* 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.

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“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

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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

Irish Referendum, Lisbon Treaty Quotes

WHAT TOP EU POLITICIANS SAY ABOUT THE LISBON TREATY/ EU CONSTITUTION
(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 Treaty Referendum in Ireland: What the Treaty of Lisbon would do

WHAT THE TREATY OF LISBON WOULD DO

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

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

“The State may ratify the Treaty of Lisbon signed at Lisbon on the 13th day of December 2007, and may
be a member of the European Union established by virtue of that Treaty. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated
by membership of the European Union, or prevents laws enacted, acts done or measures adopted by the said European Union or by institutions thereof, or by bodies competent under the treaties referred to in this section, from having the force of law in the State.” (emphasis added)
– 28th Amendment of the Constitution Bill, 2008 … What the people will be voting on in the Lisbon referendum

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

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

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

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

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

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

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

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

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

3. Lisbon sets out the extensive powers of the new Union it would establish: The new EU’s powers would be conferred on it by its 27 Member States, for they would voluntarily have agreed to obey the EU’s superior authority in the policy areas surrendered, which nowadays cover much the greater part of government. The remaining governmental powers, which have mainly to do with the traditional social services and the taxation needed to finance them, would remain with the Member States (Art.4.1 TEU). Such a division is normal in Federations. Similar provisions are to be found in the US Constitution and that of other Federal States.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The EU has already got a human rights competence, in that the Court of Justice can adjudicate on such rights as equality and non-discrimination under the existing Treaties. Therefore making the Charter legally binding does not extend the powers or competence of the Union as such. What Lisbon would do would be to give the ECJ a much wider range of human and civil rights to interpret and decide on, for the Charter would cover all the rights of EU citizens in the post-Lisbon Union. The Court has laid down in several court cases over the years that National Law must be applied in ways that are consistent with EU law, for the latter has supremacy in any conflict between the two. This principle must logically apply to rights issues also. ECJ judgements on rights issues would override national provisions in any case of conflict between the two.

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

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

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

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

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

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

12. Lisbon underlines the implicitly subordinate role of National Parliaments in the institutional structure of the new Union: It does this by stating that “National Parliaments contribute actively to the good functioning of the Union” by various means which are set out in Article12, amended TEU. Under the pretext of enhancing the role of National Parliaments, the Treaty actually institutionalises their subservience by defining such a limited role for them in the new Union’s structures.

National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third or more of National Parliaments object, the Commission can then decide to continue with the legislation unamended – with its decision confirmed by the normal QMV procedures(“the yellow card”). If over half the National Parliaments object and the Commission still persists in its proposal, 15 out of 27 Member States on the Council, or a majority in the European Parliament, may reject it, but the Council of Ministers has that power anyway under its usual procedures(“the red or orange card”). This right to complain, for that is what it is, is not an increase in the powers of National Parliaments, as it has been widely misrepresented as being, but is symbolical rather of their loss of real power.

Ultimately it is the EU itself, through the Court of Justice, which has the final right to arbitrate on claims of subsidiarity infringement (Protocol on the Application of the Principles of Subsidiarity and Proportionality, Article 7.2). These provisions of the Treaty permitting National Parliaments in effect to complain to the Commission, are small compensation for the loss of democracy involved by the loss of some 68 vetoes by National Parliaments as a result of other changes proposed by the Treaty. National Parliaments have in any case already lost most of their law-making powers to the EC/EU. The citizens who elect them have lost their powers to decide these laws also.

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

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

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

Is Lisbon necessary to make the EU more effective?

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

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

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

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

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

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

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

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

A Vote No is a Yes to something better!

* * *

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

The same author, who was a member of the Convention on the Future of Europe which drew up the original EU Constitution, of which Lisbon is a revamped version, has written an illuminating short book analysing the Lisbon Treaty and giving the story of how it came into being: From EU Constitution to Lisbon Treaty. This is downloadable from the same web-sites: < euabc.com > or< bonde.com > It may also be purchased from the National Platform EU Research and Information Centre at the above address for €10.

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

April 2008

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