After years of debate treaty's fate rests with us


THE ROAD TO LISBON II:  The battle for Lisbon has been joined in earnest. In the first of three articles, European Correspondent JAMIE SMYTHcharts the course to a second referendum and explains what the treaty is about...and what it is not about

EU AMBASSADORS were attending their regular Friday morning meeting on June 13th last year when news began filtering through that Irish voters were poised to reject the Lisbon Treaty. “We all began to get text messages saying it was a No and normal business was postponed. It was a very depressing atmosphere as we speculated on what to do next,” recounts one ambassador.

A few hours later European Commission president Jose Manuel Barroso hastily arranged a press conference, even before the official results were released in Dublin, to signal that the Lisbon Treaty could still be salvaged. “I believe the treaty is alive and we should now try to find a solution,” he said, urging states to continue ratifying the treaty, if they hadn’t already done so.

It had taken six years of tough negotiations for EU states to agree how to reform the union and in the aftermath of the Irish no it quickly became clear that they were not prepared to give up the Lisbon Treaty without a fight.

The 200-plus page text of the treaty was signed by all 27 EU heads of state, at the Jerónimos monastery in Lisbon, in December 2007, following talks spanning more than a year. But the real genesis of the reforms outlined in the treaty hark back to 2001 when EU leaders established a Convention on the Future of Europe to work towards a new constitution committing the EU to greater democracy, transparency and efficiency in its decision making.

The convention aimed at addressing the shortcomings of the Nice Treaty, which introduced many of the decision-making structures currently used at EU level. Nice adjusted the qualified majority voting system at the Council of Ministers. It also stipulated that when the number of EU states reached 27, the number of commissioners appointed to the subsequent commission would be less than the number of states.

Yet even before it entered into force in 2003 – following a second Irish referendum – it had been derided by both pro-EU and anti-EU forces as a “flawed compromise” that would not bring the EU closer to citizens or make decision-making simpler.

The convention, which was chaired by former French president Valéry Giscard d’Estaing, included members of national parliaments, MEPs, the commission and representatives of heads of state. It met for the first time in February 2002 and delivered a draft EU constitution by July 2003. Almost a year later EU heads of state signed the text at Rome’s Capitolino museum.

The EU constitution proposed key institutional reforms. These include: a new double majority voting system for the Council of Ministers based on agreement of 55 per cent of EU states representing at least 65 per cent of the union’s population; the creation of a president of the European Council who is elected for a two-and-a-half-year term; reducing the size of the commission from 2014 to include representatives from two thirds of EU states; and removing national vetos over about 60 areas of EU law while extending scrutiny of legislation in these fields to MEPs in the European Parliament.

It also proposed measures to make EU decision-making more accountable and transparent for the public. National parliaments would be offered more powers to scrutinise draft EU legislation, meetings at the Council of Ministers were to be held in public when legislation was being decided, and the general public would be offered the right to ask the commission to draw up legislation if they managed to gather a million signatures on a proposal.

But, by proposing a grandiose new constitution for Europe, EU leaders had effectively ensured that ratification referendums would have to be held in many states. The public in Luxembourg and Spain backed the draft constitution but just nine months after EU leaders signed the document in Rome, the French and Dutch public voted to reject it.

The two No votes triggered an 18-month period of reflection on how to move ahead until EU leaders finally began to craft the Lisbon Treaty, which they agreed should follow closely the outline of the rejected constitution.

Under the German presidency of the EU in 2007 diplomats stripped out the constitutional elements of the draft constitution, which were likely to provoke referendums.

One of the most significant changes was the decision to make the Lisbon Treaty an amending treaty rather than a single document that resembles a constitution.

If ratified, Lisbon would make changes to the existing treaty on European Union and the treaty establishing the European Community – the two basic EU treaties. One of the drawbacks of this change is that Lisbon, like a lot of domestic legislation, is difficult to read. However, a consolidated version of Lisbon and the EU treaties is available online*.

Lisbon also removed the official status conferred by the draft constitution on EU symbols that may have provided the Union with a sense of statehood. This meant removing mention of the EU flag, anthem (Beethoven’s Ode to Joy) and the Union motto “united in diversity” from the new treaty text.

The core reforms to the decision-making mechanisms and institutions proposed in the draft EU constitution were retained. The only major changes directly affecting Ireland from the renegotiated Lisbon text when compared to the EU constitution was that the Government decided to retain its ability to “opt in” or “opt out” of legislative proposals in the sensitive justice field.

Opinion on the scope of the changes proposed by Lisbon is divided between those who argue it would simply reform the EU to enable it to act more effectively and others who say it represents fundamental change that could herald a path towards a federal Europe.

Critics of Lisbon say, with some validity, that it so closely resembles the rejected EU constitution in content that it must represent a major leap forward in EU integration. But this probably overstates the nature of the draft EU constitution in the first place, which contained few of the big ideas introduced by other treaties such as the single currency or the single market.

Ireland, because of its own constitutional requirements, was the only member state that held a referendum on the Lisbon Treaty. National parliaments in all 26 other member states have ratified the treaty but the presidents of Poland and the Czech Republic have refused to sign the treaty until it is ratified in Ireland.

Meanwhile, the German constitutional court has asked for greater parliamentary scrutiny of draft EU laws to be put in place by the Bundestag before the treaty can be signed into law by German president Horst Köhler.

Yet barring a crisis in the Czech Republic, where President Vaclav Klaus remains bitterly opposed to the treaty while the government has ratified it, Lisbon’s fate now rests on the shoulders of Irish voters on October 2nd.

Guarantees After The Irish No Vote

Within a month of the Irish No vote, French president Nicolas Sarkozy, who had taken over the EU presidency, told members of his own political party that the Irish would have to vote again on the treaty.

But the Government reacted more cautiously and refused to speculate publicly on the prospects of holding a second referendum. Instead, it commissioned research to highlight the reasons for the no vote and in September Millward Brown pinpointed the loss of a commissioner and fears over neutrality, conscription and abortion as key issues during the campaign.

Negotiations between Irish and EU diplomats began almost immediately on these critical points and at the December European Council EU leaders agreed to invoke a clause in the Lisbon treaty that enables all EU states to retain their commissioner.

This is not possible under the Nice treaty, which means that Ireland and other EU states could lose their right to nominate a commissioner in the event of a second no vote on October 2nd.

After receiving the promise on the size of the commission Taoiseach Brian Cowen said at the summit he would hold a second referendum if he could obtain guarantees on the remaining issues of concern to the Irish people.

At the June 2009 European Council, EU leaders agreed to provide the necessary legal guarantees to clarify that Lisbon does not affect Ireland’s abortion laws, its tradition of neutrality and the position of the family.

The provision of the guarantees paved the way for Mr Cowen to announce that a second referendum on the treaty will be held on October 2nd.

Tomorrow: What key changes does Lisbon propose to EU institutions?