This is no 'self-amending' treaty

LISBON EXPLAINED/PART VIII: AMENDING ARTICLE 48: "Then there is a mechanism known as the 'passerrelle' . . . that allows the EU to annex new areas of policy by a simple decision of the Council of Ministers, with no need to refer back to the national parliaments or get a treaty change – let alone call a new referendum. That's why we christened it the 'self-amending treaty'."

Declan Ganley, The Irish Times – September 24th

ON THE tables in The Irish Timescanteen there are small notices declaring that these are "self-clearing" tables. In truth, of course, they are no more self-clearing than the Lisbon Treaty is "self-amending".

Lisbon, in amending article 48 of the Treaty on European Union, does expand the number of ways in which the European treaties can be amended from one to four. But, contrary to the view widely asserted by No campaigners, each preserves the right of member states, and individual national parliaments, to veto change.

The first method is largely similar to that in force at present. It gives MEPs a new role in initiating changes and involves all the components of our current system: a convention involving member states, MEPs and the commission, followed by an intergovernmental conference (IGC), and then ratification in each of the member-states in accordance with their national requirements.

In Ireland’s case that may involve a referendum if the change is more than what the courts define as “necessitated by membership” or within the essential scope and objectives of the union. In the Crotty case the Supreme Court distinguished between changes adding new “competences” – new areas in which the EU can act – for which a referendum is required, and changes to procedures within competences, such as voting rules, where a Dáil vote is sufficient to ratify a change. That allows Ireland, for example, to ratify the accession of new member states without referendums.

Three other “simplified” procedures are provided for in Lisbon.

The first, largely designed for technical changes to one area of the treaty, allows, if MEPs also agree, the omission of the convention and IGC stages of the procedure. But it too retains a unanimity requirement among member states and the need for member states to ratify “in accordance with their . . . requirements”.

The second and third “simplified” procedures, are known as the passerrelle (small bridge) and relate to areas of decision-making passing from unanimity voting to majority voting in the Council of Ministers, or where MEPs are to be given the right to share in decisions, “codecision”. In these cases a meeting of heads of government, with the permission of the European Parliament, must agree unanimously to the change (not allowed in respect of defence or military matters). If any national parliament objects within six months the treaty change is nul and void.

Because the changes are limited to procedural/voting issues they clearly fall within the definition in the Crotty case of changes not requiring a referendum. The Dáil remains able to veto.

As Gavin Barrett, a specialist in European law in UCD, notes: “The simplified revision procedures are notable for their effective maintenance of a power to veto treaty amendments not only in the hands of all member states but also on the part of national parliaments.”