Taoiseach Cowen’s spoofery on Lisbon Two could make Irish media & people laughing stock of Europe

authorThursday 11 December 2008

author by National Platform for EU Research & Information
author address 24 Crawford Avenue Dublin 9
author phone 00-353-1-8305792

Taoiseach Brian Cowen’s hypocrisy in pretending to “respect” the people’s referendum vote on Lisbon is now evident, for not a jot or tittle of Lisbon will be altered when he forces the people to vote on it a second time next year.

Political Declarations or promises regarding future Treaties that are not yet even drafted will not alter a comma of the Lisbon Treaty.

If people vote Yes in Lisbon Two to exactly the same Treaty which they voted No to last June they will be changing the Irish Constitution so as to recognise the supremacy of the law of the new Union which Lisbon would establish over anything contrary, whether in the Irish Constitution or in political Declarations and promises that might be tacked on to Lisbon.

No political Declarations or promises about commitments and even Protocols in future EU Treaties can change Lisbon or the supremacy of the EU Court of Justice in interpreting that Treaty’s provisions. These will have come into force well before any further EU Treaty or Treaties will even be negotiated.

If the Irish media and public opinion allow themselves to be taken in by the kind of presentational trickery Taoiseach Cowen and his Government are now planning, they could be making themselves the laughing stock of Europe.

A promise by the 27 EU Governments that each Member State can keep a Commissioner permanently under Lisbon is valueless in the light of that Treaty’s provision that from 2014 Member States will lose their right to decide who their national commissioner will be.

For under Lisbon (Article 17.7, amended Treaty on European Union) a Government’s present right to decide would be replaced by a right to make “suggestions” only, for the incoming Commission President to decide (See notes below elaborating on this point).

Under the present Nice Treaty arrangements Member States would retain permanently their right to decide who their national Commissioner is – a right which they would lose under Lisbon.

The Nice Treaty requires that the number of Commissioners should be fewer than the number of Member States from 2009, but by an unspecified number to be agreed unanimously.

This requirement of the present Nice-based Treaties can be abided by, and Ireland and the other States can keep a national Commissioner permanently, by the simple expedient of reducing the number of Commissioners from 27 to 26 and permitting whoever holds the job of “High Representative for EU Foreign and Security Policy” – currently Spain’s Javier Solana – to attend Commission meetings instead of being formally titled a Commissioner from that State.

This can and should be done under the Nice Treaty. This would mean that the Commission arrangements would continue virtually unchanged from the present. Ireland would retain a Commissioner permanently except in the unlikely event of an Irish person being given the even more important job of High Representative.

Taoiseach Cowen and his Government have deliberately sought to isolate and put pressure on their own people by failing to say after the Lisbon referendum last June that Ireland would not ratify Lisbon in view of the people’s No vote.

If the Taoiseach had done that, continued ratification by the other EU States would have been pointless, for Lisbon requires ratification by all 27 States before it can come into force for anyone.

Such a stand would have led to the Lisbon Treaty being opened and a chance created for a more democratic rather than less democratic EU through a better Treaty.

The prudent stand now for the Government and for the EU is to wait for the UK general election and the likely advent to office in Britain of a Conservative Government which will be committed to holding a referendum on Lisbon in the UK and recommending a No vote to it, as long as we Irish do not alter our No vote before then.

That would put paid to the attempted isolation of Ireland, which its own Government has connived at.

It would also give our fellow countrymen and women in Northern Ireland a chance to vote on this Treaty-cum-Constitution which would make them real citizens for the first time of an EU that would have the constitutional form of a supranational Federal State run on most undemocratic lines under Franco-German hegemony.

(Signed)

Anthony Coughlan
Secretary


A NOTE ON HOW LISBON WOULD TAKE AWAY IRELAND’S RIGHT TO DECIDE WHO ITS NATIONAL COMMISSIONER WOULD BE:

Under the current Nice Treaty arrangements (Treaty Establishing the European Community, Article 214.2) Member States have the right to “propose” a Commissioner every five years. This is effectively a right to decide, because while the others can ask the Member State in question to give them some other proposal if they do not like the person proposed, if that Member State declines to change its mind, its proposal will prevail, for otherwise it can refuse to accept the proposals of the others.

Article 214.2 TEC reads:

“The Council, acting by a qualified majority and by common accord with the nominee for the President shall adopt the list of other persons whom it intends to appoint as Members of the Commission, drawn up in accordance with the proposals made by each Member State.”

Under Lisbon (amended Treaty on European Union, Article 17.7) Commissioners would be appointed on the basis of “suggestions” from the Member States. The word “proposals” is thus replaced in Lisbon by “suggestions“.

Effectively under Lisbon, if it should come into force, it will be the incoming President of the Commission, interacting with the Member States, who will decide what “suggestions” are acceptable to him or not.

The President of the Commission will be effectively decided first by a special qualified majority vote of the Prime Ministers and Presidents – 20 out of 27 – taking account of who has the majority in the EU Parliament. They will propose their nominee to the European Parliament, who will then “elect” him or her. If the European Parliament does not elect the person nominated as President, the Prime Ministers and Presidents must propose another candidate within a month.

Then when it comes to the individual Commissioners, Lisbon states (Article 17.7 amended TEU) :

“The Council, by common accord with the president-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of suggestions made by Member States, in accordance with the criteria set out in paragraph 3 …”

Paragraph 3 refers to the criteria of “their general competence and European commitment“.

The Commission President, the High Representative for Foreign and Security Policy and the other members of the Commission shall then

“be subject as a body to a vote of consent by the European Parliament”. If this consent is given “the Commission as a whole shall be appointed by the European Council, acting by a qualified majority”

In power-political terms the Big States in the EU can look with equanimity on the proposal that they should lose their national Commissioner for 10 years out of every 15 in the rotating system proposed by Lisbon, because they know that they will have the decisive say in appointing the new Commission President, who in turn will have the key role in deciding who ALL the Commissioners will be, based on mere “suggestions” rather than proposals from the Member States.

It is unlikely that that the incoming Commission President will adopt “suggestions” that are uncongenial or unacceptable to the Big States who will have been crucial in his or her own appointment.

Lisbon would thus endow the incoming Commission President with powers very similar to those of a Prime Minister at national level – the right to decide what “suggestions” from Member States are acceptable to him, so giving him the right to decide his “Commissioners/Ministers“, the right to allocate whatever jobs he likes to the Commissioners and the right to obtain their resignation and replacement at any time.


A NOTE ON THE BIG STATE POWER-GRAB FOR CONTROL OF A POST-LISBON EUROPEAN UNION

This is shown by three specific proposals of the Lisbon Treaty:

a) Appointing the new permanent EU President as a plum job by agreement of the Prime Ministers and Presidents among themselves, without any democratic input from the EU’s peoples. The new President would replace the present rotating six-month EU presidencies and would chair the summit meetings of Prime Ministers and Presidents for a period of 2.5 years, renewable once.

b) Basing EU law-making post-Lisbon on population size instead of the present system of weighted votes. This would double Germany’s relative voting weight in making EU laws from the present 8% to 17%, increase France’s, Britain’s and Italy’s from their present 8% each to 12% each, and halve Ireland’s from 2% to 0.8%.

Lisbon would therefore allow 15 EU States to outvote 12 in making European laws, so long as as the 15 constitute 65% of the total EU population of 500 million or so. France and Germany between them already have one-third of the EU’s population.

c) (i) Removing the right of Member States to decide their own Commissioner and effectively giving that function to the incoming Commission President, who will be a creature of the Big States.

(ii) Reducing the number of Commissioners by one-third from 2014 – a proposal that can be abandoned by unanimous agreement under Lisbon.

First posted online at indymedia.ie

category national | eu | press release

Comment: The Irish Government has betrayed its people

DECLAN GANLEY AND JENS-PETER BONDE
Today , Thursday 11 December 2008 @ 09:13 CET

EUOBSERVER / COMMENT – The French president yesterday told the group leaders of the European parliament that he has made a deal with the Irish government to hold a second referendum in Ireland to ratify the Lisbon treaty first rejected on 12 June by 53 percent of Irish voters.

None of the representatives of the Irish people who voted No to the Lisbon Treaty were consulted by the Irish government before they struck a deal with the French Presidency. The Irish government has simply ignored the result of the referendum and betrayed those people who voted No in the majority.
Government ministers, including the prime minister, have been urging other countries to “isolate” Ireland by ratifying the treaties so the Irish could sweat it out and then change their mind.

And what do they deliver as concessions to the Irish voters? Not one single word to be changed in the treaty that was also rejected by the French and Dutch voters in referendums in 2005 when it went under the name of “Constitution”.

Not one word or legal obligation will be changed. The same content will simply be put in a new envelope, just as Valery Giscard d’Estaing said about the change from the Constitution to the Lisbon Treaty. But this time, not even the headline or the wording will be changed.
It is the same text that was rejected.

It is legally doubtful if it is possible to repeat a binding referendum on the same text in the same parliamentary period.

In the new envelope, there will be a lot of nice words in Declarations. They have not the slightest legal value. They will neither change anything in the treaties nor hinder the court in Luxembourg from deciding directly against whatever the Declarations say.

Then, they will have the promise of a commissioner from each member state. Fine. But the Irish commissioner will be picked by a majority of prime ministers and presidents in the EU. The Irish government can come up with “suggestions”, but other member states decide.

It would indeed be a concession if they were change the treaty and allow every member state to elect its own commissioner, and it would be democratic progress if we could elect our commissioner in direct elections together with the elections to the European Parliament.

The Irish government has simply given in and will not even insist on the right of Ireland to nominate its own commissioner.

Declan Ganley is president of Libertas and Jens-Peter Bonde is president of the EU Democrats and a member of the European Parliament from 1979-2008

Why Lisbon is a bad Treaty for both Ireland and the EU

Preliminary submission to the Oireachtas Sub-Committee on Ireland’s Future in the European Union from The National Platform EU Research and Information Centre:

Why Lisbon is a bad Treaty for both Ireland and the EU

Ireland should remain a fully committed member of the present European Union and European Community that were established by the 1992 Maastricht Treaty on European Union.  It should not support the abolition of the present European Community and Union and their supersession by the proposed new European Union whose Constitution is set out in the 2004 Treaty Establishing a Constitution for Europe and the 2007 Treaty of Lisbon, and of which we would all be made real citizens for the first time.

The latter would be a radically undemocratic EU whose proposed Constitution has already been rejected by the voters of France, the Netherlands and Ireland in referendums.

The challenge facing Ireland is how it can induce the Governments of the other EU countries to respect the referendum votes of the peoples of France, Holland and Ireland itself when they rejected this proposed new and highly undemocratic European Union.

The best way of doing this is for the Irish Government to respect the vote of its own citizens last June, inform the other EU Governments that Ireland cannot ratify the Lisbon Treaty as it stands, and that it intends to await the almost certain arrival to office of a Conservative Government in the UK inside the next 18 months.  According to Shadow Foreign Secretary William Hague, writing in the Irish Times on  26 July 2008,  Britain’s incoming Conservative Government will be committed to putting Britain’s ratification of the Lisbon Treaty “on ice” and will hold a referendum on it in the UK and recommend a No vote to it if that Treaty has not come into force by the time it comes to office.  This will also give our fellow-countrymen in Northern Ireland an opportunity to vote on this important Treaty.

By taking such a stand the Irish Government will be upholding democracy in the EU and preventing it being deeply damaged by the political leaders of the big Member States, in particular France’s President Sarkozy and Germany’s Chancellor Merkel, whose power and voting weight in EU law-making would be markedly increased by the provisions of the Lisbon Treaty.  Ireland would  thereby be upholding the best ideals of the European project.

The principal reasons why the Lisbon Treaty is not in the interests of either the Irish people, of the peoples of the other Member States, or of the EU itself are as follows:-

1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU / Treaty on European Union) and would replace the existing EU with a legally new Union in the constitutional form of a supranational EU Federation with its own legal personality distinct from its Member States. Instead of being sovereign States in the international community,  Lisbon would thus reduce Ireland and the other Member States to the constitutional status of provincial states in a Federation, like Virginia inside the Federal USA or Bavaria inside Federal Germany. The laws of this new European Union would thereafter have primacy over national Constitutions and laws (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy).

2. It would make the 500 million people of the EU into real citizens of this new EU Federation, owing their prime obedience to its laws and loyalty to its authority over and above their citizens’ duty to their national Constitution and laws in any case of conflict between the two. One can only be a citizen of a State and all States must have citizens. Instead of  EU citizenship being “complementary” to national citizenship and essentially notional and symbolical (Art.17 TEC / Treaty Establishing the European Community).   Lisbon would make EU citizenship “additional to” national citizenship (Art.9 TEU). This would give us all a real dual citizenship, not of two different States but of the Federal and provincial levels of one State, as in the US or German federations. One example of this change: if Lisbon came into force MEPs, who at present are “representatives of the peoples of the States brought together in the Community” (Art.189 TEC), would become “representatives of the Union’s citizens“, just as in any State (Art.14.2 TEU).  Ireland’s statutory Referendum Commission failed to make any mention of these facts in the material it sent to citizens for the June 2008 referendum,despite being given €5 million to explain the constitutional amendment to voters.

3.  It would be a power-grab by the Big States, with EU law-making in the Council of Ministers based henceforth primarily on population size as in any unified State, thus greatly increasing the power of the Big EU Members with large populations and reducing the voting weight of Ireland and the other smaller states. Germany’s voting weight in making EU laws would go from 8% to 17% as a result, while Ireland’s would halve to 0.8% (Art.16 TEU).

4.  It would remove the right of Ireland and the other EU Member States  to decide who their national Commissioner would be in the ten years out of every 15 when Member States would have a Commissioner under Lisbon.  It would do this by replacing each Member State’s present right to “propose” a Commissioner – and to insist if need be on its proposal being accepted as a condition for it accepting the proposals of others (Art.214 TEC) – by the right to make “suggestions” only, and leave it for the incoming Commission President to decide (Art.17.7 TEU). Who the Commission President is would be decided mainly by the votes of the Big States. Again the Referendum Commission glossed over this significant Lisbon amendment in its information material to Irish voters by using the same word – “nominate” -  for the pre-Lisbon and post-Lisbon situations as if there was no difference!

5. It  would give the EU Court the power to decide our fundamental rights as EU citizens, rights which the EU and its Member States would then have to enforce over and above our rights as Irish citizens in any case of conflict between the two (Art.6 TEU and the EU Charter of Fundamental Rights).

6.  It would weaken National Parliaments further by abolishing 68 national vetoes and would give the EU power to make European laws binding on the nationals of the Member States  in some 30 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health and the EU budget.

7. It would give the EU the power to raise its own taxes and impose any tax, including income tax or sales tax, by consensus amongst the governments, without the need for further new treaties or referendums (Art.311 TFEU /Treaty on the Functioning of the EU).

8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court should decide that failure to do this constituted a “distortion of competition” (Art.113 TFEU).

9.  It would militarize the EU further, requiring Member States “progressively to  improve their military capablities” (Art.42.3 TEU ), and it contains what Commission President Barroso termed “a mutual defence clause”, requiring Member States to go to the assistance of other Member States in the event of war (Art.42.7 TEU).

10.  It would subvert workers’ rights by copperfastening the recent Laval, Rüffert and Luxembourg judgements of the EU Court of Justice, which were delivered after Lisbon was signed and which subordinate employee wage bargaining to the EU’s internal market rules. These judgements can be reversed only by a  special new Treaty Protocol.

11.  It would be a self-amending Treaty which permits EU law-making to be shifted from unanimity to majority voting without the need of new Treaties or referendums (Art.48 TEU).

12.  It would reintroduce the death penalty “in time of war or of imminent threat of war” for the European Army that it envisages by providing for the post-Lisbon EU acceding as a corporate entity, separate from its Member States, to Protocol 6 of the European Convention on Human Rights, which permits use of the death penalty on these occasions, instead of to Protocol 13, which bans the death penalty in all circumstances and to which most EU Member States have acceded (Explanation attached to Art.2 of the EU Charter of Fundamental Rights). This item is in a footnote of a footnote in the Lisbon Treaty and has caused much controversy in Germany and Austria, although most people in Ireland have never heard of it.  Again the Referendum Commission made no mention of this proposal in its information material to Irish voters for the 2008 Lisbon referendum, although the matter was drawn to the Commission’s attention.
13. It would make National Parliaments formally subordinate to the post-Lisbon EU.  Far from increasing the power of National Parliaments, as pro-Lisbon spokesmen untruthfully assert, Lisbon underlines their implicitly subordinate role in the institutional structure of the post-Lisbon Union by providing that “National Parliaments contribute to the good functioning of the Union” by various means that are set out in Article 12 TEU.  Under Lisbon National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third of National Parliaments object, the Commission can then decide to continue with its legislation unamended, with its decision confirmed by the normal Council of Ministers QMV procedures (Protocol on Subsidiarity and Proportionality, Art.7.2).  In no sense can this be said to give “more control” to National Parliaments, as pro-Lisbon spokesmen continually assert in blatant contradiction of the truth.

14.  It would create a political government of the new Union by turning the regular summit meetings of EU Prime Ministers and Presidents, known as the European Council, into a formal legal instititution of the Union for the first time (Art.13 TEU). This would mean that  this body’s acts and failures to act would become subject to legal review by the EU Court of Justice (Arts 263-5 TFEU). This would also mean that individual Prime Ministers and Presidents would be constitutionally obliged henceforth to represent the Union to their Member States as well as their Member States to the Union, with the former function having  legal priority in any case of conflict between the two functions. The Referendum Commission ignored this important change in its information material too.

A Note on how all EU Member States may continue be represented on the EU Commission under the Nice Treaty provisions

The Lisbon Treaty’s provision that Member States would lose their present right to decide who their national Commissioner would be (Art.17.7 TEU) makes the retention of one Commissioner per Member State instead of their reduction by one-third from 2014 (Art.17.5 TEU) of little value anyway, should this be agreed among the EU Governments as expected.

A political declaration by the EU Prime Ministers and Presidents that if the Lisbon Treaty should be ratified by all Member State including Ireland,  the European Council will exercise its discretion in 2014 to maintain one Commissioner for every Member State might have some political but no legal value, for it would not be part of the Treaty.  It could only be relied on until such time as no one was paying attention anymore post-Lisbon, when the European Council could use its discretion to cut the number of Commissioners or – perhaps more likely – introduce permanent senior and junior ones.

The Nice Treaty’s Protocol on EU Enlargement (Art.4.2) requires the number of EU Commissioners to be less than the number of Member States from 2009, although by an unspecified number to be agreed unanimously.
If the  European Council is now prepared to accept that the number of Commissioners should continue to be equal or approximately equal to the number of Member States, the most practical way of doing this under the provisions of the Nice Treaty is for the Council to agree to reduce the number of Commissioners  from 27 to 26, with the person who holds the position of High Representative for Foreign and Security Policy sitting in on  Commission meetings in a non-voting capacity instead of having a Commissioner from that country.  This would mean that the Commission would remain practically unchanged from the present, with all  27 Member States being represented on it, while the provisions of the Nice Treaty were simultaneously abided by.

The scandal of the Irish Referendum Commission in the Lisbon Treaty referendum

(N.B. This press release is being posted to all TDs, Senators and MEPs, to the members of the High Court and Supreme Court, the Referendum Commission and  the Catholic Hierarchy, and to the media and leading activists on the Yes and No sides in the Lisbon Treaty referendum, in the interest of public information. Acknowledgment is made to the web-site posting by Mr Patrick Egan for the information below on the role of  A&L Goodbody Solicitors and Murray Consultants.)

The sheer dereliction of duty of the statutory Referendum Commission during the Lisbon Treaty referendum will assuredly be found shocking by future historians of our times.

The Oireachtas voted the Commission over ¤5 million to enable it do its job of informing citizens what the Lisbon referendum was about. Rarely can public money have been spent to such ill effect.  The Commission  spent ¤2.7 on media advertising.   It paid An Post ¤1 million to deliver 2.2 million information handbooks to households. In the circumstances it was a democratic miracle that the majority of Irish voters rejected the proposal to amend the Irish Constitution. If the Commission had done the job it was statutorily required to do, the No-side majority would almost certainly have been much larger, for people would have  learned of the constitutional revolution which Lisbon proposed, instead of being kept in ignorance of it.


The Commission Chairman and its members:


The Government appoints the  chairman of the Referendum Commission on an ad hoc basis for every referendum.   For Lisbon it chose High Court Justice Mr Iarfhlaith O’Neill as Commission chairman.  It is a legitimate career expectation of High Court judges that they will be appointed to the Supreme Court or the European Court in Luxembourg. The chairman of the Referendum Commission during the Amsterdam Treaty and Nice Treaty referendums was retired Chief Justice T.A.Finlay, for whom prospects of judicial promotion were irrelevant.

The regular members of the Commission are the Clerk of the Dail (Mr Kieran Coughlan), the Clerk of the Seanad (Ms Deirdre Lane), the Ombudsman (Ms Emily O’Reilly) and the Comptroller and Auditor-General (Mr John Purcell).

Rubber-stamping its Chairman’s remarks instead of speaking with a collective voice:


The Referendum Commission is statutorily bound to act as a collectivity. The statements it issues should be approved by all its members. There is no provision in the Referendum Act which permits the Chairman to arrogate to himself the job of “clarifying” or explaining contentious issues of the referendum debate.  Previous Referendum Commissions never attempted to do anything like that.  Yet at two press conferences during the Lisbon referendum Mr Justice O’Neill  took it upon himself to “clarify”, as he put it,  contentious issues dealing with the implications of the Lisbon Treaty for such matters as company taxation, abortion, neutrality, a WTO veto etc., where political and legal judgements about what could happen if Lisbon was ratified were closely intertwined.

Judge O’Neill’s “clarifications” in each case lent heavily towards the Yes-side interpretation of these matters and were fulsomely welcomed by Government and other Yes-side spokesmen.  Because of the impromptu nature of oral statements the other Commission members could not stand over everything said  by Judge O’Neill on these occasions.  They thereby failed in their duty to express at all times an agreed collective view. They must have been embarrassed when their Chairman was unable to answer a question on the Treaty at his second “clarificatory” press event.

On Tuesday 13 May Judge O’Neill made a clear error of fact when he stated on RTE that the Laval/Vaxholm judgement of the EU Court of Justice was given before and not after the Lisbon Treaty was signed. The implication of this was that this judgement had been taken into account by the signatories of the Treaty and there was therefore no case  for rejecting the Treaty because  its framers had not known of it.  In fact this Court judgement was given five days after the Lisbon Treaty was signed, so that it  could not have been taken into account or responded to by the signatory States.  This was an important referendum issue for some No-side campaigners.

Mr Justice O’Neill’s mistake thus helped one side as against the other. Future Referendum Commissions should veto any attempts at such solo flights by their chairman and follow the sound procedures set out in previous referendums by retired Chief Justice Finlay.

Conflicts of interest on legal advice and public relations consultants:

The Referendum Commission paid  ¤47,000 for legal advice, mostly from solicitor firm A&L Goodbody. It paid ¤358,000 for printing and design of publications, part of the design being done by DMH, a company linked to Murray Consultants, public relations advisers.  Ms Olivia Buckley, one of the two Murray Consultants executives dealing with the Referendum Commission contract, whose name appeared as a contact on Referendum Commission press releases, was, for a period of five years up to the May 2007 general election, the press director of the Fianna Fail Party. She is  a native of Ferbane, Co Offaly and has been closely associated with Taoiseach Mr Brian Cowen.  A&L Goodbody are one of the patrons of Chambers Ireland, an organisation that campaigned for a Yes vote in the referendum, as well as acting as legal adviser for IBEC, another organisation that campaigned for a Yes vote

These conflicts of interest might be overlooked if one could be satisfied that the Referendum Commission itself selected Murray Consultants and A&L Goodbody.  Section 4 of the Referendum Act 1998 provides that the Referendum Commission may from time to time engage such consultants and advisers as it considers necessary or expedient for the performance of its functions, thereby clearly envisaging that any such consultants or advisors will be selected and appointed by the Referendum Commission itself.

The Government’s  own E-tenders website, however, showed that the request for tender for ¤3.5 million of ‘Marketing, Communications and Project Management Consultancy services for the Referendum Commission’ was published on 19 February 2008, three weeks before the Referendum Commission was called into being on 6 March 2008. Disturbingly, the request for tender stated that tenders were to be submitted to the Department of Foreign Affairs, even though the holding of referendums and the establishment of the Referendum Commission is a matter for the Department of the Environment  and Local Government. No explanation has been provided for the involvement of the Department of  Foreign Affairs and no confirmation has been given that the choice of Murray Consultants was that of the Referendum Commission itself and not the Department of Foreign Affairs.


In relation to the selection of A&L Goodbody Solicitors as legal advisers to the Referendum Commission, there was not even a public tender process carried out, whether by the Referendum Commission itself or by any government department on its behalf. No information has been disclosed as to when A&L Goodbody Solicitors were selected, who selected them and indeed how they came to be selected.

Under the Referendum Act the Referendum Commission  is required to furnish, within six months of the referendum, a report to the Minister for the Environment and Local Government on the carrying out of its functions. The Minister for the Environment and Local Government is to lay this report before the Dail. It is to be hoped that the serious questions relating to the appointment of the Commission’s legal advisers and PR people, and the validity of the tendering process, will be addressed in this report or else raised in the Dail.

The most sensible, effective and probably the cheapest way for the Referendum Commission to get legal advice on an EU Treaty if it needs that, is to hire two top-rank authorities on EU law, one who favours a Yes vote and the other who favours a No, and when they cannot agree on a matter of legal interpretation, the members of the Commission should make up their own minds.  If the disagreement on interpretation persists among themselves, it should inform the public of that fact.  This is the way in which the function of providing the public with accurate information on contentious issues is carried out by statutory bodies similar to the Referendum Commission elsewhere, for example in Denmark.

The Referendum Commission’s profound failure to carry out its statutory function of explaining the actual Constitutional  Amendment and its text to Irish voters:


The poor quality of the legal advice adopted by the Referendum Commission is shown by the fact that the Commission substantially  failed to carry out its statutory duty under the Referendum Act establishing it.

Irish referendums are a form of direct legislation in which citizens are legislating on a Bill to amend the Constitution and  deciding whether to adopt or reject that Bill. In the case of the Lisbon Treaty, the proposed constitutional amendment was set out in the 28th Amendment of the Constitution Bill 2008.

To help Irish citizen-voters carry out their legislative task the Referendum Act imposes on the Referendum Commission the statutory obligation “to prepare a statement or statements containing a general explanation of the subject matter of the proposal (i.e. the proposal to amend the Constitution) and of the text thereof in the relevant Bill and any other information relating to those matters that the Commission considers appropriate“.

In view of this clear injunction from the Oireachtas it is surprising that neither the Referendum Commission’s web-site when it was first set up, nor the Handbook which it sent  to  all voters,  gave the text of the proposal to amend the Irish Constitution, or even a summary of it. The  text was put on the web-site following private representations by this organisation, but no change was made to the Handbook.

The Commission’s Handbook to Voters was significantly misleading -  by omission  -  in that it stated, on Page 2: “You are being asked to decide whether or not to change the Constitution of Ireland to allow Ireland to ratify the Treaty of Lisbon.” But that was only part of the decision Irish voters were asked to make on 12 June 2008 in the proposed Constitutional Amendment.

The first sentence of the Constitutional Amendment which was set out in the 28th Amendment of the Constitution Bill made clear that the Amendment’s purpose was for the people to give permission to the State to ratify the Treaty of Lisbon AND to “be a member of the European Union established by virtue of that Treaty.”

However, the  Referendum Commission’s explanatory material  made no reference whatever  to the latter part of this sentence, despite its obvious importance.  Nor did it make any reference to the important sentence following, which would give the “laws, acts and measures” of the proposed  new post-Lisbon European Union constitutional supremacy over the Irish Constitution and laws.
The following are the first two subsections  – the centrally important ones  – of the  English text of the Constitutional Amendment which was put before Irish voters on 12 June 2008 and which was “the subject matter of the proposal and text thereof in the relevant Bill” that it was the statutory duty of the Referendum Commission to explain to citizens:

“10:   The State may ratify the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community,  signed at Lisbon on the 13th day of December 2007, and  may be a member of the European Union established by virtue of that Treaty. (emphasis added)

11:   No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union referred to in subsection 10 of this section, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred  to in this section, from having the force of law in the State.”

By omitting any reference in the explanatory material on its web-site or in its “Voters’ Handbook to “the European Union established by virtue of that Treaty”, viz. the Lisbon Treaty, the Referendum Commission failed fundamentally in its statutory duty of explaining  to voters the profound constitutional difference between the European Union which would be established by the Lisbon Treaty and  the European Union which we are currently members of and which was established by the 1993 Maastricht Treaty.

The Commission thus failed  to inform voters that the legally new European Union which would  be established by Lisbon would, unlike the present EU, have the constitutional form of a supranational Federation in which Ireland and the other EU Member States would have the constitutional status of regional or provincial states, and of which we would all be made real citizens for the first time, rather than our being just notional, symbolic or honorary EU “citizens” as at present.

One can only be a citizen of a State and all States must have citizens. As real citizens of the constitutionally new  European Union to be established by Lisbon  -  and in contrast to the current EU which was established by the 1993 Maastricht Treaty – we would owe the post-Lisbon EU the normal citizens’ duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to the Irish State and the Irish Constitution and laws.

Lisbon would amend the existing European Treaties to make EU citizenship “additional to” rather than “complementary”  to national citizenship. We would still retain our Irish national  citizenship in the post-Lisbon Union,  but our new dual citizenship post-Lisbon would not be citizenship of two different States, but rather of the federal and regional-provincial levels of one State, as is normal in such classical Federations as the USA, Federal Germany, Switzerland and Canada.
The Irish Constitution would remain in being  after Lisbon – just as the various states of the Federal USA still retain their constitutions -  but it would be subordinate to the EU Constitution in any case of conflict between the two.  The rights and duties attaching to our  new EU citizenship would also be superior to the rights and duties attaching to our national citizenship in any case of conflict, because of the primacy of EU law over national law in the post-Lisbon Union, as indicated in the second sentence of the proposed Constitutional Amendment quoted above.

The present EU is not a State and does not have legal personality such that it can have citizens as members. The “European Union established by virtue of the Lisbon Treaty“, which is referred to in the first and most important sentence of the 28th Amendment of the Constitution Bill, would be quite otherwise in this and other respects.
These are major constitutional changes by any standard -  for the EU, for its Member States and for Irish citizens. Yet there was not a hint of them in the publicity material issued by the Referendum Commission: not a word about EU citizenship; not a word about Lisbon’s abolition of the European Community that we have been members of since 1973; not a word about Lisbon’s establishing a constitutionally new European Union, with legal personality for the first time, with  power to sign international treaties in all areas of its competence, with the same name but politically, legally and constitutionally with the form of a supranational  European Federation -  a very different entity altogether from the present EU.

The result? . . . Concealment from  the Irish people of  the constitutional implications of what they were voting on – by the very body which was  set up by the Oireachtas to inform them!

One can understand that the Government and Yes-side proponents  would wish to keep these major constitutional changes which would be made by the Lisbon Treaty  from the attention of Irish voters. But for the Referendum Commission to say nothing about them in its publicity material was a shocking delinquency.  It could have had dire constitutional results for this and future generations of Irish people if Irish voters had voted Yes – not  to  speak of  their implications for the peoples of Europe, who are being denied  referendums on this profound political and constitutional change  by private agreement among  their Prime Ministers and Presidents at their October 2007 summit meeting.

Positively misleading statements in the Referendum Commission’s publicity material on the mode of appointment of European Commissioners under Lisbon:


The  Lisbon Treaty provides that Ireland’s present right to “propose”  and decide its national Commissioner, and in effect to have that proposal accepted by the other Member States if their proposals are to be accepted by Ireland (Art. 214, current TEC), would be replaced by a right to make “suggestions”  regarding a name, for the incoming Commission President to decide (Art.17.7, amended TEU).  Member States would thus lose their present right to decide who their national Commissioners would be.  In other words, the Lisbon Treaty, if ratified,  would replace a bottom-up process for appointing  European Commissioners by a top-down one.

The Referendum Commission deliberately concealed this important  change, which would undoubtedly alarm some voters. Its Handbook to Voters  stated on page 5 that  “At present, each Member State nominates one member of the Commission”  and then goes on to say: “The right to nominate a Commissioner will rotate among the Member States on an equal basis.”

The use of the same word “nominate”  to describe the  mode of appointment of  European Commissioners  pre-Lisbon and post-Lisbon was quite misleading and concealed from Irish voters the fact that the Lisbon Treaty proposes a significant change in the mode of appointing a fellow-national as an EU Commissioner.


This misleading nature of the phrase “right to nominate” was brought privately to the Referendum Commission’s attention by the undersigned when it first appeared on the Commission’s web-site, but that led to no change. The same misleading statement  later appeared in the Referendum Commission’s Handbook posted to voters.

(Signed)
Anthony Coughlan
Secretary
The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9
Web-site:  nationalplatform.org
Tel.: 01-830579

1 September 2008

Minister Dick Roche: “The People Have Spoken”

You may find of  interest the remarks below of Mr Dick Roche TD  when a backbencher in 2001  and before he was promoted to Minister for Europe, regarding the proposal to re-run the Nice referendum.

They provide a piquant contrast to some of his recent statements.

The voter turnout in the 2001 Nice referendum was 35%,  in contrast to the  majority turnout in the 12 June Lisbon referendum.

“THE IRISH PEOPLE HAVE SPOKEN.”

Mr Dick Roche TD on why it would be a “democratic affront” to re-run the Nice Treaty referendum without making changes to the Treaty… spoken when he was a Dail backbencher in 2001  and before he was made Minister for Europe

“It is foolhardy to talk about another referendum at this stage unless something fundamental changes. To attempt to rerun a referendum as a means of reversing the democratic decision taken by the people would be rightly regarded as an affront. Something fundamental will have to be changed in the Nice treaty before we can even contemplate putting it before the people again.”

- Dail Debates, Vol. 358, pp. 1058-1061, 21 June 2001)

_________

Below are some further excerpts from the same Dail speech of Mr Roche, backbencher)

_________

 

“So far as the Nice Treaty is concerned, the Irish people have spoken and, like it or lump it, the Commission and its President have to accept it. They should do so with more good grace than they have shown in the recent past?

The Nice Treaty, no matter what its good intentions, is a document that has been democratically tested in only one Member State, and that is Ireland. It failed to meet the democratic test in this nation. It is an arrogance for any politician, either here or any Commissioner in Europe, to ignore the fundamental fact that the Irish people have spoken with some clarity on the matter. Yet last night the President of the Commission suggested that somehow or other the Irish people’s will can be undone. If the Commission, its leaders or the Governments of other European states decide to sweep democracy aside, we must ask on what basis is the future of Europe to be built?

Over the past two days I attended a meeting of the interim European Security and Defence Assembly. I was amazed and gratified in equal measure at the response by European parliamentarians from 28 different European nations to the Irish referendum.  It was an interesting and extraordinary eye-opener. There was no finger-wagging or suggestion that our people had been wrong or were confused; rather there was a degree of admiration for the decision the Irish had made. Speakers from the United Kingdom to Slovenia to Greece spoke on the issue. They indicated their support for the right of the Irish people to make a decision on this matter. They were by no means all Euro-sceptics. Speakers from a number of countries both within and outside the Union indicated that the Irish people by its vote reflected a common view and concern that now exists both within the EU and in those states most proximate to the EU. Members from the EU states who contributed directly in the debate or who spoke privately to the Irish delegation members indicated that it was their view – I made an effort to do a straw poll  – that referenda on the Nice Treaty as it currently stands, if held in other member states, would meet with the same public response as in Ireland.

There is something distinctly odd about democratic states attempting to take decisions that are out of line with the sentiment of their citizens. The gulf that exists between the citizens of Europe and the institutions, the commissioners and the bureaucrats who are now driving the Union, is nowhere more visible than in the area of peace, security and defence. In the run-up to the Nice Treaty the European Council decided, quite incredibly, that somehow the European Union could now take charge of peace, security and defence issues across the continent of Europe both within and outside the Union?

The issues raised by the rejection of the Nice Treaty in the referendum are of a fundamental nature.  I have listened with some dismay to today’s debate and the debate that has taken place in the weeks since the referendum. Many in the political leadership of the nation are more focused on making a political point about the referendum than on truly addressing the core issues behind the judgement passed by the people?

It is foolhardy to talk about another referendum at this stage unless something fundamental changes. To attempt to rerun a referendum as a means of reversing the democratic decision taken by the people would be rightly regarded as an affront. Something fundamental will have to be changed in the Nice treaty before we can even contemplate putting it before the people again?
The Nice treaty is a complex document which intends to achieve complex things.  It was sold to the Irish people as a means of providing for the enlargement of the European  Union. Last night Mr Prodi made it very clear that was not what the treaty  is about. He did not, however, make clear precisely what it is about. He was saying, therefore, that the enlargement process could be achieved without the Nice treaty.

I mentioned the assembly I attended yesterday and the considerable interest shown in the decision of the Irish people.  Some thought-provoking contributors indicated that the opportunity afforded the Irish people should also be offered to the citizens of other member states. Maybe then Europe would get a clear message about what the people of Europe expect in the coming years.”

- Dick Roche, 2001

* The Constitutional Implications of the Treaty of Lisbon [Updated]

The Constitutional Implications of the Treaty of Lisbon

- Giving the EU the constitutional form of a Federal State

Introduction: The peoples of Europe do not want to be turned into citizens of an EU Federation run on most undemocratic lines that would be under the effective control of the political elites of France and Germany.  They want their countries to remain independent democracies whose laws are made by people directly elected by the voters. By rejecting the Lisbon Treaty Ireland is saving both  itself and the EU from  a thoroughly bad Treaty which people in the other EU countries would  reject too if they got the chance to vote on it. This paper explains how the Lisbon Treaty, like the EU Constitution before it, would turn the Nation States of Europe into provinces of an undemocratically-run EU Federation and turn the peoples of Europe into real citizens of an EU State.

*   *   *

“The pooling of coal and steel production should immediately provide for the setting up of common foundations  for economic development as a first step in the federation of Europe.” (emphasis added)
- Schumann Declaration on the formation of the European Coal and Steel Community, 9 May 1950

“The Constitution is the capstone of a European Federal State.”
- Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21 June 2004

“From the inside it looks like an arrangement based on Treaties between States. From the outside it looks like a State itself.”
-  Jens-Peter Bonde, From EU Constitution to Lisbon Treaty …  euinfo.ie and euabc.com

“The State may ratify the Treaty of Lisbon signed at Lisbon on the 13th day of December 2007, and  may be a member of the European Union established by virtue of that Treaty.    No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union, or prevents laws enacted, acts done or measures adopted by  the said European Union or by institutions thereof, or by bodies competent under the treaties referred  to in this section, from having the force of law in the State.” (emphasis added)
Ireland’s 28th Amendment of the Constitution Bill 2008 …The first two sentences of the proposed  constitutional amendment which Irish voters rejected on 12 June 2008

*   *   *

1.  The Treaty of Lisbon is quite different from previous European Treaties, for it would give the EU its own State Constitution. If ratified it would establish a legally new European Union in the constitutional form of a supranational Federation.  It would thereby revolutionise the constitutional and political order of the EU itself and of its Member States.

Implicit in the first sentence quoted above from the Irish Government’s 28th Amendment of the Constitution Bill, which Irish voters rejected on 12  June 2008, is the fact that the Lisbon Treaty would establish a constitutionally  new European Union which legally and politically would be very different from what we know as the “European Union” today. The proposed constitutional amendment would have permitted Ireland to become a member of “the European Union established by virtue of that Treaty”, namely the Treaty of Lisbon. This  implicitly indicated  that the post-Lisbon Union would be a different EU from that which stems from the 1992 Maastricht Treaty on European Union, which is the EU that we are members of at present.

The “European Union established by virtue of that Treaty”, which a majority of Irish voters rejected in their June 2008 referendum,  corresponds to the Union that was referred to in the first sentence of Article I-1 of the Treaty Establishing a Constitution for Europe, which the voters of France and Holland rejected in their 2005 referendums.  This sentence stated: “This Constitution establishes the European Union.”  That sentence in turn corresponded to the following sentences  in Article 1 of the amended Treaty on European Union which would be inserted  by the Treaty of Lisbon if that treaty should be ratified:  “By this treaty the High Contracting Parties establish among themselves a European Union, hereinafter called ‘the Union’ on which the Member States confer competences to attain objectives they  have in common … The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the Union (hereinafter referred to as ‘the Treaties’). Those two Treaties shall have the same legal value. The Union shall replace and succeed the European Community.

Both the 2004 EU Constitutional Treaty and the Treaty of Lisbon which succeeded it would give the constitutional form of a supranational Federation to the new European Union which they each aimed to establish.  Ratification of the Lisbon Treaty would therefore usher in a constitutional and political revolution in what we call the European Union today and in the national constitutional order of the EU’s Member States.  Most people are unaware of this, for the whole process has been shrouded in deception.  Explaining the constitutional and political difference between the post-Lisbon Union and the pre-Lisbon Union is made difficult by the fact that the same name, “The European Union”, is being used for two entities, the pre-Lisbon EU and the post-Lisbon EU, which are constitutionally and politically profoundly different from one another.

The Lisbon Treaty would bring about this constitutional revolution by amending fundamentally the two existing European Treaties, the Treaty on European Union (TEU) and the Treaty Establishing the European Community (TEC). The former would retain its name, while the latter would be renamed the Treaty on the Functioning of the European Union (TFEU).  These two amended Treaties would then become the de facto Constitution of the post-Lisbon European Union which they would constitute or establish, although they would not be called a Constitution.  The EU would thus be given a Constitution indirectly rather than directly, as had been proposed in the original Treaty Establishing a Constitution for Europe. The 1993 Maastricht Treaty was a Treaty ON European Union, not “Of ” Union, for it did not establish an entity with legal personality which could be called the EU.  The Consolidated Treaties as amended by Lisbon would effectively become the “Treaty OF European Union”, for they would do that.

The provision of the Lisbon Treaty that “The Union shall replace and succeed the European Community” (Art.1, amended TEU) makes clear that the post-Lisbon Union would be quite a new entity, as the European Community which Ireland joined in 1973 and of which the 27 countries are all currently members,  would cease to exist.

Member States would still retain their national Constitutions post-Lisbon, but they would be subordinate to the new Union Constitution, as the second of the two sentences quoted above from the 28th Amendment  of the Constitution Bill makes clear.  As such the Irish and other Member State Constitutions would no longer be constitutions of sovereign States, just as the various local states of the USA retain their constitutions although they are subordinate to the Federal USA Constitution.

The new European Union’s powers would be conferred on it by its 27 Member States, for the latter would voluntarily have agreed to obey the EU’s superior authority in the policy areas surrendered, which nowadays cover much the greater part of government. Where else after all could the new Union obtain its powers?   This so-called “principle of conferral” is normal in all classical “bottom-up” Federations, such as the USA, 19th Century Germany, Switzerland, Canada and Australia, where originally sovereign States agree to surrender sovereignty to a higher federal authority.  These contrast with Federations which have been established by unitary States assuming federal form, for example  post-World War 2 Germany, Russia, India, Nigeria etc., which might be regarded as “top-down” Federations.

The Lisbon Treaty provision permitting a Member State to leave the EU (Art.50, amended TEU) also occurs in some Federal constitutions. There was such a provision in the early constitution of the USSR for example.  The remaining governmental powers, which have mainly to do with the traditional social services and the taxation needed to finance them, would remain with the Member States post-Lisbon. State sovereignty in the new post-Lisbon Union would be divided between the Federal and local state levels, as is normal in classical Federations.

The metamorphosis of the pre-Lisbon EU into a post-Lisbon Union with the same name but of fundamentally different constitutional and political character, is underpinned by changes in the formal structure of the amended Treaties which would become the new Union’s Constitution. The two treaties, the TEU and TFEU, are stated to have the same legal value (Art.1, amended TEU).  Up to now, Article 47 TEU has determined that the Treaty on European Union is subsidiary to the Treaty Establishing the European Community (TEC), which Lisbon would rename The Treaty on the Functioning of the European Union (TFEU).  Post-Lisbon, this Article 47 TEU would be replaced by Article 40, amended TEU, which stipulates the subsidiarity of the Common Foreign and Security Policy(CFSP)  only, as against the other competences set out in the treaties. Moreover, the Lisbon Treaty would insert the new Title III on the institutions of the new Union into the Treaty on European Union, the primary treaty, and remove them from the Treaty on the Functioning of the Union, the present TEC, where they are currently set out.

2.  The Treaty would empower the post-Lisbon European Union to act as a State vis-a-vis other States

To understand the change that would be introduced by the Lisbon Treaty one needs to appreciate that what we call the European Union today is not a State. It is not even a distinct legal or corporate entity in its own right, for it does not have legal personality, although some legal writers contend that it has a form of  embryonic personality. Certain it is that the name “European Union” at present is the descriptive legal term for the totality of relations between its 27 Member States and their peoples. Article 1 of the current Treaty on European Union, deriving from the 1992 Maastricht Treaty which established the present EU, makes this quite clear when it states that “the Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organize, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.”

These relations appertain both to the “European Community” area, where supranational European law is operative, and the “intergovernmental” areas of foreign and security policy on the one hand and justice and home affairs on the other, where Member States cooperate freely with one another on the basis of retaining  their  State sovereignty and where European laws do not apply. These different areas, or “pillars” in EU terminology, together constitute what we call the European Union today.

The Lisbon Treaty would change this situation fundamentally by creating a constitutionally and politically new EU, while retaining the same name, the “European Union”.   Unlike the present European Union, this constitutionally new EU would be separate from and superior to its Member States, just as the USA is separate from and superior to Massachussetts or Kansas, or as Federal Germany is to Bavaria or Bremen.

This post-Lisbon Union would sign treaties with other States in all areas of its powers and conduct itself as a State in the international community of States. It would speak at the United Nations on agreed foreign policy positions, just as in the days of the Soviet Union the USSR had a UN seat while some of its component states, Ukraine and Byelorussia for example,  had UN seats too. Member States would be obliged to support the Union’s foreign and security policy “actively and unreservedly in a spirit of loyalty and mutual solidarity”(Art.24.3, amended TEU) (emphasis added). The word “loyalty” makes clear the constitutional relation involved.

The Lisbon Treaty would also give the EU a political President, a Foreign Minister – to be called the High Representative for Foreign and Security Policy -  a diplomatic corps, to be called the External Action Service,  and a Public Prosecutor.  The new EU would accede to the European Convention on Human Rights (ECHR), as most European States inside and outside the EU have already done.

The principle of the primacy and superiority of European law over the law of its  Member States  has not been stated in a European Treaty before.  Whereas Article I-6 of the 2004 Treaty Establishing a Constitution  for Europe did state this explicitly,  the Lisbon Treaty does that by referring in Declaration 17 concerning Primacy to the case-law of the European Court of Justice, which over the years has asserted the principles of (a) the superiority of EU law, (b) its direct effect in the territory of its Member States even if it has not been formally put through their National Parliaments, and (c) the constitutional character of the legal order from which European law emanates.

If the Lisbon Treaty were to be ratified European law and national law would deal with different areas and matters, as is normal in Federal States like the USA, Germany, Switzerland, Canada and Australia.  Lisbon would give the EU the power to make supranational laws that are binding on Member States and their citizens in many new areas and would take that power away from national Parliaments and from the citizens who elect these bodies.  The new Union would make the majority of laws for its Member States each year. Under Lisbon it would get further power to make laws by qualified majority voting in over 30 new policy areas. It would also be given new powers to take decisions in relation to as many specific issues. Altogether there would be some 68 areas or issues where individual Member States decide matters now and where under Lisbon they would lose their veto or their  right to decide.

3. The enormity of the constitutional change proposed by Lisbon is not generally  appreciated because the same name – “The European Union” – would be used before and after the Treaty would come into force, and because the notion of EU “citizenship” has already been introduced by the 1992 Maastricht  Treaty, although the Lisbon Treaty would change fundamentally the constitutional nature of  the Union itself, its Member States and the character and implications of  EU citizenship.

The change in the constitutional and political nature of the Union, its Member States and their citizens would be made in four legal steps which are set out in the Treaty of Lisbon:-

(a)  Lisbon would establish a European Union with full legal personality and a fully independent corporate existence in all Union areas for the first time, so that the post-Lisbon Union would be able to function as a State vis-a-vis other States and in relation to its own citizens (Art. 47, amended TEU; cf. Art.281 TEC);

(b)  This new European Union would replace the existing European Community and take over all of its powers and institutions (Art.1, amended TEU).  It would take over as well the “intergovernmental” powers over crime, justice and home affairs, as well as foreign policy and security, which at present are outside the scope of European law, leaving only aspects  of  the Common Foreign, Security and Defence Policy outside the scope of its supranational power (Title 1 TFEU; Title V, amended TEU);

(c) It would thereby give a unified constitutional structure to the new Union which Lisbon would constitute or establish. The European Community would disappear and all spheres of public policy would come within the scope of supranational EU law-making either actually or potentially, as in any constitutionally unified Federation (Art.4.1 and Art.5, amended TEU and Arts.1-6 TFEU).   One says “potentially” because further inter-State treaties would be required to transfer the minority of law-making powers still remaining with the Member States to the new Union in the future, or to shift powers back from the supranational level to the Member States, something that has never happened up to now.  Under Lisbon supranational legislative acts would not yet be adopted in the sphere of Common Foreign and Security Policy and a new treaty would be needed to change that.  However the European Commission, a key supranational body, would through the High Representative proposed in the Lisbon Treaty gain the right of initiative in the foreign policy field, so that even in the light of Art. 31.2, amended TEU a de facto “supranationality” would be attained there.

(d) Lisbon would make us all real citizens of the new Federal Union which the Treaty would establish (Arts.9, amended  TEU and 20 TFEU), with all the implications of that for downgrading our present personal status as citizens of  sovereign  Nation States and superseding it by citizenship of  the component member states of a supranational European Federation of which we would henceforth be made citizens also. We would thus have a real dual citizenship henceforth,  as in the classical Federations mentioned.

4.  The Treaty would make us all real citizens of this new European Union for the first time, instead of us continuing as notional, symbolical or honorary European “citizens” as at present. In constitutional terms this would give the post-Lisbon Union a new source of democratic legitimacy. In turn population size would become the prime criterion for EU law-making, as in any unified State with a common citizenry.

One can only be a citizen of a State, and all States must have citizens.  Citizenship of the European Union at present is stated to “complement” national citizenship (Art.17 TEC), the latter being clearly primary, not least because the present EU is not a State or a corporate entity which can have individuals as members. Our “complementary” citizenship of the present EU is therefore essentially notional, symbolical or honorary.

By transforming the legal character of the European Union, the Lisbon Treaty would simultaneously transform the meaning of Union citizenship.  The Treaty would delete the word “complement” in the sentence,“Citizenship of the Union shall complement national citizenship”, so that the amended sentence would read: “Citizenship of the Union shall be additional to national citizenship” (Arts.9, amended TEU and 20 TFEU).  This would not replace our national citizenship, but would for the first time make us real citizens of a real European Union on top of our national citizenship.

This would be a real dual citizenship – not of two different States, but of two different levels of one State – as is normal in Federations which are established from the bottom up by constituent states surrendering their sovereignty to a superior entity, as occurred historically with the USA, 19th Century Germany, Switzerland, Canada and Australia.   This development would give the 500 million inhabitants of the present EU Member States a real separate citizenship from citizenship of their national States for the first time. It would give a treble citizenship to citizens of the individual Länder within Federal Germany.

The rights and duties attaching to this citizenship of the new Union would be superior to those attaching to citizenship of Ireland in any case of conflict between the two, because of the superiority of EU law over national law and Constitutions. The Preamble to the Treaty on European Union refers to the aim of “establishing a citizenship common to nationals of their countries”.

As most States recognise that one can only have a single citizenship internationally, it is probable that over time one’s European Union citizenship would tend to be regarded by other countries as one’s primary and internationally definitive citizenship rather than one’s Irish citizenship, especially if a network of EU embassies and an EU diplomatic service were to be established to deal with citizenship issues internationally, as the Lisbon Treaty envisages.

An important federal feature of the post-Lisbon EU is that its laws would be made primarily on the basis of aggregate population size, as in any unified State with a common citizenry, rather than on the basis of  the weighted votes of  the Member States as at present.  Currently European laws are made by a qualified or weighted majority of Member States so long as they can muster 255 votes out of 345, with each State having so many votes. Under Lisbon EU laws would be made by 15 States or more out of 27, so long as they constitute 65% of the aggregate EU population.  The number of EU citizens presumed to be for or against an EU law would thus become the primarily determining factor in adopting it or not, although the votes would be cast by Government Ministers on the EU Council of Ministers rather than by the citizens themselves or their directly elected representatives. Germany and France between them contain nearly one-third the EU’s population, so that this citizen-population criterion would significantly increase the relative weight of these and the other Big Member States in EU law-making, while it would significantly diminish that of smaller States.

Lisbon would insert a new Article 10 into the amended Treaty on European Union: “The functioning of the Union shall be founded on representative democracy. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments …”  This  provision clearly sets up an alternative source of democratic legitimacy which challenges the right of national governments to be the representatives of their electorates in the EU.  Contrast this Lisbon Treaty formulation with what is stated to be the foundation of the present European Union (Art.6 TEU): “The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.”

It seems fair to say that Lisbon marks a qualitatively new stage in the gradual evolution of institutional structure away from Europe’s Nation States, which slowly but surely emphasises the idea of democratic legitimacy being developed independently of the Member States by EU-level institutions.

The concept of a direct democratic citizens’ mandate for the new post-Lisbon European Union is reinforced by the encouragement which the same Article gives to the development of European-level political parties that would be part funded by the EU Commission. These are stated to “contribute to forming European political awareness and to expressing the will of citizens of the Union.”(Art.10.4, amended TEU).  It is also emphasised by the obligation imposed on the EU Commission to bypass national governments and  “maintain an open, transparent and regular dialogue with representative associations and civil society”(Art.11.2, amended TEU).

5. Lisbon would create a Union Parliament for the Union’s new citizens

The Lisbon Treaty would make Members of the European Parliament, who at present are “representatives of the peoples of the States brought together in the Community“, into “representatives of the Union’s citizens” (Art.14.2, amended TEU; cf. current Art.189 TEC).   This clearly illustrates  the constitutional shift which the Treaty would make from the present European Union of national States and peoples to the new Federal Union of European citizens and their national states – the latter being henceforth reduced constitutionally and politically to effective provincial or regional status within the new Union.

The role of the European Parliament, which was first introduced as a modest check on the EU Executive and was styled an “Assembly” rather than a Parliament under  the Treaty of Rome,  has been elevated in successive EU Treaties. Its MEPs, direct representatives of EU citizens,  now have co-decision-making powers that put the EU Parliament on virtually equal terms with the Member Nation States in ever more areas – including electing the President of the Commission as presented to it by the European Council.  The shift of EU authority as arising directly from EU citizens rather than from the Member Nation States is reflected in the Lisbon Treaty when it states unequivocally that: “The Commission, as a body, shall be responsible to the European Parliament” (Art.17.8, amended TEU).  The European Parliament approves the Commission members en bloc and may force their collective resignation by a vote of censure.

By contrast, the Council of Ministers – consisting of representatives of the Member Nation States  – has shifted over time from being the directing authority of a European cooperation  in which the Member States acted largely by unanimous agreement, to being  a “second chamber” of national representatives casting votes on a qualified majority basis on European legislation proposed by the Commission. At the same time the Lisbon Treaty proposes to give the EU’s Prime Ministers and Presidents, collectively termed the “European Council”,   more political  control over the post-Lisbon Union

6. Lisbon would create a political Government of the new Union

The Lisbon Treaty would turn the European Council of Prime Ministers and Presidents into an “institution” of the new Union (Art.13, amended TEU), so that its acts or its “failing to act” would, like the other Union institutions, be subject to legal review by the EU Court of Justice (Arts.263-265, TFEU).

Legally speaking, these summit meetings of the European Council would thereafter no longer be “intergovernmental” gatherings of Prime Ministers and Presidents outside supranational European structures. As part of the new EU´s institutional framework, the Prime Ministers and Presidents would instead be constitutionally required to “promote the Union’s values, advance its objectives, serve its interests” and  “ensure the consistency, effectiveness and continuity of its policies and actions” (Art. 13.1, amended TEU).  They would also “define the general political direction and priorities thereof” (Art.15.1, amended TEU).

As an Institution of the new Union, the European Council of Prime Ministers and Presidents would, for example, be open in principle to exhortation or direction from the European Court of Justice to initiate steps to harmonise indirect taxes which constituted a “distortion of competition”, something that at present requires unanimity, if they were slow or reluctant to do this (Art.113 TFEU), or if they failed to take steps to ensure that the new Union’s “own resources” were adequate to meet its objectives(Art.311 TFEU).

The European Council would thus become in effect the Cabinet Government of the post-Lisbon Federal EU. Its individual members would in constitutional terms be obliged to represent the Union to their Member States as well as their Member States to the Union, with the former function having legal primacy in any case of conflict between the two.

7. The federalist character of the new Union political President

The federalist character of the European Council “summit” meetings in the proposed new Union structure is further underlined by the provision which would give the European Council a permanent political President for up to five years – two and a half years renewable once (Art.15.5, amended TEU).

There is no gathering of Heads of State or Government in any other international context which maintains the same chairman or president for several years, while individual national Prime Ministers and Presidents come and go.  The federalist character of the new Union President is emphasised also by the Treaty provision which forbids that person from holding any national office and which lays down that he or she shall “ensure the external representation of the Union“(Art.15.6, amended TEU).

It is part of the federalist evolution of the Union that the President of the European Council, the quarterly “summit” meetings of Member State Heads of State or Government, would no longer be a rotating Head of Government, but a permanent EU official.  If the President plays this role effectively – including setting the agenda for legislation and representing the EU on the international stage – he or she is bound to assume increasing status and importance. As a result it would be surprising if in due course there were not suggestions that the President should be directly elected by EU citizens, as France’s President Sarkozy has already urged.

8. The federalist character of the post-Lisbon Commission

As regards the EU’s executive arm, the Commission, the provision of the Lisbon Treaty which would reduce the number of Commissioners by one third of its Member States (Art. 17, amended TEU) is a symbolically important move away from “intergovernmentalism”, for that required  that every Member State had one of its own nationals at all times on the body which proposed all European laws.  An additional move towards a Federal institutional structure is the provision of the Lisbon Treaty which would remove from Member States the right to “propose” members of the Commission – which ensures that each State can insist on its proposals being accepted as a condition for it accepting the proposals of the others – and its replacement by a right to make “suggestions” only,  for the new Commission President to decide (Art.17.7, amended TEU; cf. current Article 214 TEC).  Individual Commissioners shall be chosen on the ground of their “European commitment” amongst other criteria (Art.17.3, amended TEU).  The Commission President would also have the power to shuffle the portfolios of individual Commissioners and require them to resign at will (Art.17.6, amended TEU)  These provisions would effectively give the Commission President powers equivalent to a national Prime Minister in the post-Lisbon EU.

9. Lisbon would endow the citizens of the new Union with a code of civil rights

All States have codes setting out the rights of their citizens. The EU Charter of Fundamental Rights would be that.  It would be made legally binding by the Lisbon Treaty and would “have the same legal value as the Treaties”(Art. 6.1, amended TEU) . This further embeds the concept that EU citizens have rights and responsibilities defined by the EU itself which transcend those attaching to their national citizenship. Indeed it embodies the concept that the EU determines and is the guarantor of those European citizenship rights across national boundaries.

The Charter is stated to be binding on the Union’s own institutions and on Member States in implementing Union law (Charter of Fundamental Rights, Art. 51). This limitation to EU law and to the EU institutions is unrealistic however because, (a) the principles of the primacy and uniformity of Union law mean that Member States would not only be bound by the Fundamental Rights Charter when implementing EU law, but also through the “interpretation and application of their national laws in conformity with Union laws” (v. ECJ judgements in the Factortame, Simmenthal and other law cases); and  (b) the Charter sets out the fundamental rights of EU citizens in areas where the Union has currently no competence, e.g. outlawing the death penalty, asserting citizens’ rights in criminal proceedings and various other areas. Post-Lisbon in any case Union law would require that the rights set out in the Charter of Fundamental Rights are guaranteed for all EU citizens. They would be part of their EU citizens’ entitlements. There would be little point to the Charter otherwise.  In implementing EU law Member States would be required to implement people’s rights as EU citizens side by side with their rights as national citizens.

The EU has already got a human rights competence in that the Court of Justice can adjudicate on such rights as equality and non-discrimination under the existing Treaties. Therefore making the Charter legally binding does not extend the powers or competence of the Union as such. What Lisbon would do would be to give the ECJ a much wider range of human and civil rights to interpret and decide on, for the Charter would cover all the fundamental rights of EU citizens in the post-Lisbon Union.   Making the Charter legally binding would effectively extend considerably the human and civil rights jurisdiction of the EU Court of Justice and would make that Court the final body to decide most of the rights of 500 million EU citizens in the vast area now covered by European law, as against national Supreme Courts and the Court of Human Rights in Strasbourg which are our final fundamental rights Courts today.

If Lisbon is ratified it is only realistic to expect that the EU Commission will in time come to propose European laws to ensure the uniform implementation and guarantee of the EU citizens’ rights provisions of the Charter throughout the Member States. The citizens of the new Union would surely demand no less. American constitutional history provides ample evidence of the radical federalising potential of the fundamental rights jurisdiction of the US Supreme Court.

10. Lisbon would make National Parliaments formally subordinate to the new Union

The Treaty underlines the implicitly subordinate role of National Parliaments in the institutional structure of the new Union by stating that “National Parliaments contribute actively to the good functioning of the Union” by various means which are set out in Article12, amended TEU.

Under the pretext of enhancing the role of National Parliaments, the Lisbon Treaty actually institutionalises their subservience by defining such a limited role for them in the new Union’s structures. National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if a third or more of National  Parliaments object, the Commission can then decide to continue with the legislation unamended, with its decision confirmed by the normal QMV procedures.

Ultimately it is the EU itself, through the Court of Justice, which has the final right to arbitrate on claims of subsidiarity infringement (Protocol on Subsidiarity and Proportionality, Article 7).  This provision of the Treaty permitting National Parliaments in effect to complain to the Commission, is small compensation for the loss of democracy involved by the loss of some 68 vetoes by National Parliaments as a result of other changes proposed by the Lisbon Treaty. National Parliaments have in any case already lost most of their law-making powers to the EC/EU. The citizens who elect them have lost their powers to decide these laws also.

11. Lisbon would give the new Union self-empowerment powers

These are shown by:

(a) the enlarged scope of the Flexibility Clause (Art.352 TFEU), whereby if  the Treaty does not provide the necessary powers to enable the new Union attain its very wide objectives, the Council may take appropriate measures by unanimity.  The Lisbon Treaty would extend this provision from the area of operation of the common market to all of the new Union’s policies directed at attaining its much wider post-Lisbon objectives. The Flexibility Clause has been widely used to extend EU law-making over the years;

(b) the proposed  Simplified Treaty Revision Procedure (Art.48, amended TEU), which would permit the Prime Ministers and Presidents on the European Council unanimously to shift Union decision-taking from unanimity to qualified majority voting in the Treaty on the Functioning of the Union;  and

(c)    the several “passerelles” or “ratchet-clauses“, which would allow the European Council to switch from unanimity to majority voting in certain specified areas, such as judicial cooperation in civil matters (Art.81.3 TFEU), in criminal matters (Art.83.1 TFEU), in relation to the EU Public Prosecutor (Art.86.4 TFEU) and the Multiannual financial framework (Art.312.2 TFEU).

Conclusion: A Federation without democracy

It is hard to think of any area of national law which would be unaffected by European law in the post-Lisbon EU. It is hard to think of any major function of a sovereign State which the new EU would not have if the Lisbon Treaty were to be ratified. The main one would seem to be the power to make its Member States go to war against their will.  The Treaty does however provide that the EU may go to war while individual Member States may “constructively abstain”(Arts.42-46, amended TEU).

The Treaty also contains a mutual defence clause (Art.42.7, amended TEU), which was so characterised by Commission President J.M.Barroso in a speech on the Treaty on 4 December 2007. This commitment to an EU “mutual defence” is to be distinguished from an obligation to participate in an EU “common defence”, viz. a common European army, which Art.42.2, amended TEU lays down that the “progressive framing of a common Union defence policy… will lead to” (emphasis added).

The obligation on the Union to “provide itself with the means necessary to attain its objectives and carry through its policies” (Art. 311 TFEU), which means raising its “own resources” to finance them, may be regarded as conferring on it wide taxation and revenue-raising powers.  This Article empowers the new Union to “establish new categories of own resources” and in effect to endow itself by means of any tax, so long as the Council of  Ministers agrees that unanimously and it is approved by National Parliaments. Currently public expenditure and the taxation measures needed to finance it remain overwhelmingly at National State level. This is because such social services as health, education, social security and public housing, as well as policing and public transport – the government functions which cost most money – are still mainly at this level. That too is normal in such Federations as the USA, Germany etc.

Jean-Claude Piris, Director-General of the Legal Service of the Council of Ministers, refers to the EU as a “Partially Federal Union” in his well-known book, The Constitution for Europe: A Legal Analysis (Cambridge UP, 2006, p.192).  One might say that it is better characterised as a “Substantially Federal Union”. Piris contends that because it is only partially federal, it is not a federal State. One could say rather that the EU  is just like the classical Federations previously mentioned which have evolved over time and which gradually acquired the characteristics of statehood, and that the European Union post-Lisbon would have virtually all the features of a fully-developed State. As former Danish MEP Jens-Peter Bonde, author of the The Lisbon  Treaty-the Readable Version put it: “From the inside it looks like an arrangement based on Treaties between States. From the outside it looks like a State itself.” (see euinfo.ie and euabc.com)

The Lisbon Treaty would shift power away from voters in all EU countries and from small and middle-sized countries to the largest ones.  The post-Lisbon European Union would have its own government, with a legislative, executive and judicial arm, its own political President, its own citizens and citizenship, its own human and civil rights code, its own currency, economic policy and revenue, its own international treaty-making powers, foreign policy, foreign minister, diplomatic corps and United Nations voice, its own crime and justice code and Public Prosecutor.  It already possesses such normal State symbols as its own flag, anthem, motto and annual official holiday, Europe Day, 9 May, when it commemorates the 1950 Schumann Declaration proposing the European Coal and Steel Community as “the first step in the federation of Europe“, although these symbols are without a formal legal basis in the Treaties.

As regards the State authority of the new Union, this would be embodied in the Union’ s own executive, legislative and judicial institutions: the European Council, Council of Ministers, Commission, Parliament and Court of Justice.  It would be embodied also in the Member States and their authorities as they implement and apply EU law and interpret and apply national law in conformity with Union law. Member States would be constitutionally required to do this under the Lisbon Treaty. Thus EU “State authorities” as represented for example by EU soldiers and policemen patrolling our streets in EU uniforms, would not be needed as such.

Allowing for the special features of each case, all the classical Federal States which have been formed on the basis of power being surrendered by lower constituent states to a higher Federal authority have developed in a gradual way, just as has happened in the case of the European Union. The USA, 19th century Germany, Switzerland, Canada and Australia are the best-known examples. None of these came into the world as fully-fledged sovereign States. Indeed the EU has accumulated its powers much more rapidly than some of these Federations – in the short historical time-span of some fifty years.

However, the key difference between these classical Federations and the proposed new European Union is that the former, once their people had settled, share a common language, history, culture and national solidarity which gave them a democratic basis and made their State authority popularly legitimate and acceptable.

All stable and long-lasting States are founded on such communities, where people speak a common language and mutually identify with one another as one people – a  collective “We”. Because of this mutual identification and solidarity, minorities are willing freely to obey majority rule because they regard the majority as “their” majority. Likewise majorities are willing to respect minority rights because they attach to “their” minority.  That gives these  States a democratic basis.  In the European Union however there is no European people or “demos” of this kind.  The Treaty of Lisbon, like the EU Constitution before it,  is an attempt to construct a highly centralised European Federation artificially, from the top down, out of Europe’s many nations, peoples and States, without their free consent and knowledge  and in the interest of the Big States which would dominate its subsequent policy-making.

If there is to be a European Federation that is democratically acceptable and politically legitimate, the minimum constitutional requirement for it would be that its laws would be initiated and approved by the directly elected representatives of the people either in the European Parliament or the National Parliaments. Unfortunately, the Lisbon Treaty does not contain any such proposal.

Acknowledgements:   This document, which was originally presented as a submission to the National Forum on Europe, has been prepared by Anthony Coughlan, secretary, for the National Platform EU Research and Information Centre; Tel.:  01-8305792; Web-site: nationalplatform.org It has drawn on a number of different sources and the advice and assistance of a number of Irish and continental lawyers is acknowledged.  Particular thanks are due to Dr Klaus Heeger, legal adviser to the Independence and Democracy Group in the European Parliament, for insights into the constitutional character of a post-Lisbon European Union.

The document is an elaboration of Point 2 of our general document on the Lisbon Treaty: “What the Treaty of Lisbon Would Do”. People are free to use or adapt these documents as they see fit, without any need of reference to or acknowledgement of their source

Two Books:    The Lisbon Treaty – the Readable Version shows the deletions and additions which the Treaty would make in the two Consolidated EU Treaties – the Treaty on European Union and the Treaty on the Functioning of the European Union.  This invaluable Consolidated Edition may be downloaded from  euinfo.ie or  euabc.com It has been edited by former Danish MEP Jens-Peter Bonde with the assistance of a team of legal advisers. It contains a detailed Index to the topics people may be interested in, showing how the Lisbon Treaty would affect them if it were to be ratified.   Jens-Peter Bonde, who was a member of the Convention on the Future of Europe which drew up the original EU Constitution of which Lisbon is a revamped version, has also written an illuminating short book analysing the Lisbon Treaty and giving the story of how it came into being: From EU Constitution to Lisbon Treaty. This is downloadable from the same web-sites:  euinfo.ie and  euabc.com

August 2008

An Open Letter to Stephen Collins (Political editor, The Irish Times)

The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9

Tel.: 01-8305792
Web-site nationalplatform.org

Thursday 6 August 2008

Dear Stephen,
In your Irish Times article last Saturday you call on the Government to ratify the Lisbon Treaty regardless of the 12 June referendum result.

It is strange that a political correspondent of a major national newspaper should seek to become a partisan player in the political game in this way.

Stranger still that you should be urging such a profoundly unconstitutional and undemocratic course on our political leaders.

You are mistaken if you think that Ireland can ratify the Lisbon Treaty by Oireachtas vote without a referendum.

The Lisbon Treaty, which is the EU Constitution revamped,  establishes a constitutionally new European Union, with its own legal personality for the first time, which is legally different from the present European Union that was established by the Treaty of Maastricht and which is referred to in Article 29.4  of the Irish Constitution.

The first sentence of the  Constitutional Amendment which the people rejected on 12 June proposed to replace the present Maastricht-based EU by a future Federal-style Lisbon-based EU, of which we would all be made real rather than symbolical citizens for the first time.

The same name,  “European Union”,  would be used post-Lisbon as pre-Lisbon, but the constitutional and political character of the Union, its Member States and of us as Irish citizens would be transformed fundamentally by the ratification of the Lisbon Treaty.

No Oireachtas vote is constitutionally capable of doing this.  With all due respect to you, it is irresponsible to be speading illusions otherwise.

The  Lisbon Treaty would also abolish the European Communities other than the Atomic Energy Community which we joined in 1973, and would  replace the Treaties on which they are based and  which are explicitly referred to in the Irish Constitution.  These references would have to be deleted also to enable the State to ratify Lisbon. No Oireachtas vote can do that either.

And there are several other reasons why the Constitution would have to  be amended to enable the Lisbon Treaty to be ratified.

Your article proposes an  attempt to get around the constitutional  requirement, laid down in the 1986-7 Crotty judgement of the Supreme Court, that surrenders of sovereignty to Brussels in European Treaties can only be done by the Irish people in a referendum, for they are the repositories of sovereignty.

I was myself intimately involved in the Crotty case and attended every day of the three hearings of the case: the original Injunction action before Judge Donal Barrington, the High Court stage which Raymond Crotty lost, and the Supreme Court stage which he won.

You may be interested to know that it was quite a close-run thing that Crotty did not win his court challenge to the constitutionality of the ratification procedure of the Single European Act on the ground that that Treaty’s central provisions entailed a transfer of sovereignty to Brussels, but on the narrower ground that the requirement to coordinate  foreign policy under “European Political Cooperation” entailed such a transfer.

The late Judge Henchy was the swing judge on this point in the five-man court.

Crotty’s lawyers were reliably informed at the time by sources close to the judges that Judge Henchy was anxious to find for Crotty, but that if he did so in relation to the core elements of the Single European Act which had previously been approved by Oireachtas vote, he would effectively have been finding the country’s President at the time, the late Patrick Hillery, as having failed to refer a constitutionally dubious Bill purporting to ratify the S.E.A. to the Supreme Court for assessment of its constitutionality.

Judge Henchy wanted to avoid embarrassing the President, so he approved the main provisions of the S.E.A. as having been covered by the original “license”  for Ireland to join a developing European Community, but he joined with the majority of the court in striking down the foreign policy provisions, which did not require Oireachtas approval, as being unconstitutional.

So the Crotty judgement was a highly political one amongst the five Supreme Court judges themselves!  These facts are not widely known, but I assure you they are correct.
It follows therefore that one cannot assume that the transfers of sovereignty entailed by the Lisbon Treaty would be similarly indulged by the present Supreme Court if the matter should come before it, as you implicitly propose in your article.

Judge Henchy moreover made quite clear in his own judgement in the Crotty case that if the then European Community were to move towards becoming a Political Union, a constitutional  referendum would be required here to permit that.  The European Union that would be established by the Lisbon Treaty -  which is the 2004 EU Constitution revamped -  is undoubtedly such a Political Union.

In your article you insult the No-side campaigners by saying that they were “unhampered by any allegiance to the truth”.

Truly this is the pot calling the kettle black!
I do not recollect you or your fellow Yes-side commentators alerting people during the referendum to the hugely important fact that the post-Lisbon EU would be constitutionally and politically profoundly different from the pre-Lisbon EU. . .

Or to the fact that we would be made real  citizens for the first time of this post-Lisbon EU, owing obedience to its laws and loyalty to its authority over and above our citizens’ duty to the Irish Constitution and laws. . .

Or to the fact that in the post-Lisbon EU the Irish Government would lose the right it has at present to decide who its national Commissioner would be when we have a member on the Commission, and that this would be replaced by a right to make “suggestions” only for the incoming Commission President to decide -  so replacing the present bottom-up process for appointing the Brussels Commission by a top-down one post-Lisbon . . .
Or to the fact that Lisbon proposes to restore the death penalty in Europe for the EU as a corporate entity in time of war or imminent threat of war, by providing that the post-Lisbon EU would accede to Protocol 6 of the European Convention on Human Rights, which permits the use of the death penalty in such circumstances, rather than  to Protocol 13, which abolishes the death penalty at all times and which the individual Member States have separately acceded to.

This matter has caused national outrage in Austria and some controversy  in Germany, but scarcely anyone has heard about it here in Ireland.

But maybe you would dismiss that too as just another No-side “untruth”?

Yours etc.

Anthony Coughlan
Secretary

An Open Letter to Stephen Collins (Political editor, The Irish Times)

The National Platform EU Research and Information Centre
24 Crawford Avenue
Dublin 9

Tel.: 01-8305792
Web-site nationalplatform.org

Thursday 6 August 2008

Dear Stephen,
In your Irish Times article last Saturday you call on the Government to ratify the Lisbon Treaty regardless of the 12 June referendum result.

It is strange that a political correspondent of a major national newspaper should seek to become a partisan player in the political game in this way.

Stranger still that you should be urging such a profoundly unconstitutional and undemocratic course on our political leaders.

You are mistaken if you think that Ireland can ratify the Lisbon Treaty by Oireachtas vote without a referendum.

The Lisbon Treaty, which is the EU Constitution revamped,  establishes a constitutionally new European Union, with its own legal personality for the first time, which is legally different from the present European Union that was established by the Treaty of Maastricht and which is referred to in Article 29.4  of the Irish Constitution.

The first sentence of the  Constitutional Amendment which the people rejected on 12 June proposed to replace the present Maastricht-based EU by a future Federal-style Lisbon-based EU, of which we would all be made real rather than symbolical citizens for the first time.

The same name,  “European Union”,  would be used post-Lisbon as pre-Lisbon, but the constitutional and political character of the Union, its Member States and of us as Irish citizens would be transformed fundamentally by the ratification of the Lisbon Treaty.

No Oireachtas vote is constitutionally capable of doing this.  With all due respect to you, it is irresponsible to be speading illusions otherwise.

The  Lisbon Treaty would also abolish the European Communities other than the Atomic Energy Community which we joined in 1973, and would  replace the Treaties on which they are based and  which are explicitly referred to in the Irish Constitution.  These references would have to be deleted also to enable the State to ratify Lisbon. No Oireachtas vote can do that either.

And there are several other reasons why the Constitution would have to  be amended to enable the Lisbon Treaty to be ratified.

Your article proposes an  attempt to get around the constitutional  requirement, laid down in the 1986-7 Crotty judgement of the Supreme Court, that surrenders of sovereignty to Brussels in European Treaties can only be done by the Irish people in a referendum, for they are the repositories of sovereignty.

I was myself intimately involved in the Crotty case and attended every day of the three hearings of the case: the original Injunction action before Judge Donal Barrington, the High Court stage which Raymond Crotty lost, and the Supreme Court stage which he won.

You may be interested to know that it was quite a close-run thing that Crotty did not win his court challenge to the constitutionality of the ratification procedure of the Single European Act on the ground that that Treaty’s central provisions entailed a transfer of sovereignty to Brussels, but on the narrower ground that the requirement to coordinate  foreign policy under “European Political Cooperation” entailed such a transfer.

The late Judge Henchy was the swing judge on this point in the five-man court.

Crotty’s lawyers were reliably informed at the time by sources close to the judges that Judge Henchy was anxious to find for Crotty, but that if he did so in relation to the core elements of the Single European Act which had previously been approved by Oireachtas vote, he would effectively have been finding the country’s President at the time, the late Patrick Hillery, as having failed to refer a constitutionally dubious Bill purporting to ratify the S.E.A. to the Supreme Court for assessment of its constitutionality.

Judge Henchy wanted to avoid embarrassing the President, so he approved the main provisions of the S.E.A. as having been covered by the original “license”  for Ireland to join a developing European Community, but he joined with the majority of the court in striking down the foreign policy provisions, which did not require Oireachtas approval, as being unconstitutional.

So the Crotty judgement was a highly political one amongst the five Supreme Court judges themselves!  These facts are not widely known, but I assure you they are correct.
It follows therefore that one cannot assume that the transfers of sovereignty entailed by the Lisbon Treaty would be similarly indulged by the present Supreme Court if the matter should come before it, as you implicitly propose in your article.

Judge Henchy moreover made quite clear in his own judgement in the Crotty case that if the then European Community were to move towards becoming a Political Union, a constitutional  referendum would be required here to permit that.  The European Union that would be established by the Lisbon Treaty -  which is the 2004 EU Constitution revamped -  is undoubtedly such a Political Union.

In your article you insult the No-side campaigners by saying that they were “unhampered by any allegiance to the truth”.

Truly this is the pot calling the kettle black!
I do not recollect you or your fellow Yes-side commentators alerting people during the referendum to the hugely important fact that the post-Lisbon EU would be constitutionally and politically profoundly different from the pre-Lisbon EU. . .

Or to the fact that we would be made real  citizens for the first time of this post-Lisbon EU, owing obedience to its laws and loyalty to its authority over and above our citizens’ duty to the Irish Constitution and laws. . .

Or to the fact that in the post-Lisbon EU the Irish Government would lose the right it has at present to decide who its national Commissioner would be when we have a member on the Commission, and that this would be replaced by a right to make “suggestions” only for the incoming Commission President to decide -  so replacing the present bottom-up process for appointing the Brussels Commission by a top-down one post-Lisbon . . .
Or to the fact that Lisbon proposes to restore the death penalty in Europe for the EU as a corporate entity in time of war or imminent threat of war, by providing that the post-Lisbon EU would accede to Protocol 6 of the European Convention on Human Rights, which permits the use of the death penalty in such circumstances, rather than  to Protocol 13, which abolishes the death penalty at all times and which the individual Member States have separately acceded to.

This matter has caused national outrage in Austria and some controversy  in Germany, but scarcely anyone has heard about it here in Ireland.

But maybe you would dismiss that too as just another No-side “untruth”?

Yours etc.

Anthony Coughlan
Secretary

Lisbon Treaty: Where is this all going?

1. Harmonisation of Corporate Tax;

2. Losing permanent Commissioner, Halving voting strength;

3. The “Blank Cheque” Self-Amending power;

4. Superiority of all EU law over Irish Constitution;

5. Lisbon origin in rejected EU Constitution.

* Where is this all going? Harmonisation of Corporate tax:

Article 2.79 of the Lisbon Treaty would insert a six-word amendment -”and to avoid distorton of competition” – into the Article of the existing European Treaties dealing with harmonising indirect taxes – Article 113.

This would enable the European Court of Justice, which adjudicates on competition matters, to decide that Ireland’s 12.5% rate of company tax, as against Germany’s 30%, is a distortion of competition which breaches the Treaty Articles dealing with the internal market (Art. 26 and Arts.101-9 TFEU) in relation to which qualified majority voting on the Council of Ministers applies.

The Irish Government’s veto under Article 113 would thus be irrelevant.

* Where is this all going? Loss of permanent Commissioner and reduction in voting strength:

- Lisbon removes any Irish voice from the EU Commission, the body which has the monopoly of proposing all EU laws, for five years out of every 15 (Art.17.5 TEU).

- Lisbon abolishes our right to decide who the Irish Commissioner is when it comes to our turn to be on the Commission, replacing it by a right to make “suggestions” only for the Commission President to decide (Art.17.7 TEU).

- Lisbon Treaty would double Germany’s say on the EU Council of Ministers; Ireland’s voting weight would be more than halved to 1% (Art.16 TEU).

* Where is this all going? The self-amending Treaty:

- This could be Ireland’s last referendum on Europe – the EU can acquire new competences without another treaty, like signing a blank cheque.

- Lisbon would permit the EU Prime Ministers to shift most of the remaining EU policy areas where unanimity still exists, to majority voting, without need for new EU Treaties or referendums (Art.48 TEU).

* Where is this all going? The dilution of Bunreacht na hEireann and the superiority of EU law:

EU law is already superior to Irish law. Lisbon would further weaken Irish control by adding more competences and powers to the EU.

- It hands over to the EU the power to make laws binding on us in 32 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health, the EU budget etc.

- It removes a national veto in 68 areas

- Lisbon will give the EU Court of Justice the power to decide our rights as EU citizens – Ireland’s Supreme Court would no longer have the final say (Art.6 TEU).

* Where is this all going? The Treaty’s origin in the EU Constitution:

- The Lisbon treaty is a repackaged version of the EU Constitution (96% the same). France and the Netherlands both rejected it, people across Europe have felt increasing unease about the EU project.

Irish Times article: Lisbon would turn Ireland into a province

Irish Times  article, Friday 16 May
VOTE NO TO LISBON AND REJECT EUROPEAN FEDERAL STATE
Lisbon would  turn Ireland into a province or region of an EU superstate and make us citizens of it first rather than of the Irish Republic
by Anthony Coughlan
 
The push to turn the European Union into a superpower with many of the features of a Federal State goes back to World War 2, when the continental imperial powers, France, Germany, Italy, Holland and Belgium, experienced the trauma of defeat and occupation.  After 1945 they found themselves much diminished in a world dominated by the USA and USSR.
One response of their political elites was to decide that if they could no longer be Big Powers individually on their own, they would seek to be a Big Power collectively. This is not the full story of European integration, but it is perhaps the most important part of the story.
The Lisbon Treaty is the constitutional culmination of the federalist project which has been the political dynamic of European integration ever since the Schumann Declaration of 1950 proclaimed the European Coal and Steel Community to be “the first step in the federation of Europe”.
The EU commemorates that Declaration on  9 May each year – Europe Day.  Fifty years later, in 2004, Belgian Prime Minister Guy Verhofstadt proclaimed the EU Constitution to be “the capstone of a European Federal State”.
When the French and Dutch rejected the EU Constitution in their 2005 referendums, the Prime Ministers and Presidents decided to give the EU the constitutional form of a Federation indirectly rather than directly.
This the Lisbon Treaty does by amending the two existing European Treaties instead of replacing them entirely  by a formally titled Constitution. But the legal-political effect is the same.

THE CONSTITUTIONAL AMENDMENT WE WILL VOTE ON 
The first sentence of the Amendment which the Government is asking  to insert into the Irish  Constitution provides that the State may ratify the Treaty of Lisbon and ”may be a member of the European Union established by virtue of that  [Lisbon] Treaty.
This sentence shows that the European Union which would be established by the Lisbon Treaty, although having the same name, is constitutionally and politically a different Union from that which we are currently members of, which was established by the 1993 Maastricht Treaty.The second sentence of the Constitutional Amendment would then give the constitution of this post-Lisbon Union supremacy over the Irish Constitution:-


“No provision of this  [Irish] Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by membership of the European Union referred to Š or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.”
This post-Lisbon EU would have the constitutional form of a supranational European Federation – in effect a State – in which Ireland and the other Member States would have the constitutional status of provincial or regional states.
From the inside the Union would look like something based on Treaties between States. From the outside it would look  like a State itself.  This constitutional revolution in both the Union ands its Member States would be brought about by four legal steps which are set out in the Treaty, as they were in the previous EU Constitution:
Firstly, Lisbon would give the post-Lisbon Union full legal personality separate from and superior to its Member States, so that it could act as a State in the international community of States, sign Treaties with other States in all areas of its powers, have its own political President, Foreign Minister(High Representative), diplomatic service, embassies and Public Prosecutor, and make most of our laws.Secondly, Lisbon would abolish the European Community which we joined in 1973 and which still exists as part of the present EU, and replace it by the new Union (Art.1 TEU).

Thirdly, it would give the new Union a unified constitutional stucture so that all areas of government would come within its aegis either actually or potentially(Art.4 TEU, Arts.1-6 TFEU).  The only major feature of a fully developed Federation which the EU would then lack would be the power to force its Member States to go to war against their will.
SUBORDINATING THE IRISH CONSTITUTION TO THE EU CONSTITUTION 
Finally, Lisbon would make us all real citizens for the first time of this post-Lisbon Union, rather than our being notional or honorary EU “citizens” as at present(Art.9 TEU).
One can only be a citizen of a State and all States must have citizens. As real EU citizens we would owe it the duty of obedience to its laws and loyalty to its authority over and above our obedience and loyalty to Ireland and the Irish Constitution and laws.
We would still retain our national Irish citizenship, but our new dual citizenship post-Lisbon would not be citizenship of two different States, but rather of the federal and regional/provincial levels of one state, as is normal in such classical Federations as the USA, Federal Germany, Switzerland and Canada.
The Irish Constitution would remain – just as the various states of the Federal USA still retain their constitutions -  but it would be subordinate to the EU Constitution in any case of conflict between the two.
One indicator of the constitutional change which Lisbon would bring about is that Members of the European Parliament, who under the present Treaties are “representatives of the peoples  of the Member States brought together in the Community”, would become “representatives ofthe Union’s citizens in the post-Lisbon EU(Art.14.2 TEU).
Another is that the European Council, the summit meetings of Prime Ministers and Presidents, would become an EU institution for the first time, legally bound to forward the interests of the Union, not of the national Governments or electorates concerned, so that its acts or its failing to act would be subject to judicial review by the EU Court of Justice(Art.13 TEU).
Couple these constitutional changes with the power-political changes which Lisbon would bring about and it is clear that the Lisbon referendum confronts the Irish people with a momentous choice.
The most important power-political change is that Lisbon would base law-making in the post-Lisbon Union primarily on population size.
 This would double Germany’s relative voting strength on the Council of Ministers from its present 8% to 17%. It would increase the voting weight of France, Britain and Italy from their present 8% to 12% each and it would halve Ireland’s weight from 2% to 0.8%.(Art.16.4 TEU)
As well as our being deprived of a voice on the EU Commission, the body which proposes all EU laws, for five years out of every 15, a little noticed feature of Lisbon’s provisions is that when it comes to our turn to have an Irish Commissioner, we would  lose the right to decide who he or she would be. Henceforth Ireland would be able to make “suggestions” only, for the new Commission President to decide(Art.17.7 TEU).
It is surely a major historical moment by any standard: this attempt to turn four million Irish people and nearly 500 million Europeans into real citizens of a real EU Federation, without most of them being aware of it, and without any but us Irish being allowed to have a direct say on it.
If Lisbon is ratified it is bound to lead to major democratic reactions across Europe when people discover that their national independence and democracy have been filched from them. That is why the best course for the Irish people is to vote No to Lisbon on 12 June, as the French and Dutch did to its virtually identical predecessor, for their own sakes and for Europe’s.
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Anthony Coughlan is secretary of the National Platform EU  Research and Information Centre, 24 Crawford Avenue, Dublin  9;  Tel.: 00-353-1-8305792;   Web-site: nationalplatform.org
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