The European Union’s Lisbon Treaty: Some thoughts on the “Irish Legal Guarantees”

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Dr. Laurent Pech is Jean Monnet Lecturer in EU Public Law at the National University of Ireland, Galway. He has recently been Emile Noel Fellow at New York University School of Law and a Visiting Scholar at UC Berkeley’s EU Center of Excellence.

 As is well-known, EU Treaties, to enter into force, must be ratified by all EU Member States in accordance with their respective constitutional requirements. In Ireland, following a controversial and ambiguous 1987 judgment of the Irish Supreme Court, ratification of EU Treaties is understood as requiring amendment of the Constitution, which in turn requires a referendum (formally speaking, however, each new EU Treaty is submitted by the Government to the Attorney General to determine if a referendum is constitutionally required: see this study for further analysis).

 In June 2008, to the surprise of many, Irish voters refused to amend the national Constitution to allow for ratification of the Lisbon Treaty, signed in December 2007. The Irish No did not lead, however, to the abandon of the Treaty as most national governments continue to consider this latest updating of the EU “Constitution” indispensable in order to help the enlarged EU to function more efficiently and more democratically. To pave the way for Irish voters to be consulted again on the same text, the Heads of State and Government of the 27 Member States decided that Ireland would be given some “legal guarantees” and “assurances” on the main areas of concern to Irish voters as long as they were perfectly compatible with the Treaty and did not require, therefore, the ratification process to be re-opened. As a result of the EU leaders’ agreement on the substance and legal form of those guarantees last June (see Conclusions of the European Council meeting), the Irish government indicated that a second referendum will be held on Friday, 2 October.

Designed to respond to concerns raised by the Irish people, the “package” agreed by EU leaders consists of:

  • An agreement that, provided the Treaty of Lisbon enters into force, a decision would be taken to the effect that the Commission shall continue to include one national of each Member State;
  • A Decision on the concerns of the Irish people on the Treaty of Lisbon and an agreement to subsequently enshrine the substance of this Decision in a Protocol to be attached to the EU Treaties at the time of the conclusion of the next accession Treaty;
  • A Solemn Declaration on Workers’ Rights, Social Policy and other issues;
  • A unilateral Declaration by Ireland relating to defences issues to be associated with the Irish instrument of ratification of the Lisbon Treaty.

 The commitments and “set of arrangements” agreed by the European Council call for several remarks.

A selective selection of the Irish concerns?

 If one compares the Irish concerns identified by the European Council to the concerns identified in the Millward Brown’s study entitled Post Lisbon Treaty Referendum Research Findings, the selection operated by the Council, on the basis of the information provided to it by the Taoiseach, may seem, if I dare say, selective.

While it is undeniable that a relatively important number of No voters have expressed their concerns on the Lisbon Treaty’s potential impact on the composition of the Commission, on the taxation power of the EU, on abortion as well as on the Irish tradition of military neutrality and workers’ rights, numerous additional issues were indeed raised by No supporters: the new “double-majority” voting system in the Council of Ministers, the creation of a European “superstate,” excessive EU regulation, the defence of Irish identity, etc. More importantly, the main concern of the Irish No voters was their lack of information and/or understanding of a Treaty criticized for its complex, unreadable character.

Yet the European Council conclusions of June 2009 failed to answer this decisive concern but one can perfectly understand why. On the one hand, there is little political appetite left for the drafting of a short text replacing and repealing all EU Treaties. On the other hand, national governments have always been keen to preserve Europe’s current complicated rule-book to maintain the strictest control over the evolution of EU law-making and preclude the emergence of a federal state at EU level. Similarly, the Council failed to mention some Irish concerns either because they are old canards with no factual basis (e.g. the superstate argument) or because they cannot be seriously addressed without further amending the Lisbon Treaty (e.g. the double-majority voting system). As most national governments refused to contemplate any substantive renegotiation of any aspect of the Treaty, the Council had no choice but to “cherry-pick” and only select the concerns that could be answered without opening the way to a new round of national ratifications. Viewed in this light, the selection operated by the Council does not seem therefore overly subjective.

The Edinburgh Agreement as a source of inspiration

 When the Danish voted No to the Maastricht Treaty, the Danish government secured a “package” consisting of a Decision adopted by the EU leaders, two Declarations of the European Council, unilateral Declarations by Denmark as well as some extra agreements on diverse issues such as subsidiarity and transparency in the EU. By contrast, when the Irish voted No to the Nice Treaty, the Irish government “only” secured a Declaration of the European Council on top of its unilateral Declaration on defence issues.

To pre-empt any domestic criticism on the legal force of the assurances and guarantees it was seeking from its EU partners, the Irish government sought to obtain a package à la danoise with additional indications that the guarantees were “legally binding.” To a large extent, Irish demands were all met with success. The 2009 “Brussels Agreement” nevertheless presents some minor differences with the 1992 Edinburgh Agreement and not necessarily, of course, because of a lack of success for the Irish government in getting what the Danes got. For instance,. Furthermore, the agreements relating to the number of Commissioners and the transformation of the Decision in a Protocol call for future legal action to implement precisely defined outcomes already agreed upon. The 1992 agreements on subsidiarity, openness and transparency, by contrast, mostly consisted of soft-law “guidelines” and invitations made to other EU institutions to complete further work on these issues. Another difference is that the Irish government, unlike the Danish government, did not seek to secure opt-outs on the reasonable ground that a Danish-inspired “opt-out” regime would lead to Ireland’s political marginalization at EU level. Finally, the Irish government was offered what is explicitly described as a “legally binding” Decision and the promise that its provisions will be enshrined into a Protocol.

Legally binding or not legally binding, that is the question

 This last aspect has been particularly controversial. For political reasons, the Irish prime minister fought hard on the question of the legal nature and legal form of the guarantees to be secured from other EU leaders. Returning from the Council meeting of June 2009, M. Cowen insisted that he secured legally binding guarantees and that Irish voters will therefore vote on a Lisbon Treaty “plus.” Public debate on this question has not always been enlightening because commentators often fail to distinguish between the nature of the Council’s commitments or assurances, the guarantees contained in the Decision on the Irish concerns and the Solemn Declaration on Workers’ Rights.

Regarding the Council’s agreements on the composition of the Commission and the Decision’s future legal status, it is important to stress that the Council did not include them in the “legal guarantees” mentioned in its conclusions. The same is true with respect to the Declaration on Workers’ Rights. Furthermore, this last text is not legally binding. It merely “confirms” the high importance the EU attaches to workers rights, social policy and public services and “highlights,” among other things, the EU’s aim of achieving full employment and social progress. Similarly, the agreements are of a political nature only. Legally speaking, this means that any government, when the next accession Treaty is being negotiated, may eventually oppose the transformation of the Decision on the Irish concerns in a protocol or, more prosaically, may be unable to ratify the new Protocol. While highly unlikely from a political point of view, there would be also no legal recourse for Ireland, were a newly appointed national government to refuse to consent to an alteration of the rules relating to the number of Commissioners. Indeed, even if the Lisbon Treaty enters into force, the additional adoption of a unanimous decision of the European Council is required for the Commission to continue to include one national from each Member State. It goes without saying that if, for any reason, EU leaders are unable to “deliver” on those commitments, Irish voters, assuming they do not vote No a second time, may very well feel cheated as the European Council’s commitments have been presented by the Irish government as a “done deal.”

 By contrast, the Decision on the concerns of the Irish people is explicitly and accurately described as “legally binding.” Yet what does legally binding mean? It means, first and foremost, that the Decision constitutes an international agreement which bind the Member States under international law. It will only take effect on the date of entry into force of the Lisbon Treaty. Strictly speaking, the Decision is not part of EU law. Its provisions neither amend nor supersede EU law norms but naturally, EU courts will have to take into account the Decision when interpreting EU law (same applies to the Declaration on Workers’ Rights). The awkward emphasis on the Decision’s full compatibility with the Lisbon Treaty should not be misunderstood. It simply means that the Decision does not necessitate any process of re-ratification. A brief look at the substance of the “legal guarantees” is enough to understand that we are dealing here with clarifying provisions only.

Substance of the “legal guarantees”

 The “legal guarantees” obtained by the Irish government are all negatively worded. In other words, they are all about spelling out, in a “Lisbon Treaty for dummies” fashion, what the Lisbon Treaty does not do:

  • “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, family and education provided by the Constitution of Ireland (Section A);
  • “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” (Section B);
  • “The Union’s common security and defence policy … does not prejudice the specific character of the security and defence policy of Ireland. The Lisbon Treaty does not affect or prejudice Ireland’s traditional policy of military neutrality… The Treaty of Lisbon does not provide for the creation of a European army or for conscription to any military formation. 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…” (Section C)

 Space (and time) constraints preclude a lengthy demonstration of the unfounded nature of the Irish people’s concerns (see my book for further analysis). Enough is to say here that the Decision merely confirms what is already explicit or implicit in the Lisbon Treaty. Furthermore, as the Decision merely clarifies that certain Irish concerns “will be unaffected by the entry into force of the Treaty of Lisbon,” one may wonder why the Irish government so keenly insisted in getting the promise that the Decision will eventually be annexed to the EU Treaties as a Protocol.

From Decision to Protocol: Does it matter?

 While protocols and decisions are all legally binding documents, only protocols form an integral part of the EU Treaties and have the same legal status. To put it differently, the transformation of the Decision into a Protocol – assuming that the protocol is successfully ratified by all the Member States – will therefore transform an international agreement into a norm of primary EU law.

 The need to give full EU Treaty status to the Decision, however, was guided more by marketing concerns than legal ones. Indeed, the future Protocol will continue to merely state the obvious and will not alter the Decision’s quasi-lack of normative impact on the content and application of the Lisbon Treaty. It is true, however, that provisions of an EU protocol cannot see their legality challenged and that EU courts must take note of protocols in their interpretation of EU law and its validity (for EU secondary legislation). And were a conflict to arise between a provision of the Irish Protocol and another provision of primary EU law, EU courts would have to rely on standard rules of interpretation to reconcile them. A conflict of norms is, however, unlikely to arise for several reasons. The Council made clear that the unique purpose of the future Protocol is “to give full Treaty status to the clarifications set out in the Decision to meet the concerns of the Irish people,” It was further emphasised that the Protocol “will clarify but not change either the content or the application of the Treaty of Lisbon.” Finally, as a matter of international law, one may argue that the Decision is a binding and definitive interpretation of the EU Treaties on the points at issue and so the question of a conflict cannot arise.

 To conclude, no legal revolution is to be expected from the transformation of the Decision into a Protocol. Furthermore, the Irish legal guarantees and other assurances might well end up into the dustbin of history were Irish people to vote No again next October. The Irish sage shows, once again, that it is more than time to scrap the unanimity rule when it comes to ratifying new EU treaties. In a Union of 27 countries, such rule allows any nation, for any reason, to hold up all the others on such a crucial issue of the EU institutional reform. It furthermore plunges the EU into periodic and anguished uncertainty and is the best recipe for lowest-common denominator compromises between the Member States for which the EU is, alas, ultimately blamed. The pro-integration peoples of Europe deserve better.

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