Cowen got what he asked for, but it was a pyrrhic victory


OPINION:Not one single provision of Lisbon affects the issues of which the Irish complained, writes  ANTONIO BAR.

BRIAN COWEN has returned from Brussels claiming to have won a great victory for Ireland and for the positions he took in the last European Council meeting. If we were to judge based on what he said he was going to ask for in Brussels, he did get what he wanted.

But, is it really a great victory for Ireland? I believe it is not.

Not only were all but one of Cowen's demands already granted even before the referendum, but the remaining one - that concerning the agreement by which the European Commission will continue to include one national of each member state - far from being a victory or something to be proud of, is in fact a clear step backwards in the process of rationalisation and simplification of the EU which will dramatically affect and damage the interests of Ireland and those of the EU at large.

The Taoiseach presented in Brussels a statement expressing the concerns of the Irish people on the Lisbon Treaty.

It was meant to ensure that the EU will respect the maintenance of Ireland's traditional policy of neutrality; the provisions of the Irish Constitution in relation to the right to life, education and the family; the Irish competencies in the area of taxation. Furthermore, it asked the EU to confirm that the union attaches high importance to social progress and the protection of workers' rights; to public services as an indispensable instrument of social and regional cohesion; to the responsibility of member states for the delivery of education and health services; and to the essential role of national, regional and local governments in providing non-economic services of general interest.

But, was all of this necessary? Are all of these issues really endangered by the Lisbon Treaty? In fact, they are not.

If we read carefully the Lisbon Treaty, or rather the Treaty on the European Union and the Treaty on the European Community (and, in future, the Treaty on the Functioning of the European Union) as they come out after the reform introduced by Lisbon, we will find no single provision that would allow the EU to affect provisions of the Irish Constitution in relation to the right to life, education and the family, or in relation to taxation; no provision to force Ireland to participate in the EU defence policy.

As regards the right to life, it is enshrined in the EU Charter of Fundamental Rights, as it is in the Irish Constitution, but there is no competence whatsoever of the EU to govern on this issue.

On the other hand, as the charter only applies where the EU law is applied, there is no way in which the EU or the European Court of Justice could intervene in the Irish internal regulation of this fundamental right.

Very similarly, family law is another member-state competence in which the EU cannot intervene.

There is only a provision concerning mutual recognition and enforcement between member states of judgments and legal documents in this field.

But judicial co-operation in civil matters was established by the Maastricht Treaty in 1992 and although it has been implemented very slowly, the Amsterdam Treaty, in 1997, and the Treaty of Nice, in 2001, have developed this issue. Nevertheless, it is still an area in which the council has to act unanimously. This allows Ireland or any other member state to block any decision in this area.

On the other hand, education is foreseen in the Lisbon Treaty - as it is now in the Treaty on the European Community - as an area in which the EU has competence solely to carry out actions to support, co-ordinate or supplement the actions of the member states. It is therefore a competence that remains in the hands of the member states.

Nevertheless, one has to acknowledge and celebrate that member states are increasingly - and voluntarily - co-operating in this matter, for instance, in order to create a European "higher-education area" by 2010, or by defining programmes to support school education.

As regards taxation, this is a sensitive matter in which member states still keep full control and in which the council may only act unanimously. The Lisbon Treaty, in fact, does not change a single comma on this issue and keeps the rules as they are now in the Treaty on the European Community.

And what about Ireland's participation in the EU defence policy?

The Lisbon Treaty provides for the progressive framing of a common defence policy, but it does so with many and well-specified guarantees.

First of all, the European Council and the Council of Ministers must act unanimously in this field; secondly, member states shall act "in accordance with their respective constitutional requirements"; and thirdly, the policy of the EU "shall not prejudice the specific character of the security and defence policy of certain member states".

So, as it is very clear, a simple reading of the Lisbon Treaty proves that there was no need for the guarantees demanded and obtained by Cowen, for the simple reason that they were already there.

This is why they have been so easily granted!

More problematic is the agreement by which the commission will continue to include one national of each member state.

This is a step that contradicts all the attempts since Maastricht to simplify the institutional structure and to make the commission the agile, capable and efficient executive that the EU needs, and needs even more in an ever-expanding EU, in a more competitive, globalised and intricate world.

The enlargement of the commission parallel to the enlargement of the EU itself will leave us with an encephalitic commission unable to make reasonable proposals or

to act swiftly due to its inoperative dimensions. The larger the commission, the smaller the commission's role will be.

As an example, we only have to look at José Manuel Barroso's present 27-member commission: it is almost non-existent, incapable of taking the lead in any substantial issue: the constitutional crisis, the economic crisis, the energy crisis, climate change.

It never leads members states, only follows. It only proposes legislation which member states have initiated, and for which they have secured political agreement.

Could we imagine what the situation would be like with a 30- or 35-member commission? Will such a situation be good for Ireland or any other EU member state?

Cowen has got what he asked for.

But is it a victory? If at all, it is a pyrrhic victory.

Nevertheless, if it helps to put Ireland again in the lead of the process heading for a more integrated and efficient Europe - as it did during the negotiations of the Amsterdam Treaty and of the EU constitution - then it has to be welcomed.

• Antonio Bar is Jean Monnet professor of European Union constitutional law at the University of Valencia in Spain