What are the legal and constitutional implications of the Lisbon Treaty?


LISBON: THE E-MAIL DUELS:In the second of our e-mail duels between protagonists and experts, we asked long-time EU critic ANTHONY COUGHLANto enter the ring with European law lecturer GAVIN BARRETT

Anthony Coughlan: The Lisbon Treaty would bring into being a constitutionally new European Union with most of the features of a supranational federation, whose constitution and laws would be superior to the Irish Constitution and laws in all areas covered by the treaties. Lisbon would thereby do indirectly what the “Treaty Establishing a Constitution for Europe”, which the peoples of France and Holland rejected in their 2005 referendums, sought to do directly.

What we call the EU today is not constitutionally separate from its 27 member states. It is the member states co-operating together – in the European Community, which makes supranational European laws, and “intergovernmentally”, as EU jargon terms it, in foreign policy and justice and home affairs matters, where the member states still retain formal sovereignty.

Article 1 of the Treaty on European Union (TEU), as amended by the Lisbon Treaty, would abolish the European Community which Ireland joined in 1973 and transfer all of its powers and institutions to the new post-Lisbon Union. This EU would then be given its own legal personality for the first time under Article 47, which would make it constitutionally separate from, and superior to, its 27 member states. Post-Lisbon, it would be this new European Union and not the European Community which would be responsible for large numbers of the new laws we must obey each year.

The constitutional revolution Lisbon entails would then be completed by Article 9 TEU, which would confer on the 500 million citizens of the EU member states, including us Irish, an “additional” Union citizenship, with all the implications of that, instead of the purely notional or symbolic EU citizenship that people speak of today.

Gavin Barrett:The reality is less dramatic, more cheerful. We already have a European Union. This began life as the Coal and Steel Community in 1951. The aim was replacing rivalry with co-operation, ending the disastrous balance of power politics which had helped cause two World Wars. This required real transfers of decision-making powers, so that the new organisation would work. This is called “supranationalism” as opposed to the failed approach of states retaining most real power (intergovernmentalism).

Things began in a small way – six countries pooling only coal and steel industries. But it worked. Ireland and 20 other states joined enthusiastically.

The states also deepened co-operation with successive treaties, modifying the architecture. Since 1993, we have had an EU made up of three “pillars”, like a house with two flatroof extensions.

The first pillar, the best run, is the European Community. It runs the single market. The second pillar deals with foreign policy and security co-operation. The third concerns police and criminal law co-operation. Like any old house, the union needs reforms and restructuring. That’s what Lisbon does, introducing many unspectacular but important changes. One change is that the two unimpressive flatroof extensions (pillars two and three) are demolished and put into pillar one.

The restructured entity’s name remains the same – the European Union. Technically it has been refounded, rather like a company is refounded when it absorbs two formerly separate companies in the same group. But calling this a “revolution” is hopeless exaggeration.

Other mistakes: (a) Nobody is “foisting” anything on anyone – the treaty is being democratically ratified by 27 sovereign states. (b) You say that the EU today is not constitutionally separate from its member states. It is. It already has legal personality. It can and has concluded agreements itself under the present EU treaty. (c) You claim Lisbon confers EU citizenship on 500 million people for the first time. Wrong again! Under Article 17 of the existing treaty, we have had real EU citizenship since 1993.

AC: You resort to metaphors about houses, flatroof extensions and pillars to explain the constitutional effects of Lisbon, rather than the precise analysis of concepts which one expects of lawyers. You do so in order to play down the treaty’s constitutional significance, for it would alarm people greatly if they knew.

The Schumann Declaration of May 9th, 1950, spoke of the Coal and Steel Community as the “first step in the Federation of Europe”. Lisbon would be the final step, for it would give the post-Lisbon EU virtually all the constitutional features of a federation. The one major feature of a state which the post-Lisbon Union would lack would be the power to force its member states to go to war against their will, although they can take part voluntarily in EU military actions.

The second sentence of the proposed Amendment that voters are being invited to insert in the Irish Constitution provides that “The State may ratify the Treaty of Lisbon and may be a member of the European Union established by virtue of that Treaty”. This Union established by the Lisbon Treaty is clearly a constitutionally different Union from the present EU, which is based on the Maastricht and Nice Treaties.

The third sentence of the Amendment then gives constitutional primacy to the new Union: “No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State that are necessitated by the obligations of membership of the European Union . . . or prevents laws enacted, acts done or measures adopted by the said European Union from having the force of law in the State.”

If the present EU is regarded as having legal personality, that is at best embryonic, for in deciding on foreign policy treaties, member states act “intergovernmentally”. The post- Lisbon EU would be able, under Article 47, to make supranational laws for the first time.

Having full legal personality separate from that of its member states would also enable the post-Lisbon Union to have individuals as real citizens, with the duty of giving obedience to its laws and loyalty to its authority. After Lisbon our duties as citizens of the new Union would have prior claim over our duty of obedience and loyalty to the Irish Constitution and laws in any case of conflict between the two. This is because of the primacy of the constitution of the newly constituted EU over the Irish Constitution as laid down in the Amendment.

These are far from being minor “technical” changes.

GB:Anthony, your claims involve serious misunderstandings and exaggerations. Lisbon is significant – but not for the reasons you claim.

Lisbon aims at (a) reforming EU institutions; (b) improving human rights protection and democracy; (c) effecting technical but important organisational restructuring; (d) improving foreign policy co-operation; and (e) improving justice and home affairs co-operation. It is the culmination of eight years’ hard work and the agreement of the democratically-elected governments of 27 EU states.

Lisbon does not turn the EU into a state. Post-Lisbon, the EU will have (a) no army; (b) no police force; (c) won’t control national social welfare expenditure; (d) won’t control national education policies; (e) won’t control national health systems; (f) won’t control national taxation systems and (g) will not have a budget even remotely proportionally as large as that of any federal state in the world.

Further, Lisbon actually enshrines for the first time the right of any member state to leave the EU. None of this fits your idea of the post-Lisbon EU as a state.

You refer to the “constitutional primacy” clause in the proposed amendment. Virtually identical wording has been contained in the Irish Constitution since 1992, and a predecessor clause (with wording that referred to the old EEC) since 1972. So no cause for concern there either.

You say that post-Lisbon, the Union rather than the community will make “supranational laws” for the first time. But the EU has been making laws for years and there is no such thing as a “supranational law”. There is a supranational way of making laws, however. It involves a (welcome) greater role for the neutral commission in proposing laws, a (welcome) greater role for the democratically-elected European Parliament in adopting them and a (welcome) greater role for the European Court of Justice in ensuring that everything is done legally.

You refer with dismay to the idea of individuals having the duty to obey EU law. But since EU law constitutes just one part of the law of Ireland, we already have the legal duty to obey it – and nonetheless seem to have survived quite nicely up until now.

AC:The reason, Dr Barrett, why you do not want to acknowledge Lisbon’s constitutional revolution is that you are an ideologist for the European integration project and do not want Irish voters to realise that Lisbon is implementing the constitution for Europe which French and Dutch voters rejected.

Personally I support an EU that is an economic partnership based on free trade, something I strongly believe in for developed economies. I am opposed, though, to turning this into a political union with all the constitutional features of a federation that would be run on most undemocratic lines, which is what Lisbon would give us.

Here is a good illustration of that constitutional revolution.

The treaty would make MEPs, who under the current treaties are “representatives of the peoples of the States brought together in the Community” (Art.189 TEC), into “representatives of the Union’s citizens” (Art.14 TEU).

Is this a mere “technical” change?

What is all the talk of EU “citizens” about if we are not speaking of a state? You will surely agree that one can only be a citizen of a state and that all states must have citizens?

Citizens of such classical federations as the USA, Germany, Australia, which were historically formed by states surrendering sovereignty to a higher federal level, typically have two constitutions and two citizenships, as would be the case in the post-Lisbon Union.

That is why making the Charter of Fundamental Rights legally binding for EU citizens opens up the possibility of clashes with national standards of rights in such areas as inheritance, property, rights to fair trial, the right to life, marriage etc. By giving the European Court of Justice the power to decide our rights as EU citizens, it could override differing national standards of rights in these highly sensitive areas.

If people obtain the 28th Amendment of the Constitution Bill which they will be voting on, which is available free at post offices, libraries and Garda stations, and read the first three sentences of the proposed amendment, they will see for themselves that I am right in these points and that you are wrong.

As for states being able to leave the post-Lisbon Union, you are surely aware that several federal constitutions have allowed that. Did you know that Stalin’s constitution for the USSR even had such a provision?

GB:Lisbon contains a series of moderate, sensible reforms which will help the EU to function better. That is why it is supported by every democratically-elected government in the EU – and within Ireland, by the IFA, Ictu, Siptu, Ibec, Labour, Fine Gael, Fianna Fáil and the Green Party, and others besides – none of whom share your “superstate” analysis.

Lisbon poses no threat to Ireland, and we have nothing to gain by voting against it – except isolation, ill-will and the potential of ultimate relegation to a second tier of integration. A No vote will also guarantee we lose a permanent Irish commissioner.

Other mistakes: (a) Your argument that only states have citizens is wrong. Citizenship of the EU has existed for 16 years! (b) The Charter won’t give the European Court of Justice the power to decide our rights as EU citizens. The court has always had that power. The Charter simply constitutes a written catalogue of fundamental rights – most of which have already been recognised by the court, to no ill effect. (c) The Union’s institutions – the European Council, the Council of Ministers, Commission, Parliament and court – have existed for decades. (d) Member states are already required to implement EU law, and apply national law in conformity with it. (e) The existing EU’s legal personality is not in any real dispute. (f) The existing EU already makes binding laws (which do affect the rights of individual citizens). (g) In truly federal systems (as the US experience shows), secession by member states does tend to be problematic. Not in the post-Lisbon EU.

I agree voters might benefit by reading the Bill (although it adds precisely nothing to your arguments) – and also the Referendum Commission’s material, which is of great assistance.

Your reference to Stalin’s USSR, although misleading, serves to remind us that the EU’s ongoing achievement has been to bury the ruinous legacy of both Stalin and Hitler, guaranteeing peace in Europe, the single market and the protection of our interests in a world dominated by economic giants.

Voters would merely damage the EU and Ireland’s role within it by voting No to Lisbon.

This is an edited extract of their exchanges