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☘Explanatory document on Lisbon

Facts on the Lisbon Treaty

Millions of Europeans support us: By voting No we remain full members of the EU and of the euro currency based on the existing Nice Treaty, but we reject the proposed Lisbon Treaty as a step too far. Millions of  our fellow Europeans who are being denied referendums on Lisbon by their politicians are hoping that we will say No again for their sakes. We can thereby open the way for a better Treaty for a better and more democratic Europe.

The economic crisis: All 27 EU Members are in economic crisis. Ireland is worse than most because of  the borrowing binge, housing bubble and Bank bail-outs which were encouraged by the same golden circle of  politicians and bankers as are now bringing us Lisbon Two. The crisis makes Lisbon’s model of a deregulated, privatised, let-it-rip EU economy quite out-of-date.  Lisbon’s proposal to give the Big States from 50-100% more voting power in the EU, while halving Ireland’s voting power to 0.8% would be economically disastrous for us in face of the economic crisis, as Brussels, Frankfurt  and the Big EU States insist on savage cut-backs  being imposed on the Irish economy.

We remain full EU members: There is no question of Ireland being sidelined or pushed out of the EU or the euro-currency if we stand by our No to Lisbon. As Ireland’s EU Commissioner Charlie McCreevy said in Hot Press last December:

“There is no provision in the existing treaties to isolate anybody. There is no provision to throw out anybody, unless unanimously all the existing members of the club agreed to throw you out. And I doubt, now or in the future, any Irish Government is going to unanimously agree to throw themselves out.”

Exactly the same Lisbon Treaty: Not a dot or comma of the Lisbon Treaty will be changed for Lisbon Two. If Lisbon comes into force it will be interpreted by the EU Court of Justice and not on the basis of political declarations by the EU Prime Ministers and Presidents.  These do not change anything in the Treaty and are not legally binding as part of EU law. Promises of changes to suit Ireland in some future EU Treaty cannot pull back on anything in the Lisbon Treaty once it is in force. The EU Prime Ministers state that they “will clarify but not change either the content or the application of the Treaty of Lisbon”, which only the EU Court can decide on (Summit Conclusions 19-6-2009).

As pro-Lisbon journalist James Downey has written: “The antis are right about one thing, if one thing only. Any guarantees we may get on their concerns will be irrelevant, or worthless, or both.” (Irish Independent, 21-3-2009)

Overturning the people’s vote: The Lisbon Treaty is the new legal form of the EU Constitution which French and Dutch voters rejected in their 2005 referendums.  Irish voters rejected it in last year’s referendum by 53% to 47%.  All genuine democrats, including Yes-side voters, should respect that vote as the French and Dutch Governments did.  Respecting it would have meant Taoiseach Brian Cowen telling his EU partners that Ireland could not ratify Lisbon because the Irish people had voted No to it, so  there was no point in their continuing to ratify it as EU Treaties must be unanimous. Instead Taoiseach Cowen and Foreign Minister Martin told the other EU Governments on the morning of last year’s count to ignore their own people’s vote and to  continue with ratifying Lisbon.They persuaded their EU colleagues that they could get the Irish people to overturn their democratic No vote  in a second referendum on exactly the same Treaty, if they got enough support from France, Germany etc. in the form of statements about Ireland’s concerns, even though the Treaty is unchanged.

Turning the EU into a State: Lisbon would be a giant step in turning the EU into a supranational Federal-style State, in which Ireland would effectively be reduced to regional or provincial status.  It would give Government Ministers and the Big EU States huge new powers, while taking power away from ordinary citizens across the EU, and from the National Parliaments they elect. Because of our Constitution, only Ireland is being allowed a vote on it. Only we Irish can save democracy in the EU by refusing to allow ourselves be pressurised into overturning our rejection of Lisbon in 2008. If we vote No again in Lisbon Two we hold the door open to our fellow countrymen and women in Northern Ireland and give them the chance of having a say in a UK referendum next year.

Denying citizens a vote: France’s President Sarkozy and  EU Commissioner Charlie McCreevy have admitted that if Lisbon were put to referendum in other EU countries their voters would reject it too.  Although opinion polls show that people in most Member States want to decide for themselves whether they should be put under an EU Constitution which would override their National Constitutions, the EU Prime Ministers refused to allow referendums. This does not bode well for the future of democracy in the EU.

A UK Referendum: There is now a race in time between the ratification of the Lisbon Treaty, which would greatly increase the power of  the Big States and the  Brussels Commission in the EU, and the coming to office of a  new Government in Britain by next May.  Labour’s Gordon Brown broke Tony Blair’s promise to give the British people a referendum.  David Cameron’s  policy is to hold a referendum on Lisbon in the UK and recommend a No vote to it to the British people – so long as  we Irish do not change our No vote of last year and thereby bring Lisbon and the new undemocratic EU it would create into being for all 27 EU Member States first.

These are the main reasons why Lisbon is a bad Treaty for Ireland and for the EU.  It would –

1. Be  a power-grab by the Big States for control of the EU. At present EU laws are made by a simple majority of Member States (14 out of 27), so long as  between them  they have  a qualified majority of 255 votes out of 345. Under this Nice Treaty system the Big States have 29 votes each and Ireland has 7, one quarter of each Big State. Under Lisbon future EU laws would be made by 55% of Member States, i.e. 15 out of 27, so long as they have 65% of the total EU population between them. By basing EU law-making primarily on population size, the Lisbon Treaty would double Germany’s relative voting strength on the EU Council of Ministers from its present 8% of the total votes to 17% on a population  basis, and increase  France’s, Britain’s and Italy’s by half,  from 8% to 12%  – while halving Ireland’s vote from 2% to 0.8% (Art.16, Treaty on European Union / TEU).  How does having 0.8% of a vote in making EU laws put us “at the heart of Europe”?  Taoiseach Brian Cowen’s “guarantees” do not explain how having half as much influence in the EU as Ireland has today would induce other Member States to listen to our concerns on unemployment and help to resolve the economic crisis  in the interest of Irish companies, workers and farmers. (*See Note 1 below on the  voting rules for making EU laws)

2. Copperfasten the Laval and related judgements of the EU Court of Justice, which  put the competition rules of the EU market  above the right of Trade Unions to enforce pay standards higher than the minimum wage for migrant workers. At the same time Lisbon would give the EU full control of immigration policy (Art.79 TFEU). This combination threatens the pay and working conditions of many Irish people. A Protocol in a new Treaty different from Lisbon would be needed to set aside the recent Laval, Rüffert and other EU Court judgements, but the EU Prime Ministers refused that.

3. Permit the post-Lisbon EU to impose Europe-wide taxes directly on us for the first time without need of further Treaties or referendums (Art.311 TFEU). This could be any kind of tax – income tax, sales tax, property tax –  so long as it was  unanimously agreed by EU Governments. If Lisbon were to be ratified,  Government Ministers would have every incentive to agree to give the EU much increased “own resources” by introducing its own taxes to finance the many new functions the EU would obtain under the Treaty.

4. Amend the existing treaties to  give the EU exclusive power as regards rules on foreign direct investment (Arts.206-7 TFEU) and give the Court of Justice the power to order the harmonisation of national indirect taxes it it decides that they cause a“distortion of competition” in the EU market (Art.113 TFEU).  This amendment and the new Protocol No. 27 on the Internal Market and Competition would  strengthen the hand of the Court in using the EU’s internal market rules to subvert Ireland’s low 12.5% company tax rate, which is the principal reason foreign firms come to Ireland and stay here when they come. Compare Germany’s 30% company  tax rate. Commission plans for a harmonised tax base in the EU,  the precursor of harmonised tax rates, have been put on the back-burner until after Lisbon Two for fear they would alarm Irish voters.

5. The Commission, which is appointed not elected, has the monopoly of proposing all European laws. The Lisbon Treaty would abolish our present right to “propose” and decide who Ireland’s Commissioner is, by replacing it with a right to make”suggestions” only, leaving it up to the incoming Commission President to decide (Art.17.7 TEU; cf.Art.214 TEC). Our No vote of last year secured us a commitment to a permanent Commissioner, but what is the point of every EU State continuing to have its own Commissioner post-Lisbon when it can no longer decide who that Commissioner will be?  Under the present Nice Treaty Ireland would continue to decide who should be our Commissioner, and can continue to have an Irish Commissioner indefinitely as well.  (*See Note 2 below explaining how).

6. Give the legally new EU which  it would establish its own State Constitution, which would be superior to the Irish and other national Constitutions. Lisbon would abolish the existing European Community which Ireland joined in 1973 and transfer all of its powers and institutions to the new post-Lisbon Union.  It would give the European Union its own legal personality for the first time, which would be constitutionally separate from and superior to its 27 Member States, so that it could sign international Treaties with other States in all areas of its powers (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy). This post-Lisbon EU would have the same name but would be constitutionally very different from the present EU, which was founded by the 1992 Maastricht Treaty.

In constitutional terms Lisbon would thereby turn Ireland into a regional or provincial state within this new Federal-style Union, with the EU’s Constitution and laws having legal primacy over the Irish Constitution and laws in any cases of conflict between the two. The EU Court of Justice, as the Supreme Court of the new post-Lisbon Union,  would decide such conflicts. Constitutionally and in the eyes of others this would be the end of Ireland’s position as an independent sovereign State in the international community of States. Although we would retain some of the trappings of independent statehood from pre-Lisbon days, in reality we would be more like a regional or provincial state such as Bavaria inside Federal Germany or Massachussetts or Texas inside the USA. From the inside the EU would seem to be based on a Treaty between States, but from the outside it would look like a State itself. The only major power of a State which the post-Lisbon European Union would lack would be the power to force its members to go to war against their will, although they could go to war voluntarily on the EU’s behalf.   (*See Notes 3 and 5 below on the constitutional revolution the Lisbon Treaty would bring about)

7. Turn us all into real citizens for the first time of this new post-Lisbon European Union, owing obedience to its laws and loyalty to its authority over and above our obedience and loyalty to Ireland and the Irish Constitution and laws in the event of any conflict between the two.  One can only be a citizen of a State. and all States must have citizens. Article 9 TEU would give us an “additional” EU citizenship, on top of our Irish citizenship.  This would  be a real EU citizenship for the first time, with associated citizens’ rights and duties, and would be quite different from the notional or symbolical EU “citizenship” of today.  We would still retain our Irish citizenship, but it would be subordinate to our EU citizenship in any case of conflict between the two, as is the case with citizens of such Federal States as Germany, the USA, Switzerland,  Canada. The EU Court of Justice would decide on any such conflicts. (*See Note 4 below)

8. Give the EU Court of Justice the power to decide our rights as EU citizens by making the EU Charter of Fundamental Rights legally binding for the first time (Art.6 TEU).  The Charter includes such rights as free speech, the right to fair trial, the right to life, the rights of the child, the right to strike, property rights etc. – all of them rights we already have under the Irish Constitution, but which it would  fall to the EU Court of Justice, not Ireland’s courts, to interpret and decide for people in their capacity as  citizens of the post-Lisbon EU if Lisbon should be ratified. This would  enable the EU judges to  use its case-law to lay down a uniform standard of rights for the 500 million citizens of the post-Lisbon Union in the name of  a common EU citizenship in the years and decades to come.  It would open the possibility of clashes with national human rights standards in sensitive areas where Member States differ from one another at present, e.g. trial by jury, the presumption of innocence until proven guilty, habeas corpus, the legalisation of hard drugs, euthanasia, abortion, labour law, succession law, marriage law, children’s rights etc. Ireland’s Supreme Court and the  Court of Human Rights in Strasbourg would no longer have the final say on what our rights are.

9. Ireland would lose the national veto it has at present by handing over to the EU the power to make laws binding on us in 32 new policy areas, including public services, crime, justice and policing, immigration, energy, transport, tourism, sport, culture, public health, the EU budget and international measures on  climate change (Art.191 TFEU).   The Dáil and Irish voters who elect the Dáil would no longer decide laws or policy for the areas transferred. (*See Note 6 below on the respective law-making powers of the EU and its Member States after Lisbon.)

10. Reduce the power of National Parliaments to make laws in  relation to 49 policy areas or matters, and increase the influence of the European Parliament in making EU laws in 19 new  areas (See euabc.eu/Heeger II for the two detailed lists). Lisbon would entitle one-third of the National Parliaments or 1 million EU citizens to request the EU Commission to propose a new EU law or to abandon a proposed law, but the Commission need not accede to any such request (Art.11.4 TEU; Protocol No. 2 on Subsidiarity and Proportionality). Lisbon underlines the implicitly subordinate role of National Parliaments in the institutional structure of  the post-Lisbon Union by laying down that “National Parliaments contribute actively to the good functioning of the Union” by various means that are set out in Art.12 TEU. Members of the European Parliament (MEPs), who at present  are “representatives of the peoples of the Member States brought together in the Community” (Art.189 TEC), would under Lisbon become “representatives of the Union’s citizens” (Art.14 TEU).  This change illustrates the constitutional revolution Lisbon would bring about.

11. Be a self-amending Treaty which would permit the EU Prime Ministers and Presidents to shift most remaining EU policy areas where unanimity is required and a national veto still exists – e.g. on tax harmonisation   –  to  qualified majority voting on the Council of Ministers, without need of further EU Treaties or referendums (Art.48.7 TEU).  In  addition, the so-called “Flexibility Clause”, which allows the EU to take action  and adopt measures to attain one of the EU’s objectives even if “the Treaties have not provided the necessary powers,” would be extended by Lisbon to all areas of the Treaty and not just the internal market rules as before (Art.352 TFEU). This would open the floodgates to more political integration, i.e. centralisation,  by means of this article, which is already widely used.

12. Enable the 27 EU Prime Ministers and Presidents to appoint an EU President for up to five years without allowing voters any say as to who he or she would be – thereby abolishing the present six-monthly rotating EU presidencies (Art.15.5 TEU).  Appointment rather than democratic election to this and other top  EU jobs, such as the proposed EU “Foreign Minister”/ High Representative (Art.21.3 TEU),  typifies the undemocratic nature of the proposed Lisbon Constitution.  It is the Prime Ministers and Presidents of the Big States who would have the key say in these appointments because of the big increase in their voting power under Lisbon.

13. Militarize the EU further, requiring Member States “progressively to improve their military capabilities” (Art.42.3 TEU) and to aid and assist other Member States experiencing armed attack “by all the means in their power” (Art.42.7 TEU).

Explanatory Notes

*Note 1: Voting to make EU laws: When Ireland joined the then EEC in 1973 Germany, France, Britain and Italy had 10 votes each in making European laws and Ireland had 3 – one-third that of the Big States.  Under the present Nice Treaty the Big States have 29 votes each and Ireland has 7 – one  quarter of the Big States. Under Lisbon Germany’s votes would be 20 times Ireland’s, for it has 80 million people as against Ireland’s 4 million, and France, Britain and Italy, with their average populations of  60 million,  would each have 15 times more votes than Ireland.  Germany and France between them have one-third of the EU’s population of near 500 million. Under the Lisbon rules they would need only two small countries to vote with them to block any EU law they did not like. (The present voting rules are set out in Art. 205 TEC and the Declaration on EU Enlargement. The Lisbon rules are in Art. 238 TFEU).

*Note 2: Keeping Ireland’s Commissioner under Nice: The Nice Treaty requires the number of Commissioners to be fewer than the number of Member States from 2009, without specifying a number, and any change must be agreed unanimously (Art.4, Protocol on Enlargement). This can be done by reducing the number of Commissioners from 27 to 26, which would mean Ireland would lose its Commissioner once every 135 years. Alternatively, the country whose national is given the job of EU Foreign Minister could be represented by that person on the Commission. So there would be no need for any country to lose a Commissioner under Nice, unless they were compensated by having one of their nationals given this more important job instead.

*Note 3: Ireland’s proposed Constitutional Amendment: The first sentence of the proposed Constitutional Amendment which Irish voters rejected last summer and which they are being asked to change their minds on in October, recognises that Lisbon would establish a legally new European Union which would have the same name but would politically and constitutionally be very different from the present Nice/Maastricht Treaty-based EU:

“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)

*Note 4: EU Citizenship: Under the present Nice Treaty EU citizenship is stated to “complement” national citizenship (Art.17 TEC). This is purely notional or symbolical, for  the present EU is not a State, and one can only be a citizen of a State. Neither does the present EU have legal personality, so that it cannot have individuals as members. All that would change with Lisbon, which would make citizenship of the constitutionally new Union “additional to” national citizenship (Art. 9 TEU). This would be a real Federal citizenship with associated rights and duties vis-à-vis the new EU, with all the implications of that. In classical Federations such as the USA or 19th century Germany, both sovereignty and dual citizenships are divided between the federal and the regional / provincial levels.

*Note 5:  Lisbon’s Constitutional Revolution: The Lisbon Treaty proposes to “constitute” or establish a legally new European Union while retaining the same name, by amending the two existing European Treaties rather than by replacing these completely with a formally titled “Constitution”, as the Treaty which the French and Dutch  rejected in their 2005 referendums sought to do (See the first sentence of the  Irish Constitutional Amendment above and Arts.1 and 47 TEU for proof of this).   When the French and Dutch rejected this Constitutional Treaty, the EU Prime Ministers and Presidents decided to get a Federal-style EU Constitution through indirectly rather than directly without using the word “Constitution”, for they realised that talk of EU Constitutions alarmed people and made too obvious the constitutional revolution being proposed. The result is the Lisbon Treaty.

Because the Lisbon Treaty consists of a long series of amendments to the two existing European Treaties, one can only understand what it would do by referring to the latter Treaties as they would be if amended by Lisbon. This document does that.  The Constitution of the proposed  post-Lisbon European Union would therefore be the two existing European Treaties as they would be when and if they are amended by the Lisbon Treaty.  These would be the Treaty on European Union (TEU) and the Treaty on the Functioning of the Union (TFEU). The two Treaties would have the same legal value (Art.1 TEU).  The second of these, the Treaty on the Functioning of the Union, would be the new name for the present second Treaty, the Treaty Establishing the European Community (TEC), for  Lisbon would abolish the existing European Community which  Ireland joined in 1973.

In legal content and effect the Lisbon Treaty is virtually 100% the same as the Constitutional Treaty which the French and Dutch rejected. Both Treaties would abolish the existing European Community and the Nice/Maastricht-based European Union and establish in their place a constitutionally new European Union with its own legal personality, which would be legally separate from and superior to its Member States for the first time.  Lisbon, like its predecessor, would then confer a real “additional” EU citizenship, with accompanying EU citizens’ rights and duties, on the 500 million citizens of the 27 Member States, without  most of them being aware of it or being allowed any direct say on it.  At the same time the same name, “The European Union”, would be retained for the post-Lisbon EU as for the existing Nice/Maastricht-based EU, even though the new Union’s constitutional-political character would be fundamentally changed.

Those pushing this great deception hope that the media and ordinary citizens  in the  27 Member States  will not notice the constitutional revolution which Lisbon seeks to bring about –  for the EU itself and for its Member States – until after it is accomplished.   People are to be sleep-walked into becoming citizens of a Federal-style EU without knowing it.  Hence the decision of the EU Prime Ministers and Presidents in 2005 to avoid referendums on this proposed constitutional/political  revolution at all costs, in case people might be alerted and protest.

* Note 6: EU powers and Member State powers: In some policy areas the EU has exclusive powers to make laws for its Member States, so that they can no longer legislate for those areas (Art.3 TFEU). These areas are the customs Union, competition rules for the internal market, interest rate and exchange rate policy for  the eurozone countries, fisheries conservation, the common commercial policy and trade treaties.  In most policy areas the EU exercises shared powers with its Member States.  These areas are the internal market, some areas of social policy, economic, social  and territorial cohesion, environment, consumer protection, transport, trans-European networks, energy, the area of freedom, security and justice, and common safety concerns in public health as defined in the Treaty.  In these areas of shared law-making it is the EU, not the Member States, which decides what can be done. The Lisbon Treaty lays down: “Member States shall exercise their competence to the extent that the Union has not exercised its competence” or “to the extent that the Union has decided to cease exercising its competence” (Art.2 TFEU).  The EU also has independent powers in relation to research, technological development, space, development cooperation and humanitarian aid, without the right to inhibit Member State activity in these areas (Art. 4.3 TFEU).  Lisbon also confers on the EU supporting, coordinating or supplementing powers in relation to the actions of Member States  in protecting and improving human health,  industry, culture, tourism, education, youth, sport and vocational training, civil protection and administrative cooperation (Art.6 TFEU). In addition the EU has its Common Foreign, Security and Defence Policy (Arts.21-46 TEU). It is safe to say that there is no area of State law-making or public policy that would not be either decided, influenced or touched by the EU’s powers after Lisbon. It is unsurprising therefore that  the EU now decides the majority of legal acts for its Member States each year. (For a full  list of the specific powers transferred to the EU level see  euabc.eu – legal analysis  by Klaus Heeger, II)

*    *    *

This document has been prepared by The National Platform EU Research and Information Centre, 24 Crawford Ave., Dublin  9; Tel: 01-8305792; Web-site: nationalplatform.org;  Director Anthony Coughlan.  It has been checked for legal accuracy with authorities on European and Irish constitutional law.

Please feel free to  use and adapt it as you see fit, without any need of  reference to or acknowledgement of its source.  Please photocopy it and distribute it to others so as to  inform people how Ireland’s pro-Lisbon politicians – some wittingly, some unwittingly –  are out to do profound damage to our political and economic interests in the EU by seeking to overturn last year’s Lisbon Treaty referendum result.

We are an entirely voluntary body and depend on citizens’ donations for our work. To help this, and to enable us spread this information more widely, please send what donation you can to our address above, making cheques out to Bank of Ireland Account No. 30081817.
For useful  non-partisan material on the Lisbon Treaty and all aspects of  the EU, see the Dictionary/Lexicon  of EU terms and associated data and linked internet items at euabc.eu

July 2009

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