Democra June-July 2009 (Number 114)
Comment by Jens-Peter Bonde - including statement by Leolin Price CBE QC - 19.6.09
Comment on "Guarantees"
for Lisbon II - Maastricht trick again!
Comment on "Guarantees"
for Lisbon II - Maastricht trick again!
by Jens-Peter Bonde former MEP and former member of EU Constitution convention
Including statement by Leolin Price QC
On Friday 19 June a little before 3 pm the Irish Prime Minister Brian Cowen entered his briefing room on the 20th floor in the Justus Lipsius bulding in Brussels to claim a big political victory.
"We came to have legally binding guarantees, and we got them."
The Irish had arranged a drama with the Council presidency and the British delegation by leaking a confidential letter from the Irish Prime Minister to the other Prime Ministers. He asked them to support a legally binding protocol on Irish concerns, to be able to call and win a second Lisbon referendum.
The British played their role to perfection. It would be very difficult to deliver that to the Irish. The negotiations could not be finished on the first day. The prime ministers needed to use the night for these very difficult negotiations - resulting in a document that was actually finalised days before...
The press was then invited to play their role in what looked like a re-play of the famous fairy tale of Hans Christian Andersen: The Emperor's New Clothes. Claim a big Irish victory to help the Irish Prime Minister convince the Irish voters to change their No into a Yes.
There is no real content in these so-called Irish guarantees. But they will be inserted in the next treaty following the implementation of the Lisbon Treaty. It may be the next accession treaty with Croatia.
It could also be with a new protocol changing the numbers of seats of the European Parliament. Any treaty can include the document or part of the document called "Ireland and the Treaty of Lisbon".
It will make it legally binding. Until then it exists simply as a political agreement between prime ministers to agree on something at some point in the future. This is possible politically, but not legally. No government can bind the next government. No parliament can bind voters to come back and give support for this Protocol.
If Ireland insists that the agreement made on 19 June is legally binding, there is only one way forward: to open the ratification process on the Lisbon Treaty again and have all 27 member states sign and ratify an amended Lisbon Treaty.
They cannot claim a legally binding victory and then avoid the necessary ratification together with the Lisbon Treaty. Under EU law a protocol is only legally binding when it is ratified by all member states. There is no third way. You cannot have your cake and eat it. Not-binding is still not identical with binding.
There is now a possibility of re-opening the debate of the Lisbon Treaty. Others may have other suggestions, for example seekng legally binding protocols on Democracy, Accountability and Transparency. These are more needed than the Irish assurances, since the latter change nothing.
But they establish enough legal uncertainty on the interpretation of existing treaty articles to make it fully legitimate to require new ratifications in all Member State parliaments.
Hopefully some parties, MPs and at least one President - Czech President Vaclav Klaus - may now demand that.
Lawyers will support this argument.
For example, here is a comment from Mr Leolin Price CBE QC made on 19.6.09:
" The Lisbon Treaty is not yet in force. To be in force it requires ratification by all Member States. The Irish 'No' means that the present position in domestic UK law is that the Treaty is not yet operative and does not have any relevant legal status.
"Changes to the Treaty to help the Irish Government get the Irish "No" replaced, in a Second Referendum, by a new Irish "Yes", will mean that existing ratifications by member states, including the UK, will be without effect; and re-ratification of the Treaty including the changes, will be necessary in order to give the changed Treaty operative effect and status under UK law.
" 'Guarantees’ given to the Irish, or new 'interpretations' which change the effect of the Treaty have the same consequence as any more formal changes: they make existing ratifications irrelevant and require re-ratification by all member states which have so far given their ratification. In particular the UK 'ratification' already given will not be effective and under UK law there will have to be a new ratification in order to give any effect to the Treaty."
In 1992 the Danish government tried to bind a future Danish parliament by ratifying a change to come at a later day. A professor of State law, the late High Court judge Henrik Zahle, issued a memorandum against "giving up sovereignty in advance".
The Danish Government had to withdraw this future decision from the Referendum Bill and give a free hand to future politicians. It is just as illegal to try to bind future politicians as to include the Irish Assurances in a future treaty.
It is not possible. Then, the Irish Government will claim the commitment is legal under international law. The agreement will be sent to the register of international agreements at the United Nations and thereby be legally binding between governments.
This is a breach of the Lisbon Treaty Art. 344 and the similar rule in the Nice Treaty forbidding Member States from settling conflicts of interpretation outside the EU institutions. There is only one court that is able to settle conflicts between EU Member States, and this is the European Court of Justice in Luxembourg.
THE1992 DANISH OPT-OUTS
The European Council made a similar exercise after the Danish No to the Maastricht Treaty in 1992. But that time the Danish opt-outs were already in the treaty. The treaty articles were legally binding. The 1992 Edinburgh Agreement was more of a moral commitment from the other prime ministers. Conflicts over the interpretaton of the Maastricht Treaty could not be settled in the international court in the Hague. Only in the EU Court in Luxembourg.
The whole EU Summit strategy for dealing with the Irish No vote was similar to the way the prime ministers at the time established the Edinburgh Agreement of December 1992. Denmark then exchanged its No to Maastricht for political guarantees that the Danish opt-outs from some provisions of that Treaty could only be changed by a new Danish referendum.
The European Council has now made another "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 Maastricht in 1992, by the head of the Council legal service, Jean-Claude Piris.
It is a creative way of giving people a feeling of legal certainty which does not and cannot exist since only properly ratified EU treaties, with their Protocols, 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 change 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 these Irish "assurances" include an explicit statement that "these concerns (are) in confirmity with that treaty".
This is the core sentence in 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 or other by the Lisbon Treaty.
This does not mean that the current generation of politicians has in mind the establishment of European laws in all areas. But in reality they could do this if they wished with a few derogations. Decisions of the European Court could also affect virtually 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 states or government. In legal form it is simply an Annex to a Summit Declaration which, in contrast to a Treaty Protocol, is not binding in EU law.
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.
Other pieces on the Lisbon II referendum in Ireland
Where now? Democracy or EU Dictatorship - Editorial
"Guarantees" for Lisbon II
Statement by People's Movement of Ireland on "Guarantees"
Maastricht trick for Lisbon II?