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Lisbon Treaty Referendum in Ireland: What the Treaty of Lisbon would do


“France was just ahead of all the other countries in voting No. It would happen in all Member States
if they have a referendum. There is a cleavage between people and governments…There will be
no Treaty if we had a referendum in France, which would again be followed by a referendum in the UK.”
– French President Nicolas Sarkozy, at meeting of MEP Group leaders, EUobserver, 14 Nov. 2007
* * *
“Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them
directly … All the earlier proposals will be in the new text, but will be hidden and disguised in some way.”
– Former French President V.Giscard D’Estaing, Le Monde, 14 June 2007
* * *
“The substance of the Constitution is preserved. That is a fact.”
– German Chancellor Angela Merkel, speech to the European Parliament, 27 June 2007

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

“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)
– 28th Amendment of the Constitution Bill, 2008 … What the people will be voting on in the Lisbon referendum

A new and different European Union: As is clear from the first of the two key sentences above from the proposed amendment to the Irish Constitution which we shall be voting on in the referendum, the Treaty of Lisbon would create a quite new Federal EU which politically and constitutionally would be fundamentally different from the EU which was established by the 1993 Maastricht Treaty and which we are members of today. The same name, “The European Union”, would be used pre-Lisbon and post-Lisbon for two quite different Unions. Why is this deception necessary? Lisbon is a revamped version of the Treaty Establishing a Constitution for Europe which gave the EU its own State Constitution superior to the constitutions of its Member States, but which the peoples of France and Holland rejected in referendums in 2005. Instead of accepting that decision, the EU Prime Ministers and Presidents decided to give the EU a Constitution indirectly rather than directly, but not to call it a Constitution, and on no account to hold referendums on it, for fear people would reject it again.

Why an Irish referendum?: Because the Supreme Court laid down in the 1987 Crotty case that sovereignty in Ireland rests with the Irish people and that only they can surrender sovereignty to the EU by referendum, or refuse to surrender it, as the case might be. The purpose of the Lisbon referendum would be to change the Irish Constitution so as to enable the State to accede to the new European Union which Lisbon would establish and to make the Constitution and laws of this new EU superior to the Irish Constitution and laws in all areas covered by the Treaty. This is clear from the two key sentences quoted above.

Lisbon would give the EU a Constitution indirectly rather than directly: The two basic European Treaties which are currently in force include all the previous treaties from the 1957 Rome Treaty to the 2002 Nice Treaty. The EU Constitution which the French and Dutch said No to would have repealed these two treaties and replaced them with an explicitly titled Constitution for Europe. The Lisbon Treaty implements 96% of the legal content of this Constitution for Europe by proposing amendments to the two basic EU Treaties, thereby turning them into the effective Constitution of the new Federal European Union which Lisbon would establish. These two basic Treaties as amended by Lisbon would be called The Treaty on European Union (TEU) and The Treaty on the Functioning of the European Union (TFEU).

Below are the 13 most important changes which the Lisbon Treaty would make in the two constituent Treaties of the new European Union they would establish:-

1. Lisbon would make the new Union Constitution superior to the Irish Constitution in all areas of EU law: The Irish Constitution would still remain, but Declaration 17 concerning Primacy, which is attached to the Lisbon Treaty, makes clear that the law of the new Union would have primacy over and be superior to the Irish Constitution and laws in any case of conflict between the two. This has not been stated in any previous European Treaty. Lisbon does this by referring 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 is not formally put through their National Parliaments, and (c) its constitutional character. EU law and local national law would deal with different areas and matters, as is normal in Federal States. Some two-thirds of our laws each year now come from Brussels and only one third or so originate in the Irish Dáil. The Lisbon Treaty would give the EU the power to make supranational laws that are binding on us in many new areas – see Points 7,9 and 10 below – and would take that power away from the Irish Dáil and Seanad and from Irish citizens who elect them.

2. Lisbon would give the EU the constitutional form of a supranational European Federal State. It would turn Ireland and the other Member States into regional states of this Federation and would make us all real citizens of it for the first time. It would do this in four legal steps: (a) giving the new European Union which Lisbon would bring into being its own legal personality and independent corporate existence for the first time, separate from and superior to its Member States (Art.47 TEU); (b) abolishing the European Community which we have been members of since 1973 and replacing it with the new Union (Art.1 TEU); (c) bringing all spheres of public policy either actually or potentially within the scope of the new Union, so that it would have a uniform constitutional structure (Art.4.1 TEU; Arts.1-6 TFEU); and (d) making us real citizens of this new Federal Union, rather than notional or honorary EU “citizens” as at present (Arts.9 TEU and 20 TFEU).

One can only be a citizen of a State and all States must have citizens. Instead of European Union citizenship being “complementary” to national citizenship as at present(Art.17 TEC), Lisbon would make citizenship of the new Union “additional to” national citizenship (Arts.9 TEU and 20 TFEU). This would give everyone a real dual citizenship for the first time – citizenship of one’s own National State, in our case Ireland, and citizenship of the post-Lisbon European Union. As citizens of this constitutionally new Union, we would owe it the normal citizens’ duty of obedience to its laws and loyalty to its authority. We would still retain our Irish citizenship, but the rights and duties attached to that would be subordinate to those of our EU citizenship in any case of conflict between the two. Post-Lisbon, we would be like citizens of Virginia vis-a-vis the Federal USA, or like citizens of Bavaria vis-a-vis Federal Germany. Dual citizenship of this kind – not of two separate States but of the federal and regional/provincial levels of one State – is normal in all classical Federations which have been formed by lower States agreeing to subordinate themselves to a higher federal authority. The USA, 19th century Germany, Switzerland, Canada and Australia are the best-known examples.

From the inside this post-Lisbon Federal EU would seem to be based on treaties between States. From the outside it would look like a State itself. This new European Union would sign Treaties with other States in all areas of its powers. It would have its own political President, Foreign Minister and foreign and security policy, its own diplomatic service and voice at the UN, and its own Public Prosecutor. It would make most of our laws and would decide what our basic rights are as EU citizens in all areas of EU law. It would have all the main features of a sovereign State in the international community of States, apart from the ability to make its Member States go to war against their will, although they can go to war voluntarily for the EU.

As the EU’s politicians are creating an EU Federation, all democrats will wish that Federation to be run along normal democratic lines, with its laws being proposed and made by people who are directly elected to make them, either in the European Parliament or in National Parliaments. Instead, in the post-Lisbon Union European laws would continue to be made quite undemocratically. A democratic EU is not on offer in the Lisbon Treaty. The European Parliament, which is the only EU body directly elected by citizens, cannot propose any law. The Commission, which consists of nominated public servants, has the monopoly of proposing all EU laws. These laws are then made primarily by the Council of Ministers, a body which is irremoveable as a group, mostly on the basis of qualified majority voting. The EU Parliament can propose amendments to these laws, but cannot impose them unless the Commission and Council of Ministers agree. The Court of Justice interprets the Treaties in specific court cases in a manner which tends to extend EU powers ever further, sometimes into areas that were never imagined by those drafting the treaties. Lisbon adds to the democratic deficit inherent in this institutional structure, while it further erodes democracy at the national level. The Lisbon Treaty would shift power from voters in all EU countries and from small and middle-sized countries to the largest ones.

3. Lisbon sets out the extensive powers of the new Union it would establish: The new EU’s powers would be conferred on it by its 27 Member States, for they 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. 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 (Art.4.1 TEU). Such a division is normal in Federations. Similar provisions are to be found in the US Constitution and that of other Federal States.

Lisbon sets out the powers or “competences” of the new Union in five main categories. Between them all it is hard to think of any area of life that would not be touched by the new Union:-
(a) Areas of exclusive EU competence, where the EU alone can make laws or decide policy and where Member States have completely surrendered this right. These are the customs union, competition rules for the internal market, monetary policy for Member States using the euro, trade and commercial agreements and rules for fisheries conservation (Art.3 TFEU);
(b) Areas of shared competence, where the EU decides some area of policy and the Member States decide others. These cover most areas of government apart from the principal social services, viz., the internal market, social and regional transfers, agriculture and fisheries policy, environment, consumer protection, transport, trans-European networks, energy, crime and justice, cross-national public health matters. In these shared areas however, Lisbon makes clear that EU intervention has priority: “The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence” (Arts.2.2 TFEU). The Union may also conduct programmes of research, technological development and space exploration and have common policies on development cooperation and foreign aid without preventing Member States from having their own policies in these areas (Art.4.3-4 TFEU);
(c) Coordinating powers, where the EU is required to take measures to ensure the coordination of Member State economic policies, employment policies and social policies within the Union (Art.5 TFEU);
(d) Areas of supporting, coordinating or supplementary EU action in relation to the protection and improvement of human health; industry; culture; tourism; education,vocational training, youth and sport; civil protection; and administrative cooperation(Art.6 TFEU);
(e) The Common EU Foreign and Security Policy: Lisbon provides that “The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.”(Art.24.1 TEU). The last phrase here, a “common defence”, means a common EU army and military forces, with joint EU officers. It needs to be distinguished from a “common defence policy”(Art.42.1 TEU) and a “mutual defence” obligation (Art.42.7 TEU), to both of which the Lisbon Treaty would commit Ireland.

4. Lisbon would shift influence over law-making and decision-taking in the EU towards the Big States and away from the smaller ones like Ireland: It would do this by replacing the voting system for making EU laws which has existed since the 1957 Rome Treaty by a primarily population-based system which would give most influence to the Member States with big populations and reduce the influence of smaller States. Under Lisbon a “qualified” majority vote”(QMV) for making EU laws in future would be 15 States out of 27, as long as they included 65% of the EU’s total population of nearly 500 million(Art.16.4 TEU). When Ireland joined the then EEC in 1973 we had 3 votes in making European laws as against 10 each for the Big States, a ratio of one-third. Under the current Nice Treaty arrangements we have 7 votes as against their 29 each, a ratio of one-quarter. Under Lisbon Ireland would have 4 million people as against Germany’s 82 million, a ratio of one-twentieth, and an average of 60 million each for France, Italy and Britain, a ratio of one-fifteenth. Under Lisbon Germany’s voting weight vis-a-vis the other 26 Member States would double from its current 8% to 17%, France’s would go from 8% to 13% and Britain’s and Italy’s from 8% to 12% each. Ireland’s voting weight would fall to one-third its present level, from 2% to 0.8%. Ireland’s share in a blocking minority in Council of Ministers voting would go from its current 7.7% to 2.4%, while Germany’s would go from 32% to 48%.

Putting EU law-making and decision-taking on a primarily population basis would fundamentally change the present consensus culture on the EU Council of Ministers. The smaller Member States would be less needed by the Big States than before, and their interests would therefore be less likely to be taken into account. Power relations would tend to replace partnership and the search for consensus on the Council. Fifteen States could impose an EU law on 12 if the former contain 65% of the EU’s total population. Germany and France, with one-third of the EU’s population between them, would need just two other States to join them to be able to block any EU law, for there must be a minimum of four states to block a law.

5. Lisbon would remove Ireland’s right to a permanent EU Commissioner: The Treaty proposes to reduce the number of EU Commissioners from the present 27 to 18 (Art.17.5 TEU). Ireland would therefore have no member on the Commission, the body which has the monopoly of proposing all EU laws, for one out of every three Commission terms. This means that for five years out of every fifteen, laws affecting all our lives would be put forward entirely by a committee of EU officials on which there would be no Irish voice. The Big EU States would lose their right to a permanent Commissioner also, but their size and political weight give them other means of exerting influence on this key body. As Dr Garret FitzGerald has emphasised over the years, having a fellow-national on the EU Commission is especially important for smaller Member States. Under the new arrangements the first step the Commission would take when proposing a new EU law would be to ensure that the Big States were in favour. The smaller States would be taken for granted. In the Convention on the Future of Europe which drew up the original EU Constitution, Europe Minister Dick Roche on behalf of the Irish Government sought to retain Ireland’s right to a permanent EU Commissioner, but he failed in the attempt.

6. Lisbon would deprive the Irish Government of its right to decide who Ireland’s Commissioner would be when it comes to our turn to be on the Commission: The Treaty provides that Ireland’s present right to “propose” a national Commissioner, and in effect to have that proposal accepted by the others if we are to accept their proposals (Art. 214 TEC), would be replaced by a right to make “suggestions” regarding a name, but with no guarantee that a particular suggestion would be accepted by the new President of the Commission, who would in future decide (Art.17.7 TEU). The Commission President would be decided first by the 27 Prime Ministers and Presidents, who would also adopt the list of Commissioners as a whole by qualified majority vote. If the Irish Government were to suggest someone as its EU Commissioner who had, for example, antagonised the government of some other Member State in the past, or who was regarded as not enthusiastic enough for further EU integration, it could be asked to suggest someone else as more acceptable. The Commission President could also ask a Commissioner to resign at any time, and can also reallocate their portfolios, just as a Taoiseach may do with his cabinet, so that the Commissioners would be fully under the control of the Commission President. The new Commission would in effect be an EU Government, with the Commission President having powers like a national Prime Minister, except that this government and this “Prime Minister”would not be elected by the citizens.

7. Lisbon would give the European Union the power to make laws in 32 new areas which would be removed from the Dail and other National Parliaments: These new areas of EU law-making include civil and criminal law, justice and policing, public services, immigration, energy, transport, tourism, space, sport, culture, civil protection, intellectual property, public health and the EU budget. There would be majority voting too by EU Foreign Ministers as regards implementational decisions in foreign policy (Art.31.2 TEU). Lisbon would also give the EU Council of Ministers power to take decisions by qualified majority vote on many matters other than EU laws, so that as between laws and decisions some 68 national vetoes in all would be abolished, more than in any previous EU Treaty (For the full detailed list see http://www.bonde.com).

Under Lisbon the Irish Government has retained the right to opt in to or opt out of specific EU laws or measures in the crime and justice area in order to keep in line with Britain’s similar opt-out. However the Government has indicated its desire to opt in fully to EU crime and justice laws at the earliest opportunity and it states that if Lisbon is ratified it will review its position in three years time.

Why do national politicians welcome this shift of power from the national to the EU level? The answer to this seeming puzzle is that the increase in EU power which results from shifting new law-making areas from Dublin to Brussels simultaneously increases the personal power of the 27 national politicians who make up the EU Council of Ministers by enabling them to make further laws behind closed doors for 500 million Europeans. At the same time it takes power away from the citizens and national Parliaments which elect those politicians and which have made these laws for their own countries up to now.

Each shift of power from the national level to the EU entails a further shift of power from the Irish Oireachtas and people to Irish Government Ministers at EU level, from the Legislative arm of the State to the Executive arm. It hollows out our democracy at national level further. The Treaty would also increase the power of the non-elected Brussels Commission, which has the monopoly of proposing EU laws to the Council of Ministers, by giving it many new policy areas to propose laws for. In practice some three-quarters of EU laws each year are agreed amongst the civil servants on the 300 or so Council of Ministers committees and the civil servants and special interest lobbyists on the 3000 or so committees attached to the Commission. The Council formally approves all EU laws, although only around a quarter of them are explicitly mentioned on the Council and only a fraction of these in turn, usually those entailing amendments from the European Parliament, lead to significant debate. Lisbon provides for EU legislation to take place in public, which means that the TV cameras will be brought into Council of Ministers meetings when major laws are being signed, but the discussion that lead up to them, and the negotiations on package deals involving different items which often determine the content of EU laws, would remain secret.

8. Lisbon is a self-amending Treaty … Two paths to EU control of Ireland’s company taxes: Lisbon inserts a new Article 48 into the Treaty on European Union, the “simplified revision procedure”, which would permit the Prime Ministers and Presidents who make up the “European Council” by unanimous agreement among themselves to shift many areas of the treaties where unanimity now exists to qualified majority voting without the need for new treaties or referendums. This is called the “escalator clause”. Former French President V.Giscard d’Estaing called it “a central innovation” of the EU Constitution that he helped draft. This shift to majority voting would cover areas like company taxation, but excludes defence and military matters. A National Parliament can veto the use of this mechanism, but citizens cannot, as we would have accepted this method of rule by agreeing to the Lisbon Treaty. National Parliaments usually agree with their Prime Ministers anyway. If Lisbon is ratified there would seem to be little need, practically speaking, for further EU referendums, for the new Union would have all the powers that it needs to act internationally as a fully developed Federation, including taxation powers.

If the Taoiseach of the day should agree with his fellow Prime Ministers and Presidents to use Lisbon’s “escalator clause” for this purpose, the switch to majority voting on Ireland’s company taxes would go through. The Dáil could still object and revolt against him, but it is not required to vote positively for the use of the “escalator”. This leaves the citizens in the position of depending entirely on the backbone of the current Taoiseach or his successor to continue defending Ireland’s company tax position, which has been so important in bringing foreign firms here and has been so central to modern Ireland’s economic development.

Lisbon would open another path, and almost certainly a wider one, to EU tax harmonisation if national differences in indirect taxation are judged to be necessary “to avoid distortion of competition”(Art.113 TFEU). Harmonization of legislation on indirect taxes is mandatory under Article 113:“The Council shall adopt…” The Treaties do not define what are direct and indirect taxes; so the Court of Justice would have discretion in deciding that. There is no doubt that Ireland’s 12.5% tax rate on company profits and Estonia’s zero rate, compared with Britain’s 28% and Germany’s 32%, constitute a “distortion of competition” when one takes into account the different countries from which trade profits usually come.

This five-word Treaty amendment which would be inserted by Lisbon would enable the EU Court of Justice to apply the EU’s internal market rules on competition matters, where majority voting applies, to legislation on company taxation, although not to the actual rates, for harmonizing which unanimity would be required. This Lisbon amendment to Article 113 would open the way to Article 116 TFEU being invoked, as well as the Internal Market Articles 101-106. Article 116 reads: “Where the Commission finds that a difference between the provisions laid down by law, regulation or administrative action in Member States is distorting the conditions of competition in the internal market… it shall consult the Member States concerned. If such consultation does not result in an agreement eliminating the distortion in question, the European Parliament and the Council … shall issue the necessary directives.”

This Lisbon amendment and the Court of Justice’s involvement which it makes possible, would strengthen the Commission and the Big EU States in their plans for an EU Consolidated Company Tax Base, whereby Member States would pay profits tax in proportion to their sales or turnover in different EU countries at the tax rates prevailing in those countries. Or the Court could, for example, lay down that the Internal Market competition rules require a minimum sales tax to be applied in all EU countries. Such possible rulings by the Court of Justice, which are opened up by the Lisbon Treaty’s five-word amendment to Article 113 on taxation, would radically reduce the value of Ireland’s low company profits tax. The latter has been a key incentive in bringing foreign companies to this country and inducing many of those already here to stay here. Changes to it could also affect indigenous Irish companies. This Lisbon amendment, which was ignored by Commission President Barroso when he came to Ireland to say that our company tax rates could not be changed against our will, would be another way around the present unanimity requirement for harmonising EU laws on company tax.

Lisbon would also permit the EU to raise its “own resources” by means of any kind of new EU tax to finance the attainment of its many objectives (Art.311 TFEU). The 27 EU Prime Ministers and Presidents would have to decide unanimously what taxes to impose, and once National Parliaments approved, that would be that. There would be no need of a referendum in Ireland, for we would have permitted this development by voting for Lisbon. It is hard to imagine the 27 EU Prime Ministers and Presidents refraining from exercising this power to give the post-Lisbon EU its own major tax revenues once it is up and running under their political direction.

The Treaties would also provide for qualified majority voting on laws governing foreign direct investment (Art.64.2 TFEU) and international agreements on foreign investment(Art.207.1 TFEU). Such rules could significantly affect bodies like the IDA, which have been so important for attracting foreign investment to Ireland over the years.

9. Lisbon would give the EU the power to decide our human and civil rights: By making us into real EU citizens for the first time, Lisbon would give the new Union the power to decide what our rights as EU citizens are. It would do this by making the rights set out in the EU Charter of Fundamental Rights legally binding in all areas of EU law, including Member States when implementing EU law(Art.6 TEU). The same Article states that the Charter“shall have the same legal value as the treaties”. This would make the 27 judges of the EU Court of Justice in Luxembourg the final decider of our rights as citizens of the new Union, instead of the Irish Supreme Court or the Court of Human Rights in Strasbourg, which decide our rights at present. If Lisbon gives the EU Court of Justice (ECJ) the power to decide what our rights are in the large area of EU law, it is likely that the Commission will in time come to propose laws to ensure their uniform application across all EU States, as has happened in the case of the other Treaties up to now.

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 rights of EU citizens in the post-Lisbon Union. The Court has laid down in several court cases over the years that National Law must be applied in ways that are consistent with EU law, for the latter has supremacy in any conflict between the two. This principle must logically apply to rights issues also. ECJ judgements on rights issues would override national provisions in any case of conflict between the two.

This raises the real possibility of clashes over rights standards in sensitive areas where there are significant national differences between Member States at present: for example, the right to life, the right to strike, the right to marry and found a family, the rights of children and the elderly, rules of evidence in court, the presumption of innocence until proven guilty, trial by jury, censorship law, the legalisation of hard drugs and prostitution, rights attaching to State churches, equality legislation, conscientious objection to military service, succession, property, family law, labour law. In any clash between EU citizens’ rights as laid down by the EU Court and special national provisions on rights – for example Ireland’s Abortion Protocol – it is the EU Court which would decide, for by ratifying Lisbon we wquld give it legal supremacy in this area.

Lisbon also provides for the new Union, like other European States, to accede to the European Convention on Human Rights. The EU Charter is far wider than the Convention on Human Rights. There is ample scope here for conflict between the Court of Human Rights in Strasbourg and the EU Court of Justice in Luxembourg over human rights jurisdiction issues.

10.The Court of Justice’s Laval/Vaxholm judgement opens a race to the bottom in wages:
The Court of Justice’s judgement of December 2007 in the Swedish-Latvian Laval/Vaxholm case showed how EU law could undermine Member States’ ability to maintain long-established national wages standards by replacing these with minimum standards under the EU’s internal market competition rules. This judgement was given five days after the Lisbon Treaty was signed. A special Protocol could have been agreed at the March 2008 EU summit to set it aside, but that was not done. Such a special Protocol is now needed to restore to Member States and the organised Labour movement their right to lay down national standards for pay, as the Lisbon Treaty would make the EU Court’s judgement constitutionally binding. The same would happen with the Court’s judgement of 3 April 2008 in the Rüffert case in Germany, which further undermined negotiated conditions regarding migrant workers in the labour market. At the same time as these judgements, the Lisbon Treaty would give the EU full control of immigration policy (Art.79 TFEU). This combination threatens the pay and working conditions of large numbers of Irish people. A Protocol to set aside these two Court judgements can only be achieved in a new and better EU Treaty after Lisbon is rejected.

11. Lisbon would militarize the EU further: The Treaty requires Member States “to progressively improve their military capabilities”(Art.42.3 TEU). It introduces a “start-up fund” for common foreign policy and military operations to be financed by Member States outside the Union budget and to be set up by qualified majority voting (Art.41.3 TEU). It contains an Article (42.7 TEU) which the current Slovenian EU presidency has acknowledged is a “mutual defence clause”. Commission President J.M. Barroso also referred to this in a speech on the Treaty on 4 December 2007, stating: “It will introduce a mutual defence clause.” The wording of this clause is very similar to NATO’s mutual defence commitment: “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all means in their power.” This is a new departure for the EU and would commit all Member States including Ireland.

This commitment to an EU “mutual defence” under Lisbon needs to be distinguished from the obligation to participate in an EU “common defence”, i.e. a common EU army with joint EU officers on the lines of the current Franco-German brigade, which Art.42.2 TEU states that the “progressive framing of a common Union defence policy…will lead to. Ireland’s participation in such a common EU army would seem to be precluded by the Irish constitutional amendment which was adopted in 2002 to enable the Nice Treaty to be ratified (the 26th Amendment of the Constitution Bill). The Government is taking this out of the Irish Constitution and putting it back in again by means of the 28th Amendment of the Constitution Bill, presumably to give voters the impression that it is doing something new to meet public concerns over this aspect of the Treaty.

Lisbon would also allow sub-groups of Member States to make more binding military commitments
to one another with a view to “the most demanding missions” on behalf of the EU, without a requirement of a United Nations mandate for such missions (Arts.42.6 and 46).

12. Lisbon underlines the implicitly subordinate role of National Parliaments in the institutional structure of the new Union: It does this 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 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 one-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(“the yellow card”). If over half the National Parliaments object and the Commission still persists in its proposal, 15 out of 27 Member States on the Council, or a majority in the European Parliament, may reject it, but the Council of Ministers has that power anyway under its usual procedures(“the red or orange card”). This right to complain, for that is what it is, is not an increase in the powers of National Parliaments, as it has been widely misrepresented as being, but is symbolical rather of their loss of real power.

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 the Application of the Principles of Subsidiarity and Proportionality, Article 7.2). These provisions of the Treaty permitting National Parliaments in effect to complain to the Commission, are 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 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.

Lisbon also provides for a right of petition to the Commission by one million European citizens asking it to propose a new EU law, but there is no obligation on the Commission to do anything apart from “considering” such a request. It can ignore it or reject it. In other words, if the citizens collect a million signatures, they have the right to complain and then hope for the best.

The European Parliament cannot initiate a single European law, but it gets more influence under the new Union’s constitutional structures. It can put down amendments to draft laws coming from the Council and Commission in the new law-making areas which Lisbon would transfer to Brussels from the National Parliaments, although the Commission and Council must agree to them if they are to pass. National Parliaments would of course lose their powers to make laws in these areas. Under Lisbon Ireland would have 12 MEPs instead of 13 out of 750 in the European Parliament. When Ireland was part of the United Kingdom in the 19th century it had 100 members out of 600 at Westminster, where all UK laws were both proposed and made.

13. Lisbon and Climate Change: Lisbon would commit the EU to “promoting measures at international level to deal with regional or worldwide environmental problems and in particular combating climate change”(Art. 191.1 TFEU). This is laudable, but its significance has been “spun” out of all proportion. Note that the action is “at international level”. It does not give the EU any new powers internally. Any internal actions on environmental problems would have to be reconciled with the EU’s rules on distorting competition, safeguarding the internal market and sustaining the energy market. EU targets for carbon dioxide reduction in Ireland announced recently would cost Ireland €1000 million a year if implemented, which would average some €500 per household.

Is Lisbon necessary to make the EU more effective?

The advent of 12 new Member States has not made the negotiation of new EU laws more difficult since they joined the EU. On the contrary, a study by the Science-Politique University in Paris calculated that new rules have been adopted a quarter times more quickly since the enlargement from 15 to 27 Member States in 2004 as compared with the two years before enlargement. The study also showed that the 15 older Member States block proposed EU laws twice as often as the newcomers. Professor Helen Wallace of the London School of Economics has found that the EU institutions are working as well as they ever did despite the enlargement of the EU from 15 to 27 members. She found that “the evidence of practice since May 2004 suggests that the EU’s institutional processes and practice have stood up rather robustly to the impact of enlargement.” The Nice Treaty voting arrangements thus seem to be working well.

If we reject the Lisbon Treaty will we be forced to vote on it again?

Minister for Europe Dick Roche has stated that if we vote No to Lisbon, we will not be asked to vote again on the same Treaty, as happened when people voted No to the Treaty of Nice.

We need changes to be made that are in Ireland’s interest and that of the other Member States before we can agree to any amended Treaty. We must keep Ireland’s Commissioner and our voice in Europe. We need to keep the Nice Treaty’s voting system for making EU laws. That was stated at the time to be suitable for an enlarged EU. There must be no going over to a population-based system, which is a power-grab by the Big States for control of the EU and an end to the concept of the EU as a “partnership of equals”.

We need a special Protocol to set aside the Laval/Vaxholm judgement of the EU Court of Justice and enable us maintain national standards of pay and working conditions over and above minimum standards. Special Protocols are needed to enable Member States maintain control of company taxes, of their human rights , of their public services and of their right to opt out of a mutual EU defence commitment.

If we reject the Lisbon Treaty Ireland would remain a fully committed member of the EU. We cannot be ostracised or expelled from the EU – anymore than that happened to the French and Dutch when they rejected the EU Constitution, of which Lisbon is a revamped version.

We need to send Lisbon back to the EU Prime Ministers and Presidents and tell them that we want a better deal – for Ireland’s sake and Europe’s sake. We want a more democratic, not a less democratic, EU.

This EU Constitution is being foisted on the peoples of Europe without referendums. Yet the French and Dutch have already rejected it. People everywhere have sought referendums on it. By voting No Ireland can open a way to that happening, to prevent this outrage against European democracy. Ireland can do it, on our own behalf and on behalf of all the peoples of Europe, if we have confidence in ourselves and resist the misrepresentations of what this Lisbon Constitution Treaty is really about, and all the personal attacks, threats and distortions which Lisbon’s opponents are subjected to.

A Vote No is a Yes to something better!

* * *

For a Reader-Friendly Edition of the Treaty of Lisbon, showing 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 – download it from < euabc.com > or from < bonde.com > This invaluable document has been edited by Danish MEP Jens-Peter Bonde with the assistance of a team of legal advisers. It has a detailed Index to the topics you may be interested in, showing how the Lisbon Treaty would affect them.

The same author, 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 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: < euabc.com > or< bonde.com > It may also be purchased from the National Platform EU Research and Information Centre at the above address for €10.

This document has been produced for public information by the National Platform EU Research and Information Centre, 24 Crawford Ave., Dublin 9; Secretary Anthony Coughlan; Tel.: 01-8305792; Web-site: nationalplatform.org ; It has been vetted for legal accuracy by authorities on Irish Constitutional and European law. People are free to use or adapt it as they see fit, without any need of reference to or acknowledgement of its source.

April 2008

Aon Fhreagra Amháin


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