EU leaders have little option but to support the guarantees offered to Ireland, writes Jamie Smythin Brussels
EU LEADERS at an EU summit today are expected to endorse conclusions setting out a "road map" to commit the Government to try to ratify the Lisbon Treaty by next October.
Despite some grumbling from Belgium over the Irish demand for all states to retain a commissioner post-2014 and some British concerns about the extent of the legal guarantees offered to Ireland, they have little option but to support a text that offers the only viable solution to enable Lisbon to come into force.
Many EU leaders also acknowledge the political risk Taoiseach Brian Cowen is preparing to take by holding another referendum on the treaty. A second No vote next year would spell disaster for him personally and for Ireland. It would also present a huge challenge to the EU's credibility.
"We know that he needs the strongest possible ammunition to try to win a referendum next year," said one senior EU diplomat, who added he was surprised there was any opposition to the Irish proposal.
The wording in the draft conclusions is unambiguous on the issue. "The European Council agrees that provided the Lisbon Treaty enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the commission shall continue to include one national of each member state," it says.
Crucially, for Cowen there is no mention of a future date such as 2019 when the commission will be reduced in size, which should enable him to claim in a referendum campaign that this is a permanent change.
For pro-federalists such as the chairman of the European Parliament constitutional affairs committee, Jo Leinen, the draft conclusions on the commission represent a major step backwards for the EU.
"It is shortsighted and will cause major problems when new states join the EU from the Balkans," he said. "There has been a huge lack of leadership from Ireland and Sarkozy on this."
But EU leaders have been bought off with a compromise on the number of MEPs they can have. The 12 EU states that stand to lose MEPs because Lisbon will not be in force before the European elections in June can have them appointed when the treaty is ratified.
If the treaty enters into force the total number of MEPs can rise to 751 seats, which are allowed under Lisbon, rather than 734 - the limit under the Nice Treaty.
The conclusions also propose allowing Germany to retain the extra three German MEPs elected in June under the terms of the Nice Treaty. This would push the total of MEPs up to 754 if Lisbon is ratified.
Importantly, EU leaders have agreed to begin the process of appointing the "future commission, in particular the designation of its president" without delay after the European elections. This was added to the text to appease European Commission president José Manuel Barroso, who is eager to be reappointed for a second term as president.
But it also suggests that EU leaders will have drawn up a "plan B" on the composition of the commission in case the Lisbon Treaty never enters into force.
The Czech presidency of the EU will begin work on the structure of a new commission under the Nice rules, which mandate that there should be fewer commissioners than member states in the next EU executive.
This raises the prospect that by June 2009, EU leaders will be expected to agree on a proposal to reduce the size of the commission in case of a No vote in Ireland.
Few diplomats expect Ireland to be offered a commissioner under this new formula, which may, for example, follow the Lisbon rules of cutting the number of commissioners by a third and offering member states the right to appoint members in equal rotation.
This would offer the Irish electorate a stark choice in an October referendum next year: vote Yes and retain a commissioner permanently or vote No and immediately lose your representative on the EU executive.
The idea appeals to many EU diplomats, although it may face opposition from those other EU states that, along with Ireland, would lose a commissioner in the first commission appointed under the new system for 2009-2014.
The commissioner is undoubtedly the big ticket item that could enable the Government to mount a successful second referendum campaign.
But the conclusions also outline other areas of concern where Cowen wants his EU partners to offer the Irish public legally binding guarantees.
These would ensure that Ireland maintained its traditional policy of neutrality; that the treaty would not affect the application of the provisions of the Irish Constitution on the right to life, education and the family; that with regard to taxation Lisbon would make no change of any kind.
The detailed technical work required to finalise the legal guarantees will take place in the next six months and will probably be agreed by EU leaders at June's European Council. The Government is expected to ask its EU partners to sign up to an international treaty where they all agree to the insertion of a new Irish protocol into the EU treaties when Croatia joins the union in 2010/2011. A similar model was followed by Denmark in 1993 following its vote against the Maastricht Treaty in a referendum.
The exact nature of the guarantees or opt-outs still have to be formulated with a debate on whether to opt out from European security and defence policy expected in coming months.
Selective opt-outs from the charter of fundamental rights may perhaps offer some comfort to those who fear it could be a back door to introducing gay marriage or abortion in Ireland. An opt-out from any future EU proposal for a common consolidated corporate tax base is another possibility, which may be under consideration by Irish officials.
There is a caveat written into the text, which could provide Cowen with some wriggle room if polls show a referendum is simply unwinnable. It commits the Government to "seek ratification of Lisbon by the end of the current term of the commission" on condition of "satisfactory completion of the detailed follow-on work by mid-2009".
But any decision to row back on a clear commitment, expected from Cowen, to seek ratification by October 2009 would cause uproar among our European partners.
Barring an election in Ireland or Britain before next October or a landslide for Eurosceptics or Libertas in the European elections, the Irish public will get a second chance to vote on the treaty next year.