loans over an extended timeframe. But nobody is agreeing to help reduce our debts or even write a portion off? Why? [...] It looks like Ireland and the Irish public will be left with mountains of debt. More and more Irish will be required to pay higher taxes (VAT 23%, property tax, water charges, higher car taxes, higher fuel taxes and the list goes on) resulting in the standard of living in Ireland falling, rising debt and a massive increase in the number of Irish unable to pay off their debts whether they be mortgages, credit cards, etc.
  • Vincent Browne / Politico.ie – We owe it to ourselves to oppose a trajectory that will vandalise society: I will vote No to express indignation with the cavalier disregard of the procedures and protocols of the European Union itself of the sovereignty of its member states, in the conduct of the leaders of the EU institutions and of Germany and France, in their insolence in interfering with the internal affairs of Greece and Italy, in their disregard for “democratic” procedures of the Union – even in the way this Fiscal Treaty came about.
    I will vote No to defy the wishes of the German elite, which benefited so spectacularly from the emergence of the Eurozone and now makes modest redistribution of that generated wealth, conditional on adherence to its economic and budgetary diktats, diktats that disadvantage not only the mass of people throughout the rest of Europe but the mass of people in Germany itself. 
    I will vote No to give backbone to the government’s dealings with the EU on the promissory notes and the other bank debt. 
  • TEEU – the power unionTEEU Executive Committee Urges Members to Vote No to Austerity: The inevitable result would be a further contraction in the size of the economy – already decreased by over a quarter since 2008 – with an accompanying increase in unemployment and decrease in government revenue. As Nobel laureate Paul Krugman simply put it, austerity “pushes depressed economies deeper into depression”. We, and others, have pointed out that a fiscal stimulus is what is required and have suggested, to no avail, a means of applying it.

UPDATE: Reply to Dr Gavin Barrett’s article on the Fiscal Treaty referendum in Friday 4/May Irish Times

“A Federation for the Eurozone and a Confederation for the rest of the EU”

(Note: The following replaces & corrects earlier version of 7/May)

TWO TREATIES FOR THE EUROZONE AND AN AMENDMENT TO  ONE OF THE EU TREATIES  – ALL RELATED TO EACH  OTHER!

Reply to Dr Gavin Barrett, Senior Lecturer in European Law, UCD, who wrote an article urging a Yes vote in the Fiscal Treaty referendum in the Irish Times on Friday 4 May, by Anthony Coughlan, Director, The National Platform EU Research and Information Centre, 24 Crawford Avenue, Dublin 9; Tel.: 01-8305792

Wednesday 9 May 2012

INTRODUCTION:

AMENDMENT TO ARTICLE 136,  TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)  -

“The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”

- Proposed amendment to Article 136 TFEU of the EU Treaties by which the 27 EU Member States  authorize the 17 Member States of the Eurozone to establish a  Stability Mechanism

The above Art.136 TFEU amendment to the EU Treaties has still to be approved by Ireland in accordance with its constitutional requirements under the “simplified” EU treaty amendment procedure of Article 48.6 TEU.

The European Council “Decision” to insert this amendment into the EU Treaties comes into force on 1 January 2013 if  by that time it has been approved by all 27 EU Member States in accordance with their constitutional requirements.

The ESM Institution which the 17 Eurozone States seek to establish and which Ireland would become a Member of is to be set up by the ESM Treaty for the 17 on the basis of this  Art.136 TFEU authorization  by the 27.  The ESM Treaty states that it is “complementary” to the Fiscal Treaty on which we have a referendum vote on 31 May.

The Government has promised the other 16 Eurozone Governments that it will have the ESM Treaty ratified by July,  but without the necessary constitutional referendum being held on it and on the Art. 136 TFEU amendment which authorizes it.

Q.  BUT WHERE WILL WE GET THE MONEY?

A.   We will get the money by holding a referendum on the Article 136 TFEU amendment and the ESM Treaty that it authorizes. This is constitutionally required in Ireland in order to validate these proposals as they stand, but our supine Government wants to avoid such  a referendum at all costs.  The 16 other Eurozone States will have to persuade us to vote Yes in such a referendum if they are to establish the kind of Stability Mechanism which the ESM Treaty envisages.  They can do this by agreeing to forgive the private bank debt the ECB has insisted should be imposed on Irish taxpayers, plus the Anglo-Irish promissory notes etc.   An Irish referendum on Article 136 TFEU and the ESM Treaty would also be an opportunity to add the voice of the Irish people to the calls across  Europe for the Eurozone authorities to agree a growth strategy instead of the present failed austerity policies.

Q.  WHERE WILL WE GET THE MONEY IF WE VOTE NO TO THE FISCAL TREATY?

A.   Where will the Government get the money to pay the €11 billion the ESM Treaty will require from us -  €1.3 billion up front and €250 million of that this July! -  with an open-ended treaty commitment to pay further sums thereafter without limit?

Continue reading

We need to postpone ratifying the ESM Treaty until After the the Fiscal Treaty referendum

The relation between two different treaties we are asked to ratify, which people Need to understand

The Government’s announcement of a referendum on the so-called “Fiscal Compact Treaty” (properly titled the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union/TSCG) calls in question its original intention to introduce the quite different European Stability Mechanism Treaty (ESM) to the Dáil for approval of its ratification on Tuesday or Wednesday next, or else sometime in the present pre-Easter Dáil term, as the Taoiseach recently announced.

The ESM Treaty would set up a permanent Eurozone bailout fund of at least €500 billion form this July – an economic firewall against sovereign debt “contagion” spreading to Spain and Italy. It has to be ratified by all 17 Eurozone States by their appropriate constitutional procedures. The ESM Treaty would commit Ireland to contributing €11 billion to the permanent Eurozone fund – so much money up front and so much in guarantees called “callable” capital later if required. There is already talk of boosting this fund by another few hundred billion once it is established, to which Ireland would naturally have to make a contribution also.

The Preamble to the ESM Treaty, which can be easily downloaded from the Internet, states (Recital 5): “It is acknowledged and agreed that the granting of fonancial assistance in the framework of the new programmes under the ESM will be conditional, as of March 2013, on the ratification of the TSCG [that is, the "Fiscal Treaty"] by the ESM Member concerned…”

This means that if the ESM Treaty, is ratified by Ireland sometime this month – we will be committing ourselves to contributing €11 billion to a fund from which we can receive no benefit or advantage whatever if voters should vote No to the Fiscal Treaty referendum that will presumably be held sometime in May or early June, although the Fiscal Treaty need not be ratified until the end of this year. The ESM Treaty was signed on2 February, the Fiscal Treaty/TSCG was signed on Friday last.

Would the Government not be acting in a very foolish fashion to lay the country open to such a possibility?

Would not the Irish State appear to be acting really bizarrely in the eyes of international public opinion if the ratification of these two quite different treaties was put the wrong way round in this way – very much against the Irish People’s interests?

Or has the Government in mind to introduce and ratify the ESM Treaty during March, as the Taoiseach said,

  • thereby binding the State to contribute €11 billion plus to this permanent Eurozone Fund,
  • and then use that as a moral bludgeon with which to browbeat a bamboozled electorate into voting Yes to the “Fiscal Treaty” – on the ground that if they should vote No to it, they will be depriving themselves of possible access to the permanent Eurozone fund at some time in the future?

Could our leaders really be so cynical?

Surely it becomes imperative in these circumstances that the Government should postpone ratification of the ESM Treaty until after the referendum on the Fiscal Treaty has been held?

The 17 Eurozone Prime Ministers and Presidents have agreed that they would try to bring the ESM Treaty into force by July. The original intention with this treaty’s predecessor, ESM Treaty No.1, which Michael Noonan and the other Eurozone Finance Ministers signed last year, in July 2011, had been to bring the permanent ESM fund into being in 2013, although ESM Treaty No.1 was never sent around for ratification. The date of next July would still give Ireland plenty of time in which to hold its “Fiscal Treaty” referendum in May or early June and thereafter ratify the ESM Treaty (No.2) to come into force by July if the people should vote for it.

Anthony Coughlan (Director)

“We Are Treated Like Mushrooms – Kept in the Dark and Fed Shit!”: Did you know…?

DO YOU KNOW that Ireland could hold the Eurozone at our mercy regarding our national debt, the Anglo-Irish promissory notes and the terms of the Troika’s Memorandum of Understanding? This can be done by requiring a referendum instead of Oireachtas approval of the “Decision” of the EU 27 to amend Art.136 of the EU Treaties so as to authorize the establishment of a permanent €500 billion fund for the Eurozone, the “European Stability Mechanism Fund”, to which Ireland must contribute €11 billion?

DO YOU KNOW that approval of this “Decision” is the only thing on which Ireland has the power of veto? This is because if a referendum on approval of this “Decision” were found to be constitutionally necessary, it would put the State in a position to insist on major concessions on all these vital financial matters. Why should the Government throw away Ireland’s best bargaining card in this way? It is the only chance we have to get rapid radical relief for our ongoing economic pain.

DO YOU KNOW that the European Stability Mechanism (ESM) Treaty for the Euro area was signed by the ambassadors of the 17 Eurozone countries to the EU on 2 February 2012? This looks like being brought before the Dáil for ratification on Tuesday or Wednesday of next week, when the Taoiseach reports back from next Friday’s EU/Eurozone summit. It must be dealt with in this Dail session because the 17 Eurozone States have agreed to rat-ify the ESM Treaty by July.

DO YOU KNOW that this is ESM Treaty No 2? It replaces ESM Treaty No 1 which Finance Minister Michael Noonan signed along with other Eurozone Finance Ministers last summer but which was never sent around for ratification. Unlike its earlier version, ESM Treaty No 2 states in its preamble (Recital No. 5) that it is agreed that no Eurozone State will be able to obtain money from the permanent ESM fund which the treaty would establish unless they have first ratified the separate “Fiscal Compact Treaty” which has been pushed by Chancellor Merkel since Christmas. This requires a permanent balanced budget provision or “debt brake” in national constitutions or their equivalent. This Fiscal Compact Treaty, which will probably be signed by the 17 Eurozone States next Friday and which many people here have criticized, does not need to be ratified until the end of this year.

DO YOU KNOW that the Government has invited submissions from the public on this Fiscal Compact Treaty – a most unusual development? This will distract attention from the Government’s failure to insist that the amendment it has agreed to make to Art.136 of the EU treaties requires a referendum in Ireland because it makes a radical change to the scope, objectives and character of the Economic and Monetary Union which the Irish people agreed to sign up to under the Maastricht and Lisbon Treaties?

DO YOU KNOW that a motion to approve the “Decision” of the European Council to amend Art.136 of the EU Treaties + A motion to approve ratification of the European Stability Mechanism Treaty + A European Communities Amendment Bill to bring the provisions of the latter into Irish domestic law, will all be put before the Oireachtas probably on Tuesday or Wednesday week? This is even though there has been absolutely no public discussion on any of these vital matters, and media attention has been concentrated exclusively on the Fiscal Compact Treaty on which Ireland does not have a veto. At a minimum the people deserve a White Paper.

DO YOU KNOW that by holding a referendum in Ireland on the Art.136 amendment to the EU treaties – without which the €500 billion ESM fund cannot be established – we could not only insist on our sovereign debt situation being transformed, but that a better solution to the whole Eurozone economic crisis could be adopted?

If you would like to find out what is really going on, please read the detailed explanation in the analysis on this site entitled “Two Steps to a Fiscal Union for the Eurozone… & A Third Step to Distract Attention from the First Two“.

The European Stability Mechanism Treaty and the Fiscal Compact Treaty can each be Googled on the Internet.

 
 
Anthony Coughlan
Director
National Platform EU Research and Information Centre

February 27, 2012
janthonycoughlan at gmail dot com
24 Crawford Ave. Dublin 9 01-8305792
First published online @ http://www.indymedia.ie/article/101441

Two Steps to a Fiscal Union for the Eurozone… & A Third Step to Distract Attention from the First Two

The Urgent Need at a Minimum For a Government White Paper

“It would be tragic and fatal if we were to lose democracy on the road to saving the euro”

- Dr Andreas Vosskuhle, President of the German Constitutional Court, 2011

“There are 27 of us. Clearly, down the line, we will have to include the Balkans. There will be 32, 33 or 34 of us. No one thinks that federalism, total integration, will be possible with 33, 34, or 35 States. Clearly there will be a two-speed Europe: one speed that moves towards a Federation for the Eurozone and one speed for a Confederation within the European Union.”

- French President Sarkozy, 8 Nov. 2011

BACKGROUND:

The Economic and Monetary Union which Ireland signed up to under the 1992 Maastricht and 2009 Lisbon Treaties assumed that the 3% and 60% of GDP deficit rules for every Eurozone State would be abided by and enforced by means of the sanctions – warnings, special deposits, fines etc. - which are set out in those treaties.  If they had been and if the rules of the EU treaties had been enforced for all, there would have been no sovereign debt crisis in the Eurozone and no need for any Eurozone bailout fund, either temporary or permanent.

When Germany and France broke the rules of the EMU by running big government deficits in 2003, the EU treaty sanctions to enforce the 3% and 60% deficit rules were not applied against them, and they were thereafter effectively dropped for everyone else. Ireland did not break these excessive deficit rules however.

Now - to deal with the dire consequences for millions of people of this failure to enforce the rules of the original EMU, while at the same time increasing their own political sway over the Eurozone -  Germany and France, supported by the Brussels Commission, are seeking to change the whole basis of the Economic and Monetary Union which Ireland signed up to. They are doing this by establishing a permanent  €500 billion ESM bailout fund which is to be surrounded by a whole panoply of controls over national budgetary policy, including the permanent balanced budget rule (0.5% deficit rule) proposed in the “Fiscal Compact Treaty” that German Chancellor Merkel insisted on over Christmas.

In considering the possible implications of all this it is worth bearing in mind that in 2014, just two years time, under the Lisbon Treaty Germany’s vote in making EU laws will double from its present 8% of total Council votes to 16%, while France’s and Italy’s vote will go from their present 8% each to 12% each, and Ireland’s vote will halve to 1%. Similar proportional changes will be made in voting within the Eurozone.

The temporary Eurozone bailout fund, the European Stability Facility (EFSF), which was established to lend money to Greece in May 2010, and from which Portugal and Ireland subsequently got bailouts, was established under Art.122 TFEU of the EU Treaties. This Article permits Union financial assistance to be granted when a Member State is in “severe difficulties caused by natural disasters or exceptional occurrences beyond its control”. Excessive budget deficits built up over long periods of time are scarcely what this Article was meant to cover, so the very questionable legal basis, to say the least, of the temporary fund has led to this Article being now abandoned and replaced by an entirely new EU Treaty provision, an amendment to Article 136 TFEU, to give a long-term legal basis in European law to the permanent €500 billion bailout fund which the Eurozone States want to set up from this July. Ireland commits itself to making an €11 billion contribution to this fund in various forms of capital by means of the European Stability Mechanism (ESM) Treaty which can be concluded amongst the 17 Eurozone countries once the EU 27 have amended Art.136 TFEU so as to give permission for it in European law.

The Government wants the Dáil and Seanad to approve this hugely important Article 136 TFEU amendment to the EU treaties during the current Dail term without any referendum of the Irish people even though this amendment and its legal/political consequences would mark a qualitative change in the direction of the EU and in the character, scope and objectives of the Economic and Monetary Union which the Irish people signed up to when they approved by referendum the 1992 Maastricht and the 2009 Lisbon Treaties. The amendment to Article 136 would extend the scope of the existing EU treaties significantly and bears a huge weight of legal/political consequences. It reads: “The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality.”

Approval or non-approval by Ireland of the authorization by the 27 EU States of this permanent bailout fund for the Eurozone is the only thing on which the State still has a veto – unless the Dáil and Seanad throw that veto away by failing to insist on it being used. That is why the media and opinion-formers should urge the Government to exercise it. If the Government is too afraid of the wrath of “Merkozy” and the Brussels Commission to do that, our media and public opinion should call on some public-spirited party or individual to challenge that failure before the Courts.

For if a referendum on approval of the European Council Decision to adopt the Art.136 EU amendment were found to be constitutionally necessary in Ireland, it would put the State in a powerful position to exact major concessions on the national debt, on the Anglo-Irish promissory notes and on the terms of the Troika’s Memorandum of Understanding in order to persuade Irish voters to agree by referendum to the Art.136 amendment of the EU Treaties permitting a permanent Eurozone bailout fund to be established. Why should the Government throw away Ireland’s best bargaining card in this way? Why should it be afraid to take the only course which offers hope of rapid radical relief to the people’s current dire straits?

Such a constitutional challenge, if it were to be taken, would need to show that the Article 136 TFEU amendment to the EU Treaties is a claim to, and an assertion of, a significant extension of EU powers, scope and competences which cannot legally be brought into force in Ireland by the “simplifed” EU treaty revision procedure of Art.48(6) TEU that was used to adopt the amendment,  whatever may be the constitutional position in the other EU States … And that therefore approving it in Ireland requires prior permission from voters in a referendum, as a significant surrender of Irish State sovereignty would be involved.  

It is not just issues of EU law that are at stake here. It is widely recognised among economists that the proposed ESM Treaty and the permanent funding mechanism it would establish for the Eurozone, with their accompanying apparatus of controls of national budgets, go nowhere near to solving the current financial crisis of the euro area. A challenge to the constitutionality of the Government’s proposed mode of approval of the Art.136 TFEU amendment would open a valuable opportunity for the adoption by the Eurozone Member States of a more rational and effective scheme for dealing with the area’s financial crisis, with more emphasis on stimulating economic growth and demand across the area, to the benefit of the common good of Ireland and the other Eurozone countries.

STEP 1 TO THE NEW EMU:



The  27-MEMBER EUROPEAN COUNCIL “DECISION” TO MAKE THE ART.136 TFEU AMENDMENT TO THE EU TREATIES

This “Decision” of the European Council of 27 Prime Ministers and Presidents was made in March 2011 (Decision 2011/199/EU) and gives permission under EU law to the 17 Eurozone Member States to set up a permanent bailout fund for the Eurozone.  Ireland has a veto on this Decision, for before it can come into force it must be approved by all 27 EU Member States “in accordance with their respective constitutional requirements”. This means that in Ireland the European Council “Decision” to make this Art.136 amendment requires approval either by the Oireachtas or by the people in a referendum. It calls for the latter if the amendment – despite the implicit claim of those deciding on it that it does not extend EU powers – does in fact extend them, and does in effect entail a surrender of State sovereignty which goes beyond the original “license” which the Irish people gave the State in earlier referendums to join a “developing” European Community/Union.

In other words, approving the “Decision” of the European Council to amend the EU Treaties requires a referendum in Ireland if it can be shown to widen the scope and objectives of the present EU treaties by significantly increasing the powers of the EU. Under the so-called “self-amending” Article 48(6) TEU which was inserted in the EU treaties by the Treaty of Lisbon, the 27-Member European Council of Prime Ministers and Presidents can take decisions to amend most provisions in the policy areas of the EU treaties as long as such amendment does not increase the Union’s powers/competences. For the European Council to purport to authorise under EU law the setting up of a permanent bail-out fund for a sub-group of EU States can arguably be said to be a significant claim to, and assertion of, increased powers for the EU as a whole, as up to now the EU treaties provided for no such fund or mechanism in the Monetary Union either directly or indirectly. The treaties provided rather for an EU Monetary Union which would not require or permit cross-national “bailouts” under any circumstances and would be run on quite different principles to what is being now proposed.

If the Eurozone can set up a Stability Mechanism “intergovernmentally” amongst its 17 Member States, why is any amendment to the EU Treaties by the 27 to permit that needed? It seems plausible to contend therefore that this Art.136 TFEU amendment would put the Economic and Monetary Union which Ireland signed up to when the people ratified the Maastricht and Lisbon Treaties on a quite new and different basis. This new basis would entail a significant move towards a Fiscal Union for the 17 Eurozone States in addition to the Monetary Union, as well as an Irish commitment to a panoply of accompanying supranational controls over national budgetary policy. Therefore it arguably would be unconstitutional for the Oireachtas to attempt to give the necessary approval of such a European Council Decision without an Irish referendum.



STEP 2 TO THE NEW EMU:



THE EUROPEAN STABILITY MECHANISM TREATY (ESM) BETWEEN THE 17 EUROZONE STATES

The European Stability Mechanism Treaty sets up the European Stability Mechanism, an entity with legal personality of which Ireland would become a member. It sets out the institutional structure and rights and privileges of this “ Mechanism”. The Mechanism will include a permanent €500 billion bailout fund and the treaty stipulates the contributions which each of the 17 Eurozone Members must make to it in accordance with a “contribution key” annexed to it. The ESM Treaty provides that the fund may be increased later by agreement and there is already talk of increasing it. Ireland must contribute €11 billion to it “irrevocably and unconditionally” in various forms of capital.  The ESM Treaty was signed by EU ambassadors on 2 February 2012 – replacing an earlier ESM Treaty which was signed by Minister Michael Noonan and other Eurozone Finance Ministers in July last year but which was never sent around for ratification. The 17 Eurozone States have agreed that this ESM Treaty No.2 will be ratified so that it can to come into force by July this year. The Government has in mind to bring it before the Oireachtas for approval in this session, so it is likely to be introduced to the Dáil on Tuesday or Wednesday of next week.

A Dáil motion to approve the ratification of the ESM Treaty for the 17 will presumably be taken at the same time as the motion to approve the “Decision” of the European Council of 27 Prime Ministers and Presidents to insert the Art.136 amendment into the EU Treaties by means of the  “simplified” amendment procedure of Art.48(6) TEU.   There will presumably also be an accompanying European Communities Amendment Bill to implement the Art.136 TFEU amendment and the provisions of the consequential ESM Treaty in Irish domestic law.

The ESM Treaty is to come into force once it is ratified by signatories representing 90% of the initial capital of the fund, so that Ireland has no veto on it.

The preamble to the ESM Treaty states (Recital 5) that it is agreed that money from the permanent ESM fund will only be given to Eurozone States which have ratified the later “Fiscal Compact Treaty” and its permanent balanced budget rule or “debt brake” and that the two treaties are complementary.

In 2011 Attorney-General, Mr Paul Gallagher SC advised the then Fianna Fail Government that there would be no constitutional problem in Ireland with the European Council “Decision” to make the Article 136 TFEU amendment to the EU treaties because, he advised, authorizing a sub-group of 17 Eurozone States to set up a permanent bailout fund for the Euro area does not extend the competences of the EU. Mr Gallagher had previously advised Messrs Cowen and Lenihan on the night of the September 2008 blanket guarantee for the Irish banks. He also advised that the ESM Treaty for the Eurozone which would be authorized by the Art.136 TFEU amendment to the EU treaties would not raise constitutional problems here either. That advice was given however in relation to ESM Treaty No. 1 which was later signed by Finance Minister Michael Noonan and the other Eurozone Finance Ministers but was never sent around for ratification. Mr Gallagher was not dealing with the agreement amongst the Eurozone States in ESM Treaty No. 2 that any money from the permanent bailout fund when that was set up would only be given to States which had inserted a ”debt brake” into their national Constitutions or the equivalent under the provisions of the Fiscal Compact Treaty, for Chancellor Mertkel had not yet even mooted that.

It is desirable that the advice of Attorney-General Máire Whelan SC on the constitutionality of the Art.136 TFEU amendment to the EU treaties and the ESM Treaty No.2 which follows from that, should be made available to the public, preferably through the medium of a Government White Paper.

[N.B. It is unusual for an EU-related treaty to be signed by anyone other than EU Prime Ministers and Presidents. In the case of the ESM Treaty (No. 2) it was signed by Eurozone ambassadors to the EU on 2 February 2012. Was this meant to minimize public attention to its signing?]

A THIRD STEP THAT HAS DISTRACTED ATTENTION IN IRELAND FROM THE FIRST TWO…

THE “FISCAL COMPACT TREATY” (TREATY ON STABILITY, COORDINATION AND GOVERNANCE IN THE ECONOMIC AND MONETARY UNION)

The Fiscal Compact Treaty, properly titled the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union (TSCG), was insisted on by German Chancellor Angela Merkel over winter 2011, essentially as a gesture towards German public opinion. When the Deutschmark was being abolished in 1999 the German people were not told that they would be committed to an EU Monetary Union with a huge permanent bailout fund to which they would be expected to be the principal net contributors. Rather they were told instead that the “no-bailout clause” of the EU treaties, Art.125 TFEU, guaranteed that there would be no bailouts by the others for any Member State using the single currency which did not abide by the excessive deficit rules. Germans are naturally indignant at the radical change in the EMU that is now being proposed. Chancellor Merkel’s insistence on a permanent balance budget provision /”debt brake” being inserted into national Constitutions by means of the Fiscal Compact Treaty, as was done in Germany two years ago, is meant to reassure her voting public that in budgetary matters the other 16 Member States of the Eurozone, including Ireland, will henceforth behave like Germans! Yet most economists regard a permanent balanced budget rule as absurdly inflexible, for Governments do need to run deficits on occasion in order to stimulate their economies and expand economic demand when that slumps heavily in their domestic or foreign markets.

Approving the European Council Decision to insert the Art.136 amendment into the EU treaties, ratifying the subsequent ESM Treaty with its strict budgetary rules in early March and ratifying what is stated to be the “complementary” Fiscal Compact Treaty towards the end of this year will have the effect of removing virtually the whole area of budgetary policy from the national to the supranational level of the Eurozone – without a referendum in Ireland or even a Government White Paper on the implications of that. It should be noted that the additional wording of Art.136, which is being asked to carry a heavy burden of subsequent changes, does not amend or even refer to the “no bailout clause” of Art.125 TFEU.

These developments would remove much of the stuff of national decision-making and normal party politics from the arena of democratic consideration and debate in this country.

The provisions of the Fiscal Compact Treaty were agreed at the EU summit on 30 January but they will not be put into proper treaty form and signed  by the 17 Eurozone States until March – probably at the EU/Eurozone summit meeting on next Friday. They need not be ratified until the end of this year. This treaty provides for a permanent balanced budget rule or “debt brake” of 0.5% of GDP in any one year to be inserted in Eurozone national Constitutions or the equivalent.  All 17 Eurozone States must ratify this treaty, but it comes into force once it is ratified by 12 of them, so that Ireland does not have a veto on it.

The preamble to the Fiscal Compact Treaty refers to the fact that money from the new permanent bailout fund (the ESM fund) will only be given to States which have ratified it. As treaties for the 17-Member Eurozone, both the ESM Treaty and the Fiscal Compact Treaty derive from the 27-Member amendment to the EU Treaties referred to in Step 1 above. Most of the provisions of the Fiscal Compact Treaty overlap with the so-called “Six Pack” of EU regulations and a directive which constitutes the “Reinforced Stability and Growth Pact”, and which were put into EU law last December.



It is important to note that the European Stability Mechanism Treaty and the Fiscal Compact Treaty are not EU treaties binding in EU law, but are rather “intergovernmental treaties” amongst the 17 Member States of the Eurozone, although they provide for the full involvement of the EU Commission and the European Court of Justice in their day-to-day implementation. 



The Government has invited public submissions on this Fiscal Compact Treaty to be made to an Oireachtas Committee over the coming months, which is a most unusual development. Presumably this is meant to distract media and public attention from the implications of approving the Art.136 amendment to the EU Treaties, on which Ireland has a veto, without a referendum, and ratifying the ESM Treaty which derives from that. 

These are clear moves towards a fiscal union for the Eurozone, and the Oireachtas is being invited to approve them in the next couple of weeks without any significant public discussion, at least to judge by the virtual total silence on them to date. At a minimum the Irish public deserves a White Paper on these hugely important developments before Ireland’s last EU veto of significance is abandoned and it becomes too late to save further large areas of our national democracy.



Issued for public information by the
National Platform EU Research and Information Centre

February 27, 2012
janthonycoughlan at gmail dot com
24 Crawford Ave. Dublin 9 01-8305792
First published online @ http://www.indymedia.ie/article/101440

*Lisbon Treaty: “there is a cleavage between people and governments”

WHAT TOP EU POLITICIANS SAY ABOUT THE LISBON TREATY/ EU CONSTITUTION
(These quotations are in chronological order backwards)

“France was just ahead of all the other countries in voting No. It would happen in all Member States if they have a referendum. There is a cleavage between people and governments… A referendum now would bring Europe into danger. There will be no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK.”
- French President Nicolas Sarkozy,at meeting of senior MEPs, EUobserver, 14 November 2007
_______

“The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content … The proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through the old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary … But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention.”
- V.Giscard D’Estaing, former French President and Chairman of the Convention which drew up the EU Constitution, The Independent, London, 30 October 2007
______

‘ “I think it’s a bit upsetting… to see so many countries running away from giving their people an opportunity”, Irish prime minister Bertie Ahern said on Sunday 21 October, according to the Irish Independent. ‘If you believe in something …why not let your people have a say in it. I think the Irish people should take the opportunity to show the rest of Europe that they believe in the cause, and perhaps others shouldn’t be so afraid of it,’ he added. “
- Taoiseach Bertie Ahern, EU Observer, Brussels, 22 October 2007
______

“They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister – imagine the UK Prime Minister – can go to the Commons and say ‘Look, you see, it’s absolutely unreadable, it’s the typical Brussels treaty, nothing new, no need for a referendum.’ Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.”
- Giuliano Amato, former Italian Prime Minister and Vice-Chairman of the Convention which drew up the EU Constitution, recorded by Open Europe, The Centre for European Reform, London, 12 July 2007
_____

“Sometimes I like to compare the EU as a creation to the organisation of empires. We have the dimension of Empire but there is a great difference. Empires were usually made with force with a centre imposing diktat, a will on the others. Now what we have is the first non-imperial empire.”
- Commission President J-M Barroso, The Brussels Journal, 11 July 2007
_____

“Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly … All the earlier proposals will be in the new text, but will be hidden and disguised in some way.”
- V.Giscard D’Estaing, Le Monde, 14 June 2007, and Sunday Telegraph, 1 July 2007
____

” The most striklng change ( between the EU Constitution in its older and newer version ) is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and simpler treaty containing all the provisions governing the Union has now been dropped in favour of a huge series of individual amendments to two existing treaties. Virtual incomprehensibilty has thus replaced simplicity as the key approach to EU reform. As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum.”
- Dr Garret FitzGerald, former Irish Taoiseach, Irish Times, 30 June 2007
_____
“The substance of the constitution is preserved.That is a fact.”
- German Chancellor Angela Merkel, speech in the European Parliament, 27 June 2007
_______

The good thing is that all the symbolic elements are gone, and that which really matters – the core – is left.”
- Anders Fogh Rasmussen, Danish Prime Minister, Jyllands-Posten, 25 June 2007
_______

“The substance of what was agreed in 2004 has been retained. What is gone is the term ‘constitution’ “.
- Dermot Ahern, Irish Foreign Minister, Daily Mail Ireland, 25 June 2007
______
“90 per cent of it is still there…These changes haven’t made any dramatic change to the substance of what was agreed back in 2004.”
- Irish Taoiseach Bertie Ahern, Irish Independent, 24 June 2007
____

“The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable … The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.”
- Karel de Gucht, Belgian Foreign Minister, Flandreinfo, 23 June 2007
____

“The good thing about not calling it a Constltution is that no one can ask for a referendum on it.”
- Giuliano Amato, speech at London School of Econmics, 21 February 2007

____

“Referendums make the process of approval of European treaties much more complicated and less predictable … I was in favour of a referendum as a prime minister, but it does make our lives with 27 member states in the EU much more difficult. If a referendum had to be held on the creation of the European Community or the introduction of the euro, do you think these would have passed?”
- Commission President Jose M. Barroso, Irish Times, 8 Feb.2007; quoting remarks in Het Financieele Dag and De Volkskrant, Holland; also quoted in EUobserver, 6 February 2007
_____

” It is true that we are experiencing an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU. The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin … Against the fundamental principle of the separation of powers, the essential European legislative functions lie with the members of the executive … The figures stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament … And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country … The proposed draft Constitution does not contain the possibility of restoring individual competencies to the national level as a centralisation brake. Instead, it counts on the same one-way street as before, heading towards ever greater centralisation … Most people have a fundamentally positive attitude to European integration. But at the same time, they have an ever increasing feeling that something is going wrong, that an untransparent, complex, intricate, mammoth institution has evolved, divorced from the factual problems and national traditions, grabbing ever greater competencies and areas of power; that the democratic control mechanisms are failing: in brief, that it cannot go on like this.”
- Former German President Roman Herzog and former president of the German Constitutional Court, article on the EU Constitution, Welt Am Sonntag, 14 January 2007

_______

“If it’s a Yes, we will say ‘On we go”, and if it’s a No we will say ‘We continue.’”
- Jean-Claude Juncker, Luxembourg Prime Minister and holder of the EU Presidency, Daily Telegraph, 26 May 2005

________
“The Constitution is the capstone of a European Federal State.”
- Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21 June 2004
_____
“Are we all clear that we want to build something that can aspire to be a world power? In other words, not just a trading bloc but a political entity. Do we realise that our nation states, taken individually, would find it far more difficult to assert their existence and their identity on the world stage.”
- Commission President Romano Prodi, European Parliament, 13 February 2001

[18/10/2007] Government should set up the statutory Referendum Commission well in advance of the referendum on the new EU Treaty to ensure citizens are adequately informed

THE GOVERNMENT SHOULD SET UP THE REFERENDUM COMMISSION SOON, WITH TIME AND RESOURCES TO INFORM CITIZENS ABOUT THIS NEW EU TREATY

The Government should set up the statutory Referendum Commission well in advance of the necessary Irish referendum on the Renamed EU Constitutional Treaty, which will be agreed in principle in Portugal today, so that citizens can be properly informed before they vote on it.
The eyes of Europe – maybe even of the world – will be on Ireland when we hold our referendum on this Treaty, for we are likely to be the only one of 27 EU Member States to have a vote on it. The good functioning of the Referendum Commission is vital to Ireland being seen to have a fair and democratic referendum process.
The five-person Referendum Commission is the body provided for in the 1998 Referendum Act with the function of informing citizens what a referendum is about and encouraging maximum turnout of voters.
Calling the Referendum Commission into being should be done months before Ireland’s referendum, and not just a few weeks before as previously, so that the Commission members will have enough time, first of all to inform themselves, and then the Irish voting public, on the implications of this important and complex constitutional Treaty, for this could well be the last referendum that Ireland will have on the EU.
Former Chief Justice T.A. Finlay, who chaired the Referendum Commission for the two Nice Treaty referendums, was critical of the time the Government gave it to do its job in his reports on those referendums. He was implicitly critical also of referendums on complex EU treaties being held simulataneously with other referendums on quite different matters.
The Referendum Commission is more likely to give the objective and impartial facts about this Treaty than the partisan bodies on either side, such as the political parties, the European Movement, the National Platform etc. – important and essential though their role in the referendum is.
The Referendum Commission consists of the Clerks of the Dail and Seanad, the Ombudsman, the Comptroller and Auditor General, and a senior judge who is nominated by the Government as Chairman.
Although the Government amended the Referendum Act to remove from the Referendum Commission the function of informing citizens of the main Yes-side and No-side arguments on particular referendum propositions in order to help get the Nice Treaty ratified, the Commission still retains its functions of telling citizens what particular referendums are about and encouraging maximum voter turnout. But it needs adequate time and resources to carry out these important democratic tasks. It was given ¤3.5 million for this purpose in the 2002 Nice Two referendum, although it could have done with extra time even then. The setting up of the Referendum Commission does not need to wait until the referendum date is decided on. The importance of the upcoming referendum is shown by the following facts about the proposed new EU Treaty: -
What the Renamed EU Constitutional Treaty would do:

1. Giving the EU a Federal State Constitution: The treaty would establish a legally new European Union, quite different from what we call the EU at present, with the constitutional form of a supranational Federal State that would be separate from and superior to its Member States, just as the USA is separate from and superior to California, Texas etc. It would do this in three key legal steps: (a) establishing a new European Union with its own legal personality and distinct corporate existence for the first time; (b) abolishing the distinction between the supranational and intergovernmental “pillars” of the two existing European Treaties, so that all powers of government can be exercised by the new Union, either actually or potentially, through a uniform constitutional structure; and (c) making us all real citizens of this new Union for the first time, rather than just notional or honorary EU “citizens” as at present, for one can only be a citizen of a State.
2. Abolishing the national veto in 68 new areas or matters: the new Treaty would introduce qualified majority voting(QMV) on the EU Council of Ministers for 68 areas or matters for the first time – 48 of these referring to new areas of EU law-making and 20 to a shift from unanimity to majority-voting for existing EU legal bases. That would remove the national veto for these 68 areas or matters. This figure of 68 compares with 46 areas or matters moved to QMV by the 2002 Treaty of Nice, 24 by the 1998 Treaty of Amsterdam, 30 by the 1992 Maastricht Treaty on European Union, 12 by the 1987 Single European Act and 38 by the original 1957 Treaty of Rome and its associated Treaties. Each of these shifts of power from the national to the supranational level entails a shift from the Legislative arm of government to the Executive arm and from elected national Parliaments and citizens to Government Ministers and senior civil servants. They hollow out our democracy further.
3. Giving more voting power to the Big States: The new Treaty would introduce a new voting system on the Council of Ministers, making population size a key criterion, which would particularly advantage big States like Germany and reduce the influence of smaller ones like Ireland.
4. Removing the right to a permanent EU Commissioner: It would remove the right of each Member State to have an EU Commissioner for two out of every three Commission terms, i.e. for five years out of every 15. Big States would lose their right to a permanent Commissioner also, but they have other means of exerting their influence on this body which proposes all EU laws. Having a permanent Commissioner has always been recognised as much more important for smaller States like Ireland.
5. Giving the EU the final power to decide our rights: The new Treaty would give the EU the final power to decide our human and civil rights in all areas of EU law, including Member States when implementing EU law, which now constitutes the greater part of our laws each year. This would make the EU Court of Justice rather than the Irish Supreme Court, or the Court of Human Rights in Strasbourg, the final decider of our rights in many areas. The EU Court of Justice would be more remote, slower to work and more expensive for citizens to get to as they seek to establish their rights.
6. A self-amending Treaty: The new Treaty would contain a mechanism enabling qualified majority voting to be sustituted for unanimity in eight policy areas by decision of EU governments, without need for new treaties or referendums.

(Signed)

Anthony Coughlan

Secretary

[04/05/2006] EU Commission Office in Dublin induces Irish broadcasters to act illegally

Huge sums of EU political advertising to influence Irish voters in next EU Treaty referendum


The EU Commission Representation in Ireland has induced Newstalk 106 and local community radio stations across the country to act illegally during March and April by carrying daily political advertisements aimed at influencing voting behaviour and party attitudes in the upcoming referendum on the proposed EU Constitution, or an alternative Treaty based upon it, within the next year or so.
It is illegal for Irish broadcasters “to accept any advertisement directed towards any religious or political end” under the provisions of the Radio and Television Act 1988, s.10(3),which governs local broadcasters, and the Broadcasting Authority Act 1960, s.20(4), which governs RTE.*
The advertisements. which were paid for by the Commission Representation in Molesworth Street, Dublin, are one-sided propagandist statements of positive-sounding facts about the EU that are capable of influencing people’s attitudes and votes in a future referendum on the EU Constitution or other Treaty aimed at increasing the powers of the EU and its institutions, among them the Commission itself.
The advertisements are ostensibly aimed at telling people of the existence of a “Europe Direct” information centre, which people are urged to contact if they require further information on the EU or wish to obtain a speaker on it. Each reference to “Europe Direct” is preceded by a potent and one-sided propagandist statement about the merits and benefits of the EU, which is certainly capable of influencing attitudes and votes, and the views of political parties and the party allegiances of citizens, under the guise of providing objective information from and about this information service. On any fair and objective assessment this March-April advertising is directed towards a political end and is therefore illegal in Ireland.
Here are examples from the series of 10 or so different advertisements:
“Do you know that since 1973 Ireland has received over 5.5 billion euros from the European Community? To find out more about the EU, contact Europe Direct…” (phone number follows) (Mon.10 April, Newstalk 106, 7.15 a.m., During the Eamon Dunphy Breakfast Show)
“Do you know that as a citizen of the EU you are guaranteed the right to buy goods in any of the EU Member States? What’s more, the introduction of the euro enables you to compare prices and get the best value for your money in the EU. To find out more, contact Europe Direct etc.” (Tues. 11 April, 8.30 a.m. and Wed.12 April, 8.15, Newstalk 106)

“Do you know that the EU has an expert panel of speakers available to speak on EU policies and development? To hear a speaker, contact Europe Direct etc.” (Sat. 8 April, South-East Radio, lunchtime)

“Do you know that telephone calls cost less because of the EU?” (Sun. 9 April, Newstalk 106)

“Do you know that there is EU legislation to ensure the food you eat is safe?” (Tuesday 18 April, Newstalk 106)

“Do you know that the EU is the largest contributor of development aid to poorer countries?” ( Newstalk 106, Mon. 20 March)

Irish EU Commissioner Charlie McCreevy stated at the launch of this advertising campaign in February: “Following rejection of the Nice Treaty in 2001, Ireland knows only too well the importance of communicating Europe. After the French and Dutch rejections of the Constitution, all of Europe knows it now. This campaign wll not only inform people of the different information sources available but will also show the benefits of EU membership, and provide very practical advice on how to avail of European laws to protect their rights.”

This political advertising campaign is the first time that the EU Commission, through the office of its Dublin Representation, has financed anything of this kind in this country. It is possible that the Commission and its Secretary-General in Brussels are unaware that its Irish Representation is encouraging Irish broadcasters to act illegally.
On the other hand, if the Commission Representation in Ireland, or its superiors in Brussels, can get away with these political advertisements on the pretext that they are only providing “information” and stating objective facts, the citizens of Ireland may as well throw their hats at any attempt to protect their democracy from external, politically motivated manipulation from now on. They will be exposed to having their political attitudes to the EU and its affairs moulded by a self-interested Brussels Commission with effectively limitless amounts of money at its disposal to influence the voting intentions of Irish citizens in future EU-related referendums here, thereby increasing the Commission’s own powers.
The background to the emergence of the EU Commission as a major political advertiser in Ireland, and as a direct player on the local political scene is this:
The EU Commission has been allocated some 200 million euros to spend in the current period to encourage “reflection” on the situation regarding the proposed EU Constitution that was rejected by French and Dutch voters a year ago. The ratification process of The Treaty Establishing a Constitution for Europe**, to give it its proper title, has now been resumed, as if the French and Dutch referendums had never happened. Belgium decided to ratify the EU Constitution in March. Finland is expected to do so by parliamentary vote next month, before it takes over the six-month EU Presidency in July. The remaining parliamentary ratifications will then follow, with possibly an Irish referendum at their end, so that by this time next year all EU States will have ratified the EU Constitution with the exception of France, the Netherlands, Britain and possibly Poland. Germany will then be in charge of the EU and a new French President will be in office, and steps will be taken to finesse the French and Dutch Nos and put maximum pressure on the countries still to hold referendums.
This is the real reason for this EU-funded political advertising campaign that has commenced in Ireland at this time. The Commission’s 200 million euro “information” budget is being targeted mainly at the countries where referendums on the EU Constitution are necessary, with a view to influencing eventual voting behaviour there. While pleading that it is providing “impartial information” through its betwork of some 300 Europe Direct Centres across the EU, the Commission is in fact producing potent propaganda – all as part of the real-politik of reviving the EU Constitution.
If an Irish political party such as Fianna Fail or Fine Gael sought to advertise the existence of a party information line or speaker-service on Irish radio, or to used advertisements to tell people that they had done such-and-such when they were last in Government, broadcasters would immediately refuse such advertisements as illegal. The EU Commission, a much more powerful body than any Irish political party, must not be allowed to use its virtually limitless funds to subvert our democracy in this way.
Unsurprisingly, the advertisements for “Europe Direct” do not draw public attention to less palatable facts about the EU: For example that only one-third or so of our laws now originate with the Oireachtas, the rest coming from Brussels Š Or that Spanish and other EU fishermen have the same legal entitlement to exploit Irish fishing waters as Irish fishermen do Š Or that the EU’s Common Agricultural Policy raises food prices for families and discriminates against Third World agriculturalists Š Or that it costs Irish taxpayers so many millions to adapt the country’s bridges and roads to accommodate the 50-ton lorries permitted by EU law.
Patricia McKenna, former Green Party MEP, is making representations to the Broadcasting Commission of Ireland and to the RTE Authority, asking them to take steps to ensure that Irish broadcasters cease breaking the law in this matter, as they have been doing, perhaps unwittingly, by carrying these EU-funded political advertisements during March and April. She is also making representations to the Secretary-General of the EU Commission in Brussels to take steps to prevent the officials of the Commission’s Representation in Ireland from abusing their responsibilities by encouraging Irish broadcasters to act illegally and misusing EU funds for purposes that are illegal under Irish and possibly EU law.
Patricia McKenna comments: “If the EU Commission is allowed to get away with this type of political advertising at taxpayers’ expenses, including Irish taxpayers, it will undermine the entire thrust of the Supreme Court’s 1995 McKenna judgement which was supposed to protect people from having their money used to persuade them to vote in a particular way.” In 1998 Patricia McKenna made representations to the EU Commission in Brussels which led to its telling its officials in the Commission Representation in Dublin to desist from disseminating one-sided pamphlets geared at influencing Irish citizens to vote Yes in the Amsterdam Treaty referendum as being in contravention of both Irish and European law.
Ms McKenna can be contacted for further information if need be, at (01) 8300818 or 087-2427049
We appeal to all Irish democrats, whatever their vews on the EU, all fair-minded citizens and all responsible media bodies, to raise their voices on this matter.
If you should hear any of these broadcasts on your local community radio station, please phone the station to tell those in charge there that they are acting illegally by broadcasting it, and then inform the local police that the sttaion in question is breaking the law.
(Signed)

Anthony Coughlan,
Secretary (01-8305792 /6081898)


* A discussion of the case-law on this topic up to 2003 may be found in Marie McGonagle, Media Law, Round Hall Press, 2003. There have been some further relevant cases since the latest edition of this book.

** The Treaty Establishing a Constitution for Europe would repeal all the existing EC/EU treaties and establish what would be legally quite a new EU, based like any State upon its own Constitution. It would give the EU the constitutional form of a supranational State for the first time and would make us all real citizens of that, owing it our obedience and allegiance, rather than be notional or honorary EU “citizens” as at present. It would give the EU a political President, a Foreign Minister and diplomatic corps and would increase the EU’s policy-making powers in nearly 100 new areas.

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