Sunday, June 21, 2009

German court in blow to Lisbon

The German Constitutional Court has ruled that ratification of the Lisbon Treaty must cease pending additional legislation to strengthen the role of the national parliament in EU decisionmaking. The treaty's compatibility with the German Constitution was challenged by Conservative lawmaker Peter Gauweiller of the Christian Social Union, Bavaria's ruling party (and sister party to Mrs Merkel's CDU). It was also challenged by members of Die Linke, the far left party that evolved from the former East German Communist Party. Among the objections was the claim that provisions of the treaty meant the German Parliament could be bypassed by the German government, which could then collaborate with other governments to use powers without being subject of national parliamentary control or consent Other objections included the claim that the Lisbon Treaty gives the EU the form of a federal government without democratic control, and that its common foreign and security policy would lead to the militarisation of German foreign policy. The Court rejected these arguments. It found the Lisbon Treaty was in conformity with the German Constitution, and that the act of parliament ratifying the treaty was also constitutional. The problem that caused the court to pause the German ratification process is in the accompanying legislation on the role of the German parliament in EU decision making. 'The Act extending and strengthening the rights of the Bundestag and the Bundesrat in European Union matters' was found to be unconstitutional because it does not give the two chambers of parliament enough say on EU affairs. Specifically the problem lies with the procedures the Lisbon Treaty proposes for making changes to the EU treaties in the future. Lisbon has what is known as the 'general bridging clause' which allows the European Council to decide, unanimously, to move a competence from unanimity to Qualified Majority Voting. While all national parliaments most get six months notice of an intention to make such a change, and any one of them can veto the move, Germany's constitutional court said this was an insufficient role for the parliament. It insists that Germany's parliament must legislate to enable the German government to agree to this. A similar legislative safeguard is required for the 'Flexibility Clause', where EU leaders can (acting unanimously, and with the prior consent of the European Parliament) give themselves power to attain one of the objectives of the EU as set out in the treaties, but where the treaties themselves have not provided the necessary powers. National parliaments must be notified by the Commission. But Germany's court ruling goes further, insisting that the Federal parliament must pass an act giving consent to the German government. The court also listed some other areas where the parliament's role has to be defined in law before Lisbon can be ratified - notably in the fields of criminal law and the definition of cross border crimes (an extension of the list will now require a German act of parliament), the so called 'emergency brake' procedure in Judicial co-operation, which the court says requires parliamentary approval before use.The ruling underlines "no" campaign concerns about the impact of the Treaty on the democratic-deficit in the European Union, not least with respect to the role (or lack of it) of national parliaments. Lisbon will allow the Government to further erode the national-veto and to do so without the consent of the Irish people in a referendum. Article 48 of the Treaty on the European Union as amended by Lisbon allows for a "simplified revision process", whereby the text of the Treaties can be amended by the Council of the European Union (heads of government) without recourse to national parliaments or electorates. And while the Protocol on the Role of National Parliaments does afford them 8 weeks notice of new legislation initiated by the European Commission, they are not empowered from obstruct EU legislation itself.

The ruling comes amidst growing controversy over the status of the 'legal guarantees' offered to Ireland to help the Government win a second referendum on the Lisbon Treaty. UK Europe Minister Baroness Kinnock (wife of former Labour leader Neil Kinnock) has told the House of Lords that they will not have the force of EU law until added as a Protocol to a future Accession Treaty. She said: "Those guarantees do not change the Lisbon treaty; the European Council conclusions are very clear on them. The Lisbon treaty, as debated and decided by our Parliament, will not be changed and, on the basis of these guarantees, Ireland will proceed to have a second referendum in October." She added: "Nothing in the treaty will change and nothing in the guarantees will change the treaty as your Lordships agreed it....My Lords, what we have in the guarantees will become binding in international law when the guarantees are translated into a protocol at the time of the next accession, which presumably will be when Croatia or Iceland comes in. Before that protocol can be ratified by the UK, Parliament must pass a Bill. As I said, Parliament will rightly have the final say." But Foreign Secretary David Milliband appeared to contradict her during questions at the House of Commons European Scrutiny Committee yesterday, stating: "Every head of state agrees that these guarantees do not change the Treaty...the guarantees are legally-binding in international law... It does not require ratification in order to have legal affect." This lead the Chairman of the Committee to ask, "If this is a legally-binding decision and doesn't need ratification, why does it need to be put in a protocol?" He asked, "Is it a stitch-up to get around Irish peoples' concerns? I can see why people would be suspicious." To confuse things further, Liberal Democrat MEP and self-described "militant federalist" Andrew Duff has claimed that an Irish Protocol appended to an Accession Treaty would be challenged in the courts as it would violate EU law, saying: "Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts...".According to the Irish Times, "he added that rules in the EU treaties governing accession treaties only allow issues pertaining to a state's accession to be dealt with." Clearly, the credibility of the Government's 'guarantee's is not something they can take for granted. I, for one, am far from convinced of their veracity.

Friday, June 12, 2009

Brussels resisting Irish guarantees

EU foreign ministers are resisting providing the legal guarantees being sought by the Irish government on the Lisbon Treaty. The Irish government is keen that the 'assurances' in the areas of taxation, neutrality and social affairs be attached as protocols to the next available treaty (possibly Croatia's accession treaty) and then ratified by all member states, enshrining the guarantees into European law. But member states – such as the UK and the Czech Republic – fear this could reopen their respective national debates on the Lisbon Treaty. They are instead pushing for a legal declaration from EU leaders at a European Council later this week (18-19 June). Czech European Affairs Minister Stefan Fule said on Monday that the "legal form" of the assurances required further discussion in order to: "ensure a smooth passage for the required guarantees during the European council,", adding: "Very good progress has been made and we are well on track to reach agreement at this week's European Council," he said. "Reaching consensus this week is important not only for Ireland but for the whole of Europe." Minister for Foreign Affairs Micheal Martin claimed the response to the draft texts "has been very positive so far" and that he was "quietly confident" that Ireland would secure the legally binding guarantees it was seeking. The Irish government is eager to return from this week's meeting of EU leaders with enough to convince Irish voters to back the treaty in a second referendum likely to take place in September or October. The Government wants to have them added to the next treaty following Lisbon in response to critics who said they could otherwise be superseded by the European Court of Justice. On RTE's Questions and Answers last Monday, constitutional-law expert Paul Anthony McDermott warned: "It's not clear they have any legal status...They are mumbo-jumbo. These legal guarantees - they're meaningless. The rest of Europe will sign up to anything if it gets them off the hook on Europe. But if you were ever to go to a court in Europe and try to rely on one of these pieces of paper you would be told "what article of the Treaty are you suing on and the answer would be I'm not suing on the Treaty, I'm suing on a piece of paper Ireland passed around the Council of Ministers and everyone signed up to it" so I'm certainly not a big fan of having another referendum.".
Amidst the gloating of the Lisbon-elites as to the fate of some anti-Lisbon candidates in the Irish euro elections lies a simply truth: this election was not fought on European issues, but on national ones. It also cannot be separated from the broader European context. For to do so, would represent hypocrisy on the part of those on the other side who sought to demonise Libertas on the basis of controversial comments on issues ranging from torture, to false accusations of anti-semitism and neo-Nazism with respect to its candidates in other EU countries. The Irish elite are trying to portray the defeat of Libertas across Europe as a humiliating defeat and a victory for the pro-Lisbon cause. Yet it is not so simple. Traditionally, the constitutional-architecture of the European Union has demanded unanimous treaty-ratification by the member states. It is abundantly clear from these elections in the 27 member states that where Lisbon is concerned, such a mandate does not exist - at least at popular level. The most glaring example of this can be found in the UK elections, where Labour - pushing through the deeply unpopular Lisbon Treaty without a referendum in the teeth of opposition from their own Eurosceptic population - was pushed to a humilating fourth-place behind the Tories, Liberal Democrats and even the UK Independence party. On 15.7% of the vote, they are now weaker than they have been since the 19th century. Were the results replicated in a General Election, the BBC estimates the Tories would return to power after 12 years with a majority of 28. The size of that majority should evoke memories of the last Tory govt, which was constantly at the mercy of its Eurosceptic backbenchers, particularly after the strong leadership contest in the party by John Redwood in 1995. In any case, party leader David Cameron is, if anything, far more of a Eurosceptic than his predecessor, promising - if Lisbon has not yet come into force across Europe - to withdraw the articles of ratification from Vienna and put the Treaty to a referendum that would certainly end in the rejection of the Treaty. And the Irish have allies further afield too. The Treaty remains under consideration by the German Constitutional Court, and further challenges are pending in the Czech Constitutional Court by Senators opposed to it. The Czech and Polish Presidents themselves continue to refusal to put their signature to it unless and until the Irish first vote no. And even then, it is far from clear that President Klaus will sign it. He is not obliged to by the Czech Constitution. Some in the leftist Opposition and a former Green minister in the deposed Coalition government have called for Klaus to be impeached, but the Constitution is clear on this: the Constitutional Court would make the final decision, and it appears that short of being incapacitated or having committed and act of treason, the President will remain in Prague Castle for the remainder of his four year term. It seems probable then, that if the Irish people and Klaus hold out until the next UK General Election, the Lisbon Treaty will be consigned to the dustbin of European history where it belongs. In that context, it is imperative that we stand our ground, that (in Lincoln's words) "government of the people, by the people, for the people shall not perish from the earth".