When Irish Prime Minister Enda Kenny travelled to Berlin mid November, Chancellor Angela Merkel asked him if it was possible for Ireland to avoid having a referendum on an amended EU treaty.
Kenny, according to one account by someone familiar with the meeting, said he did not think so.
The government is in a political and legal bind on this issue. Even since 1987, following a Supreme Court ruling, all major treaty changes have been put to a referendum.
The ruling held that treaty changes involving the transferral of more powers to the EU should be approved by the people.
Of course this is subject to interpretation. Calling a referendum is a political decision as Irish officials are now reminding journalists.
But if Dublin were to decide not to have a referendum, it would leave itself open to charges that it is ducking the issue. It would also leave itself open to a court challenge further down the line.
Ireland’s potential referendum – it took four referendums and lots of political sweat to pass the Nice and Lisbon Treaties – gives it some sway over the talks at the EU summit at the end of this week.
“If there is a transfer of competencies from the state to the EU level then a referendum will be required. If not, then it won’t,” Irish Europe Minister Lucinda Creighton told the Financial Times.
At a joint press conference on Monday, Merkel and her French counterpart Nicolas Sarkozy gave some indication about their thinking on EU treaty change. They were at pains to stress that the European Court of Justice – whose powers is one of the hot topics of any future treaty – will not be able to annul national budgets.
Instead the court will be able to decide if a country is complying with the ‘golden rule’ – to be agreed by all 17 eurozone countries – of balanced budgets.
This (fudged) language was intended for French Gaullist ears as much as anyone else. But these legalities will play a key role in whether Dublin feels it can reasonably argue that no referendum is needed.
The current political and economic climate does not favour a Yes. An Irish Times poll in October showing that just 28 percent would vote in favour of a proposal to change the Lisbon Treaty.
If Dublin does go down the referendum path, I expect to hear much more of the argument advanced by Enda Kenny in his State of the Union speech on Sunday.
Let me be clear – Ireland supports stronger economic governance throughout Europe, and particularly in the Eurozone. In fact, the Irish people are paying the price now for the absence of such rules in the past.
This second line sounds like the beginning of a justification for voting Yes in any future referendum on a reworked EU treaty.
#1 by Victor on December 5, 2011 - 7:13 pm
The “agreement” about the extent of the powers of the Court can not be about “French Gaullist ears”.
There is simply no precedent for a Court governing in budgetary matters on such a scale.
It is understandable that politicians need to hype their disagreements so that when there is agreement it seems like there is actually a tradeoff.
But why do journalists go along with the hyping of stories in their articles instead of actually informing the public?
There is one important point, though and it is at what point is a treaty change a transfer of competence to the EU.
The debates regarding treaty change as concerns the Court seems to really be about two distinct issues:
1) whether the Court will be able to interpret the law as regards excessive deficits (this doesn’t necessarily imply a transfer of competences);
2) whether the Court would be able to find that the EU has failed on its obligation to impose a fine on a member state that has an excessive deficit (the question of whether this a transfer of competence gets murkier, but it would still seem to pass the test of non-transference).
The Court’s increased power is not as much a transfer of competence towards the EU, as a transfer of competence between the EU institutions so as to share competence.
The same happens as regards the other main issue as concerns the division of powers between the Commission and the Council (Euro group) and the voting majorities in the Council.
The limitation of the first economic governance package (six pack) was that the Council wanted to reserve for itself the right to declare a country in excessive deficit, so if this right is somehow transferred to the Commission, is this a transfer of competences? This issue is now factually irrelevant as the package itself represented a sufficiently workable compromise, yet it would be save facing for the Germans.
Then you have the limitation of the new (second) economic governance package which is that the EU will be able to address opinions as regards national budgets, but it can legally do little else until the budgets are not only approved but actually even executed, so to give the EU powers of actually amending these budgets there is a need for treaty change (which would undoubtedly represent a transfer of competence -which makes it obvious also why they won’t in the end be approved or even proposed-).
On this last issue France would seem to be opposed as a matter of principle, as would many if not most other states. Yet there is still the need for more German face saving.
In any case, if there were to be a transfer of competences on amending (or -being more workable- vetoing or suspending) national budgets, France seems to be arguing that the transfer of competence should be to the Council, instead of to the Commission.
Here the issue of the Court’s competence again comes into play, as it inconceivable that it would be given powers of substantial review of neither national governments/parliaments or Council or Commission decisions.
With any transfer of new competences to the EU there is always the issue of how the competence is shared between the institutions.
The question is whether it is the same to have a competence lie in the Council (Euro group) where every member state is represented or in the Commission (which theoretically is supranational and votes through majority and where in the future not all member states might be represented, and where non-Euro zone members also have a vote).
A second issue is (if final decisions rest with the Council) whether the Council will decide by unanimity or qualified majority and whether the member state concerned (and other member in excessive deficit) will be able to vote.
There is also the question of what role there is for the European Parliament and even (and now for the first time) for the national parliaments.
So far, the economic governance packages (secondary law) haven taken mixed approaches to these questions. The question is whether this approaches will be merely codified in the treaties or whether they will be modified when written into primary law.
It should be noted that for the first time in any legislative proposal, the second economic governance package foresees that EU Commissioners will go to national parliaments to explain their decisions.
It should also be noted that the first economic governance package foresaw the opposite, that it would be national governments that would go before the European Parliament.
Taking together these two measures are probably one of the most significant (albeit symbolic) changes in the governance of the EU/Euro zone, something which has so far failed to been discussed in the media.
#2 by Victor on December 5, 2011 - 7:29 pm
There is also the issue of the Court´s composition, which includes non-Euro zone countries in the majority. The Euro zone itself could give the Court powers (without the need for treaty change at 27), but the issue of having non-Euro zone countries decide Euro zone issues will probably be problematic.
#3 by Lawyer on December 9, 2011 - 8:09 pm
See the following article for a legal outline of why a referendum is nearly certain: http://www.humanrights.ie/index.php/2011/12/09/the-need-for-a-referendum-on-the-fiscal-treaty/