“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:

Irish constitutional referendums are a form of direct legislation in which citizens are voting either to accept or to reject a Bill to amend the Constitution which has been put before them by the Government of the day. Citizens voting on a Referendum Bill are in an analogous position to TDs and Senators voting on Bills put before the Oireachtas by the Government.

Once the Government has put a Bill before the People by instituting a referendum it is clearly illogical, unfair and undemocratic for that same Government to use public money, which comes from citizens on both sides on any referendum issue, to advance the point of view of one side. International best practice in referendums recognizes this.

For Governments to act otherwise is like using public money to induce parliamentarians to vote in a particular way, or offering a metaphorical box of chocolates to each voter at general election time in return for their votes. It is constitutionally quite legitimate of Governments to spend public money on the independent Referendum Commission to enable it ensure that citizens are properly informed of the referendum issues, as was the case before the Commission was emasculated by the Fianna Fail Government in 2001 when its function of setting out the pros and cons of proposed constitutional changes was taken from it.

2. No Publically Funded Government “Information Campaigns” in the 11 Referendums Held Between 1937 and 1987:
In the 11 constitutional referendums which the Irish State held between the adoption of the Constitution by popular referendum in 1937 and the Single European Act referendum in 1987, no Irish Government spent public money advocating a particular result.

Government Ministers and TDs were and are entitled to campaign individually in referendums and to spend their personal and party funds in support of the constitutional change which the Government they belong to wishes to bring about. But that is quite different from spending taxpayers’ money for that purpose. Most people will agree that it would be quite undemocratic and unconstitutional of a government to use public money, in principle without limit, to try to persuade citizens in a referendum to vote to restore the death penalty, to extend its own lifetime indefinitely or to abolish the judiciary.

Yet if public money can be spent in pursuit of a Government desire to change the Constitution, such spending would in principle be valid. Clearly once a constitutional amendment has been put before the People for decision the Government which does that should be scrupulous in respecting the rights of citizens in their legislative role and not try metaphorically to twist their arms, or to confuse or mislead them regarding the implications of the constitutional change which it is within the People’s absolute right to accept or reject.

3. The Haughey Government Was the First to Act Unconstitutionally in Referendums:
The first time that an Irish Government spent public money in a one-sided fashion in a referendum was in the Single European Act(SEA) referendum in May 1987. This came about as a result of the Crotty judgement of the Supreme Court. The FitzGerald-Spring Government of the time had attempted to ratify the SEA without a referendum.

The Supreme Court forbade that and laid down the any EU treaty which provides for a significant further surrender of sovereignty to the EU had to be put to referendum, for the Irish people are the repositories of State sovereignty and only they can therefore surrender it.

The constitutional amendment to permit the ratification of the SEA would quite probably have gone through without difficulty at the time, but to make assurance doubly sure the then Haughey Government spent large sums of public money on newspaper and billboard advertisements setting out “Ten Reasons for Voting Yes”. These were placed by the Government Information Bureau.

4. The McKenna Case 1995… Citizens’ Rights to Fairness, Equality and Democracy in Referendums:
In the 1992 Maastricht Treaty referendum on the adoption of the euro-currency and related matters the Albert Reynolds-led Fianna Fail Government of the time farmed out its “Vote Yes” campaign to a private advertising agency. This plastered the country with publicly financed billboards urging a Yes vote, among them one which proclaimed: “A Vote No Disempowers Women” !

Patricia McKenna, who had supported Raymond Crotty in his case on the SEA Treaty, challenged the constitutionality of this one-sided taxpayer-financed expenditure. Her case was dismissed by Mr Justice Declan Costello in the High Court. As this judgement came virtually on the eve of the Maastricht referendum, she did not appeal it.

With remarkable public-spiritedness Ms McKenna revived her case on the unconstitutionality of spending public money in a one-sided fashion in referendums when it came to the Divorce Referendum three years later, even though she personally and her then party, the Greens, were on the same Yes-side on the divorce issue as the then Bruton-Spring Government.

Again she lost in the High Court before Mr Justice Ronan Keane, who declined to overthrow Justice Costello’s High Court judgement of 1992. On appeal to the Supreme Court however Patricia McKenna won her case and that Court laid down the “McKenna principles” setting out clearly the rights of Irish citizens to fairness, equality and democracy in constitutional referendums.

5. The Coughlan Case on Referendum Broadcasts:
The Supreme Court judgement in McKenna was given just one week before the 1995 Divorce poll and the Government had to pull its extensive taxpayer-financed Yes-side advertisements on the weekend prior to the voting.

This made political party broadcasts on radio and TV all the more important for the Yes-side in the last days of that referendum campaign. As all the Oireachtas political parties were on the Yes-side on divorce, this led to a situation in which 42 minutes of free broadcasting time on RTE were given to the Yes-side in the five days leading up to the poll, as against 10 minutes to non-party groups on the No-side. A similar imbalance had occurred in previous EU and other referendums when all or most Dail political parties were on the Yes side in these.

Although Anthony Coughlan was not involved in the Divorce referendum, he believed that this imbalance in free broadcasting time was in breach of the statutory obligation on RTE and other broadcasters under the Broadcasting Acts to be objective, balanced and “fair to all interests concerned” in their coverage of all issues of public controversy and debate at all times. In a referendum every citizen is naturally an “interest concerned”.

Accordingly he complained to the Broadcasting Complaints Commission that RTE was in breach of its statutory obligations by permitting this 42-minute/10-minute imbalance of time in the days leading up to the Divorce poll. The Broadcasting Complaints Commission rejected his complaint. He sought judicial review of this rejection on the grounds that the Complaints Commission had erred in law. Mrs Justice Catherine McGuinness granted him this in the High Court.

In the subsequent trial of the action in that Court Mr Justice Paul Carney found that RTE had indeed breached its obligations under both the Broadcasting Acts and the Constitution and ruled that there should be broad equality in the broadcast treatment of both sides in referendums so far as free or uncontested broadcasts were concerned.

6. Dr. Garret Fitzgerald and Mr. Bob Collins… No “Stop-Watch Principle” Required:
RTE had no particular love of party political broadcasts and RTE management under its then Director-General Mr Bob Collins had no desire to appeal Mr Justice Carney’s judgement in the Coughlan case.

However Dr Garret FitzGerald, supported by Mr Billy Attley and Mr Desmond Geraghty, who were members of the RTE Authority at the time and old political opponents of Anthony Coughlan’s on EU matters, persuaded the Authority to insist that RTE Management should lodge an appeal. Their reasons are described by Mr Bob Quinn, who was also on the RTE Authority, in his book “Maverick: A Dissident View of Broadcasting Today” (Brandon Press, 2001). In the event RTE’s appeal failed and the Supreme Court upheld Justice Carney’s High Court judgement in favour of Coughlan.

Commentators sometimes misrepresent the Coughlan judgement as requiring RTE and other broadcasters to allocate exactly equal time as if by stop-watch between Yes-side and No-side proponents in referendums. This is a misunderstanding of what the judgement requires. The Coughlan case related to free or uncontested broadcasts – “party political” broadcasts as they are often called. Broadcasters are statutorily required to be balanced and fair as between all interests concerned in all their current affairs programming at all times, and not just in referendums.

Since the Coughlan case RTE has carried no free broadcasts in referendums, thus ensuring equality of treatment for both sides, although there is nothing legally to prevent it allocating such broadcasts equally between leading proponents of each side on these occasions or to umbrella groups on each side if such should exist.

7. The Original Referendum Commission… The 1998 Referendum Act:
The establishment of the Referendum Commission under the 1998 Referendum Act was not a necessary consequence of the McKenna judgement. Strictly speaking all that that judgement required was a return to the 1937-1987 situation when political parties, non-party groups and individual citizens did their own referendum campaigning and spent their own money without the Government using public money for the side which Ministers supported.

The Referendum Commission was however a piece of creative institutional engineering which had the potential of making Ireland an international pioneer in the democratic political education of its citizens in referendums. Section 3(1) of the 1998 Referendum Act gave the Commission three principal functions:
(a) to prepare and publicise a statement or statements informing citizens what the proposal to change the Constitution entailed;
(b) to prepare and publicise a statement or statements setting out the arguments for and against the proposal, based on submissions solicited from members of the public; and
(c) to foster and facilitate public debate and discussion on the proposal.
The Act laid down that these three functions should be carried out by the Commission in a manner which was “fair to all interests concerned”.

For the Referendum Commission to do a proper job in carrying out these statutory functions it needed to be given enough time to do its work properly and to be set up well in advance of any particular referendum. It needed sufficient public resources to finance that work, and common sense suggests that it should not be overloaded with different unrelated referendum propositions which it had to publicise at the same time. However the politicians in the then Fianna Fail Government, having put through the 1998 Referendum Act, had second thoughts about the Commission’s remit when it came to its first outing, for they set the Commission an impossible task from the start.

8. The Referendum Commission’s First Outing… The Amsterdam Treaty and Good Friday Agreement Rerendums 1998:
The first Referendum Commission was called into being with retired Chief Justice T. A. Finlay as its chairman to publicise the Amsterdam Treaty referendum in May 1998. The secretary of the Commission informed A.Coughlan some years later that Mr Justice Finlay had in mind to fulfil the Commission’s task of fostering debate and discussion by holding a grand national debate on the Amsterdam Treaty in Dublin Castle between leading proponents of the Yes and No sides and using clips from that debate for subsequent TV adverts illustrating the two points of view. This would have made the adverts realistic and might have engaged citizens’ attention.

But then Taoiseach Bertie Ahern’s Government gave the Referendum Commission the Good Friday Agreement referendum – a wholly different issue – to publicise on the same day and such imaginative plans had to be scrapped. Similarly in the first Nice Treaty referendum in June 2001 the proposal to amend the Constitution to permit the ratification of that treaty was coupled with two other proposed amendments, one on the death penalty and one on the International Criminal Court.

Former Taoiseach Dr Garret FitzGerald remarked in one of his Saturday Irish Times columns at the time: “Is not the Government looking for another constitutional amendment to give to the Referendum Commission?” This idea of a fourth proposition was dropped as the Labour Party would not support it.

There is little doubt that the Government’s motivation in having multiple referendum propositions was to hamper the Commission in carrying out its functions as laid down in the 1998 Act, for the Commission had to explain to citizens what each of these three different constitutional amendments entailed and to put forward the main arguments for and against in each case. Its task was virtually impossible when there was insufficient time and multiple referendums, sometimes on contentious issues.

In their reports following each referendum Mr Justice Finlay and his fellow Referendum Commissioners expressed their frustration at the conditions in which Governments expected them to carry out their statutory functions.

9. Removing the Referendum Commission’s Function of Setting Out the Relevant Pros and Cons of Constitutional Change … The 2001 Referendum Act:
Following the victory of the No-side in the first Nice Treaty referendum in June 2001 Mr Bertie Ahern’s Fianna Fail Government decided to remove altogether the Yes/No function from the Referendum Commission and to remove also the Commission’s function of fostering and facilitating public discussion of the issues. They saw the Commission’s Yes/No function as an obstacle to reversing the People’s vote on the Nice Treaty.

Taoiseach Ahern gave a commitment to do this to the other EU Governments at the European Council meeting in Gothenburg, Sweden, in the week following the referendum when he urged them to continue with ratifying the treaty – for most EU countries had not yet done that – despite Irish voters’ No.

“We will fix that Stalinist body,” said Brian Lenihan TD to Anthony Coughlan following a debate on the Nice Treaty in Athlone College of Technology in autumn 2001. The “Stalinism” seemingly consisted in the Referendum Commission having to be satisfied that the arguments for and against in referendums had to be validly rooted in the actual amendment proposed.

To minimize public attention to their assault on the Referendum Commission the Government chose the last day before the Oireachtas rose for the Christmas holidays in December 2001 on which to do this. On that day, 14 December, with just two days notice to the Opposition, it put all stages of the Referendum Bill 2001 through the Dail and Seanad in a couple of hours.

This removed from the Commission its function of preparing and publicizing a statement setting out the relevant Yes-side and No-side arguments in referendums. It left the Commission with its original function of publicizing a statement on what the referendum was about. And it substituted for the function of facilitating debate on the issues a new function of promoting public awareness of the referendum and encouraging citizens to vote at the poll. These are the two functions the Referendum Commission still has.

The Referendum Bill 2001 was passed by 58 votes to 40 on its second reading. Fine Gael, Labour, the Green Party and Sinn Fein voted against the Fianna Fail Government’s proposal. Those voting against included 10 deputies who became Ministers in the Fine Gael-Labour Government which assumed office in 2011.

10. The Democratic Value of the Referendum Commission’s Yes/No Function:
The democratic value of the Referendum Commission having to set out the main pros and cons of any proposed constitutional change fairly and impartially was that false, irrelevant or extraneous arguments on the pros and cons of the referendum proposition had necessarily to be excluded from the Commission’s information material.

The Commission had to be satisfied that the arguments put forward on each side were validly grounded in the actual constitutional amendment being proposed and in legitimate hopes or fears which citizens might have with regard to it. Obvious fallacies, irrelevancies or “ad hominem” arguments such as urging a Yes or No vote because some allegedly obnoxious person or party was on the other side could not be publicized by the Referendum Commission, although these are commonplace among private contestants in referendums and elections.

In Irish referendums the Government and Yes-side forces are seeking to change the Constitution, while the No-side elements are seeking to conserve it, to prevent change. From a democratic standpoint it is presumptuous to seek to prejudge the referendum result and predetermine the outcome by effectively taking money from one side for the benefit of the other.

There are always valid pros and cons to any proposal for constitutional change. At the extreme, even if opinion polls show a change to be desired by an overwhelming majority of citizens, there will always be some who will oppose any referendum on such grounds as cost.

A further consequence of the Referendum Commission having the function of setting out the relevant pros and cons of proposed constitutional amendments was that when private interests on each side were aware that the main arguments for and against would be put fairly and honestly before the public through the Commission’s advertisements, big-league private money had no incentive to intervene. At the same time the political parties and civic interests on each side continued to spend their own money as they had done in all Irish referendums since 1937.

The first referendum to be held following the removal of the Referendum Commission’s function of setting out the pros and cons was the second Nice Treaty referendum in October 2002. The Irish Government held this second referendum to reverse the result of the first, for the Nice Treaty itself remained unchanged. On this second occasion private funders, including private and public companies, weighed in in a big way, such that it has been reliably estimated that the cost of advertising by the Yes-side outweighed that on the No-side by a factor of ten to one.

On this second time round, moreover, the amendment to permit the ratification of the Nice Treaty was coupled with an amendment precluding the State from joining an EU common defence – both issues being put forward as one consolidated proposition to which citizens had to vote either Yes or No, for they could not vote on each of its elements separately. If citizens wished to prevent the State joining an EU defence pact, they had to vote Yes to ratify the Nice Treaty. If they wished to vote No to the Nice Treaty they also had to vote No to the amendment preventing the State joining an EU defence pact. The Referendum Commission then had to inform citizens how this dual proposition would affect the Constitution.

Quite possibly this two-propositions-in-one amendment was itself unconstitutional, but no one came forward to challenge it. The Commission carried out its new functions fairly, but the dual character of its explanations necessarily helped pile up votes for the Yes side. This was how the No vote of Nice One in 2001 was turned into the Yes vote of Nice Two in 2002.

11. Tax-payer Financed Government “Information Campaigns” Separate from the Referendum Commission’s … The 2008 and 2009 Lisbon Treaty Referendums:
In the 11 constitutional referendums which were held between the Supreme Court’s 1995 judgement on one-sided Government expenditure in McKenna and the 2008 and 2009 Lisbon Treaty referendums, no Irish Government attempted to run information campaigns parallel to the independent Referendum Commission’s statutory-based campaigns to inform citizens what the referendums were about.

The first breach of the McKenna principles by an Irish Government occurred in the 2008 Lisbon Treaty referendum. On that occasion the then Fianna Fail Government through the Department of Foreign Affairs issued a booklet with the title “EU Reform Treaty”. The ”Reform Treaty” was the Department’s name for the Lisbon Treaty which the booklet purported to describe. This was a highly selective and tendentious document which carried the following slogans on its cover that clearly amounted to implicit advocacy: “effective democratic union”, “progress and prosperity”, “peace and justice in the wider world”, “a union of values”.

Inside it summarised the provisions of the Lisbon Treaty under such headings as “increased democratic controls” and “equality between Member States”. The Foreign Affairs Department also placed newspaper advertisements featuring the booklet’s cover. These possibly had more influence on voters than the booklet itself. There was also a Foreign Affairs web-site which like the booklet implicitly pointed to the desirability of a Yes vote in the referendum even if neither booklet nor web-site urged explicitly “Vote Yes”.

Similar material was produced for Lisbon Two in 2009. Presumably the then Attorney General, Mr Paul Gallagher SC, advised the Fianna Fail Government of the time that these actions did not breach the McKenna principles. Presumably too its Fine Gael-Labour successor decided to follow the Fianna Fail Government’s partisan “information campaign” when it came to the next Irish referendums. And presumably its Attorney-General, Ms Maire Whelan, decided to follow her predecessor Mr Gallagher’s advice in relation to the taxpayer-financed information booklet, brochure and web-site which sought to influence the “Fiscal Treaty/Fiscal Compact.” referendum in May 2012 and the Children’s referendum in November that same year.

The booklet issued by the Department of Foreign Affairs in the Fiscal Treaty/Fiscal Compact referendum in May 2012, which was posted at public expense to all households in the State, was tendentiously selective like its Lisbon Treaty predecessor. It purported to describe the so-called “Stability Treaty”, even though the Treaty in question was generally referred to across the EU as the “Fiscal Treaty” or the “Fiscal Compact”, its full title being the “Treaty on Stability, Coordination and Governance in the Economic and Monetary Union”.

The first page of this booklet was titled “What is the Stability Treaty?”. Inside it was described as a Treaty which aimed “to support growth and employment…to protect the public’s money… and to be part of a toolkit to avoid another economic crisis”. Again these were tendentious phrases which clearly amounted to advocacy rather than objective information and were legitimately open to being questioned by No-side proponents who took a different view to the Government’s on the content and effects of that treaty.

12. Re-Affirmation of the McKenna Principles as Best International Practice … The 2012 McCrystal Case:
These partisan Government “information campaigns” using public money unconstitutionally were not challenged in the Courts at the time of the 2008 and 2009 Lisbon Treaty and the 2012 “Fiscal Treaty” referendums. They were successfully challenged by Mr Mark McCrystal in the 2012 Children’s referendum.

On the eve of that referendum the Supreme Court ruled unanimously that the booklet, advertisements and web-site issued by the Government on that occasion were in breach of the Court’s 1995 judgement in McKenna. In setting out their reasons the Supreme Court judges strongly reaffirmed the McKenna principles. Irish Governments could certainly spend public money in informing citizens of the main arguments for and against particular referendum propositions, but any partisan presentation was a violation of citizens’ rights to fairness, equality, and democracy on these occasions.

The Referendum Commission was clearly the most competent body to provide citizens with neutral information which accorded with the McKenna principles. As Chief Justice Mrs Susan Denham put it:

“It is questionable whether it is wise to ask a Minister, who is promoting a referendum on behalf of the Government, to publish neutral information on the referendum. It may be that it is itself inherently unfair to ask a Minister, and indeed her Department, which are promoting a referendum, and who clearly believe in its merit, and wish for a ‘Yes’ vote, to draft and publish neutral information. This role may be best performed by a body not invested in the referendum.”

The Chief Justice noted favourably the recommendation of previous Referendum Commissions for the establishment of “a permanent and ongoing body which would have ample time to prepare and promote public awareness of important constitutional amendments.”

The Supreme Court made clear in the McCrystal case that the McKenna principles accorded with best international practice regarding referendums. In their judgements the Chief Justice and Mr Justice John Murray referred to the “Code of Good Practice in Referendums” which was adopted by the Venice Commission for Democracy through Law, an advisory body of the Council of Europe, and the Council for Democratic Elections in 2006 and 2007.

This Code included the statement that

“Equality of opportunity must be guaranteed for the supporters and opponents of the proposal being voted on. This entails a neutral attitude by administrative authorities, in particular with regard to … public funding of a campaign and its actors.”

And again:

“There must be no use of public funds by the authorities for campaigning purposes in order to guarantee equality of opportunity and the freedom of voters to form an opinion.”

The Chief Justice also referred to Australia, where pamphlets distributed to citizens by that country’s Electoral Commissioner set out the arguments for and against proposals to amend the Australian Constitution. And she referred to UK referendum practice where an Electoral Commission can provide equal sums of public money to umbrella groups on each side in referendums. By challenging the Government’s brazen flouting of the Supreme Court’s McKenna judgement Mark McCrystal, like Ms McKenna before him, has clearly struck a significant blow for Irish democracy.

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Note on Author: Anthony Coughlan was a supporter of the late Raymond Crotty and Patricia McKenna in their constitutional actions on Irish referendums in 1987 and 1995 respectively. He was himself plaintiff in the 2000 Coughlan case on partisan referendum broadcasts. He has been involved on the No side in EU-related referendums but was not involved in the other referendums mentioned above. He is Director of the National Platform EU Research and Information Centre and is former Senior Lecturer in Social Policy, TCD.

January 2013. First published on Indymedia.ie
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The Political Basis of the EU:

All States and aspiring States have their myths of origin. The myth of origin of the EU is that it is a peace project to prevent wars between Germany and France – as if a tendency to go to war is somehow genetically inherited.

The actual facts are however that the first step towards supranational economic integration, the European Coal and Steel Community of 1951, was to facilitate German rearmament at the start of the Cold War with Russia and to reconcile France to that fact. The US wanted a rearmed West Germany inside NATO. This greatly alarmed France which had been occupied by Germany just a few years before.

Jean Monnet, who was America’s man in the affair, came up with the solution. To assuage France’s fears he drafted the Schuman Declaration proposing to put the coal and steel industries of France, Germany and Benelux under a supranational High Authority as “the first step in the federation of Europe”. A federation is a State, so the political aim of establishing a State or quasi-superstate under Franco-German hegemony has been there from the start. The EU celebrates 9 May, the date of this Declaration, as “Europe Day” each year. Monnet became secretary of the supranational High Authority, the predecessor of today’s Brussels Commission.

Thus historically the EU is in its origin an out-of-date legacy of the Cold War, pushed by the USA in the 1950s to provide an economic underpinning to NATO in Europe.

Simultaneously “Europeanism” became the creed of a legion of intellectuals across the continent, disillusioned by the failed ideologies of the 20th century. They provided ideological arguments in support of their assault on all things national. Their central assertion was that conflict between Europe’s States could be prevented by putting their national democracies under the control of a supranational high authority of non-elected technocrats – namely themselves or people like themselves – while trying to merge their peoples in a kind of jellybowl of nations.

They developed the doctrine that by “pooling” sovereignty small States increase their influence over bigger ones, whereas in practical reality it is the other way round. Classically, the concept of sovereignty means that a State is the sole author of the laws prevailing in its territory. For EU members however most laws now come from Brussels. Talk of pooling sovereignty is like referring to a woman as being half-pregnant. Sovereignty “pooled” is sovereignty surrendered.

Forty years after the 1951 Coal and Steel Community, and the 1957 Treaty of Rome setting up the European Economic Community(EEC) which followed, another shift in Franco-German power, Germany’s reunification as a side-effect of the collapse of the USSR in 1991, led these two countries to establish the European Economic and Monetary Union (EMU) and its single currency, the euro.

The big increase in Germany’s population and territory on reunification greatly alarmed France. However France had nuclear weapons, which Germany was precluded from having under the post-War treaties. The deal between the two of them was EU Monetary Union for Political Union or, put crudely, the Deutschemark for the Euro-bomb. Germany would give up its national currency, the symbol of its post-war economic achievement, and share the running of a new supranational EU currency with France, while France agreed to work jointly with Germany towards a supranational EU political union with its own common foreign, security and defence policy.

This would give Germany a central role in running a potential EU world power, with its finger on a nuclear trigger in due time. France in turn hoped the euro would give it a political lock on Germany. “The two pillars of the Nation State are the sword and the currency and we have changed that,” exulted EU Commission President Romano Prodi. A Franco-German army brigade with joint officers and a joint command was simultaneously set up as a symbol and prototype of the EU army of the future. Belgium, Luxembourg and Spain have since joined this as contributors to a common “Eurocorps”.

France and Germany are said to share a common interest in being joint engines of the EU integration project. The conventional wisdom has been that if they stay together they can push through the Brussels institutions whatever policy suits their interests, while between them they are strong enough to prevent any other group of EU States from adopting policies they do not like. The reality is somewhat different however, as Germany was always going to be the big winner in moves towards an EU monetary and political union.

The Intoxication of Big Powerdom:

That political realist, Germany’s 19th century chancellor Otto Von Bismarck, once said: “I have always found the word ‘Europe’ on the lips of those powers which wanted something from others which they dared not demand in their own names.”

The rhetoric of Euro-federalism, talk of “the European ideal”, the requirements of “the EU project”, the supposed “necessity” of Europe’s unification and the like, is essentially political cover for the national interests of the States concerned, as mediated by their political and economic elites.

Norwegian sociologist Johan Galtung put the point succinctly:

“One formula for understanding the EU is this: Take five broken empires – Germany, France, Italy, Holland and Belgium – add a sixth one later, Great Britain, and try to make one grand neo-colonial empire out of it all.”

The founding members of the original EEC, apart from Luxembourg, had all been imperial powers for centuries. They were all defeated, occupied and ravaged during World War 2. After 1945 they found themselves in a world dominated by the two military superpowers, the USA and USSR. The European governmental elites, who were used to thinking in imperial terms, said to themselves: if we cannot be Big Powers in the world on our own any longer, let us try to be a Big Power collectively.

Germany in particular saw EU integration as the way back to world power following its reunification, with France ever more desperately pretending to be her equal partner in the process.

This is not the whole story of the EU, but it is fundamental to understanding its development.

Different countries had their own motives for embracing supranationalism. Britain wanted to prevent the continent being dominated by the Franco-Germans. She sought either to prise them apart or else be co-opted by them in running the EU as a triumvirate. Both aims proved illusory, and this is the root of British Euro-scepticism.

Spain, Portugal and Greece saw the EU as guaranteeing democracy following long periods of dictatorship. The East Europeans saw it as a way of moving out of Russia’s sphere of influence. Their representatives in the EU bureaucracy, the European Parliament, the Court of Justice, Central Bank etc. are paid salaries which are typically ten times higher than what they would get at home. This makes Brussels a specially attractive career prospect.

For them as for politicians, senior bureaucrats, media people and social science academics in the smaller EU States generally there is the sense of importance of having wider fields to conquer, side by side with representatives of the big countries, and the intoxication of helping to build a superpower. ”It is much nicer to be running Europe than running Slovakia,“ as one of them put it.

The Economic Basis of the EU:

The Franco-German economic deal which was embodied in the original 1957 Treaty of Rome offered protection for French farmers in return for free trade for German industry. The Common Agricultural Policy(CAP) kept European food prices high for decades by reducing food imports from the rest of the world. Farmers like high food prices. As CAP supports were tied to volume of production, this benefited big farmers most, French and Irish ones particularly.

On the free trade side the EU Treaties make it illegal under supranational EU law for governments to put obstacles in the way of the free movement of goods, services, capital and labour between the 27 EU Member States. National Governments are legally forbidden to discriminate in favour of their own citizens or business firms by adopting any such measures, whether liberal or restrictive, although the possibility of doing that if it is judged to be in the interest of a people’s economic welfare is one of the main reasons why countries want to have their own governments in the first place.

From the standpoint of private capital it is normal to want minimal interference by the State with private profit-making activities. EU law drastically limits the possibility of such interference. Any national law which seeks to enforce a national common good in the economic sphere must give way to EU law in areas covered by the Treaties.

This is what makes transnational capital, firms with branches in different EU countries, the principal lobbyists for ever further EU economic integration.

Most EU laws and court cases before the EU Court of Justice (ECJ) are concerned with enforcing these rules. The constitution of the EU, the Treaty of Rome and its amending treaties, is in effect the first State or quasi-State constitution in history to be drawn up entirely in the interest of big business, without the slightest popular or democratic input into its making.

The EU’s foundational “four freedoms” – free movement of goods, services, capital and labour – enshrine the basic principles of classical laissez-faire as constitutional imperatives which no government or elected parliament may legally change or violate, regardless of the wishes of their voters.

The Succession of EU Treaties:

Each successive EU Treaty was sold to the different peoples across Europe as a modest incremental step towards getting more jobs, growth and higher living standards. Yet each took powers away from national parliaments and governments and the citizens which elected these, turning the Nation States of Europe into provincial shells, subverting their national democracy and making their citizens subject to a supranational political and economic elite which runs an EU system whose workings most people poorly understand.

This is the “Great Deception” of the EU integration project, a constitutional revolution by stealth.

- THE 1957 TREATY OF ROME set up the European Economic Community(EEC) to complement the supranational Coal and Steel Community of 1951. This principal EU foundation treaty established the four supranational institutions, the European Commission, Council, Court and Parliament – the latter originally called an Assembly – to enforce free movement of goods, services, capital and labour among the original six Member States, and to manage the Common Agricultural Policy.

Over the next half-century membership of the EU went from the original six founding members – Germany, France, Italy and Benelux – to nine to twelve to fifteen to twenty-seven in 2012 and twenty-eight in 2013 with Croatia’s accession. Thirty years after the Treaty of Rome came the next major push to Euro-federalism, the treaty called the Single European Act.

- THE 1987 SINGLE EUROPEAN ACT (SEA) set up the so-called “single market”. This made non-tariff barriers to trade illegal under EU law, ranging from State aids to public purchasing to discriminatory health and safety measures at national level. The SEA led to a host of harmonization directives to iron out national differences in product standards and specifications. To enforce these rules, unanimity was replaced by qualified or weighted majority voting across most economic areas in the EU.

Brussels regards all sorts of unrelated issues as single market ones – for example working hours, emissions trading, driving tests, vitamin supplements – for this shifts what are essentially domestic matters to the supranational level where they can be decided by means of qualified majority voting.

The cost of such measures to national economies is enormous. Yet most economists tend to ignore them when working out whether a country is a net contributor to or a net beneficiary from the EU. They just subtract the flows of funds between national treasuries and Brussels.

Taking the onerous regulatory burden of the “acquis communautaire” into account greatly changes the calculation of the economic costs of EU membership. New EU Member States are compelled to adopt every single one of this vast superstructure of rules.

- THE 1992 MAASTRICHT TREATY ON EUROPEAN UNION required all EU Members apart from Britain and Denmark to abolish their national currencies and adopt a single EU currency, the euro. So far 17 of the 27 have done this. The internal “price” of a currency is the rate of interest, the external “price” the rate of exchange. So by joining the Eurozone the 17 countries concerned have abandoned national control of their rates of interest and their exchange rates. They have thereby surrendered vital economic tools for influencing the supply of credit and their economic competitiveness in the interest of the common good of their own peoples. The European Central Bank(ECB) decides credit conditions for the Eurozone as a whole. In practice this means what suits Germany and France, for they constitute half the Eurozone’s population.

- THE 1998 AMSTERDAM TREATY extended qualified majority voting to a number of new areas. It gave the EU its own code of human rights, its own external border and immigration policy, a harmonised approach to civil and criminal law across the EU and its own foreign and security policy.

- THE 2001 NICE TREATY increased the relative voting weight of the Big States in making EU laws. It abolished the national veto and extended qualified majority voting in a range of non-economic areas. It allowed sub-groups of Member States to integrate more closely among themselves, using the EU institutions for that purpose, thereby moving away from the original concept of the EU as a partnership of legal equals.

- THE 2009 TREATY OF LISBON embodied the provisions of the 2004 Treaty Establishing a Constitution for Europe, which sought to establish the European Union DIRECTLY on the basis of its own Constitution, just as with any State. When this was rejected in 2005 by French and Dutch voters in referendums its provisions were repackaged virtually unchanged and adopted INDIRECTLY in the form of amendments to the existing EU Treaties in the Lisbon Treaty.

Lisbon provided for the abolition of the European Community, which was the legal repository of supranational powers up to then, and its replacement by a constitutionally new European Union, with full legal personality separate from that of Member States for the first time. It made citizens of the different EU Member States into real citizens of this constitutionally new federal-type Union for the first time also, giving them a real second citizenship IN ADDITION TO their national citizenships, just as citizens of regional states like California or Bavaria are citizens also of their respective Federal States. EU law has primacy over national law and the claims of EU citizenship have primacy over the claims of national citizenship in any cases of conflict between the two.

Lisbon also provides that from 2014 law-making in the EU will be put on a population basis just as in any State. From that year a qualified majority for purposes of making EU laws on the Council of Ministers will consist of 55% of the States – which means 15 out of the then 28 – as long as that 15 comprise 65% of the EU’s total population of some 500 million.

Germany and France between them have half that percentage, which gives them a blocking minority vote. As Germany is the most populous EU State this means that from 2014 Germany’s voting weight in making EU laws will rise from its current 8% of Council votes – 29 votes for each big State out of a total of 345, Ireland having 7 votes – to 16% on a population basis. The voting weight of France, Italy and Britain will rise from their present 8% each to 12% each, and the relative voting weight of smaller States will fall, in Ireland’s case from its present 2% to less than 1%.

Lisbon also makes the “European Council” of Prime Ministers and Presidents into a formal EU institution for the first time, bringing this “intergovernmental” grouping within the ambit of the treaties and making it the constitutional driving force for ever further integration, especially for the Eurozone.

How the EU is Run… No Separation of Powers:

For the past three centuries the separation of powers and functions between the Executive (Government), Legislature(Parliament) and Judiciary has been acknowledged as the necessary basis of democratic states and fundamental to maintaining the liberty of citizens.

This principle goes out the window in the EU. There the exclusive power of proposing new supranational laws rests with the EU’s Executive or Government, the Commission in Brussels . . .

- THE COMMISSION is more a government than a commission. Its members are nominated by national governments, not elected. Thus a condition for proposing supranational laws in the EU is that one should NOT be elected. Once appointed Commissioners’ allegiance is to the EU, not their own countries. French President Charles De Gaulle once described this body aptly as “a conclave of technocrats without a country, responsible to no one”.

As well as administering the existing EU rules and having the monopoly of proposing new ones, the Commission has quasi-judicial powers as well. It can adjudicate on competition cases and impose fines on EU members. Even though there may be an appeal to the Court of Justice, the Commission acts as if it were a lower court. It draws up and administers its own budget, with minimal democratic control. Its president can hire, move and sack individual Commissioners. It is supported by some 3000 “secret” working groups, whose members are not publicly known, where most Commission decisions are actually made and where corporate lobbyists wield their influence. Only 2% of Commission decisions come up at meetings of the full Commission.

- THE COUNCIL OF MINISTERS is called a Council, but it makes laws just like a Parliament, on the basis of the Commission’s proposals. It makes these laws in secret, often in the form of package-deals between its members, and it takes some executive decisions. Approximately 85% of EU directives and regulations are agreed privately in some 300 committees of civil servants from the EU Member States which service the Council and they are approved without debate at Council level. Only 15% of EU laws are actually discussed or negotiated at Council level. The formal adoption of these laws now takes place in public, although the negotiations leading up to them are private. The Council of Ministers is responsible as a collectivity to nobody and is irremoveable as a body.

- THE EUROPEAN PARLIAMENT is more a Council than a Parliament. It cannot initiate any EU law although it can amend draft laws which come from the Commission and Council as long as the Commission agrees. If the Commission disagrees, all 27 Member States must agree to allow an amendment by the Parliament to be adopted. If the Parliament by an absolute majority of its members opposes a draft directive from the Commission it cannot become law, but this rarely happens. The Parliament has the final say over the EU budget except for agriculture. If it vetoes new budget proposals, the previous year’s EU budget is repeated.

- The COURT OF JUSTICE is not just a Court but is also a Constitution-maker, with constitutional powers similar to what some Parliaments have, as set out below.

It is easy to see from the above that the executive, legislative and judicial functions of government are not separated in the EU institutions, but are inextricably intertwined. There is none of the separation of powers which characterises normal democracies. Moreover, the Commission, the Parliament and the Court of Justice share a common interest in having ever more powers shifted from the national to the supranational level where the three institutions are involved together in exercising them.

The EU Court as Constitution-Maker:

The Court of Justice(ECJ) is a highly political Court. It continually interprets the treaties in such a way as to extend the legal powers of the EU to the maximum, moving the EU in directions which were never envisaged by the people originally involved. Here are some revolutionary verdicts of the ECJ:-

- Van Gend en Loos, C-26/62 of 1963: EU Treaty rules have direct effect inside Member States;
- Costa v. Enel C-6/64: EU law has primacy over national law;
- Internationale Handelgesellschaft C-11/70 and Simmenthal C-106/77: EU law has primacy over national Constitutions;
- AETR C-22/70: the EU may enter into common international agreements instead of Member States in areas where EU powers are internally exercised, bolstering its external
powers;
- Van Duyn C-41/74: EU directives have direct effect inside Member States and national courts must enforce them;
- Dassonville C-8/74 and Cassis de Dijon C-120/78: the lowest national standards for product specifications can apply throughout the EU, leading to the Internal Market on the basis of qualified majority voting after 1987;
- Hauer C-44/79: Fundamental human rights form part of the supranational EU legal order;
- Les Verts C-294/83: the EU Treaties have the character of a Constitution;
- Frankovich C-6/90: Member States are financially liable for violations of EU law within their borders;
- Kohll C-158/96: Internal market rules entitle national citizens to get medical treatment in other Member States and be reimbursed on the same basis as the locals;
- Environment verdict C-176/03: The EU may decide on criminal sanctions for breaches of EU law;
- Pringle C-370/12: the amendment to the EU Treaty ostensibly authorizing a permanent bailout fund for the Eurozone, which comes into force during 2013, is redundant and
legally unnecessary, for the 17 Eurozone States had the right to establish this fund “intergovernmentally” among themselves anyway, which they did the year before, in
2012, by means of the European Stability Mechanism(ESM)Treaty.

The Extent of EU Laws:

It is hard to think of a single area of national life nowadays that is unaffected by EU law. In most years the majority of laws and statutory instruments put through national Parliaments now come from Brussels. There are over 100,000 EU rules, international agreements and legal acts binding on or affecting citizens across the EU.
It is calculated that in 2013 there are in force

• 8,937 EU Regulations;
• 1,953 EU Directives;
• 15,561 Decisions;
• 2,948 Other Legal Acts;
• 4,733 international agreements;
• 4,843 non-binding legal acts, which may however bind if agreed;
• 52,000 agreed EU international standards from CEN, Cenelec, Etsi etc. and
• 11,961 verdicts from the EU Court of Justice.

The EU Treaties prevent voters at national level, their Parliaments and Governments from abolishing or amending a single one of these legal measures.

Why National Politicians Surrender Powers to the EU:

Every time new EU treaties abolish further national vetoes and shift law-making for new policy areas from the national to the supranational level, national Parliaments and citizens lose power correspondingly, for they no longer have the final say in the areas concerned.

Simultaneously individual Government Ministers, who are members of the executive arm of government at national level and must have a national parliamentary majority behind them for their policies, are turned into legislators for 500 million Europeans as members of the 27-person Council of Ministers which makes EU laws and rules. This body constitutes a committee of legislators, which is the classical definition of an oligarchy.

National politicians thereby obtain an intoxicating increase of personal power for themselves at the expense of their national Parliaments and voters, even though they may be open to being outvoted by a qualified majority on the EU Council. This is the reason Government Ministers tend to be so Europhile and to cooperate so willingly in denuding their own Parliaments and peoples of power.

The more policy areas shift from the national level to Brussels, the more power shifts simultaneously from national legislatures to national executives, and the more the power of individual Ministers and bureaucrats increases. Keeping on good terms with their fellow members of the exclusive Council of Ministers “club” of EU lawmakers becomes more important for national Ministers at EU level than being awkward in defence of their own peoples’ interests. Increasingly they have come to see their function vis-a-vis one another as delivering their national electorates in support of further EU or Eurozone integration.

The EU’s Assault on National Democracy:

A Member State on its own cannot decide a single European law. Its people, parliament and government may be opposed to an EU law, its government representative on the Council of Ministers may vote against it, but they are bound to obey it nonetheless once it is adopted by qualified majority Council vote. This devalues the vote of every individual citizen. Each policy area that is transferred from the national level to the supranational level devalues it further.

This reduces the political ability of citizens to decide what is the national common good and deprives them of the most fundamental right of membership of a democracy, the right to make their own laws, to elect their representatives to make them, and to change those representatives if they dislike the laws they make.

European integration is therefore not just a process of depriving Europe’s Nation States and peoples of their national democracy and independence, within each Member State it represents a gradual coup by government executives against legislatures and by politicians against the citizens who elect them.

What was once national politics becomes provincial politics. Citizens more and more sense this and it depoliticizes them in turn. The EU has hollowed out the Nation States of the EU, leaving their traditional institutions formally in place but with their most important functions transferred outside, to the external EU level. It turns the State itself into an enemy of its own people, while clamping a form of financial feudalism on Europe.

From EU to Eurozone:

Seventeen of the 27 EU Member States in 2012 have adopted the euro. Ten EU Members retain their national currencies. The Eurozone rather than the overall EU is now the main terrain of Franco-German ambitions to establish a European superpower with themselves in the driving seat although, as stated above, it is increasingly obvious that Germany is the real driver, with France occasionally helping with the steering. Their leaders are frank in stating their ambitions:-

Here is Germany’s Chancellor Merkel on the current debt crisis:

“We have a shared currency but no real economic or political union. This must change. If we were to achieve this, therein lies the opportunity of the crisis… And beyond the economic, after the shared currency, we will perhaps dare to take further steps, for example for a European army” (Karlspreis speech, May 2010).

Here is French President Sarkozy a year later:

“By the end of the summer Angela Merkel and I will be making joint proposals on economic government in the eurozone. We will give a clearer vision of the way we see the Eurozone evolving. Our ambition is to seize the Greek crisis to make a quantum leap in Eurozone government…The very words were once taboo. (Now) it has entered the European vocabulary” (Irish Times, 23 July 2011).

And Sarkozy again in November 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.”

Chancellor Merkel backed him up the same month:

“The debt crisis is a decisive moment, a chance to go a new way. The time and opportunity is there for a breakthrough to a new Europe … That will mean more Europe, not less Europe” (10-11-2011).

No EU “Demos” Which Could Democratise the EU:

There is no example in history of a lasting monetary union which was not part of one State, and therefore also a fiscal union. And there are of course many examples of States that were at once monetary unions, fiscal unions and political unions, which existed for long periods and which have disappeared into history. Where now is the USSR rouble, the Czechoslovak crown, the Yugoslav dinar or the Austro-Hungarian thaler?

A fiscal union means that a State has common taxes and public spending programmes whereby the richer areas and social groups within that State transfer resources to the poorer on the basis of a sense of common citizenship and an accompanying national solidarity. The Eurozone is a monetary union but not a fiscal union. It has no income transfer system comparable to that which exists within national States.

Within the monetary union there are big gaps in living standards, public sector deficits, balance of payments positions and competitiveness levels between the North European Eurozone countries and the so-called PIIGS countries – Portugal, Ireland, Italy, Greece and Spain. It was always economic folly to try to establish one interest rate and exchange rate for such diverse national economies, political cultures and institutional traditions, but that is what the political project of “Union-building” requires.

Yet it is obvious that there is no underlying EU or Eurozone “demos” or people, no sense among voters of a common European “We” which would make citizens in richer Eurozone countries willing to bear higher taxes to finance resource transfers to poorer ones in the name of a pan-EU or cross-Eurozone solidarity. The mutual identification and fellow-feeling among citizens which exists at national level and gives democratic legitimacy to National States, does not exist supranationally. Democratising the EU in the absence of a European people or “demos” is impossible. And such a demos cannot be artificially created.

This has always been the fundamental flaw in the European integration project. That however does not stop the EU elite, and particularly the Germans and French, the Brussels bureaucracy and their acolytes in the different Member States, from frantically seeking to get the peoples of the Eurozone countries to give up what is left of their democracy at national level in order to “save” the euro-currency.

Hence the current calls for direct EU supervision of national budgets and for a Eurozone Banking Union, Fiscal Union, Tax Union and Political Union, to take advantage of the current financial crisis to centralise more power in Brussels, Frankfurt and Berlin.

The more European integration is pushed ahead and the more the national democracy of the EU member states is undermined in the process, the more the EU loses legitimacy and authority in the eyes of ordinary citizens.

Consequently the greater and more certain the eventual popular reaction against it. To align oneself with such a misguided, inevitably doomed project is to be out of tune with history. It is to side with a supranational elite against the democracy of one’s own people, to spurn genuine internationalism for the heady illusion of building a superpower.

Adopting the Euro the Biggest Mistake Ever Made by the Irish State:

The value of an independent currency for Ireland was shown clearly in the years 1993-2000. This was the only period in the history of the Irish State that it followed an independent exchange rate policy and let the currency effectively float while it gave priority to the real economy of maximising output and employment rather than maintaining a particular exchange rate.

The highly competitive exchange rate of those years was the principal factor underlying the 7% average annual growth rates of the “Celtic Tiger” period, although supporters of the euro project rarely mention this for obvious reasons.

In 1999 Ireland’s ultra-Europhile politicians decided to join the Eurozone on the assumption that the British would shortly do the same, which they did not and will not. In a step of utterly irresponsible folly the State’s main political parties decided to adopt the currency of an area with which Ireland does just one-third of its trade (40% of exports, 25% of imports).

At the time the State needed higher interest rates to restrain the “Celtic Tiger“ boom. But Eurozone interest rates in the early 2000s, which were now decided by the European Central Bank, were low to suit Germany and France, then in recession. This made the Irish boom “boomier”, as Taoiseach Bertie Ahern put it. The ECB looked on with blithe indifference. Unsuitably low interest rates stoked the Irish property bubble of those years, as they did also in Spain.

When the bubble burst in 2008 and Anglo-Irish Bank and other Irish banks became effectively insolvent, the ECB and the Brussels Commission forbade the Irish Government from letting them go bust, thereby imposing the burden of paying their bad debts on the Irish State and on Irish taxpayers who were not responsible for them. In that way the German, French, British and other banks which were the principal creditors of the Irish banks were assured of getting their money back.

Preventing bust Irish banks from suffering the consequences of their foolish borrowing would not therefore be copied by the other PIIGS countries and the “contagion” of putting national interests first in face of the debt crisis would not spread to them, thereby putting the very survival of the euro-currency in question.

In 2010 when the Irish Government’s burgeoning public sector deficit consequent on taking on this private bank debt threatened to shut it out of the international bond markets, the ECB pressurized Dublin into a Eurozone bailout programme. A foreign Troika representing the ECB, the Commission and the IMF took over the effective economic running of the Irish State to enforce that programme.

After ninety years existence of the Irish State the bankruptcy of its party political elite stemming from their uncritical Europhilia could not be more obvious. In May 2012 the State’s main political parties pushed through the Fiscal Treaty referendum to meet Germany’s demand that basic fiscal deficits for Eurozone countries should never henceforth be greater than 0.5% of GDP.

Later that year the Irish Supreme Court established retrospectively that the Government had in effect used unconstitutional means to do this by financing a partisan referendum information campaign out of public funds to secure a Yes result. This had happened likewise in the two Lisbon Treaty referendums.

One important effect of Irish Eurozone membership is that as Germany and France push for more integration to “save the euro”, the UK, including Northern Ireland, has no intention of joining the Eurozone and may well move towards a looser relation with the EU as a whole. This must lead to the political-economic divide between the North and South of Ireland growing deeper and a new dimension being added to Partition.

The above are some of the pleasures of “our currency the euro”, to use a favourite phrase of Europe Minister Lucinda Creighton. Yet in 2016 these same Irish politicians will seek to identify themselves with the men and women of the 1916 Rising who set out to achieve “the unfettered control of Irish destinies” and establish a State which would be “a beacon-light to the oppressed of every land” !

How the Eurozone Prevents Us Dealing Sensibly With Our Debt Crisis:

Logically there are only three ways of dealing with the immense burden of debt which now rests on the governments, private citizens and business firms in the PIIGS countries:
(a) to pay off the debt out of real economic growth;
(b) to forgive it or remit it or restructure it wholly or in part – these are all euphemisms for the same thing; or
(c) to inflate it away by printing money and depreciating the currency in which debtors pay back creditors. In practice the best course may be a mixture of the three.

But Eurozone membership is a major obstacle to each one. The austerity measures insisted on by the ECB, the Germans, Finns, Dutch and Austrians are causing recession throughout the Eurozone, so there is virtually no economic growth. Debt forgiveness means that Governments and taxpayers in the creditor countries pay the bills of the PIIGS countries, but the pan-EU solidarity and fellow-feeling which would be required for that to happen does not exist. Inflating the euro-currency would require the ECB to do the opposite of what it is charged with doing under the Maastricht Treaty and would outrage opinion in Germany and elsewhere.

So Eurozone membership rules out all sensible ways out of the crisis. Consequently the prospect ahead is one of years of stagnation as long as the Eurozone holds together.

Contrast Iceland, a small country which Ireland and the other PIIGS countries should take as exemplar. Iceland’s debt crisis in proportion to its population was much worse than Ireland’s. Its banks had borrowed much more abroad than the Irish ones had. Iceland let its insolvent banks go bust and set up new clean banks to keep credit flowing.

It forced its foreign creditors to take a €60 billion loss on their improvident loans and came to an agreement with them on longterm repayment of the remainder. Iceland kept its own currency and restored its economic competitiveness by allowing its value to fall, imposing capital controls to assist it in the process.

Since the crisis broke in 2008 Iceland has entered and exited an IMF lending programme and returned to borrowing on the international bond markets. Instead of the Icelandic State taking on past private bank losses as the ECB pressurized Ireland into doing, foreign investors see Iceland as facing the future rather than the past and the State there as being in a much better position to repay future borrowings.

Iceland’s economic growth in 2012 is estimated to be 3% – Ireland’s being virtually zero. Iceland’s unemployment rate is now 5%, one-third of Ireland’s near 15%, which would be 20% but for heavy emigration – over 80,000, mainly young people, in the year to April 2011 alone. Compare Portugal’s 16% unemployment rate, Spain.s 20% and Greece’s 25%.

In the initial panic in 2008 Iceland’s Government applied to join the EU in the hope of a quick fix, but Icelandic public opinion has now turned strongly against that course. Back in autumn 2008 the joke used be that the only difference between Ireland and Iceland was one letter and six months, but that joke is now on us. The economic experts who predicted doom for Iceland and salvation for Ireland by following their very differen courses, have proved catastrophically wrong.

Tackling the EU/Eurozone Leviathan:

The project of EU/Eurozone integration is at bottom an attempt to overturn the democratic heritage of the French Revolution, the right of nations to self-determination, national independence and national democracy, across much of Europe in the interest of powerful political and economic elites.

As the world moves towards 200 States and more, this collective right to democracy within a State is now accepted as a basic principle of international law and the foundational value of democratic States and democratic politics within them – but not by the elites of the EU, who have subverted their own national democracies.

The Euro-integration project therefore makes the classical “national question”, the issue of national independence, of who makes the laws and rules of a society, whether the elected representatives of Europe’s different national communities, or unelected rulers and elites from outside, the key issue of European politics in our time. This is true even for countries like France, Germany, Britain, Spain etc. which were imperial powers themselves not long ago, with centuries of history behind them in which they dominated and laid down the law for others.

At year’s end 2012 Mr Dan O’Brien, Economics Editor of the Irish Times, a paper which editorially has for decades been a missionary for Euro-federalism, wrote: “A banking union for the Eurozone has been agreed in mid-summer and it became increasingly obvious that the next change to the EU treaties will have to create something akin to a united states of Europe if the euro is to last” (28-12-2012). Of course people were not told this when they agreed to adopt the euro in the first place.

So the vision of the Eurocrats is that the 17 peoples of the Eurozone must completely abandon their national independence and democracy, reversing centuries of European history in the process, in order to save the ill-starred euro-currency.

And assuming that that objective is attained, what happens then? Does European history come to a halt? Will the European Army of Chancellor Angela Merkel’s Karlspreis speech hold the resultant rickety edifice together? Can anyone seriously imagine that the PIIGS countries will rest content with being turned into the collective Mezzogiorno of a fully federal Eurozone?

The more the EU-elites and bureaucracy push ahead with the integration project, the more national voters everywhere dislike it and resent it. The more hostile will be popular reactions against its proponents when it implodes, as eventually it must. The ever-growing numbers of opponents of EU-integration across Europe now constitute an international movement in defence of national democracy and the Nation State as the locus of that democracy.

That is why genuine democrats everywhere who wish to advance the common good of their respective peoples, need to oppose every step towards further EU integration and to have as their objective the winning back of the State powers their governing elites have cooperated to take from them. This holds whether people are on the political Right or Left or Centre on other issues. This is now the guiding principle of progressive national and international politics for our time whether in Ireland or the other EU countries.

Good Sources of Information on the EU:

• Eur Lex, official data base of EU laws http://eur-lex.europa.eu/en/index.htm;
• Open Europe daily European press summary from http://www.openeurope.org.uk ;
• EUobserver.com – daily news for free ;
• EUabc.com – an EU dictionary with 1200 index words and thousands of links ;
• Consolidated Reader-Friendly Edition of the Treaty on European Union and the Treaty on the Functioning of the Union, with Index, Glossary and links to individual provisions, edited by former Danish MEP Jens-Peter Bonde, at en.euabc.com ;
• Christopher Booker and Richard North, “The Great Deception, Can the European Union Survive?” ISBN: 0-8264-8014-4, probably the best book in English on the historical development of the EU.

This document has been drafted for public information by Anthony Coughlan, Director of the National Platform EU Research and Information Centre, 24 Crawford Avenue, Dublin 9; Tel.: 01-8305792; Web-site: nationalplatform.org It is issued to mark the 40th anniversary of Ireland joining the then EEC in January 2013. Please feel free to adapt it wholly or or in part and circulate it to others if one wishes without need of reference to or acknowledgement of its source. Originally published on Indymedia.ie

“There is no example in history of a lasting monetary union that was  not part of one State.”  -  Otmar Issing, former chief economist German Bundesbank, later governor of the ECB, c.1999

“That in what pertains to the control of credit the constant and predominant aim shall be the welfare of the people as a whole”  – Irish Constitution, Article 45, Directive Principles of Social Policy

“A federalised banking union: Europe too has a ready model across the Atlantic … The logic of federalizing this [banking] function is as powerful in Europe as is has always been in the US. ” -  Irish Times editorial, 7 June 2012

“The United States or Australia and New Zealand are immigrant societies and therefore they still accommodate more readily those from other backgrounds than we do ourselves, who still nurse a sense of our homogeneity and difference from others. And that’s  precisely what the European Union, in my view, should be doing its best to undermine.” – Peter Sutherland, House of Lords Migration Committee, BBC News, 21 June 2012

*   *   *

We live under a system of finance capitalism in which the interests of peoples and of States are subordinated to those of bankers by the bulk of national politicians.

Politicians in the peripheral countries of the Eurozone shifted the bad debts of insolvent banks on to the shoulders of national taxpayers  to prevent those banks going bust and to ensure  that the German and French banks which were responsible for most of the improvident lending would get their money back.

They now want to shift control of banks and banking to the supranational level so that the big banks in the big EU countries can more easily gobble up the small banks in the smaller, while simultaneously taking another step on the road to the fiscal and political union the Eurofanatics have been dreaming of for decades.

An EU banking union would deprive national States of the ability to make banking and credit creation serve national developmental goals.

It would make it impossible for the State to insist that Irish banks should subscribe to its State debt.

Having given up the power to issue money by joining the Eurozone, advocates of a banking union in the EU would pass control of credit in Ireland to banks outside the country completely.

Will the rest of the Irish media follow the lead of the Irish Times in supporting this latest lurch towards economic and political catastrophe?

It is par for the course that the career federalists and ex-Trotskyites who form Irish Times editorial policy on Europe should show their anti-national animus by supporting every move to strip the Irish State of all classical State functions.

With the sole exception of the great Douglas Gageby every editor of that paper has shared the national self-contempt which makes them identify with foreign rulers more than with their own people.  In the old days it was the British Empire. Today it is the aspiring Eurozone empire. They and those around them can thereby flatter themselves they are superior to the local “Paddies”.

But will the rest of the Irish media and the Irish political class follow the Irish Times further down the road to economic and political catastrophe?

“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.

The Government will seek Dail approval of:
The Article 136 TFEU amendment to the EU Treaties which authorises the setting up of the permanent Eurozone loan fund, the European Stability Mechanism
+ A motion to approve the ESM Treaty which is authorized by this amendment
+ A motion to approve future Government spending on the ESM,

TODAY – WEDNESDAY, AND TOMORROW – THURSDAY.
A guillotined debate on the second reading of the latter Bill will take place TOMORROW.

This means that the whole business of signing up the Irish State to the ESM Treaty for the Eurozone and committing us to significant expenditure to help bail out Spain and other Eurozone countries in the coming period, could go through all stages in the Oireachtas BY THE END OF NEXT WEEK – with minimal debate in the Irish media over the long-term implications of these steps or awareness of what this all means amongst the general public.

The ESM Treaty can be downloaded from the internet – http://www.european-council.europa.eu/media/582311/05-t…2.pdf

The relation of the ESM Treaty to the Article 136 TFEU amendment to the EU Treaties authorizing it and to the Fiscal Treaty which Irish voters voted on last Friday is set out in the publication “A Tale of Two Treaties” by Cork solicitors Joe Noonan and Mary Linehan.

This can be downloaded from the internet at: http://taleoftwotreaties.tumblr.com

The letter below to the Ambassadors in Ireland of those EU States which have not yet ratified or approved the ESM Treaty or the Article 136 TFEU amendment sets out the reasons for regarding the ESM Treaty as it stands as illegal under EU law and in violation of the Irish Constitution.

A reformatted standalone version of this as explanatory text, is available here - http://nationalplatform.org/2012/06/06/4-reasons-the-esm-treaty-is-illegal-2/ – “4 Reasons why the ESM Treaty is illegal”.

If these measures are pushed through the Oireachtas this week and next in the way the Government proposes, the only way this profound illegality and unconstitutionality can be prevented is by President Higgins referring the relevant Bill to the Supreme Court for adjudication or by Deputy Thomas Pringle’s legal team securing a relevant injunction to stop it pending a Court hearing of the issues.

Yours sincerely

Anthony Coughlan
Director

_______
Copy of letter sent individually to the Ambassadors in Ireland of European Union countries which have not yet ratified the ESM Treaty or constitutionally approved the Article 136 TFEU amendment authorizing that treaty, re Deputy Thomas Pringle’s constitutional challenge to the ESM Treaty and his call for a referendum on that:
_______

FROM:
The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9
Ireland
Tel.: 00-353-1-8305792

Friday 1 June 2012

Your Excellency,
I am writing to you on behalf of this organisation to request you to draw your Government’s attention to the fact that the proposal to ratify the European Stability Mechanism Treaty as it stands and to approve the Article 136 TFEU amendment to the EU Treaties as authorizing the Stability Mechanism envisaged in the ESM Treaty, are unlawful under the EU Treaties and are therefore unconstitutional in Ireland and the other EU Member States.

I am writing on similar lines to the Ambassadors to Ireland of the other EU Member States which have not yet ratified the ESM Treaty or approved the Article 136 TFEU amendment.

You are doubtless aware that there are constitutional challenges to the ESM Treaty and the Article 136 TFEU amendment in your own country, in Estonia and in Ireland. In this country Independent Dáil Deputy for Donegal Mr Thomas Pringle has launched a constitutional challenge on these matters which opens in the Irish High Court on 19 June.

We are informed that Deputy Pringle’s lawyers are seeking a constitutional referendum in Ireland on the ESM Treaty. They are also claiming that the EU Treaties should be amended under a different provision of the Art.48 TEU treaty revision procedure than that being currently used if the ESM Treaty as it stands is to be lawfully ratified under EU law.

Deputy Pringle’s legal action is seeking to defend the principle that the EU is an entity governed by the rule of law in face of a political attempt to change the EU treaties by subterfuge and to open a way to transforming the present EMU into a fiscal-political union for the Eurozone.

While my colleagues and I are not involved in Deputy Pringle’s action, we and many other Irish people share his concerns that the integrity of the existing EU Treaties and the Irish Constitution be upheld in face of the attempt by some Eurozone Governments effectively to take the Eurozone captive for their own ends and to organize the Economic and Monetary Union on quite different principles from heretofore by means of this ESM Treaty.

May we respectfully request you therefore to urge your Government not to proceed with your country’s ratification of the ESM Treaty or approval of the Article 136 TFEU authorisation until the Irish Courts have ruled on the issues raised by this constitutional action.

The reasons which lead us to believe that the ESM Treaty as it stands is illegal under EU law and unconstitutional in Ireland are the following:-

1.) Article 3 TFEU of the EU Treaties which have been 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 and to establish among themselves a Stability Mechanism entailing a €700 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 significant contributions for the indefinite future, would trench profoundly 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”.

A radical step of this kind, which would transform the Economic and Monetary Union from what it has been up to now, may only lawfully be taken by means of the “ordinary” 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” treaty amendment procedure of Art.48.6 TEU.

The latter procedure is meant to deal with minor technical amendments to the 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 this ESM Treaty as it stands.

2.) How can it be lawful for the ESM Treaty to permit a permanent ESM loan 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 in capitals 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 it envisages 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 that may need assistance from it badly 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 so-called “Fiscal Treaty” – the Treaty on Stability, Coordination and Governance in the EMU – on which Irish voters have just voted 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 be lawfully binding on them under EU law?

3.) How can the ESM Treaty be lawfully ratified by July 2012, as is the stated intention of the 17 Eurozone governments concerned, when the Article 136 TFEU amendment to the EU Treaties authorising a Stability Mechanism 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 must be 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 shows again how the exigencies of a political response to the financial crisis by some Eurozone States puts them in breach of EU law and therefore of the Irish Constitution.

4. ) EU Member States may only sign international treaties that 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 Treaty which involve the EU Commission and Court of Justice in the implementation of the proposed ESM go well beyond what is permissible under the current EU treaties and are therefore unlawful.

May I inform you that copies of this letter are being released to the Irish and international media for their information regarding the concerns which are widely shared in this country that the proposed ESM Treaty is in violation of EU law and in breach of the Irish Constitution.

Yours sincerely

Anthony Coughlan
Director

The proposal to ratify the European Stability Mechanism Treaty as it stands and to approve the Article 136 TFEU amendment to the EU Treaties as authorizing the Stability Mechanism envisaged in the ESM Treaty, are unlawful under the EU Treaties and are therefore unconstitutional in Ireland and the other EU Member States.

There are constitutional challenges to the ESM Treaty and the Article 136 TFEU amendment in Germany, in Estonia and in Ireland. In this country independent Dáil Deputy for Donegal Mr. Thomas Pringle has launched a constitutional challenge on these matters which opens in the Irish High Court on 19 June.

Deputy Pringle’s lawyers are seeking a constitutional referendum in Ireland on the ESM Treaty. They are also claiming that the EU Treaties should be amended under a different provision of the Art. 48 TEU treaty revision procedure than that currently used of the ESM Treaty as it stands is to be lawfully ratified under EU law.

Deputy Pringle’s legal action is seeking to defend the principle that the EU is an entity governed by the rule of law in face of a political attempt to change the EU treaties by subterfuge and to open a way to transforming the present EMU into a fiscal-political union for the Eurozone.

While my colleagues and I are not involved in Deputy Pringle’s action, we and many other Irish people share his concerns that the integrity of the existing EU Treaties and the Irish Constitution be upheld in face of the attempt by some Eurozone Governments effectively to take the Eurozone captive for their own ends and to organize the Economic and Monetary Union on quite different principles from heretofore by means of this ESM Treaty. We have respectfully requested several ambassadors therefore, to urge their Governments not to proceed with their country’s ratification of the ESM Treaty or approval of the Article 136 TFEU authorisation, until the Irish Courts have ruled on the issues raised by this constitutional action.

The reasons which lead us to believe that the ESM Treaty as it stands is illegal under EU law and unconstitutional in Ireland are the following:-

1. Article 3 TFEU of the EU Treaties which have been 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 and to establish among themselves a Stability Mechanism entailing a €700 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 significant contributions for the indefinite future, would trench profoundly 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“.

A radical step of this kind, which would transform the Economic and Monetary Union from what it has been up to now, may only lawfully be taken by means of the “ordinary” 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” treaty amendment procedure of Art. 48.6 TEU. The latter procedure is meant to deal with minor technical amendments to the treaties, but 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 this ESM Treaty as it stands.

2. How can it be lawful for the ESM Treaty to permit a permanent ESM loan 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 it envisages 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 that may need assistance from it badly 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 so-called Fiscal Treaty – the Treaty on Stability, Coordination and Governance in the EMU – on which Irish voters have just voted 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 be lawfully binding on them under EU law?

3. How can the ESM Treaty be lawfully ratified by July 2012, as is the stated intention of the 17 Eurozone governments concerned, when the Article 136 TFEU amendment to the EU Treaties authorising a Stability Mechanism does not have legal effect, once if 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 must be 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 shows again how the exigencies of a political response to the financial crisis by some Eurozone States puts them in breach of EU law and therefore of the Irish Constitution.

4. EU Member States may only sign international treaties that 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 Treaty which involve the EU Commission and Court of Justice in the implementation of the proposed ESM go well beyond what is permissible under the current EU treaties and are therefore unlawful.
Copies of this article are being released to the Irish and international media for their information regarding the concerns which are widely shared in this country that the proposed ESM Treaty is in violation of EU law and in breach of the Irish Constitution.

Anthony Coughlan
Director, National Platform EU Research & Information Centre

First published online @ http://www.indymedia.ie/article/101936

• 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 Solutions – Why 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 union – TEEU 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.

“We did it for the euro”, former  Foreign Minister Micheál Martin admitted today regarding the infamous blanket bank guarantee of 30 September 2008 which shifted the debt of insolvent private Irish banks on to Irish taxpayers.

Now leader of the Fianna Fail Party, which lost three-quarters of its parliamentary seats in last year’s general election, Mr Martin told the Evening Herald newspaper for the first time  in an exclusive interview that  Irish taxpayers were left with a €34 billion bill for basketcase Anglo-Irish Bank because the Irish Government felt under pressure to save the euro-currency.

“Before any European facilities were established we ended up having to carry the burden on Anglo, and our taxpayers did. We believe that this is unfair in the sense that there was no European facility at the time and we did it to prevent contagion across the Eurozone.

“We did it for the euro and I think the Eurozone countries owe Ireland a review of this, either some write-down of that debt or a dramatic restricting that would lessen its impact.”

“We do have to get a better deal on that”, he said, but I do  not believe that we should use this treaty to leverage that”, he said, referring to next Thursday’s  Irish constitutional referendum  on the Fiscal Compact Treaty.

“Given how grave thinga are in Ireland, the last thing we want to do is to add to the uncertainty or the shakiness around.   There is no point in Ireland pushing, helping to push Europe over the edge. In terms of the European crisis, we’re coming to the end game,” he said.

The Evening Herald comments in an editorial under the heading: ”Martin claim on bailout is shocking”

“The claim that the 2008 bank bailout was engineered to save the euro will shock many.  Fianna Fail leader Micheal Martin, a member of the Cabinet at the time of the bank guarantee, has told the Herald bluntly:’We did it for the euro…we did it to prevent contagion across the Eurozone.’

“This differs from the then Government’s reason for the guarantee. At the time it stated that the guarantee was in tbe interest of the stability of the Irish economy and in the interest of the Irish taxpayer.

“If what Mr Martin says is true, it suggests that the taxpayer here was handed a multi-million euro bill in a fuitless attempt to shield other EU countries from financial disaster.

“ Martin claims that Europe now ‘owes’Ireland as a result.

“But could the bailout, or its scale, have been avoided if the previous Government held out for European reserve funds at the time?”