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Subject: Re: EU summit on Irish Lisbon 'Assurances': 

The Emperor's New Clothes / 

Comment by Jens-Peter Bonde, MEP 1979-2008 / 

Forwarded for your information

To make sure you have seen the attachment, the SOFA Directive, Ireland has signed and the signature is shown on page 14 but also see the STATEMENT on the last page.  I also enclose NEW article 188R,(Lisbon) not as it is shown in the actual Treaty.  I do not have an e-mail address for Peter Bonde.   Anne

Tuesday 16 June 2009

EU summit on Irish Lisbon 'Assurances': The Emperor's New Clothes,

Comment by Jens-Peter Bonde, MEP 1979-2008;  

The EU Summit Strategy for dealing with the Irish No vote to Lisbon is similar to the Edinburgh Agreement of December 1992, when Denmark changed its No to Maastrict for full Danish opt-outs from some provisions of that Treaty.

First, the European Council will make a 'decision' of the Prime Ministers and Presidents of the EU member states.

This so-called 'decision' did not previously exist as a formal legal instrument of EU summits.  It was specially invented to get around the Danish No to Maastrict in 1992 by the Head of the Council Legal Service, Jean-Claude Piris.  It is a creative way of giving people the feeling of legal certainty which does not and cannot exist since only properly ratified EU treaties, with their Protocals, can offer binding legal guarantees in EU law.

This 'decision' of the EU summit changes absolutely nothing in the treaties.  If it did change anything, even the smallest changes could only be  validated through new ratifications by all 27 member states in their national parliaments, or by referendums.

Just as in the 1992 Edinburgh Agreement the Prime Ministers and Presidents state their desire 'to address those concerns in conformity with that treaty'  (i.e. the Lisbon Treaty).

This is the core sentence of the Summit document.   In the so-called 'Irish assurances' not one single comma in the Lisbon Treaty will be changed.

Up until now no government has been able to give a single example of a national law which cannot be affected in some way of other by the Lisbon Treaty. 

This does not mean that the current generation of politicans has in mind the establishment of European laws in all areas.  But in reality they could to this if they wished with a few derogations.  Decisions of the European Court could also affect every single area of what is currently believed to be a purely national responsibility.

This 'decision' of the EU Summit isn't  signed by the Heads of State or Government.  In legal form it is simply an Annex to a Summit Declaration.

The 'decision' is followed by a common 'Solemn Declaration' which may express the intentions of the politicians taking part.  It does not prevent politicians at future Summits affecting these 'assurances'.

Finally, Ireland has its own Irish declaration.  A unilateral declaration of this kind has to be interpreted as a statement of position by one state which the others do not necessarily agree with.  If they did agree to it, it would have been part of the Joint Declaration  or the earlier 'decision' in the name of all 27 states.

In 1992 the Edinburgh Agreement was sent  to the United Nations to register it as an international agreement,  giving it a certain legal value under international law, although not necessarily under EU law.  It remains to be seen how the planned Brussels agreement from this June's EU Summit will be archived.

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Comments on the Draft text of 15 June 2009 (text from the Irish Times, plus introduction not quoted in the  Irish Times but  existing in the draft 'Annex l').

Annex 1

DECISION  OF THE HEADS OF STATE OR GOVERNMENT OF THE 27 MEMBER STATES OF THE EU, MEETING WITHIN THE EUROPEAN C0UNCIL, ON THE CONCERNS OF THE IRISH PEOPLE ON THE TREATY OF LISBON.

The Heads of State or Government of the 27 Member States of the European Union, whose Governments are signatories of the Treaty of Lisbon,

Taking note of the outcome of the Irish referendum of 12 June 2008 on the Treaty of Lisbon and of the concerns of the Irish people identified by the Taoiseach,

Desiring to address these concerns in conformity with that Treaty, 

Having regard to the Conclusions of the European Council of 11-12 December 2008,

Have agreed on the following Decision:

 

Section A

Right to Life, Family and Education

Nothing in the Treaty of Lisbon attributing legal status to the Charter of Fundamental Rights of the European Union, or in the provisions of that Treaty in the area of Freedom, Security and Justice

affects in any way the scope and applicability of the protection of the right to life in Article 40.3.1. 40.3.2 and 40.3.3, the protection of the family in Article 41 and the protection of the rights in respect of education in Articles 42 and 44.2.4 and 44.2.5 provided by the Constitution of Ireland.

COMMENT:  True, A Treaty does not change the Irish Constitution.  However, the above is a misleading statement since  the European Court has already taken decisions affecting Irish abortion law.  In the so-called SPUC v. Grogan case of 1991, the European Court of Justice decided that abortion is a normal 'servicve' under the treaties which can normally be provided everywhere.  Then the Court 'on balance' established an argument on proportionality where  they aceepted the Irish constitutional limits for the time being.

The Court Adovate General wanted to entirely overrule Art. 40.3.1 of the Irish Constiution, but the Court did not go along with that proposal then.  The European Parliament has called for legal access to abortion in all member states in a resolution of 2002.  The Council of Europe sought similar access to abortion in 2008.

It is unrealistic to expect the Court to take such a decision as long as abortion is forbidden in a big country like Poland.  But the example quoted shows the misleading character of the new 'assurances'.  The power to decide will always decide with the Court,  even on the most sensitive ethical questions like euthanasia and abortion, which many people believe should be decided at the national level.

Moreover the Lisbon Treaty would make all citizens of the 27 member states into real citizens of the European Union for the first time by conferring on them an 'additional' citizenship.  Their rights and duties as EU citizens would ultimately be decided by the Court of Justice.  It would therefore fall to the Court of Justice to apply the rights set out in the Charter of Fundamantal Rights for the 500 million or so citizens of the EU.

Section B

Taxation

Nothing in the Treaty of Lisbon makes any change of any kind for any Member State, to the extent or operation of the competence of the European Union in relation to taxation.

COMMENT:  True, EU competence on taxation is not changed.  The EU already has certain competences as regards taxes.  The limiting principle is that all harmonization must be unanimous.  The Lisbon Treaty would allow the governments unanimously to change from unanimity to decision by qualified majority (Art. 48 TEU).  The  treaty also inserts a new sentence on the internal market which would permit the EU to outlaw national tax measures if they can be regarded as disturbing the internal market.  (Protocol No.27).

The Lisbon Treaty adds in the avoidance of 'distortion of competition' as an aim of the tax paragraph in Art.113 TFEU, thus opening the way for more court cases outlawing distorting tax rules, such as low corporation taxes, different taxation rules for foreign-owned assets, etc.

The Lisbon Treaty also defines the Internal Market as an area without distortions of competition under Protocol No.27 (on the Internal Market and Competition).  This should strengthen the hand of the  Court in applying the internal market rules,  which are decided by qualified majority vote, to get rid of such distortions.

The Commission has proposed a harmonisation of the tax base for corporate taxation based on the article dealing with indirect taxes.  This was in the Commission's annual work programme for 2008, but has been postponed until after the second Irish Referendum  on the Lisbon Treaty.

The Lisbon Treaty also provides for totally new taxes to be imposed by the EU to add to its 'own resources' by unanminity (Art.311 TFEU).  Where are the new assurances here?

Section C

Security and Defence

The Union's action on the international scene is guided by theprinciples of democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.

The Union's common security and defence policy is an integral part of the common foreign and security policy and provides the Union with an operational capacity to undertake missions outside the Union forpeace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. It does not prejudice the specific character of the security and defence policy of Ireland.

The Lisbon Treaty does not affect or prejudice Ireland's traditionalpolicy of military neutrality.

It will be for Ireland, acting in a spirit of solidarity and without prejudice to its traditional policy of military neutrality, to determine the nature of aid or assistance to be provided to a Member

State which is the object of a terrorist attack or the victim of armed aggression on its territory. Any decision to move to a common defence will require a unanimous decision of the European Council. It would be a matter for the Member States, including Ireland, to decide, in accordance with the provisions of the Treaty of Lisbon and with their respective constitutional requirements, whether or not to adopt acommon defence.

COMMENT:  A common defence may be established by unanimity for all, or for those participating in 'structured cooperation' by a sub-group of member states.  Ireland decides its own position.  The content is true, but again misleading since Ireland has already opted in favour  of participating in the common  European Defence Agency and all other military structures and activities of the EU.  Denmark has a derogation from these in a Treaty Protocol and does not partake in EU defence matters even though it is a NATO country.  The  Treaty also provides for a 'mutual' defence obligation among all member states.

 Nothing in this Section affects or prejudices the position or policy of any other Member State on security and defence.

It is also a matter for each Member State to decide, in accordance with the provisions of the Lisbon Treaty and any domestic legal requirements, whether to participate in permanent structured
co-operation or the European Defence Agency.

The Treaty of Lisbon does not provide for the creation of a European army or for conscription to any military formation.

COMMENT:  The first European battle groups have already been established,.  They have decided upon a joint military force of 60,000 troops.  No new treaty is required to increase this number to 600,000 or 6 million EU soldiers.  Where is the new assurance?

It does not affect the right of Ireland or any other Member State to determine the nature and volume of its defence and security expenditure and the nature of its defence capabilities.

It will be a matter for Ireland or any other Member State to decide, in accordance with any domestic legal requirement, whether or not to participate in any military operation.

Section D

Final Provisions

Annex 2

Solemn Declaration on Workers' Rights and Social Policy

The European Council confirms the high importance which the Union attaches to:

*                Social progress and the protection of workers' rights;

 COMMENT:  Yet the 2007 Laval case has already permitted foreign workers to be employed for much lower salaries than the normal rates in Ireland.  The Trade Unions in the European TUC proposed that a social protocol be added to the Lisbon Treaty to set this judgement aside.  This protocol was fairly weak in its provisions, but even this was not accepted. 

 

*       Public services, as an indispensable instrument of social and regional cohesion;

*       The responsibility of Member States for the delivery of education and health services;

COMMENT: Yes, they may still be responaible.  But the Court has already made rulings on requiring free competition for important areas of education and health.  A patients' directive currently being prepared will bring more detailed EU rules.  Where are the new assurances?

 

*       The essential role and wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest.

In doing so, it underlines the importance of respecting the overall framework and provisions of the EU Treaties.

It recalls that the Treaties as modified by the Treaty of Lisbon:

*       Aim at establishing an internal market and working for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment;

*       Will give expression to the Union's values and, through Article 6 of the Treaty on European Union, recognise the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union;

*       Aim to combat social exclusion and discrimination, and to promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child;

*       Oblige the Union, when defining and implementing its policies and activities, to take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health;

*       Include, as a shared value of the Union, the essential role and the wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest as closely as possible to the needs of the users;

*       Do not affect in any way the competence of Member States to provide, commission and organise non-economic service of general interest;

 

COMMENT:  This is the case as long as all treaty princples relating to free competition, non-discrimination, etc. are respected.  In reality there is not a single non-economic service which cannot be affected by judgements of the Court. 

*       Provide that the Council, when acting in the area of common commercial policy, must act unanimously when negotiating and concluding international agreements in the field of trade in social, education and health services, where those agreements risk seriously disturbing the national organisation of such services and prejudicing the responsibility of Member States to deliver them; and

COMMENT: But who decides what is 'seriously disturbing the national organisation of such  services'?  It is the EU Commission, not Ireland.  Again no new assurance.  The phrases above hide the fact that new trade agreements will be adopted by majority votes as a general rule.  Even the weak derogations mentioned can easily be changed from unanimity to qualified majority by the governments.

 

*       Provide that the Union recognises and promotes the role of the social partners at the level of the European Union, and facilitates dialogue between them, taking account of the diversity of national systems and respecting the autonomy of social partners.

________

IRISH DECLARATION ( text only partly available)

It reiterates that the participation of contingents of the Irish Defence Forces in overseas operations, including those carried out under the European common security and defence policy requires (a) the authorisation of the operation by the Security Council of the General Assembly of the United Nations, (b) the agreement of the Irish Government, and (c) the approval of Dáil Éireann, in accordance with Irish law.

COMMENT: The Lisbon Treaty allows the EU to participate in wars without the authorization of the UN.  Ireland decides for itself whether it will participate in such wars with Irish soldeirs.  This is true but again it gives no new assurance.

Ireland notes that nothing obliges it to participate in permanent structured co-operation as provided for in the Treaty on European Union. Any decision enabling Ireland to participate will require the approval of Dáil Éireann in accordance with Irish law.

Ireland notes also that nothing obliges it to participate in the European Defence Agency, or in specific projects or programmes initiated under its auspices. Any decision to participate in such projects or programmes will be subject to national decision-making and the approval of Dáil Éireann in accordance with Irish law. Ireland declares that it will participate only in those projects and programmes that contribute to enhancing the capabilities required for participation in UN-mandated missions for peace-keeping, conflict prevention and strengthening international security, in accordance with the principles of the United Nations Charter.

COMMENT:  But Ireland is already a  member of the European  Defence Agency.  Here there may be something new.  How will Ireland both at the same time participate in, and remain apart from, some of its activities?

 

The situation set out in this Declaration would be unaffected by the entry into force of the Treaty of Lisbon. In the event of Ireland's ratification of the Treaty of Lisbon, this Declaration will be

associated with Ireland's instrument of ratification.

COMMENT: This is of no legal significance.  It simply means new wrapping paper around the same Lisbon Treaty and the same legal obligaitons.  Nothing in the Lisbon Treaty will changed.

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GENERAL COMMENTS

-    The vast majority of European laws will still be decided by civil servants behind closed doors under the Commission and Council instead of being adopted by elected representatives of the peoples.

-    The non-elected Commission will still retain its monopoly of proposing all European laws instead of these being decided by elected representatives in nastional parliaments or directly by the voters.

-    EU meetings and documents will generally remain private instead of being governed by new rules requiring all meetings and documents to be open and transparent, unless special exception are approved by elected representatives.

-    Ireland and the other member states will lose their right to propose and decide their own Commissioner under Lisbon.   Instead the Irish Commission and other national commissioners wil be decided by the new Commission President, in whose appointment the big states will have a decisive say.

-    Ireland will halve its voting strength in the Council of Ministers under Lisbon while Germany will double its voting strength, and France, Britian and Italy will increase theirs by 50% each. 

-    When Ireland joined the European Community in 1973, Germany, France, Italy and the UK had 3.3 times more votes than Ireland.  Now Germany will have 20 times more votes than Ireland and Britain and France and Italy 15 times.

-    The Irish 'assurances' do not explain how having half as much influence in the EU than Ireland has today would help fight unemployment and resolve its economic crisis in the interests of Irish companies farmers and workers.

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For further sources and information on the above comments, see the euabc.eu under the headings workers' rights, taxation, abortion, Lisbon Treaty etc.