Does the treaty express new values?

Tue, May 13, 2008, 01:00

LISBON EXPLAINED - part 2:Does the Lisbon Treaty create new rights, values or competences, or is it old wine in new bottles? asks JAMIE SMYTH,European Correspondent.

OPINION ON how the Lisbon Treaty advances EU values is divided between critics, who claim it could lead to a federal European state, and supporters, who argue it just builds on principles in existing treaties.

Lisbon reiterates the EU's adherence to democratic principles, gives legal standing to a charter of fundamental rights, provides the Union with a "single legal personality" and sets objectives to combat climate change and boost energy security.

It would also provide mechanisms that would enable states to voluntarily leave the Union and to amend future EU treaties without the need to hold a conference of member states.

The full extent of the proposed changes remains a source of intense debate even among some of the framers of Lisbon.

Take, for example, the decision to make the charter of fundamental rights legally binding. The charter first surfaced in 2000 as a political declaration by the member states to list the rights of EU citizens and make them more visible. Lisbon will make the charter legally binding.

The charter sets out 54 civil, political, economic and social rights applicable to European citizens and all persons resident in the EU - from the right to life, to marry, to strike, and even to conduct business.

The European Commission and the Government both argue the charter does not create any new rights but makes more visible the rights that citizens already enjoy under existing EU treaties, the European Convention on Human Rights (ECHR), and existing case law of the Union's highest court, the European Court of Justice (ECJ).

They also maintain the ECJ cannot refer to the charter in their rulings to force member states to amend their own national laws because article 6 of Lisbon states that the "charter shall not extend in any way the competences of the Union as defined in the treaties". Article 51 of the charter also says it is "addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the member states only when they are implementing Union law".

In other words, laws proposed by the Oireachtas should remain outside the scope of the charter, and it could not, for example, be used to force the Government to provide the right to gay marriage.

Yet, despite these safeguards, Poland and Britain insisted on attaching a protocol to the Lisbon treaty.

Some No campaigners have argued that London and Warsaw are justified in their concern that the charter could extend the ECJ's jurisdiction to national law. They fear that judicial activism could boost the ECJ's role to one of a final arbiter on rights, eclipsing the role of the national courts and increasing the competence of the European Commission.

One example of this was the ECJ's landmark decision in 2005 on environmental crime, which for the first time gave the European Commission the right to tell member states to impose criminal sanctions for breaches of European law.

Legal experts are divided on the charter's possible impact. Fine Gael Senator Eugene Regan SC says the charter and the accompanying explanations are clear about not extending the powers of the EU into new areas, while barrister Gerard Hogan has raised concerns that the charter could prompt "the most profound change" in relation to the protection of fundamental rights since the adoption of the Irish Constitution.

The final impact of making the charter legally binding may not become fully clear until the ECJ builds up its case law over the next decade if Lisbon is ratified and enters into force.

But, overall, Lisbon confers few new competencies on the Union and probably goes further than any previous treaty in defining exactly when the EU has the right to act and when competence lies with states. Article 1.6 of Lisbon says the Union "shall act only within the limits of the competences conferred upon it by the member states in the treaties". It continues: "the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the member states".

Combating climate change and boosting energy security are the two specific areas where states have agreed through Lisbon to allow the EU to tackle major issues facing Europe. In both areas, EU leaders assessed that by acting together they could achieve better results.

Lisbon also provides the EU with a "single legal personality", which will enable it to sign international treaties. It would remove the existing distinction between the European Union and the European Community by creating a single legal entity for the first time. (Although many people see the EU as an entity that succeeded the EC, in fact, in legal terms, both co-exist, sharing institutions and decision-making).

Under the existing treaties, the European Community already has the right to sign international treaties and the EU has also built up its own "de facto" treaty-making power, for example agreeing the deal to give the US details on airline passengers to help fight terrorism.

Those opposed to the treaty argue the "single legal personality" issue paves the way to a federal EU, but this largely symbolic act has, in reality, few practical implications.

No campaigners also point to an issue which goes to the heart of Irish values: the ability to hold referendums on future reform of the EU. They claim that a new mechanism, called the "simplified revision procedure", would rule out the need to hold referendums when further reform of the EU institutions is proposed.

Lisbon's "simplified revision procedure" would allow for changes to be made to the EU treaties without needing to hold a conference of member state governments. So, for example, member states' ability to veto decisions on certain areas of legislation (not in the defence field) could be removed with the unanimous agreement of EU leaders.

This sounds radical, but in fact the existing EU treaties already include a mechanism to allow decision-making in the justice field to move from unanimity to qualified majority voting if all EU leaders agree. Lisbon also clearly states that this simplified revision procedure cannot be used to bring new legislative areas under the scope of the EU.

The Government can also point to retention of its veto over any treaty revision and the fact that the Supreme Court could rule that a referendum is necessary if Irish sovereignty was eroded by a proposed change to the EU treaties. Claims that a treaty change would pave the way towards abortion have also surfaced, with Libertas claiming in leaflets that abortion could fall under "the free movement of services directive". Yet Lisbon does not change the protocol inserted into the Maastricht Treaty in 1992, which confirms that nothing in EU treaties shall affect the Irish Constitution's article 40.3.3 (right to life of the unborn). Lisbon contains few radically new principles or values but provides simply a more cogent reiteration of the values expressed in previous treaties.

The one area where the treaty departs from previous practice is by making the charter of fundamental rights legally binding, yet even here safeguards exist to restrict the EU's ability to interfere with national law.

By including a commitment to tackle climate change and energy security, it acknowledges these areas cannot be handled by member states alone.

TOMORROW: Do small states and democracy lose out?

Full Lisbon Treaty available at www.ireland.com