The National Platform EU Research and Information Centre is based in Ireland at 24 Crawford Avenue, Dublin 9. Tel.: +353 (0)1-830-5792. nationalplatform (at) nym . hush . com
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WHO WE ARE: The National Platform EU Research and Information Centre is a voluntary research and information body on EU affairs. Its Spokesman is Anthony Coughlan, who is an economist and Senior Lecturer Emeritus in Social Policy, Trinity College Dublin. Previously as Director, he acted as coordinator of a loose group of lawyers, economists and politically interested people who come to the fore when their expertise is needed.
An economist by profession, he has been a longstanding opponent of EU integration on democratic and internationalist grounds and has written and spoken widely on EU-related matters. He shared platforms with former Labour Ministers Peter Shore and Tony Benn and Conservative Minister Sir Richard Body in the UK referendum on EEC membership in 1975. He was an active campaigner in Republic of Ireland referendums on its 1972 EEC Accession Treaty and on the 1987 Single European Act Treaty, the 1992 Maastricht Treaty, the 1998 Amsterdam Treaty, the 2001 and 2002 referendums on the Nice Treaty, the 2008 and 2009 referendums on the Lisbon Treaty and the 2012 Stability Mechanism Treaty. He was intimately involved in the Crotty, McKenna and Coughlan constitutional actions before the Irish Supreme Court, cases that arose largely from his concern for fair procedures in EU-related referendums, and he was himself the successful plaintiff in the third of these. He was invited to make a submission to the Irish Senate Special Select Committee on the Withdrawal of the UK from the European Union in June 2017; and his submission to the UK House of Commons Northern Ireland Affairs Committee in October of that year, makes points that are broadly similar.
The group seeks to produce legally accurate documentation on EU matters for the use of organisations and individuals on the centre, left and right of Irish politics who are concerned at the development of the EU in an undemocratic and highly centralised direction. Its members stand for a Europe of independent, democratic and cooperating Nation States.
OUR ORIGINS: In 1986 when the Irish Government sought to ratify the Single European Act (Treaty) by majority vote of the Dáil (Parliament), a number of professional lawyers along with Anthony Coughlan and others advanced the view that, according to the Irish Constitution, the surrender of sovereignty to Brussels which the SEA involved could only be done by the Irish people themselves in a referendum.
They invited the late Raymond Crotty, the distinguished economist, to challenge the Irish Government’s proposed mode of ratification in the Courts, which he courageously did.
In its judgement the Supreme Court ruled in favour of Crotty. It is the Irish people, not its politicians, who alone can amend the country’s basic law, the Constitution. Any surrender of sovereignty to the European institutions must therefore be decided by the people themselves in a referendum. Therefore the Single European Act could only be ratified by popular referendum, not by parliamentary majority vote.
This referendum was duly held in 1987 and the Single European Act(Treaty) passed into law, having received majority approval of the people.
It is because of this Crotty judgement that successive EU Treaties have had to be put to referendum in Ireland.
Activities: The National Platform EU Research and Information Centre has been actively involved in all subsequent EC/EU referendums, mainly in providing documentation and a speaker service to other organisations.
It was also involved in supporting the McKenna(1995) and Coughlan(2000) cases before the Irish High Court and Supreme Court. These led to two important Supreme Court judgements governing fair referendum procedures. The McKenna judgement prevents the Irish Government from using public funds to obtain a particular result in a referendum. The Coughlan judgement requires that there should be equality in the allocation of free broadcasting time in referendums.
The National Platform EU Research and Information Centre is affiliated to The European Alliance of EU-critical Movements(TEAM) and its Director is President of the Foundation for EU Democracy, Brussels. It has no party-political, religious or ideological affiliations or orientation, apart from supporting the principle of a Europe of independent, democratic, cooperating Nation States.
Between one half and two-thirds of legal acts affecting Ireland each year now come from Brussels. The European Treaties amending the Irish Constitution on which referendums have been held are:
Ireland’s Accession Treaty to the European Communties (1972)
The Single European Act (1986)
The Maastrict Treaty on European Union (1993)
The Treaty of Amsterdam (1998)
The Treaty of Nice (2002), on which two referendums were held, as the Irish
people rejected this Treaty in 2001 and the Government re-ran the same
Treaty under different referendum rules in 2002.
The Treaty of Lisbon, which was rejected in the 12 June 2008 referendum and
which the Irish Government proposes to re-run unchanged in a second
referendum in autumn 2009
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NationalPlatform.Org 
Can someone tell me WHEN the Lisbon referendum is being voted on in Ireland ?
And will a YES vote mean an increase in the current 12.5% corporate tax rate.
Thank you,
I believe June 12th;
A yes vote will empower the European Court of Justice to rule against Ireland’s lower corporate tax rate as a distortion of competition (it will not impose a particular rate, per se, but this is in line with current proposals – deferred until after the referendum – to instigate specific harmonised rates across the EU).
Thanks for the comment (apologies for the delay!)
National Platform’s response is simply incorrect, Bill.
First, the provision in question deals only with indirect taxes and could therefore never impact on corporation tax (in Ireland or elsewhere). That this is incontrovertibly the case could be confirmed by anyone with a basic knowledge of EU law, and has (of course) been confirmed by the Irish Taxation Institute.
Secondly, the provision has been part of the EC Treaty for years and is in no way a novelty of the Lisbon Treaty. It is presently Article 93 of the EC Treaty and will, post-Lisbon (if ratified), be Article 113 of the “Treaty on the Functioning of the Union” (the EC Treaty as amended and renamed by the Lisbon Treaty). In other words, the provision is existing law (with the exception of the words “and to avoid distortion of competition” at the end, which are inserted by the Lisbon Treaty, but which, as noted above, can have no impact on corporation tax or other direct taxes). Indeed, a version of this provision has been part of EU law since the EEC was founded in 1957 (see Article 99 of the Treaty Establishing the EEC). Further, a large number of important Directives and Regulations have already been agreed in this area on the basis of the Article (e.g. the law of VAT, which is EU-wide).
So this website is encouraging readers to vote against the Lisbon Treaty on the basis that it could result in the European Court of Justice declaring Ireland’s corporation tax regime illegal (it could not). This would merely reflect badly on the National Platform were the matter not so serious. Encouraging members of the public to vote against the Lisbon Treaty on the basis of simple, demonstrable falsehoods is unacceptable in my view. It represents intellectual poverty of the worst kind.
For independent, impartial and factually correct information, I would suggest consulting the Referendum Commission’s guide to the Treaty:
http://www.lisbontreaty2008.ie/
I must respectfully disagree with Mr. Jackson;
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.
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.
By all means check out the Referendum Commission’s site.
Please also consider two sites that contain both the Referendum Commission’s material in addition to clarifications and critical commentary:
“The National Forum on Europe’s Summary Guide to the Lisbon Treaty: A Critical Commentary”:
http://www.forumoneurope.org
and
http://www.LisbonTreaty2008.org
Please also consider both:
“The Reader Friendly Guide to the Lisbon Treaty”
http://www.bonde.com/index.php/bonde_uk/article/reader_friendly_edition_of_the_lisbon_treaty
and RTE’s “User-friendly Lisbon Treaty Audiobook”
http://www.rte.ie/news/features/lisbontreaty/audiobookhome.html
Thank you for the detailed response, nationalplatform. With respect, however, your analysis is incorrect.
One of the first hurdles facing the non-tax specialist is understanding the distinction between direct and indirect tax. This distinction is relevant to the extent of the Community’s competences under the EC Treaty: while Article 93 EC (i.e., what is to become Art. 113 TFEU) forms an express legal basis for legislation concerning “turnover taxes, excise duties and other forms of indirect taxation”, legislation concerning direct taxation can only be based on Article 94 EC (i.e., one of the two general legal bases for internal market legislation).
As with so many concepts in this area, however, the direct/indirect tax distinction is sourced from national tax systems. For this reason, the EC Treaty contains no definition, as such, of the distinction. Various Advocates General have, however, tried their hand at summarising it. One of the best of these attempts was made by Advocate General Stix-Hackl in the well-known case Banca Popolare di Cremona (C-475/03):
“it is commonly accepted that no complete, unambiguous and universally valid definition [of the direct/indirect tax distinction] can be formulated. Certainly, the essence of the distinction is clear: a direct tax is collected directly from the person who bears the economic burden; an indirect tax is included in a sum paid by that person to another, who does not bear the economic burden but who accounts for the tax.”
The distinction is thus based on the person from whom the tax is collected: Is it the person who bears the economic burden of the tax (= direct tax, e.g., income and corporation tax), or another person (= indirect tax, e.g. Value Added Tax, excise duties)?
Corporation tax could never (repeat NEVER) be seen or interpreted as an indirect tax: that would be completely at odds with the concept of an indirect tax. So the Lisbon Treaty’s amendment to what is now Art. 93 of the EC Treaty (i.e., Art. 113 TFEU) could never have the result you suggest.
Thanks for the response;
There are two extra issues here: one concerning the context of the treaty and the ultimate aspirations of those who drew it up; and the second concerning the modifications of structures and institutional arrangements within the treaty, that enable those aspirations to come about.
Were the EU treaties both drawn up and implemented by people like Mr. Jackson, I might be tempted to vote for this one myself.
Unfortunately, they have instead been drawn up, and will be implemented, by people with the mindset of Former French President V.Giscard D’Estaing, who has said ““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.”
These proposals – as confirmed in the public record by people such as German Chancellor Angela Merkel, and Belgian Prime Minister, Guy Verhofstadt – are to establish an EU Constitution and State by stealth in methodology, and by obfuscation of language, rather than by the direct and honest route (the Lisbon Treaty is 96% the same, legally, as the Constitution rejected by the French and Dutch).
Why is this relevant to tax? Because a key, open motivation of those writing the Treaty is to harmonise corporate taxes across Europe, to prevent smaller states such as Estonia and Ireland from gaining a competitive advantage relative to larger ones such as France and Germany. Several key debates in the EU about such harmonisation of taxation have been postponed until after the Irish referendum, for example.
Unspecified, undefined terms such as indirect taxation, can only be presumed to exclude things such as corporate taxation, as long as they are so presumed – until they’re not. The EU context for such interpretation is political and judicial, rather than intellectual or statutory.
That people such as Mr. Jackson might have vigorous conceptual qualms about such shifts in language within ones own practice, does not change the fact that, in law, there would actually not be any legal basis whatsoever, for preventing a newly-empowered EU Court of Justice from ruling that for the greater good of the New EU (“distortion of internal competition”), such a definition will now apply or be implicit.
This would be entirely in keeping both with its previous expansionary practice and judicial activism in favour of the EU, and the political motivations of those who have increasingly empowered the Court.
Incidentally, this is also entirely in keeping with the historical practice of Federal States in general (e.g. the “penumbrial powers” judgement of the US Supreme Court relating to previously limited Federal powers).
Thank you for your work on the Amendment 136, ESM and Fiscal Treaty, your articles have been very informative at a time when clear information is needed.