Treaty a threat to democracy and human rights


OPINION:If Lisbon is passed, the market will be a substitute for democracy writes  FRANK KEOGHAN.

SHOULD THE Lisbon Treaty be ratified, we would rely on the European Court of Justice (ECJ) to rule in favour of citizens if a dispute arose between them and their government regarding the interpretation of any of the measures proposed in the Charter of Fundamental Rights. In this instance the court would become the forum of last resort, and its findings would have force throughout the European Union.

However, the court has already made it clear in at least two cases that the fundamental rights recognised by the court are not absolute, but must be considered in relation to their social function.

Consequently, restrictions may be imposed on the exercise of those rights, in particular in the context of a common organisation of the market, provided that those restrictions in fact correspond to objectives of general interest pursued by the community.

In a later case, the court stated that it is well established in the case law of the court that restrictions may be imposed on the exercise of fundamental rights, in particular in the context of a common organisation of the market.

It is clear from these precedents that the "fundamental rights" that would be conferred on us by the Lisbon Treaty would not be fundamental at all but could be varied or restricted in the interests of a "common organisation of the market" or to advance "objectives of general interest pursued by the community".

In a democratic society, restrictions on the exercise of human rights must be prescribed by law. It follows from the reasoning of the ECJ that, as rights are subject to limitations, restrictions on the EU fundamental rights are also legitimate.

But in this instance, the limitations on human rights are justified by reference to the objectives of the community and in particular the organisation of the common market.

National constitutions and the European Court of Human Rights (ECHR) allow those restrictions on fundamental rights that are considered to be necessary in a democratic society.

But in a democratic society politics is connected with the contestability of what counts as the common good. On the EU level, however, the common good is identified instead with the good of the market. The market becomes, in effect, the substitute for democracy, and human rights become marketised.

In General Provisions Governing the Interpretation of the Charter, it is stated that limitations may be placed on the rights and freedoms it recognises. Echoing the judgment of the ECJ, it states that these "limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union."

The important question in these circumstances is: what are "objectives of general interest" - and could they possibly be commercial interests? The general interests are elaborated in Article 2 of the Treaty on European Union (TEU) and assume a further importance in the charter, which makes it clear that "the charter will be interpreted by the courts of the Union and the member states with due regard to the Explanations prepared under the authority of the praesidium."

These Explanations are cleverly presented in a non-binding "Notice from European Union institutions and bodies" but are then made binding through the reference in the charter.

"General interests" are presented in the Explanations as the objectives set out in Article 2 of the TEU, entitled "The Union's Values" and "other interests" protected by specific provisions of the treaty, as for example Article 4, which obliges the Union to "respect . . . member States'. . . national identities, inherent in their fundamental structures, political and constitutional" and "their essential state functions . . . "

The treaty records the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms, but a Protocol to the treaty qualifies this by stating: "The accession of the Union shall not affect the competences of the Union or the powers of its institutions."

Frank Keoghan is secretary of The People's Movement, an organisation that says it "campaigns against any measures that further develop the EU into a federal super-state". Further information from