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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.