UPDATE AT END OF PAGE
lisbon treaty controversy
(Only 9 states out of 27 have ratified as yet)
The Treaty of Lisbon 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.
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, neither the Lisbon Treaty nor the EU Constitution which it would establish contain any such proposal.
Dear Friends, May I enclose for your information the most recent version of our basic document on "What the Lisbon Treaty Would Do". This includes some new points that were not made in earlier versions of this document. The document also gives the Article numbers for the various changes which the Lisbon Treaty would make in the "Consolidated European Treaties" as they would be if amended by Lisbon.
You may care to note in Point 10 of this document, on "militarizing the EU further", the acknowledgement by Commission President J.M.Barroso in a speech last December that the Lisbon Treaty incorporates a "mutual defence pact", to which Ireland would be committed if we ratify Lisbon.
Such a "mutual" defence needs to be distinguished from what EU terminology calls a "common" defence, viz. a European Army led by joint officers, which a clause in the current Irish Constitution precludes us from joining. The latter clause is to to be "reaffirmed", according to the Government, in the proposed Lisbon Constitutional Amendment contained in the recently published 28th Amendment of the Constitution Bill.
I also send you below a document on "The Constitutional Implications of the Treaty of Lisbon" which has been drawn up by a group of Irish and continental authorities on EU law.
This important analysis shows clearly that the post-Lisbon European Union would be a fundamentally different constitutional/political entity from the pre-Lisbon EU that we are currently members of. If Lisbon is ratified it would give the new Union which it would establish the constitutional form of a supranational European Federation. That Federation would have all the powers of a fully-developed State apart from the power to force its member states to go to war against their will.
Lisbon would then make us real citizens of this new Union for the first time, as against our being notional or honorary EU "citizens" at present. One can only be a citizen of a State and all States must have citizens. The Constitutional Amendment to ratify Lisbon would then make the laws, acts and decisions of the new Union superior to the Constitution and laws of Ireland and would effectively turn Ireland into a province of this new EU Federation, which would be run on the most undemocratic lines.
Ireland would become a province, not a nation, once again, in the precise and literal meaning of the word "province".
The fact that the same name, "European Union", would be used for the pre-Lisbon and post-Lisbon EU is meant to prevent people realising the constitutional revolution in both the EU and its Member States which the Lisbon Treaty would bring about.
Undoubtedly this is the most important thing in constitutional and political terms which the Lisbon Treaty would do. Yet most people are totally unaware of it and it has scarcely been referred to in such debate as has occurred here on the Lisbon Treaty so far.
Couple this constitutional revolution with the power-grab by the Big States for control of the post-Lisbon EU which the change to a primarily population basis for making EU laws would entail, as well as the abolition of a permanent Irish Commissioner and the loss of our right to decide who Ireland's Commissioner would be, and one can readily see how ratifying the Lisbon Treaty would be deeply damaging to Ireland's interests.
It is not in the interests of our 500 million fellow Europeans either - to have this Constitution of a profoundly undemocratic EU Federation foisted on them by stealth and without giving them any opportunity to have a say on it.
It is crucially important therefore that Irish democrats make every effort to get these basic facts about Lisbon across to the Irish public between now and the referendum - which will be 11 weeks from next Thursday if it is held on 12 June.
It is especially important that these facts are got across to Fianna Fail voters and supporters, to make them less inclined to do the Government's bidding in the matter.
Please pass on these facts to your friends and neighbours. Please do everything you can in whatever group you are in to help defeat this profoundly undemocratic Treaty, as its predecessor was defeated by the French and Dutch in their referendums in 2005.
Please disseminate these documents as widely as you can, and feel feel free to adapt them for your own purposes in any way that suits you.
Anthony Coughlan Secretary
PS. You may like to know that the President of the European Praliament, Hans Gert Pottering, will be addressing the Seanad on the Lisbon Treaty on Tuesday 8 April. It is Mr Pottering's Parliament which voted by a huge majority in early March, 499 to 129, not to respect our democratic referendum by voting down a motion which "Undertakes to respect the outcome of the referendum in Ireland." In that vote Proinsias de Rossa MEP voted not to respect the democratic wish of his own people also. De Rossa should be pressed to resign immediately since it is now blatantly obvious that his loyalties lie with his EU colleagues and not with the Irish people.
German Chancellor Angela Merkel will attend a meeting of the European People's Party of which Fine Gael is a part on Monday 14 April, while Commission President J.M.Barroso will visit Dublin and Cork on Thursday and Friday 17-18 April, following an invitation from the Irish Government.
______ DOCUMENT 1: What the Lisbon Treaty Would Do (17 March version) _______
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
* * *
"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 ; see bonde.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) - 28th Amendment of the Constitution Bill, 2008 What people will be voting on in June
A new and different European Union: The Treaty of Lisbon would create a quite new Federal European Union which would be politically and constitutionally profoundly 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 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 EU Constitution and laws superior to the Irish Constitution and laws in all areas covered by the Treaty. This is clear from the two key sentences of the proposed amendment to the Irish Constitution which are quoted above, which is what the Irish people will be voting on in June.
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 12 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. 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 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 which are set out in the Treaty:-
(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 (Arts.1-6 TFEU; Art.4.1 TEU); and
(d) making us real citizens of this new Federal Union, rather than notional or honorary EU "citizens"as at present (Arts. 20 TFEU and 9 TEU).
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.9 TEU; Art 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 new 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 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 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 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.
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 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 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.
3. Lisbon sets out the extensive powers of the new Union it would establish:
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 (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 major 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 policy matters 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. 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 ratifying 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 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.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 millon, 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 and Italy'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%, while Germany's would go from 32% to 44%. Putting EU law-making and decision-taking on a primarily population basis would fundamentally change the 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 the search for 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 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 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.
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 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, just as a Taoiseach may do with his cabinet, so the Commissioners would be fully under the control of the Commission President. The new Commission would be very like an EU Government, with the Commission President having powers like a national Prime Minister, except that this government would not be elected by the citizens.
7. Lisbon would give 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 (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 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 national democracy 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 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 around a quarter of them are orally 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 and bargaining that leads up to them will 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 permits 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 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 seem to be little need, practically speaking, for further EU referendums, for the new Union would have all the powers 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 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 would open another path, and almost certainly a much wider one, to EU tax harmonisation if national differences in company tax are judged to lead to "distortion of competition"(Art.113 TFEU). This 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 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.
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.
Lisbon 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:
The new Treaty would give 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 would do this by making the rights set out in the EU Charter of Fundamental Rights legally binding for the first time (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 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 (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. 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 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 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.
Before signing the Lisbon Treaty the UK opted out of the provisions of the Charter of Fundamental Rights, so that British courts will continue to decide the rights of UK citizens. The Irish Government however decided to opt in and to let the EU Court decide what the rights of Irish people will be under EU law.
The Court of Justice's judgement of December 2007 in the Laval/Vaxholm case showed how EU law could undermine Member States' ability to maintain long-established national wages standards, 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 and a special Protocol could have been agreed at the March 2008 EU summit to deal with it, 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 Court's judgement constitutionally binding. This can only be done in a new Treaty which is different from Lisbon if the Lisbon Treaty is rejected.
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. 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 major speech on the Treaty on 4 December 2007: "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 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".
Irish 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 Constitution and putting it back in again by means of the 28th Amendment of the Constitution Bill, presumably to give Irish 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).
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 (Protocol on the Application of the Principles of Subsidiarity and Proportionality, Art.7.2).
It might reword the draft law, 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 to 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 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 is being "spun" out of all proportion. Note that the action is "at international level". It does not give the EU 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?
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.
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. 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.
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. Special Protocols are needed to enable Member States maintain control of company taxes, of their human rights standards 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 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.
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 Lisbon is really about, and all the bullying and threats which Lisbon's opponents are subjected to.
A Vote No is a Yes to something better!
This document has been prepared by the National Platform EU Research and Information Centre, 24 Crawford Ave., Dublin 9; Tel.: 01-8305792; Secretary Anthony Coughlan. It has veen vetted for legal accuracy by authorities on Irish constitutional and European law. Please copy it or adapt it as you please and pass it on to others, without any need of reference to or acknowledgement of its source.
Our EU Research and Information Centre is an entirely voluntary organisation and receives no public funds. If you would like to help our work, please send a donation to the above address. If you wish to send a donation by cheque, please make it out to Bank of Ireland Account No. 30081817.
17 March 2008
_______ DOCUMENT 2: CONSTITUTIONAL IMPLICATIONS OF THE LISBON TREATY _______
Constitutional implications of the Treaty of Lisbon
"The Constitution is the capstone of a European Federal State" - Guy Verhofstadt, Belgian Prime Minister, Financial Times, 21 June 2004
"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, 9 May 1950, on the formation of the European Coal and Steel Community
"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, From EU Constitution to Lisbon Treaty; www.bonde.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) - 28th Amendment of the Constitution Bill, 2008 What the people will be voting on in June
1. The Treaty of Lisbon is quite different from previous European Treaties, for it would establish a legally quite new EU in the constitutional form of a supranational European Federation. It would thereby revolutionise the constitutional and political order of the Union itself and its Member States.
Implicit in the first sentence quoted above from the Irish Government's 28th Amendment of the Constitution Bill, which the people will be voting on in June, is the fact that the Lisbon Treaty would establish a constitutionally quite new European Union which would be legally and politically very different from what we know as the "European Union" today.
The proposed constitutional amendment refers to "the European Union established by virtue of that Treaty", namely the Treaty of Lisbon. This post-Lisbon Union would clearly be a different European Union from that which stems from the 1992 Maastricht Treaty on European Union, which is the EU that we are at present members of.
The"European Union established by virtue of that Treaty", which the proposed 28th Amendment of the Constitution Bill refers to, corresponds to the Union which was referred to in the first sentence of Article I-1 of the Treaty Establishing a Constitution for Europe, which the peoples of France and Holland rejected in their 2005 referendums. That sentence stated: "This Constitution establishes the European Union". Both the EU Constitution and the Treaty of Lisbon which succeeds it would give the constitutional form of a supranational Federation to the legally quite new European Union which they each would establish if ratified.
Explaining to the Irish people the difference between the post-Lisbon and the pre-Lisbon European Union is the most important task facing those who seek to make voters aware of the constitutional and political significance of the issue they will be voting on in the Lisbon Treaty referendum. The difficulty of the task is compounded by the fact that the same name, "the European Union", is being used for two entities, the pre-Lisbon Union and the post-Lisbon Union, which constitutionally and politically would be profoundly different from one another.
Lisbon would give the legally new Union which it would establish a de facto supranational Federal Constitution that would be virtually identical in its legal effects to the Constitution for Europe which the French and Dutch voted No to. The approval and ratification of the Lisbon Treaty therefore would 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, including Ireland.
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 new 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 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 of which our countries are all currently members would cease to exist.
Member States would 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 absolutely 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 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. 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 or Australia. These contrast with Federations which have been established by unitary States assuming federal form, e.g. post-World War 2 Germany, Russia, India, Nigeria etc., which might be referred to as "top-down" Federations.
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. State sovereignty would be divided between the Federal and local state levels, as is normal in Federations. Similar provisions to Lisbon's "principle of conferral" are to be found in the American Constitution and that of other Federal States.
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 legal or corporate entity in its own right, for it does not have legal personality.
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 1992 Maastricht Treaty on European Union, which set up the EU that we are members of at present, 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 organiserelations between the Member States and between their peoples."
These relations cover both 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 freely cooperate with one another on the basis of keeping their 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 legally quite 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 European 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 Russia, Ukraine and Byelorussia had UN seats also. 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 relations involved.
The Lisbon Treaty would also give the EU a political President, a Foreign Minister - to be called a High Representative for Foreign and Security Policy - a diplomatic corps and a Public Prosecutor. The new EU would accede to the European Convention on Human Rights (ECHR), as Ireland and the other European States have already done, including States outside the EU.
The Lisbon Treaty also sets out the principle of the primacy and superiority of the laws of the new Union over the laws and Constitutions of its Member States. Declaration 17 concerning Primacy, which is attached to Lisbon, 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.
This has not been stated in a European Treaty before. Whereas the Treaty Establishing a Constitution for Europe did state this explicitly in an article in the main body of that Treaty, the Lisbon Treaty does it by referring in this Declaration 17 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.
European law and national law deal with different areas and matters, as is normal in Federal States like the USA, Germany, Switzerland, Canada or Australia. Lisbon would give the EU the power to make supranational laws that are binding on us in many new areas and would take that power away from the Irish Dail and Seanad and from Irish citizens who elect them. 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 relation to over 30 new policy areas. It would also be given new power to take decisions in relation to as many specific issues. Together there would be some 68 areas or issues in all where individual Member States decide matters now and where under Lisbon they would lose their veto or their right to decide.
3. The Treaty would make us all real citizens of this new European Union, instead of us continuing as notional or honorary European "citizens" as at present. In constitutional terms this would give the post-Lisbon Union a new source of democratic legitimacy
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 even a corporate entity which can have individuals as members. Our "complementary" citizenship of the present EU is essentially notional or honorific.
By transforming the legal character of the European Union, the Lisbon Treaty would simultaneously transform the meaning of Union citizenship. The Treaty would replace the word "complement" in the sentence, "Citizenship of the Union shall complement national citizenship", so that the new sentence would read: "Citizenship of the Union shall be additional to national citizenship"(Art.9, TEU, Art.20 TFEU). This would not replace our national citizenship, but would for the first time make us real citizens of a real EU 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 has been the case 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 for example.
The rights and duties attaching to this citizenship of the new Union would be superior to those attaching to citizenship of one's own national State 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 respective countries".
As most States recognise that one can only have a single citizenship internationally, it is quite likely that over time one's European Union citizenship would tend to be regarded by other countries as one's primary and internationally definitive citizenship.
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, current 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 which 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 TEU).
4. The enormity of the constitutional change proposed by Lisbon may not be appreciated because the same name - the "European Union" - would be used before and after the Treaty would come into force, and the notion of EU "citizenship" which was introduced by the 1992 Maastricht Treaty would be retained, although the Lisbon Treaty would change fundamentally the legal and 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 its 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 can function as a State vis-a-vis other States and in relation to its own citizens (Art. 47 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. It would take over as well the "intergovernmental" powers over foreign policy and security, as well as crime, justice and home affairs, 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 5, Art.24, 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 (Arts.1-6 TFEU, Art.4.1 TEU).
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 which has never happened up to now. 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 Commission, a key supranational body, would through the High Representative/Foreign Minister 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 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 (Art.9 TEU, Art.20 TFEU). with all the implications of that for downgrading our present personal status as citizens of a sovereign Irish Nation State and superseding it by citizenship of a component state of a supranational European Federation, of which we would also be made real citizens for the first time.
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 Member States", into "representatives of the Union's citizens" (Art.14.2, amended TEU; cf. current Art.189 TEC). This 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 effectively henceforth reduced constitutionally and politically to 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 - has been elevated in successive EU Treaties. These 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 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 the EU where the Member States acted largely by unanimous agreement, to being merely a "second chamber" of national representatives casting votes on EU legislation proposed by the Commission, predominantly through a majority voting procedure.
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 all 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 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 in principle open to direction from the European Court of Justice to take steps to harmonise company taxes that constituted a "distortion of competition", something which 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 new Federal EU, and its individual members would in constitutional terms be primarily obliged to represent the Union to their Member States rather than their Member States to the Union.
7. Lisbon would create a 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 that 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/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, becomes no longer 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 not be surprising if in due course there were suggestions that the President should be directly elected by EU citizens, as France's President Sarkozy has already urged.
8. Lisbon would endow the new Union's citizens 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 new 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 of their national citizenship. Indeed it embodies the concept that the EU determines and is the guarantor of those 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 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 because
(b) the Charter sets out fundamental rights 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.
Making the EU Charter of Fundamental Rights legally binding would give a new and extensive human and civil rights jurisdiction to the EU Court of Justice and would make that Court the final body to decide what people's rights are in the vast area now covered by European law, as against national Supreme Courts and the Court of Human Rights in Strasbourg - the latter Court serving Ireland and all other European States, not just the EU members - 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 rights provisions of the Charter throughout the Member States. The citizens of the new Union will 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.
9. Lisbon makes National Parliaments 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.
10. Giving 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, where population size would become the decisive criterion in European law-making; 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).
It is hard to think of any major function of a sovereign State which the new European Union 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). This commitment to a "mutual defence" in the EU is to be distinguished from an obligation to participate in an EU "common defence", viz. a common European army, which Art.42.2 lays down that the "progressive framing of a common Union defence policy will lead to.
While Article 42.7 would commit Ireland to mutually defending other EU States if they should be attacked, participating in a common European army, with joint officers on the lines of the current Franco-German brigade, 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 to the Constitution Bill). The Irish Government is taking this out and putting it back in again by means of the 28th Amendment of the Constitution Bill, presumably to give the impression that it is doing something new to meet public concerns over this aspect of the Lisbon Treaty.
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"(Art.311 TFEU) and in effect to endow itself by means of any tax, so long as the Council of Ministers agrees that unanimously. 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 Federations like the USA, Germany etc.
However 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.
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 also be embodied 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 soldiers and policemen patrolling our streets in European Union 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 classical 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 new European Union is that the former, once their people had settled, share a common language, history, culture and national solidarity that 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. In the European Union however there is no European people or "demos" of this kind.
The Treaty of Lisbon 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.
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, neither the Lisbon Treaty nor the EU Constitution which it would establish contain any such proposal.
just to let you
know what a USA Newspaper thinks of EU
Lieutenant Colonel Thomas P. Odom's study, Shaba II The French and Belgian Intervention in Zaire in 1978, presents a historical analysis of the 1978 invasion of Shaba province by the exiled Katangan Gendarmerie. Included in this study is the Western reaction to the invasion, from the Zairian Army's initial response, which set off the massacre of expatriate mine workers, to the airborne landings of French and Belgian forces.
The French responded by sending the Foreign Legion into Shaba to restore order in the province. Belgium, on the other hand, sent its Paracommando Regiment on the humanitarian mission of rescuing the hostages. Both countries developed independent plans for their missions, plans that were not coordinated until the two European forces were accidentally shooting at one another.
The 1978 operations in Shaba should not be
dismissed as something unusual or unlikely to reoccur,
nor should they be discounted as European operations of
little interest to U.S. planners. Since these Shaba II
operations, the United States has been committed to
similar operations in Lebanon, Grenada, Sudan, Somalia,
Liberia, Panama, and the Persian Gulf. Without doubt,
U.S. forces will continue to be involved in such
operations, making Shaba II worthy of study by U.S. Army
Member states consider perks and staff for new EU president
14.04.2008 - 09:25 CET
EUOBSERVER / BRUSSELS EU member states have begun preliminary talks on some of the most political aspects of the bloc's new treaty the office set-up for the proposed new full-time president, the shape of the diplomatic service and the power-sharing arrangement for the regular ministerial meetings in Brussels.
With the European Commission due to present the first draft of the 2009 budget later this month, EU ambassadors last week discussed a possible salary, number of staff and perks for the EU president a job created by the new treaty which is supposed to come into force on 1 January next year.
Characterising the talks as "very abstract and very general", an EU diplomat said that there appeared to be general agreement that that the president of the council whose job description has yet to be defined will get the same sort of treatment as the president of the European Commission.
This would mean a salary of around 270,000, a chauffeured car, a housing allowance and a personal staff of around 20.
What the EU president will actually do remains unclear.
The post may be purely administrative such as chairing EU leader meetings or could evolve into a much more high-profile and powerful role a true face of the European Union.
But speculation that the new president may get a special residence and a presidential jet was dismissed by several officials as being too "symbolic", whatever the job description.
One diplomat pointed out that the perk discrepancy between the presidents of the commission and the council cannot be too big, so as not to enhance the expected rivalry between the holders of the two posts.
However the commission is not expected to mention the EU president's salary in its first budget draft for fear of upsetting the current ratification process of the EU treaty - particularly in Ireland which is to have a referendum.
Member states have also begun looking at the set up of the diplomatic service - a new body meant to back up the new foreign minister post and give coherence to the bloc's external policy.
A briefing note circulated to ambassadors reminds them that "technical work" must begin now to ensure it goes into effect quickly after the treaty enters into force.
Member states have been asked to consider what kind of extra money should be foreseen for the service and whether they still believe - as on previous discussions on the shelved EU constitution - that the service should be linked to both member states and the commission.
This is a highly political question with some countries and MEPs fearing that if the commission is not fully involved, then the diplomatic service will simply become a tool of larger countries.
EU diplomats must also grapple with the set up of the regular ministerial meetings. This runs the gamut from exactly what powers will fall to the foreign minister when chairing the external relations council to when agendas should be sent out for the meeting and "who should pay for the postage stamps," noted one EU official.
The treaty discussions come as just nine of the 27 member states have ratified the new document. The Lisbon Treaty needs all countries' approval for it to come into force with the political discussions set to be ratcheted up a notch in the second half of this year.