OPINION:Rulings of the German and Czech constitutional courts are powerful and persuasive findings for the Lisbon Treaty, writes MICHAEL McDOWELL
IF THE arguments advanced by Robert Ballagh in his article in this newspaper last Tuesday were valid, then there would indeed be very good reason to hesitate before voting Yes to the Lisbon Treaty on October 2nd. And his contribution to the debate does deserve a fair-minded and respectful analysis.
But all the central legal and constitutional planks of his argument, even when subjected to such a fair-minded and respectful analysis, appear to be either wrong or very wrong.
He argues that if the Lisbon Treaty is ratified, the European Union will be reconstituted as “a European federal state”, which, he also claims, will be “separate from and superior to its member states, just as the USA is separate from and superior to, say, Kansas or Louisiana”. These assertions are all demonstrably wrong.
The German constitutional court, the Bundesverfassungsgericht, examined all of these assertions about the Lisbon Treaty in June of this year and decided that they were unfounded.
In particular, it held that, post-Lisbon, the EU, albeit a treaty-based supranational body would simply not be a state – federal or otherwise; would not be sovereign; would not have the right to determine its own constitutional competences; and would remain a body whose authority derived solely from the powers conferred on it by the member states, which would remain “masters of the treaties”.
The member states would each retain the ultimate right to decide for themselves the limits of the EU’s competences, and each of the member states would retain the right, both under international law and under Article 50 of the treaty, to withdraw from the EU either singly or as part of a group. None of the foregoing applies to Kansas or Louisiana.
The court held that neither the EU nor its citizens acting collectively had the right to transform itself into a state, and that no such development could take place unless each of the member states separately and in accordance with its own constitution were to separately decide to create such a state.
Robert Ballagh’s suggestion that, post-Lisbon, “every Irish person will become, firstly a citizen of the European Union and secondly an Irish citizen”, is likewise wholly wrong. The German court examined and rejected that claim completely.
It held: “The concept of the ‘citizen of the union’ which has been more strongly elaborated in union law is exclusively founded on Treaty law. The citizenship of the union is solely derived from the will of the member states, and does not constitute a people of the union which would be competent to exercise self-determination as a legal entity giving itself a constitution.” Such EU citizenship has a “derived basis” based wholly on the treaties, and was not in any sense superior to or given equality with or primacy over citizenship of the member states.
The fact that the Lisbon Treaty gives the EU legal personality in no way makes it a state. The United Nations has legal personality, as has Unesco and the World Health Organisation. They are not states.
As is stated in "The Legal Personality of the European Union" ( Studia Diplomatica Vol LX No 1): "Misgivings could well be diminished if three points mentioned above were made clear:
“International legal personality is not the first step towards the emergence of a super-state: the UN has had it for over half a century and nobody in his right mind has ever suggested that it was becoming a super-state;
“Legal personality has no influence on the competence of the organisation which acquires it: the competence of an organisation results from its constituent documents, irrespective of the existence or otherwise of legal personality;
“International legal personality has no relation to the intergovernmental or supranational character of the organisation which acquires it: several intergovernmental organisations have it and others do not”.
Not only did the German constitutional court come to this view about Lisbon; the Czech constitutional court also examined the treaty and concluded that the EU was and would remain a “society of states (and not a federal state)”; that its powers entirely depended on the “principle of conferral”; that it did not have sovereignty (sovereign powers being merely “lent” by the sovereign member states, which remained free to withdraw from the union); and that the EU was not empowered to decide the extent and nature of its own competences in a way that cancelled the rights of the constitutional courts of the individual member states to decide those matters as far as each of them is concerned.
It is clear that the Lisbon Treaty does not make Ireland part of an EU state or a super-state.
Ireland continues to be an independent sovereign state, which, although it lends or pools sovereignty in limited areas under the treaties, still enjoys the final right to decide for itself on the extent and nature of EU competences and, ultimately, the right to totally withdraw from the EU.
The Irish people are and remain the sole source of sovereignty in Ireland, and are not being melded into some sovereign EU people. The EU has no power or competence to transform itself into a state or super-state. The member states, including Ireland, remain the “masters of the treaties”. Our citizenship, both as to its rights and duties, retains its primacy.
The Czech and German decisions are available on the internet. They are powerful, cogent and persuasive findings about Lisbon that completely rob Robert Ballagh’s assertions of any superficial appeal.
Michael McDowell, senior counsel, is a former leader of the Progressive Democrats. He was minister for justice from 2002 to 2007