Guarantees on Lisbon do change nature of vote

ANALYSIS: What the decision and protocol agreed by the EU heads of government do is put beyond argument what Lisbon is about and what it is not about, writes GAVIN BARRETT 

THE RECENT European Council meeting of EU leaders brought a brief sunny interlude for Taoiseach Brian Cowen. Its commitment to give Ireland legal guarantees on taxation, neutrality and ethical issues has been a crucial element in enabling him to argue (Opinion and Analysis, June 20th) that the electorate’s concerns regarding the Lisbon Treaty have now been addressed.

No campaigners, however, claim that nothing has changed and that the guarantees are, in the words of Aengus Ó Snodaigh, a sham (Opinion and Analysis June 25th).

Who is correct?

The guarantees obtained by Ireland will be delivered in two packages. Package One arrives in October. It consists of (a) (most importantly) a “decision of the heads of state or government of the 27 member states, meeting within the European Council”. This will take effect the day the treaty enters into force and broadly speaking states that the treaty (or particular parts of it) will not affect Irish constitutional provisions on life, the family or education or EU taxation competence or Ireland’s military neutrality. In addition, there is to be (b) a “solemn declaration on workers’ rights, social policy and other issues”; (c) a unilateral declaration by Ireland on neutrality to be associated with the Irish instrument of ratification, and of course (d) the promise (first made last December) that if the treaty enters into force, future EU Commissions not only can, but will, include a member from each member state.

Package Two – the Protocol – is to arrive later. The European Council promised that “at the time of the conclusion of the next accession treaty” (probably Croatia’s in 2011) the contents of the “decision” described above will be put into a protocol. This protocol will then be attached to the EU’s founding treaties. Thus if Ireland (and Germany, the Czech Republic and Poland) ratify the treaty, we will see the “decision” followed more permanently with the coming into force of this protocol.

But what does all this mean in law? What exactly are such “decisions” and “protocols”?

A “decision” of this kind is not actually an act of the European Council, but rather one of national leaders, who effectively use EU summits as a convenient meeting place to adopt them. The use of acts of member states representatives is an EU tradition stretching right back to 1954. Such acts have included non-legally binding agreements (such as the famous Luxembourg Accords of 1966 which ended a crippling row involving France). Certain functions (such as that of appointing judges to the European Court of Justice) are also required by the EU treaties to be carried out by acts of member states representatives.

“Decisions” are a very particular member of this family, however. First used in 1992, following initial Danish rejection of the Maastricht Treaty, they are actually a kind of international agreement – in other words, a treaty in simple form, binding in international law. Exceptionally, the view has been taken that last week’s “decision” (like its Danish forebear) will not need to be ratified (ie, reconfirmed at national level by parliament or government). This is because it does not involve any extra delegation of any extra national powers.

A “decision” does not amend the EU treaties. First, because it is not intended to. The European Council conclusions point out that this decision is “fully compatible with the treaty” and intended “to provide reassurance and to respond to the concerns of the Irish people”.

Secondly, European Court of Justice case law makes it appear unlikely that the mere adoption of a subsequent treaty could alter the EU treaties without following the special procedures those treaties stipulate for their amendment. (This was not always so: the original treaties were amended in 1956 and in 1957 without following such procedures.)

What else is there to say about a “decision” like this? Quite apart from its status in international law, the better view appears to be that a “decision” like this also forms part of the EU’s own legal system. (Its status is roughly analogous to that of the 1980 Rome Convention on Contracts – familiar to most Irish lawyers – which is also an international treaty agreed in an EU context and also one not specifically envisaged in the EU treaties).

A “decision” is thus a form of EU law subsidiary to the EU treaties. In case of conflict between the “decision” and the EU treaties (including the Lisbon Treaty) the treaties would prevail. But it is difficult to imagine how such conflict would ever occur.

Is there any way in which the “decision” might ever come into play? One possibility is that if there were any doubt as to whether Irish taxation, neutrality or abortion law was affected by the Lisbon Treaty, the “decision” could be used by the court as guidance, reinforcing the conclusion that this was not so. Subsidiary forms of EU law are frequently used by the Court of Justice to assist it in interpreting the treaty. (This happened in the court’s famous recent Laval judgment for example.)

However – notwithstanding what we were told by No campaigners during the 2008 referendum campaign – and notwithstanding what Aengus Ó Snodaigh now incorrectly asserts regarding an indirect threat to Irish corporate taxation – the reality is that the Lisbon Treaty has never posed any threat regarding any one of these issues.

What then of Package Two – the protocol?

Under Article 311 of the EC Treaty, protocols form an integral part of the treaty. Thus converting the terms of the “decision” into a protocol to the EU treaties in 2011 will make them as binding as anything in the treaties. They will have precisely the same legal effect as the Lisbon Treaty itself. On the other hand, in the words of the Brussels European Council conclusions, “the protocol will clarify, but not change, either the content or application of the Lisbon Treaty”. The protocol’s role is not therefore that of altering the treaty’s impact. It is that of putting it beyond argument that the treaty represents any threat regarding sensitive political issues. Effectively therefore, it adds a legal belt to existing legal braces, and involves using binding legal means to reach political ends – namely, reassurance of the electorate and greater certainty,

Will the October vote thus involve exactly the same legal issues as last June’s? The answer is no. True, the treaty itself will be the same. But Ireland will vote not merely on Lisbon but rather on “Lisbon plus”, ie the treaty plus extra elements. One extra element will be the guarantees provided initially by a decision and subsequently by a protocol altering the form of the EU Treaties (if not their practical impact). Another extra element will be the agreement to retain a commissioner from each member state.

This will alter the practical impact of the treaty, but not its form. The national legal context will also be considerably altered by Irish laws giving new powers to the Oireachtas regarding European Defence Agency activities and in controlling Government behaviour at EU level.

Compared to last June, a Yes vote next October will mean altered EU treaties and an altered practical impact for the Lisbon Treaty in an altered legal and economic landscape – even if the amendments effected by the treaty itself remain the same.

Gavin Barrett is a senior lecturer specialising in European law at the school of law in UCD

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