4th of March 2008
“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
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“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
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“The substance of the Constitution is preserved. That is a fact.”
- German Chancellor Angela Merkel, speech to the European Parliament, 27 June 2007
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“The Constitution is the capstone of a European Federal State.”
- Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21 June 2004
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“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 MEP, The Lisbon Treaty: A critical analysis; www.bonde.com
An EU Constitution: The Treaty of Lisbon is a revamped version of the treaty which gave the EU its own constitution and made that 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 this State rests with the Irish people and that only they can surrender sovereignty to the EU by referendum, orefuse to surrender it, as the case might be. The purpose of this referendum would be to change the Irish Constitution so as to make the EU Constitution and laws superior to the Irish Constitution and laws in all areas covered by the Lisbon Treaty.
Lisbon gives the EU a Constitution indirectly rather than directly: The two basic European Treaties that 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 rejected 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(TFU).
1) Lisbon makes the EU 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 EU law would have primacy over and be superior to the Irish Constitution and laws in any case of conflict between the two. It does this by referring to the case-law of the EU 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) the constitutional character of EU law. EU law and national law deal with different areas and matters, as is normal in Federal States like the USA, Germany, Switzerland, Canada, Australia. The EU now makes the majority of our laws each year. 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 and 9 below - and would take that power away from the Irish Dáil and from Irish citizens who elect the Dáil.
2) Lisbon gives 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 it 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.46A 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; and (d) making us real citizens of this new Federal Union, rather than notional or honorary EU “citizens”as up to now.
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 it “additional to” national citizenship (Art.8 TEU). 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 new EU. As citizens of this constitutionally new Union, we would owe it the normal citizen’s 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 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 that have been formed by lower States agreeing to subordinate themselves to a higher.
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 in all areas of EU law. It would have all the essential 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.
As the EU’s politicians are creating an EU Federation, all democrats will want 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 will 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 civil servants, has the monopoly of proposing all EU laws. These are then made 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 ways which 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. It does not improve it, while it erodes democracy at national level further.
3) Lisbon sets out the full powers of the new EU: The new Union’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. This 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 major categories. Under them it is hard to think of any area of life that would not be touched by the EU:
(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;
(b) Areas of shared competence, where the EU decides some policy matters and the Member States decide others. These cover most areas of government apart from the mainstream social services, viz., the internal market, social and regional transfers, agriculture and fisheries policy, environment, consumer protection, transport, 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.2A and 2C TFU). 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;
(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.2D TFU);
(d) Areas of supporting, coordinating or complementary EU action in relation to the protection and improvement of human health; industry; culture; tourism; education, youth, sport and vocational training; civil protection; and administrative cooperation (Art.2E TFU);
(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.11 TEU). The last phrase here, a “common defence”, means a common EU army and military forces. It isto be distinguished from a common defence policy.
4) Lisbon shifts influence over law-making and decision-taking in the EU towards the Big States and away from the smaller ones like Ireland: It does this by replacing the voting system for making EU laws that 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 like Ireland. 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 (Art.9C 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 8% to 17%,
- France’s would go from 8% to 13%,
- Britain’s from 8% to 12%.
Ireland’s voting weight would fall to one-third its present level, from 2% to 0.8%. Ireland’s share in a blocking minority would go from its current 7.7% to 2.4%.
Putting EU law-making and decision-taking on a primarily population basis would fundamentally change the consensus culture on the Council. The smaller Member States would be less needed by the Big States than before, and less likely to be conciliated. Power relations would tend to replace consensus policy-making. Fifteen States could impose an EU law on 12 if the former contains 65% of the EU’s 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.
5) Lisbon removes Ireland’s right to a permanent EU Commissioner: The Treaty proposes to reduce the number of EU Commissioners from the present 27 to 18. 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 was no Irish voice. The Big EU States would lose their right to a permanent Commissioner too, but their size and political weight give them other means of exerting influence on this key body. As Dr Garret FitzGerald and others have emphasised over the years, having a fellow-national on the EU Commission is especially important for smaller Member States.
6) Lisbon deprives 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 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.9D.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, just as a Taoiseach may do with his cabinet, so the Commissioners would be fully under the control of the Commisison President. The new Commission would be very like an EU Government, with the Commission President like a national Prime Mininister, except that this government would not be elected by the citizens.
7) Lisbon gives the European Union the power to make laws in 32 new areas that 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, immigration, public services, 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. 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 between laws and decisions 68 national vetoes in all would be abolished, more than in any previous EU Treaty(For the full list see Bonde.com. Under Lisbon the Irish Government has retained the right to opt in 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 will review its position in three years time.
Why do national politicians welcome this shift of power from the national to the EU level? One answer to this seeming puzzle is that the increase in EU power that 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 national democracy further.
The Treaty also increases 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 among the civil servants on the 300 or so Council of Ministers committees and the 3000 or so committees attached to the Commission. The Council formally approves all EU laws, although only a quarter or so of them are actually mentioned on the Council and only a fraction of these in turn, often entailing amendments from the European Parliament, lead to significant debate.
8) Lisbon is a self-amending Treaty which would open the way 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 permits the Prime Ministers and Presidents who make up the “European Council” by unanimious 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 “ratchet clause” or “escalator clause”. Former French President V. Giscard d’Estaing styled it “a central innovation” of the EU Constitution 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 support their Prime Ministers anyway. If Lisbon is ratified there would be no need, practically speaking, for further EU referendums, as the EU would have all the powers it needs to act internationally as a fully developed Federation, including taxation powers.
If the Taoiseach of the day agrees with his fellow Prime Ministers and Presidents under Lisbon, the switch to majority voting on company taxes would go through. The National Parliament 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 Ireland’s modern economic development. Already the EU Commission has drafted proposals for introducing a Common EU Tax Base for company taxes, but has postponed its publication until after the Irish referendum. Does this encourage confidence that the “escalator clause” will not be used to bring in EU tax harmonisation?
Lisbon opens another door to EU tax harmonisation if national differences in company tax are judged to lead to “distortion of competition” (Art.93 TFU). This amendment 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 matters of company taxation although not the actual rates. For example a Court judgement might require States to harmonise their company tax rates over a particular period of time, although Member States would still decide the rates. This would be another way around the present unanimity requirement for harmonising company taxes. Of the two methods for doing this opened by the Lisbon Treaty, this may well be the first used.
Lisbon also permits 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.269 TFU). 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.
Lisbon also provides for qualified majority voting on laws governing foreign direct investment and export policy (Art.188C TFU). Such rules would fundamentally affect bodies like the IDA, which have been so important for attracting foreign investment to Ireland over the years.
9) Lisbon gives the EU the power to decide our human and civil rights: The new Treaty gives the EU the final power to decide what our rights are in all areas of EU law, including Member States when implementing EU law. It does this by making the rights set out in the EU Charter of Fundamental Rights legally binding for the first time (Art.6 TEU). This would make the 27 judges of the EU Court of Justice in Luxembourg the final decider of our rights in many areas, instead of the Irish Supreme Court or the Court of Human Rights in Strasbourg, which decides these rights at present. If Lisbon gives the EU Court of Justice the power to decide what our rights are in the large area of EU law, it is likely that the Commission will in time 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 Court’s judgement in the Laval/Vaxholm case of December 2007 showed how EU law could undermine the ability to maintain long-established national wages standards, replacing them with minimum standards under the EU’s internal market competition rules.
The EU Court of Justice has laid down in several court cases that National Law must be applied in a way that is consistent with EU law, for the latter has supremacy in any conflict between the two. This principle must logically apply to rights issues also. This raises the real possibility of clashes over rights standards in sensitive areas where there are significant national differences at present between the Member States: for example, the right to life, the right to marry and found a family, the right to strike, rules of evidence in court, the rights of children and of the elderly, 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.
Lisbon also provides for the new Union, like other European States, to accede to the European Convention on Human Rights. It would provide ample scope for conflict between the Court of Human Rights in Strasbourg and the EU Court of Justice in Luxembourg over human rights jurisdiction issues.
10) Lisbon militarises the EU further: The Treaty requires Member States “to progressively improve their military capabilities”. It introduces a “start-up” fund for common foreign policy and military operations to be financed by Member States outside the Union budget (Art.28). It contains an Article (28A.7) which the current Slovenian EU presidency has stated is a “mutual defence clause” and whose wording 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. In the light of this mutual defence clause there would be no constitutional need for a further referendum in Ireland before we committed ourselves operationally to the military defence of other EU countries, for Lisbon would be that referendum. Participating in a common EU army, a “common defence” in EU parlance, if such should be established in the future, would be different. Lisbon also allows sub-groups of Member States to make more binding 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 armed interventions.
11) Lisbon provides that if one-third of National Parliaments object to the Commission’s proposal for an EU law, the Commission must reconsider it, but not necessarily abandon it: It might reword the draft law, as happened with the EU Constitution, or if it considered the objection was not justified, it might ignore it. 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 symbolic rather of their loss of real power.
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 that would be transferred to Brussels from the National Parliaments, although the Commission and Council must agree them if they are to pass. National Parliaments would of course lose their powers to make laws in these areas. Ireland has only 12 members 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.
12) Lisbon and Climate Change: Lisbon commits the EU to “promoting measures at international level to deal with regional or worldwide environmental problems and in particular combating climate change” (Art. 174 TFU). This is laudable, but the Article is being “spun” as though it suggests specific measures. Any action under it would have to be reconciled with the EU’s rules on distorting competition, safeguarding the internal market and sustaining the energy market. Combating “climate change” covers natural climate change from sun-spots and the like, which has always existed, and man-made climate change. Which is to be the EU’s focus? EU targets for carbon dioxide reduction in Ireland announced recently are estimated to 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 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?
Europe Minister 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. Nor can we be ostracised or thrown out of 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. 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 Lisbon is really about, and all the bullying and threats. A Vote No is a Yes to something better!
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This document has been prepared by:
The National Platform EU Research and Information Centre
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Secretary Anthony Coughlan
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