The last referendum on European Treaties

By Jens-Peter Bonde
Author, Member of the European Parliament 1979-2008

Friday 2 October 2009 will be seen as a sad day in European history. A re-run of a referendum rejecting the Lisbon Treaty has been approved by some 67% of Irish voters on a turnout of 58% of the electorate.

This may be the last referendum on EU Treaties. Next time they will amend the Treaties without asking any voters.

We have to recognise that there is a new majority in Ireland; but I will never regard the outcome as a popular approval of the Lisbon Treaty.

First, the original EU Constitution was rejected in 2005 by 55% of French voters and 62% of Dutch ones. Legally, that should have been the end of it. Then all the provisions of the Constitution were presented again in a new envelope, to use the words of Giscard d`Estaing, the former French President who chaired the Convention on the Future of Europe which drew it up. I promised a bottle of first-class wine to anyone who could give me just one example of a European law that could be passed by the EU Constitution but not by the Lisbon Treaty. To include non-drinkers in my target group I have since added a box of the best Belgian chocolates to that offer, but I still have not received an example.

The EU Constitution and Lisbon Treaty are the same. The approval of Lisbon by the French Parliament is illegal politically because in a democracy a parliamentary law cannot undo a referendum. Referendum re-runs have taken place in Venezuela and Zimbabwe, but such behaviour is not for true democracies. Then all other planned referendums in the EU countries were cancelled. The Irish voters rejected the Lisbon Treaty on a 53% turnout on 12 June 2008 - against a 95% majority in the Irish Parliament, the Dail, who favoured the Treaty.

The 27 Prime Ministers and Presidents of the EU would not take No for an answer. They prepared a re-run by offering so-called legally binding guarantees. This allowed the Irish Government and the main Irish political parties to present a new package that supposedly respected all the Irish concerns.

First, these “Irish assurances” cannot be legally binding in European law, since it is forbidden to settle any dispute on the interpretation of European Treaties outside the European Court in Luxembourg. The exclusive right of the EU Court to adjudicate on all disputes about the Treaties is set out in Art. 344 TFEU.

Secondly, the “assurances” contain a specific clause stating that they do not change “either the content or the application of the Treaty of Lisbon”. These simple facts have not prevented the Irish Yes-side from presenting a set of politically opportune words as legally binding Treaty changes. Ireland’s independent statutory “Referendum Commission” used half the space in the leaflet it sent to all Irish households to describe these “assurances”, despite that document not being approved or adopted by the Irish Parliament, or referring to Ireland’s Constitutional Amendment or making any changes in the Lisbon Treaty.

Voters were told that they would lose the Irish Commissioner if they voted No, but would keep it with a Yes. The fact is that Art. 213 TEC of the Nice Treaty guarantees a Commissioner for each EU member state until all member states unanimously agree on a reduction.

The Lisbon Treaty on the other hand reduces the Commission to 18 members until the member states unanimously agree to continue with one Commissioner each. They have decided to make that amendment politically - at least until the next enlargement of the EU.

Therefore the next EU Commission will consist of one Commissioner from each Member State, regardless of whether the Irish vote Yes or No. This fact was concealed from Irish voters.

The simple facts have been turned around in a concerted campaign of misinformation coordinated by the European Commission, by Ireland’s own Referendum Commission and by the Irish Government illegally using taxpayers’ money to further one side in a constitutional referendum, even though the Irish Supreme Court has explicitly forbidden that.

These three institutions also agreed to hide the most important changes in the Lisbon Treaty, for example the change in the voting system for making European laws, whereby Ireland and other small member states lose half their share of the vote, while the largest member states increase their voting power by from 50% to 100%.

The European Commission also assured Irish voters that nothing would change as regards taxation, despite the fact that a harmonisation of the corporate tax base is in the Commission`s own working programme, and a proposal to that end has already been drafted by the Commission services. Art. 113 TFEU inserts a new clause on distortion of competition in tax matters. How can the European Commission or anyone else guarantee that it will never be used?

I did not see one single poster in Ireland in favour of the Lisbon Treaty. The Yes posters were all promoting Irish membership of the European Union or even Europe itself, which no one was arguing against. Former President of the European Parliament Pat Cox offered an easy choice between “ruin” and “recovery” in a masterly propaganda campaign that was financed by many millions of taxpayers’ and big company money. The Yes side must have outspent the Nos by at least ten to one.

It is really quite amazing that 33% of Irish voters nonetheless voted for ruin!

“Europe For Ireland.eu” did not have one word about the Lisbon Treaty in a full-page advertisement in various Irish newspapers the day before the referendum. Instead it offered “Cheap flights, Champions League, Jobs, Equal Pay, Eurovision Song Contest, Food Safety, Heineken Cup, New Motorways, Modern Agriculture” - as if an Irish song or singer could never again win the European Song Contest if the Irish voted No to Lisbon!

One of the No-side groups suggested that the Irish minimum wage might be lowered from €8.65 to €1.84 - with a question mark on the actual amount. They were called liars by the European Commission even though the Commission itself has proposed to allow all non-Irish migrant workers to work for their home country wage in Ireland - which can be even less than the ¤1.84 stated. That figure is the average minimum wage in the ten new Member States.

The Laval Court case forbids trade unions from taking industrial action for higher wages than the statutory minimum or the generally applicable national wage standard. This means that 95% of Irish workers earning more than the country’s minimum wage of €8.65 an hour may be affected by the Lisbon Treaty’s copperfastening of that verdict.

The issue is actually worse than that implied by the much criticised No-side poster. Only 5% of workers are on the minimum wage in Ireland. They may not suffer from any change. It is the 95% of the workers earning more than the minimum who may see their wages attacked by the Laval principle forbidding industrial action over wage-rates higher than the Irish minimum of ¤8.65 per hour.

The Rüffert case has gone even further and permitted 53 Polish workers to be paid only 46% of the minimum wage as set down by the German state of Lower Saxony for construction work. It is now illegal in all EU Member States to require the normal payment for public contract workers. All Member States have to permit home country levels of wages and salaries as long as they are above the statutory minimum wage covering all workers.

This is the simple result of the EU Court’s radical decisions. These were hidden in all official information in Ireland’s referendum, which instead promised a new social guarantee based on the Irish assurances, which in reality were empty words that do not change one dot or comma of the Lisbon Treaty or the Laval, Rüffert and related EU Court judgements.

The Irish Yes-side succeeded in calling the No-side liars, even though that word would have better described their own concerted misinformation.

The major difference between the first and second Irish referendum is the economic crisis in Ireland - an expected fall in national output in 2009 of one-tenth, a Budget deficit of 12% of Ireland’s GDP, unemployment of 450,000 out of a workforce of 2.2 million and a resumption of net emigration from the country.

Voters were scared by the Yes side’s threat to their jobs. Many Irish employers told their employees that they would lose their jobs if it was a No-vote. The Yes side promised economic recovery in return for a Yes. After three weeks in Ireland I could never accept Ireland’s referendum re-run as a free public assessment on the Lisbon Treaty. I did not meet voters who had changed their minds on the Treaty since last year, but I met many who changed their votes from No to Yes out of fear.

This country is broken, said a leading businessman with whom I debated on Irish radio. We must accept what they want. We need the European Central Bank to bail us out.

That is where we are. The Lisbon Treaty has not been agreed upon, but has been adopted by Ireland.

What should Poland and the Czech Republic now do? Wait for final ratifications until the British election by next summer and see if a new British Government will deliver the Referendum promised by Blair and Brown before the last UK general election. Since Blair and Brown have reneged on a clear electoral promise to the British people, it is absolutely justified to wait another few months. British elections will take place by May 2010. The Conservative Party has promised a referendum on the Lisbon Treaty if it is not already ratified by all member states when they enter into office.

On 30 June 2009 the German Constitutional Court made a radical criticism of the Lisbon Treaty. The Court went so far as to suggest that ratifications of the Treaty in different countries might be unconstitutional unless they are accompanied by national rules on parliamentary approval of various modes of implementation of the Treaty, and laws that safeguard the possibility of voters changing the laws that govern them through elections to their National Parliaments.

That German Court verdict is an open invitation to encourage similar court cases in all countries where parliamentary procedures for controlling the executive’s handling of EU affairs under Lisbon have not been introduced or are too weak. I would like to hear from legal experts in the different member states on the possibility of safeguarding the principles of democracy which would otherwise be breached by the Lisbon Treaty unless such national laws are first introduced, as they have now been - inadequately - by legislation in Germany and by the constitutional amendment just voted on in Ireland.

The core of democracy is the ability to stand for elections, create a new majority and consequently have new laws. This principle is abandoned in 49 new areas by the Lisbon Treaty. The European Parliament will gain in influence, sure, but it will not gain as much as voters and members of the National Parliaments will lose. The net result will be an even worse EU democratic deficit. And this flies in the face of the German Constitutional Court judgement.

Court cases in different countries may be a way to safeguard the idea of democracy in Europe, which was born in Athens some 2500 years ago. This idea could be implemented as three concrete demands on the EU institutions, which all can be implemented with and without the Lisbon Treaty.

1. We must insist on the basic principle of democracy whereby all laws are adopted by elected members of parliament, either national or European;

2. We must reform the rules on transparency in the EU so that all legislative meetings and documents are open and transparent unless reasoned derogations are agreed;

3. We cannot continue leaving the monopoly of legislative initiative with non-elected Commissioners. Why not elect them by direct elections in each Member State? That may now be the only method to ensure that they are appointed bottom-up instead of top-down, as provided for in the Lisbon Treaty, which only allows Governments to put forward suggestions instead of proposals for their nominees.

Such reforms could be the joint result of a series of court cases which could focus on the constitutional need to overcome the EU’s democratic deficit that will be increased by the Lisbon Treaty.

These demands could also be the basis for establishing new political movements, parties and alliances across Europe in defence of democracy in the EU and at national level.

The Irish referendum makes clear that voters deserve a better choice of representatives than those established political parties which stole taxpayers’ money to undo the legally binding Irish referendum result of June 2008.

We cannot afford to bury the idea of European democracy by not acting - now.

Jens-Peter Bonde has edited “The Lisbon Treaty - The Readable Version”, which can be downloaded for free at euABC.com. In the net lexicon you can find interesting relevant information under words like Democracy, Number of laws or the German Constitutional Court case