⁂ “EU discrimination directive could require faith schools to take atheist pupils”

EU directive could open up faith schools to non-believers
Plans drawn up by the European Union to combat discrimination would allow non-believers to send their children to faith schools and could pave the way for gay marriage in church.

The Telegraph
By Jonathan Wynne-Jones, Religious Affairs Correspondent

Guess Who’s Coming To Dinner: Václav Klaus, Cohn-Bendit, Pöttering, Brian Crowley

Excerpts from the meeting between Václav Klaus, President of the Czech Republic, and members of the Conference of the Presidents of the European Parliament, Friday 5 December 2008, Prague Castle:

Daniel Cohn-Bendit MEP: I brought you a flag, which – as we heard – you have everywhere here at the Prague Castle. It is the flag of the European Union, so I will place it here in front of you.

It will be a tough Presidency. The Czech Republic will have to deal with the work directive and climate package. EU climate package represents less than what our fraction would wish for. It will be necessary to hold on to the minimum of that. I am certain that the climate change represents not only a risk, but also a danger for the future development of the planet. My view is based on scientific views and majority approval of the EP and I know you disagree with me. You can believe what you want, I don’t believe, I know that global warming is a reality.

Lisbon Treaty – I don’t care about your opinions on it. I want to know what you are going to do if the Czech Chamber of Deputies and the Senate approve it. Will you respect the will of the representatives of the people? You will have to sign it.

I want you to explain to me what is the level of your friendship with Mr Ganley from Ireland. How can you meet a person whose funding is unclear? You are not supposed to meet him in your function. It is a man whose finances come from problematic sources and he wants to use them to be funding his election campaign into the EP.

President Vaclav Klaus: I must say that nobody has talked to me in such a style and tone for the past 6 years. You are not on the barricades in Paris here. I thought that these manners ended for us 18 years ago but I see I was wrong. I would not dare to ask how the activities of the Greens are funded. If you are concerned about a rational discussion in this half an hour, which we have, please give the floor to someone else, Mr Chairman.

EU Parliament President Hans-Gert Pöttering: No, we have plenty of time. My colleague will continue, because anyone from the members of the EP can ask you whatever he likes. (to Cohn-Bendit:) Please continue.

President Vaclav Klaus: This is incredible. I have never experienced anything like this before.

Daniel Cohn-Bendit: Because you have not experienced me…

President Vaclav Klaus: This is incredible.

Daniel Cohn-Bendit: We have always had good talks with President Havel. And what will you tell me about your attitude towards the anti-discrimination law? I will gladly inform you about our funding.

Hans-Gert Pöttering: Brian Crowley, please.

Brian Crowley MEP: I am from Ireland and I am a member of a party in government. All his life my father fought against the British domination. Many of my relatives lost their lives. That is why I dare to say that the Irish wish for the Lisbon Treaty. It was an insult, Mr. President, to me and to the Irish people what you said during your state visit to Ireland. It was an insult that you met Declan Ganley, a man with no elected mandate. This man has not proven the sources from which his campaign was funded. I just want to inform you what the Irish felt. I wish you that you get the programme of your Presidency through and you will get through what European citizens want to see.

President Vaclav Klaus:  Thank you for this experience which I gained from this meeting. I did not think anything like this is possible and have not experienced anything like this for the past 19 years. I thought it was a matter of the past that we live in democracy, but it is post-democracy, really, which rules the EU.

You mentioned the European values. The most important value is freedom and democracy. The citizens of the EU member states are concerned about freedom and democracy, above all. But democracy and freedom are loosing ground in the EU today. It is necessary to strive for them and fight for them.

I would like to emphasize, above all, what most citizens of the Czech Republic feel, that for us the EU membership has no alternative. It was me who submitted the EU application in the year 1996 and who signed the Accession treaty in 2003. But the arrangements within the EU have many alternatives. To take one of them as sacrosanct, untouchable, about which it is not possible to doubt or criticize it, is against the very nature of Europe.

As for the Lisbon Treaty, I would like to mention that it is not ratified in Germany either. The Constitutional Treaty, which was basically the same as the Lisbon Treaty, was refused in referendums in other two countries. If Mr. Crowley speaks of an insult to the Irish people, then I must say that the biggest insult to the Irish people is not to accept the result of the Irish referendum. In Ireland I met somebody who represents a majority in his country. You, Mr. Crowley, represent a view which is in minority in Ireland. That is a tangible result of the referendum.

Brian Crowley MEP: With all respect, Mr. President, you will not tell me what the Irish think. As an Irishman, I know it best.

President Vaclav Klaus: I do not speculate about what the Irish think. I state the only measurable data which were proved by the referendum.

In our country the Lisbon Treaty is not ratified because our parliament has not decided on it yet. It is not the President’s fault. Let’s wait for the decision of both Chambers of the Parliament, that is the current phase of the ratification process in which the President plays no role whatsoever. I cannot sign the Treaty today, it is not on my table, it is up to the parliament to decide about it now. My role will come after the eventual approval of the Treaty in the Parliament. . .

Hans-Gert Pöttering: … In the conclusion – and I want to leave this room in good terms –  I would like to say that it is more than unacceptable, if you compare us, compare us with the Soviet Union. We are all deeply rooted in our countries and our constituencies. We are concerned about freedom and reconciliation in Europe, we are good willing, not naive.

President Vaclav Klaus: I did not compare you with the Soviet Union, I did not mention the word “Soviet Union”. I only said that I have not experienced such an atmosphere, such style of debate in the past 19 years in the Czech Republic, really.

First published on Indymedia.ie

* 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

Lisbon Treaty: “the proposals we dare not present directly”

“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, who helped to draw up the EU Constitution which the French and Dutch rejected in their 2005 referendums and which is now being implemented through the Lisbon Treaty, Le Monde, 14 June 2007

“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 senior MEPs, EUobserver, 14 November 2007

“The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content … The proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through the old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary … But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention.”
– V.Giscard D’Estaing, former French President and Chairman of the Convention which drew up the EU Constitution, The Independent, London, 30 October 2007

“They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister – imagine the UK Prime Minister – can go to the Commons and say ‘Look, you see, it’s absolutely unreadable, it’s the typical Brussels treaty, nothing new, no need for a referendum.’ Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.”
– Giuliano Amato, former Italian Prime Minister and Vice-Chairman of the Convention which drew up the EU Constitution, recorded by Open Europe, The Centre for European Reform, London, 12 July 2007

“Sometimes I like to compare the EU as a creation to the organisation of empires. We have the dimension of Empire but there is a great difference. Empires were usually made with force with a centre imposing diktat, a will on the others. Now what we have is the first non-imperial empire.”
Commission President J-M Barroso, The Brussels Journal, 11 July 2007

“The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable … The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.
– Karel de Gucht, Belgian Foreign Minister, Flandreinfo, 23 June 2007

“The good thing about not calling it a Constltution is that no one can ask for a referendum on it.
– Giuliano Amato, speech at London School of Economics, 21 February 2007

*Lisbon Treaty: “there is a cleavage between people and governments”

(These quotations are in chronological order backwards)

“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… A referendum now would bring Europe into danger. 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 senior MEPs, EUobserver, 14 November 2007

“The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content … The proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through the old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary … But lift the lid and look in the toolbox: all the same innovative and effective tools are there, just as they were carefully crafted by the European Convention.”
– V.Giscard D’Estaing, former French President and Chairman of the Convention which drew up the EU Constitution, The Independent, London, 30 October 2007

‘ “I think it’s a bit upsetting… to see so many countries running away from giving their people an opportunity”, Irish prime minister Bertie Ahern said on Sunday 21 October, according to the Irish Independent. ‘If you believe in something …why not let your people have a say in it. I think the Irish people should take the opportunity to show the rest of Europe that they believe in the cause, and perhaps others shouldn’t be so afraid of it,’ he added. “
– Taoiseach Bertie Ahern, EU Observer, Brussels, 22 October 2007

“They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception. Where they got this perception from is a mystery to me. In order to make our citizens happy, to produce a document that they will never understand! But, there is some truth [in it]. Because if this is the kind of document that the IGC will produce, any Prime Minister – imagine the UK Prime Minister – can go to the Commons and say ‘Look, you see, it’s absolutely unreadable, it’s the typical Brussels treaty, nothing new, no need for a referendum.’ Should you succeed in understanding it at first sight there might be some reason for a referendum, because it would mean that there is something new.”
– Giuliano Amato, former Italian Prime Minister and Vice-Chairman of the Convention which drew up the EU Constitution, recorded by Open Europe, The Centre for European Reform, London, 12 July 2007

“Sometimes I like to compare the EU as a creation to the organisation of empires. We have the dimension of Empire but there is a great difference. Empires were usually made with force with a centre imposing diktat, a will on the others. Now what we have is the first non-imperial empire.”
– Commission President J-M Barroso, The Brussels Journal, 11 July 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.”
– V.Giscard D’Estaing, Le Monde, 14 June 2007, and Sunday Telegraph, 1 July 2007

” The most striklng change ( between the EU Constitution in its older and newer version ) is perhaps that in order to enable some governments to reassure their electorates that the changes will have no constitutional implications, the idea of a new and simpler treaty containing all the provisions governing the Union has now been dropped in favour of a huge series of individual amendments to two existing treaties. Virtual incomprehensibilty has thus replaced simplicity as the key approach to EU reform. As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum.”
– Dr Garret FitzGerald, former Irish Taoiseach, Irish Times, 30 June 2007
“The substance of the constitution is preserved.That is a fact.”
– German Chancellor Angela Merkel, speech in the European Parliament, 27 June 2007

The good thing is that all the symbolic elements are gone, and that which really matters – the core – is left.”
– Anders Fogh Rasmussen, Danish Prime Minister, Jyllands-Posten, 25 June 2007

“The substance of what was agreed in 2004 has been retained. What is gone is the term ‘constitution’ “.
– Dermot Ahern, Irish Foreign Minister, Daily Mail Ireland, 25 June 2007
“90 per cent of it is still there…These changes haven’t made any dramatic change to the substance of what was agreed back in 2004.”
– Irish Taoiseach Bertie Ahern, Irish Independent, 24 June 2007

“The aim of the Constitutional Treaty was to be more readable; the aim of this treaty is to be unreadable … The Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.”
– Karel de Gucht, Belgian Foreign Minister, Flandreinfo, 23 June 2007

“The good thing about not calling it a Constltution is that no one can ask for a referendum on it.”
– Giuliano Amato, speech at London School of Econmics, 21 February 2007


“Referendums make the process of approval of European treaties much more complicated and less predictable … I was in favour of a referendum as a prime minister, but it does make our lives with 27 member states in the EU much more difficult. If a referendum had to be held on the creation of the European Community or the introduction of the euro, do you think these would have passed?”
– Commission President Jose M. Barroso, Irish Times, 8 Feb.2007; quoting remarks in Het Financieele Dag and De Volkskrant, Holland; also quoted in EUobserver, 6 February 2007

” It is true that we are experiencing an ever greater, inappropriate centralisation of powers away from the Member States and towards the EU. The German Ministry of Justice has compared the legal acts adopted by the Federal Republic of Germany between 1998 and 2004 with those adopted by the European Union in the same period. Results: 84 percent come from Brussels, with only 16 percent coming originally from Berlin … Against the fundamental principle of the separation of powers, the essential European legislative functions lie with the members of the executive … The figures stated by the German Ministry of Justice make it quite clear. By far the large majority of legislation valid in Germany is adopted by the German Government in the Council of Ministers, and not by the German Parliament … And so the question arises whether Germany can still be referred to unconditionally as a parliamentary democracy at all, because the separation of powers as a fundamental constituting principle of the constitutional order in Germany has been cancelled out for large sections of the legislation applying to this country … The proposed draft Constitution does not contain the possibility of restoring individual competencies to the national level as a centralisation brake. Instead, it counts on the same one-way street as before, heading towards ever greater centralisation … Most people have a fundamentally positive attitude to European integration. But at the same time, they have an ever increasing feeling that something is going wrong, that an untransparent, complex, intricate, mammoth institution has evolved, divorced from the factual problems and national traditions, grabbing ever greater competencies and areas of power; that the democratic control mechanisms are failing: in brief, that it cannot go on like this.”
– Former German President Roman Herzog and former president of the German Constitutional Court, article on the EU Constitution, Welt Am Sonntag, 14 January 2007


“If it’s a Yes, we will say ‘On we go”, and if it’s a No we will say ‘We continue.’”
– Jean-Claude Juncker, Luxembourg Prime Minister and holder of the EU Presidency, Daily Telegraph, 26 May 2005

“The Constitution is the capstone of a European Federal State.”
– Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21 June 2004
“Are we all clear that we want to build something that can aspire to be a world power? In other words, not just a trading bloc but a political entity. Do we realise that our nation states, taken individually, would find it far more difficult to assert their existence and their identity on the world stage.”
– Commission President Romano Prodi, European Parliament, 13 February 2001

*Lisbon: mandatory tax harmonisation

The Lisbon Treaty amendment on EU harmonized taxes which has not been publicly mentioned so far in Ireland’s referendum debate

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. The full amended Article would then read as follows:
Article 113
“The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.”
(The Lisbon Treaty amendment is underlined) . . .Treaty on the Functioning of the European Union

The significance of this short but important amendment is that it would enable the European Court of Justice, which adjudicates on competition matters, to decide that Ireland’s 12.5% rate of company tax, or Estonia’s zero rate,  as against Britain’s 28% rate and 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 be irrelevant if those Articles on the Internal Market are invoked as the legal basis for proposing changes in EU tax laws.  All the assurances regarding unanimity underArticle 113 would then count for nothing.
Once this amendment to Article 113 is inserted, the European Commission, whose job it is to police the internal market, need only point out that the  big  cross-national disparities in  corporation tax rates and Ireland’s reluctance to accept a Common Consolidated Tax base which would tax company profits on the basis of their sales in different EU countries, at the tax rates prevailing in those countries, constitute a prima facie “distortion of competition” under Articles 101-109.
If Ireland refused to cooperate with what the Commission wanted, the Commission could bring it before the Court of Justice – or another country or firm could institute proceedings against it – and the Court could declare the Irish Government’s tax policy to be  unlawful as in breach of the EU’s Internal Market provisions.
Unanimity under Article 113 would certainly  be required to introduce any joint rates of company tax, but this Lisbon Treaty amendment would give the EU Commission and Court of Justice ample extra powers to erode Ireland’s low rate of corporation profits tax, whether we liked it or not.
If an Irish-based company had 10% of its sales or turnover in Ireland and 90% in, say, Britain, its profits from its Irish sales could be taxed at 12.5% and from its British sales at 28%, under the scheme the Commission has been mooting.  We might even  be allowed to keep our 12.5%  company tax indefinitely, but its practical benefit would be hugely eroded by proposals such as this, which this six-word  Lisbon Treaty amendment is designed to facilitate.
There is no other possible reason for inserting this hitherto virtually unnoticed  six-word amendment by means of the Lisbon Treaty.

Ireland’s 12.5% company tax rate, not to mind Estonia’s zero rate, just stand out as being clearly “distortions of competition” on the EU’s Internal Market.
Commission  President J.M. Barroso should be asked what is the significance of this six-word Lisbon Treaty  amendment  to Article 113 on harmonised taxes during his two-day visit to Ireland.
By refusing to ratify the Lisbon Treaty and agree to this important amendment we  refuse to hand over to the EU Commission and Court of Justice these new mechanisms to undermine the principal incentive attracting foreign companies to Ireland and keeping many of them in th country.  It should be noted of  course  that Ireland’s low corporation tax rate benefits Iindigenous companies also, and not just foreign multinationals here.
By rejecting Lisbon and insisting on a Protocol in any new Treaty which would protect the principle of tax-competition between the countrries, we  make a stand for economic freedom and reject the attempt to impose an economic straitjacket on the EU Member States in the interests of Germany, France and Britain, with their high company tax rates.
Note, incidentally, that harmonizing laws on indirect taxes in the EU is mandatory under Article 113 set out above: “The  Council SHALL…”
Anthony Coughlan

[09/05/2006] Open Letter to TDs/Senators re tomorrow’s “Europe Day” Dail debate: What they may not know about the Schuman Declaration of 9 May 1950

The open letter below has been sent today to all TDs and Senators to inform them of facts they may not know about the Schuman Declaration of 9 May 1950, which is being commemorated iin “Europe Day” today and in the all-day debate they will be holding in the Dail tomorrow.
The National Platform
For a Europe of independent democratic co-operating nation states
24 Crawford Avenue
Dublin 9
Tel.: (01) 8305792
Tuesday 9 May 2006
Dear Deputy/Senator,
As an addendum to the e-mail I sent you yesterday about the EU Commission Office in Dublin encouraging local broadcasters to break the law, may I send you for your information below the full text of the Schuman Declaration of 9 May 1950, which the Commission and the European Movement desire you to celebrate today and in the special Oireachtas debate tomorrow.
May I draw to your attention the phrases in the Declaration which state that it is “a first step in the federation of Europe”, and that “this proposal will lead to the realization of the first concrete foundation of a European federation”. These political objectives are usually omitted when the Declaration is referred to, and most people do not even know of their existence.
A federation is of course a State and yet for decades now the champions of EC/EU integration have been swearing blind that they have no knowledge of any such plans. This is the lie they have been telling the peoples of the different European countries as the EEC/EC/EU has steadily acquired ever more features of a supranational Federation: flag, anthem, Parliament, Supreme Court, currency, laws, battle groups, code of fundamental rights and now – they hope – its own Constitution and real citizenship and citizens’ obligations. That would leave the power to levy taxes as the only major power of government still remaining at national level. And the Eurocrats clearly aspire to obtain this in time.
The Irish people do not want to become citizens of the federal Europe which the Commission and its ideological hangers-on in the European Movement have been seeking to construct for decades now, while pretending that they are really only concerned with jobs and economic growth. Do YOU want to become a citizen of such a Federation? Is that what the men and women of 1916 had in mind, whom you were purporting to honour just a few short weeks ago?
Already the EU is the source of two-thirds of our laws here in Ireland. Under the proposed EU Constitution that proportion would increase. The power of the EU Commission would increase correspondingly, for it has the monopoly of proposing all laws in the EU. No wonder the Commission has the gall to lash out millions of our money on “Europe Day” gimmicks, on special supplements in our newspapers, and on political advertising in the print and broadcast media – all with the aim of persuading us that we should give it more power.
The proposed EU Constitution, if it were to be ratified, would legally abolish the present European Union and Community and would establish in their place a new Union that would be founded like any State upon its own Consitution. In other words, it would endow this new EIU with the constitutional form of a supranational State, which we would all be made real citizens of, and not just nominal or honorary EU “citizens” as at present. We would then owe this new European Union our prime obedience and allegiance, for it would be, and its Constitution would be, superior to our own State and Constitution, and the Irish Constitution would have to be amended by referendum to recognise that supremacy.
Do you, as an Irish legislator, and an Irish citizen, want to be a citizen of a federal EU State; for one can only be a citizen of a State?
Was this what De Valera founded Fianna Fail for? Or Griffith, Collins and Cosgrave when they laid the foundations of Fine Gael? Or Connolly, who founded the Labour Party, and who gave his life along with Pearse and the others to establish a State in which the Irish people would exercise their right to “the ownership of Ireland and the unfettered control of Irish destinies”? Is having two-thirds of our laws made in Brussels, in making which the Irish people have minimal input, exercising the unfettered control of Irish destinies?
So read Schuman’s Declaration of 9 May 1950 and know what you are really celebrating on “Europe Day”!
Yours faithfully
Anthony Coughlan
PS. Did you see Commission President Manuel Barroso writing in today’s Irish Times “Europe Day” supplement on “the need to respect the views of the people of France and the Netherlands”, who voted against the EU Constitution last year, while simultaneously he and his fellow Eurocrats are urging as many EU Member States as possible to continue ratifying the “Treaty Establishing a Constitution for Europe” – which is the very opposite of respecting the views of the French and Dutch? This epitomises the consummate arrogance and profoundly elitist and anti-democratic mindset of these people. It is the reason why ordinary citizens are turning against them in every EU country, and will continue to do so.
Full text of the Schuman Declaration of 9 May 1950 (emphasis added below)
This is the full text of the proposal, which was presented by French Foreign Minister Robert Schuman and which led to the creation of what is now the European Union:-
World peace cannot be safeguarded without the making of creative efforts proportionate to the dangers which threaten it.
The contribution which an organized and living Europe can bring to civilization is indispensable to the maintenance of peaceful relations. In taking upon herself for more than 20 years the role of champion of a united Europe, France has always had as her essential aim the service of peace. A united Europe was not achieved and we had war.
Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity. The coming together of the nations of Europe requires the elimination of the age-old opposition of France and Germany. Any action taken must in the first place concern these two countries. With this aim in view, the French Government proposes that action be taken immediately on one limited but decisive point.
It proposes that Franco-German production of coal and steel as a whole be placed under a common High Authority, within the framework of an organization open to the participation of the other countries of Europe. 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, and will change the destinies of those regions which have long been devoted to the manufacture of munitions of war, of which they have been the most constant victims.
The solidarity in production thus established will make it plain that any war between France and Germany becomes not merely unthinkable, but materially impossible. The setting up of this powerful productive unit, open to all countries willing to take part and bound ultimately to provide all the member countries with the basic elements of industrial production on the same terms, will lay a true foundation for their economic unification. This production will be offered to the world as a whole without distinction or exception, with the aim of contributing to raising living standards and to promoting peaceful achievements.
In this way, there will be realized simply and speedily that fusion of interest which is indispensable to the establishment of a common economic system; it may be the leaven from which may grow a wider and deeper community between countries long opposed to one another by sanguinary divisions.
By pooling basic production and by instituting a new High Authority, whose decisions will bind France, Germany and other member countries, THIS PROPOSAL WILL LEAD TO THE REALIZATION OF THE FIRST CONCRETE FOUNDATION OF A EUROPEAN FEDERATION INDISPENSABLE TO THE PRESERVATION OF PEACE.
To promote the realization of the objectives defined, the French Government is ready to open negotiations on the following bases.
The task with which this common High Authority will be charged will be that of securing in the shortest possible time the modernization of production and the improvement of its quality; the supply of coal and steel on identical terms to the French and German markets, as well as to the markets of other member countries; the development in common of exports to other countries; the equalization and improvement of the living conditions of workers in these industries.
To achieve these objectives, starting from the very different conditions in which the production of member countries is at present situated, it is proposed that certain transitional measures should be instituted, such as the application of a production and investment plan, the establishment of compensating machinery for equating prices, and the creation of a restructuring fund to facilitate the rationalization of production. The movement of coal and steel between member countries will immediately be freed from all customs duty, and will not be affected by differential transport rates. Conditions will gradually be created which will spontaneously provide for the more rational distribution of production at the highest level of productivity.
In contrast to international cartels, which tend to impose restrictive practices on distribution and the exploitation of national markets, and to maintain high profits, the organization will ensure the fusion of markets and the expansion of production.
The essential principles and undertakings defined above will be the subject of a treaty signed between the States and submitted for the ratification of their parliaments. The negotiations required to settle details of applications will be undertaken with the help of an arbitrator appointed by common agreement. He will be entrusted with the task of seeing that the agreements reached conform with the principles laid down, and, in the event of a deadlock, he will decide what solution is to be adopted.
The common High Authority entrusted with the management of the scheme will be composed of independent persons appointed by the governments, giving equal representation. A chairman will be chosen by common agreement between the governments. The Authority’s decisions will be enforceable in France, Germany and other member countries. Appropriate measures will be provided for means of appeal against the decisions of the Authority.
A representative of the United Nations will be accredited to the Authority, and will be instructed to make a public report to the United Nations twice yearly, giving an account of the working of the new organization, particularly as concerns the safeguarding of its objectives.
The institution of the High Authority will in no way prejudge the methods of ownership of enterprises. In the exercise of its functions, the common High Authority will take into account the powers conferred upon the International Ruhr Authority and the obligations of all kinds imposed upon Germany, so long as these remain in force.
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