MEP queries legal basis for Ireland's Lisbon guarantees


THE GOVERNMENT’S plan to have guarantees on the Lisbon Treaty added to the EU treaties by means of the Croatian accession treaty has run into opposition in the European Parliament.

The plan, which was announced by French president Nicolas Sarkozy last December, is intended to provide cast-iron legal guarantees to Irish voters ahead of a second referendum in the autumn.

Liberal MEP Andrew Duff, who is one of three MEPs who sat on the intergovernmental conference that drew up the treaty, told journalists yesterday that adding an Irish-specific protocol with the legal guarantees to an accession treaty was not legally possible.

“Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts,” said Mr Duff.

He added that rules in the EU treaties governing accession treaties only allow issues pertaining to a state’s accession to be dealt with.

Mr Duff said the procedures to allow for a general revision of the European treaties were different and the insertion of an Irish protocol into the EU treaties may have to wait for a new EU reform treaty to be drawn up and ratified.

He cited the example of Denmark, which had to wait five years before the guarantees and opt-outs it received after its No vote against the Maastricht treaty in 1992 were embedded in the EU treaties. The Danish guarantees were finally embedded in the EU treaties by means of the Amsterdam Treaty.

Taoiseach Brian Cowen has lobbied EU leaders to have legal guarantees on Lisbon regarding social/ethical issues, neutrality and taxation incorporated into the existing EU treaties at the earliest possible opportunity.

Embedding the guarantees into the treaties would provide a higher level of legal assurance in the eyes of the European Court of Justice than a stand-alone decision by the European Council on the guarantees.

But most EU analysts do not expect a new EU reform treaty to be agreed by states for many years, leaving the Croatian accession treaty as the best hope for the Irish Government.

In the Dáil yesterday, Mr Cowen reiterated that the guarantees on the Lisbon treaty promised by EU leaders last December “must be legally robust in order to reassure the public about the treaty”. “Whilst I respect the fact that other member states do not wish to re-ratify the Lisbon Treaty, I made it clear that for my part the legal guarantees will have to be attached to the EU treaties at the next possible opportunity,” he added.

At an EU summit last December, Mr Sarkozy supported the Government’s request. “To give a legal value to the engagements made to Ireland by the 26 other member states, we have committed that at the time of the next EU enlargement – whether that will be in 2010 or in 2011, when probably Croatia will join us . . . we will use that to add a protocol [on Ireland] to Croatia’s accession treaty,” Mr Sarkozy told journalists at the meeting.

Mr Duff’s opposition could not overturn a decision of the European Council, but the conclusions of last December’s summit meeting do not include any reference to using the Croatian accession treaty to incorporate the Irish guarantees in the EU treaties.

EU diplomats said yesterday that a final decision on how to structure the guarantees to provide legal certainty to Ireland would not be made until an EU summit planned for June.

Minister of State for European Affairs Dick Roche said yesterday he did not agree with Mr Duff’s analysis and stressed that a decision on the guarantees had been taken last December.

“Frankly I don’t agree with him and I don’t think anyone else agrees with him either,” said Mr Roche, who added the Government may not seek to attach the protocol to the Croatian accession treaty but could ask states to ratify an Irish protocol separate from it.

It is unclear if the other 26 EU states would be willing to ratify an Irish protocol laying out guarantees on Lisbon on its own, to allow them to be embedded into the treaties.