The National Platform EU Research and Information Centre
by Anthony Coughlan – Secretary

What Taoiseach Brian Cowen should do now on Lisbon

There will be a British general election inside the next 18 months which will almost certainly return a Conservative Government that is committed to holding a referendum on the Lisbon Treaty in Britain and Northern Ireland and recommending a No vote to it, so long as the Republic’s voters have not reversed their rejection of Lisbon in the meantime. For such a reversal would enable Lisbon to come into force for all 27 EU States before that general election.

This change of government in Britain will enable our fellow countrymen in the North, as well as the British people, to give their view on the Federal EU Constitution which Lisbon embodies, so that they can reject it as French, Dutch and Irish voters have done.

As William Hague, Conservative Shadow Foreign Secretary, wrote in the Irish Times on 27 July: “If Lisbon remains unratified by all EU members, a Conservative government will put Britain’s ratification of the treaty on ice and hold a referendum, recommending a No vote to a document that we believe represents an outdated centralising approach to the EU. So the chances are growing that Ireland’s voters will not be alone in saying No to Lisbon for long.”

Taoiseach Brian Cowen should now tell his EU partners that the wisest course in relation to Lisbon is to wait until the British people and the people of Northern Ireland can have their say on this profoundly important treaty.

He should resist the bullying of France’s President Sarkozy, Germany’s Chancellor Angela Merkel and Commission President Barroso, who wish to force the Irish people to hold a Lisbon Two referendum on what legally must be exactly the same Lisbon Treaty, so as to reverse their No vote of last June.

Lisbon cannot come into force without Ireland voting for it. Sarkozy, Merkel and Barroso want the Irish to reverse their No vote even though the French and Dutch Governments respected the decision of their voters when they rejected the EU Constitution in 2005. They did not insult their peoples by putting the same Treaty to them again.

By failing to tell his EU partners that Ireland could not ratify Lisbon after last June’s No result, Taoiseach Brian Cowen effectively encouraged them to continue with their ratifications. They now seek his connivance in imposing a Federal Constitution on Europe and turning 500 million Europeans into real citizens of a Federal EU without permitting them any say on such a constitutional revolution by means of referendums – and before the people of the UK can have a say.
Article 6 of the Irish Constitution states that it is the right of the people “in final appeal, to decide all questions of national policy”. The Irish people have decided to reject Lisbon. Respecting that decision, which the Taoiseach says he does, means not attempting to overturn it. Any attempt to put the same Lisbon Treaty to the Irish people again would almost certainly be in breach of the Constitution and would inevitably face challenge in the Courts.

It is outrageous of British Labour Prime Minister Gordon Brown to have junked the commitment of Tony Blair to hold a referendum on the EU Constitution in the UK, when this was a Labour Party Manifesto commitment in the last British general election. Gordon Brown’s government has acted profoundly undemocratically in refusing the British people and the people of Northern Ireland their promised say in this matter.

Just as Charles Stewart Parnell in his day urged the people of Ireland and of Britain to support now the Liberals, now the Tories, in order to advance Ireland’s interests, Irish democrats, nationalists and Republicans, as well as all consistent British democrats, should now look to the British Labour Government being ejected from office at the earliest possible opportunity, so that Labour can rediscover its soul in opposition and the people of Britain and Northern Ireland be enabled to have their say on Lisbon just as the Republic’s voters have had.

The practical alternative to the Lisbon Treaty/EU Constitution is to go back to the 2003 Laeken Declaration on a more democratic, more transparent and less centralised EU, whose laws would be made in proper democratic fashion by people who are elected directly to make them, and not by bureaucrats, judges and bankers.

What is now needed after Ireland’s No is not a “period of reflection”, as after the rejection of the 2004 Constitutional Treaty, but a “period of consultation” with the citizens of the Member States on what kind of EU people really want, as the Laeken Declaration envisaged.

The Laeken Convention from which Lisbon came was hijacked from the start by the Eurofederalists, out to give the EU the constitutional form of a Federation. This the peoples of the EU Member States emphatically do not want, although many of their political elites do want it because it gives them more power personally at the expense of their own peoples.

The Irish people did the EU a profound good turn by voting No to Lisbon last June. Lisbon and the EU Constitution which it embodies has now been rejected in France, Holland and Ireland because it is a thoroughly bad treaty – bad for these countries and bad for the EU.

Recall some of the bad things which Lisbon proposes to do:-
1. Lisbon would abolish the European Community which we have been members of since 1973 (Art.1 TEU / Treaty on European Union) and would replace the existing EU with a legally new Union in the constitutional form of a supranational EU Federation with its own legal personality distinct from its Member States. Instead of being sovereign States in the international community, Lisbon would thus reduce Ireland and the other Member States to the constitutional status of provincial states in a Federation, like Virginia inside the Federal USA or Bavaria inside Federal Germany. The laws of this new European Union would thereafter have primacy over national Constitutions and laws (Arts.1 and 47 TEU; Declaration No.17 concerning Primacy).

2. It would make us all real citizens of this new EU Federation, owing our prime obedience to its laws and loyalty to its authority over and above our citizens’ duty to the Irish Constitution and laws in any case of conflict between the two. One can only be a citizen of a State and all States must have citizens. Instead of EU citizenship being “complementary” to national citizenship and essentially notional and symbolical (Art.17 TEC / Treaty Establishing the European Community). Lisbon would make EU citizenship “additional to” national citizenship (Art.9 TEU). This would give us all a real dual citizenship, not of two different States but of the Federal and provincial levels of one State, as in the US or German federations. One example of this change: if Lisbon came into force MEPs, who at present are “representatives of the peoples of the States brought together in the Community” (Art.189 TEC), would become “representatives of the Union’s citizens”, just as in any State (Art.14.2 TEU). Ireland’s statutory Referendum Commission failed to make any mention of these facts in the material it sent to citizens for the June 2008 referendum,despite being given ¤5 million to explain the constitutional amendment to voters.

3. It would be a power-grab by the Big States, with EU law-making in the Council of Ministers based henceforth primarily on population size as in any unified State, thus greatly increasing the power of the Big EU Members with large populations and reducing the voting weight of Ireland and the other smaller states. Germany’s voting weight in making EU laws would go from 8% to 17% as a result, while Ireland’s would halve to 0.8% (Art.16 TEU).

4. It would remove Ireland’s right to decide who its national Commissioner would be in the ten years out of every 15 when Member States would have a Commissioner under Lisbon. It would do this by replacing each Member State’s present right to “propose” a Commissioner – and to insist if need be on its proposal being accepted as a condition for it accepting the proposals of others (Art.214 TEC) – by the right to make “suggestions” only, and leave it for the incoming Commission President to decide (Art.17.7 TEU). Who the Commission President is would be decided mainly by the votes of the Big States. The Referendum Commission glossed over this significant Lisbon amendment in its information material to Irish voters by using the same word – “nominate” – for the pre-Lisbon and post-Lisbon situations as if there was no difference!

5. It would give the EU Court the power to decide our fundamental rights as EU citizens, rights which the EU and its Member States would then have to enforce over and above our rights as Irish citizens in any case of conflict between the two (Art.6 TEU and the EU Charter of Fundamental Rights).

6. It would weaken National Parliaments further by abolishing 68 national vetoes and would give the EU power to make European laws binding on us in some 30 new policy areas, such as crime, justice and policing, public services, immigration, energy, transport, tourism, sport, culture, public health and the EU budget.

7. It would give the EU the power to raise its own taxes and impose any tax, including income tax or sales tax, by consensus amongst the governments, without the need for further new treaties or referendums (Art.311 TFEU /Treaty on the Functioning of the EU).

8. It would empower the EU Court of Justice to order the harmonization of indirect taxes amongst the EU countries if the Court should decide that failure to do this constituted a “distortion of competition” (Art.113 TFEU).

9. It would militarize the EU further, requiring Member States “progressively to improve their military capablities” (Art.42.3 TEU ), and it contains what Commission President Barroso termed “a mutual defence clause”, requiring Member States to go to the assistance of other Member States in the event of war (Art.42.7 TEU).

10. It would subvert workers’ rights by copperfastening the recent Laval, Rüffert and Luxembourg judgements of the EU Court of Justice, which were delivered after Lisbon was signed and which subordinate employee wage bargaining to the EU’s internal market rules. These judgements can be reversed only by a special new Treaty Protocol.

11. It would be a self-amending Treaty which permits EU law-making to be shifted from unanimity to majority voting without the need of new Treaties or referendums (Art.48 TEU).

12. It would reintroduce the death penalty “in time of war or of imminent threat of war” for the European Army that it envisages by providing for the post-Lisbon EU acceding as a corporate entity, separate from its Member States, to Protocol 6 of the European Convention on Human Rights, which permits use of the death penalty on these occasions, instead of to Protocol 13, which bans the death penalty in all circumstances and to which most EU Member States have acceded (Explanation attached to Art.2 of the EU Charter of Fundamental Rights). This item is in a footnote of a footnote in the Lisbon Treaty and has caused much controversy in Germany and Austria, although most people in Ireland have never heard of it. Again the Referendum Commission made no mention of this proposal in its information material to Irish voters for the 2008 Lisbon referendum.

13. It would make National Parliaments formally subordinate to the post-Lisbon EU. Far from increasing the power of National Parliaments, as pro-Lisbon spokesmen untruthfully assert, Lisbon underlines their implicitly subordinate role in the institutional structure of the post-Lisbon Union by providing that “National Parliaments contribute to the good functioning of the union” by various means that are set out in Article 12 TEU. Under Lisbon National Parliaments must be informed of and may scrutinise draft EU legislative acts, but while the Commission is required to review the legislation if one-third of National Parliaments object, the Commission can then decide to continue with its legislation unamended, with its decision confirmed by the normal Council of Ministers QMV procedures (Protocol on Subsidiarity and Proportionality, Art. 7.2). In no sense can this be said to give “more control” to National Parliaments, as pro-Lisbon spokesmen continually state in blatant contradiction of the truth.

14. It would create a political government of the new Union by turning the regular summit meetings of EU Prime Ministers and Presidents, known as the European Council, into a formal legal instititution of the Union for the first time (Art.13 TEU). This would mean that its acts and failures to act would become subject to legal review by the EU Court of Justice (Arts 263-5 TFEU). This would also mean that individual Prime Ministers and Presidents would be constitutionally obliged henceforth to represent the Union to their Member States as well as their Member States to the Union, with the former function having legal priority in any case of conflict between the two. The Referendum Commission ignored this change too.

A Note on how all EU Member States can keep their national Commissioners under the Nice Treaty currently in force

The Lisbon Treaty’s provision that Member States would lose their present right to decide who their national Commissioner would be (Art.17.7 TEU) makes the retention of one Commissioner per Member State instead of their reduction by one-third from 2014 (Art.17.5 TEU) of little value anyway, should this be agreed among the EU Governments as expected.

A political declaration by the EU Prime Ministers and Presidents that if Lisbon is ratified by all Member State including Ireland the European Council will exercise its discretion in 2014 to maintain one Commissioner for every Member State might have some political but no legal value, for it would not be part of the Treaty. It could only be relied on until such time as no one was paying attention anymore post-Lisbon, when the European Council could use its discretion to cut the number of Commissioners or – perhaps more likely – introduce permanent senior and junior ones.

The Nice Treaty’s Protocol on EU Enlargement (Art.4.2) requires the number of EU Commissioners to be less than the number of Member States from 2009, although by an unspecified number to be agreed unanimously. If the European Council is now prepared to accept that the number of Commissioners should continue to be equal to the number of Member States, it would be perfectly possible for it to agree to an amendment to the Nice Treaty to repeal the present Article 4.2, get that approved as a new Treaty by the EU Parliament and then ratified by the Member States. That would not need a referendum here.

Former Irish Attorney General and EU Commissioner David Byrne referred to the possibility of Art.4.2 of Nice’s Protocol on EU Enlargement being legally implemented by the Member States agreeing that from 2009 there would be 26 Commissioners instead of 27 and that each country would lose its Commissioner in alphabetical order every five years, beginning with Belgium. This would mean that Member States would only lose their Commissioner once every 135 years – five times 27 – and Ireland’s turn would not come for 30 years.

Another possibility under the Nice Treaty would be to have 26 commissioners and that the State which had the High Representative for Foreign and Security Policy position- currently Spain, with Javier Solana – should not have a commissioner, but the High Representative could sit in on Commission meetings as a non-voting member.

In practical reality the EU Prime Ministers and Presidents can agree unanimously to keep all 27 Commissioners if they are so inclined, as a political necessity, and it is hard to see anyone objecting or being able to enforce legally a contrary position. This should be done under the Nice Treaty, whatever happens to Lisbon.


The Lord giveth… and the EU Charter of Rights taketh away *