EU Treaty: What Next?


Several scenarios have been suggested as a means of overcoming the crisis triggered by the rejection of the Lisbon Treaty in Ireland. Here, EURACTIV gives an overview.

The 'Treaty of Lisbon' was officially signed by EU heads of state and government at a summit in the Portuguese capital on 13 December 2007 (EURACTIV 14/12/07). The treaty introduces the following key changes (see our LinksDossier): 

External representation of the EU

  • A 'permanent' president to chair EU summits for a renewable term of two and a half years.
  • A foreign policy chief (High Representative for Foreign & Security Policy) who would also be vice-president of the Commission in charge of external relations.
  • An EU diplomatic corps: the European External Action Service (EEAS). 

EU decision-making: 

  • Qualified majority voting (QMV) in the EU Council of Ministers requires a double majority (55% of member states and 65% of the EU's population) and is extended to more policy areas.  
  • The EU's 'third pillar' on judicial cooperation is abolished and streamlined with the normal decision-making procedure.
  • The Commission President is elected directly by Parliament 
  • Clearer delimitation of competences conferred on the Union by member states. 
  • National parliaments' right to intervene is strengthened. 
  • 'Enhanced cooperation' between nine or more member states is made easier. 
  • Reduction of number of commissioners (down to 15 by 2014) and MEPs (maximum 750). 

Citizenship and fundamental rights 

  • Charter of Fundamental Rights becomes legally binding. 
  • EU citizenship developed. 

Beyond the question of what happens with the Lisbon Treaty, perhaps the most important consequence of the Irish 'no' was to demonstrate, yet again, the EU's severe lack of legitimacy among European citizens. 

Given the unpopularity of the political class in most, if not all, member states, it is important for national leaders to understand the citizens' message. What's more, the timing is unfortunate ahead of the European elections in June 2009. 

Continue ratification? 

For the treaty to enter into force, it must be ratified by all 27 member states. However, Ireland's rejection of the text by a 53-37% majority has thrown the EU institutional settlement into doubt. 

At a summit in June, European leaders made clear there would be no new treaty and agreed to give the Irish time to reflect and start exploring possible solutions at their next meeting in October 2008 (EURACTIV 20/06/08). 

The ratification process has therefore continued in the remaining EU countries, though potential stumbling blocks remain, most notably in the Czech Republic (EURACTIV 30/06/08). 

A lone referendum 

Ireland was the only EU country to require that the Lisbon Treaty be ratified through a nationwide referendum. In all other EU member states, national parliaments are dealing with ratification.

This is due to a 1987 ruling by the country's Supreme Court (Crotty case) which stipulates that significant changes to the European Union treaties require an amendment to the Irish Constitution - which is always changed by means of a referendum - before being ratified by the State. 

Legal opinion is divided on whether the Crotty ruling obliges the government to systematically defer to the Irish people whenever there is a significant new development in the EU legal setting. But because of this legal precedent, Ireland has always held a referendum on every new EU treaty. 

The issue of the 'lone referendum' has also sparked a political polemic across the EU. Some have claimed it is unfair and undemocratic for one small country to block reforms for the rest of the Europe. 

Others have praised the Irish electorate, arguing that the Irish result is merely a continuation of the French and Dutch 'no' votes in 2005. This continuum, they claim, highlights the declining legitimacy of the EU in the eyes of European citizens. The question "what part of 'no' does the EU not understand?" has been asked across the continent. 

Reasons behind Irish 'no' 

Opinion polls indicate that many Irish voted 'no' mainly because they felt that the text of the treaty was incomprehensible. This view was reinforced when Taoiseach Brian Cowen and Commissioner Charlie McCreevy admitted that they had not read the treaty in full. 

The 'no' camp also successfully campaigned along the following lines: 

  • The treaty would imperil Irish neutrality. 
  • Abortion would have to be permitted. 
  • The EU would be able to interfere with Irish tax rates. 
  • Irish sovereignty would be jeopardised. 

The loss of a full-time commissioner also emerged as a common concern among 'no' voters, as did the belief that the treaty could be renegotiated to ensure a better deal for Ireland (EURACTIV 04/06/08). 

Lastly, the vote was seen as stinging rejection of the political classes, while the 'yes' campaign was roundly criticised for ineffective advocacy in explaining the importance of the Union and the treaty. 

The Treaty of Lisbon's rejection was all the more incomprehensible to 'yes' campaigners considering the economic benefits that EU membership has brought to Ireland. When the country joined the EU in 1973, it was the poorest in the Community; now it is the second richest in GDP terms. 

Where now? 

It will now be mainly in the hands of the incoming French Presidency to lead the search for a way out. Ironically, it was France that threw the EU into a similar state of chaos when its own citizens rejected the now-defunct Constitution in 2005. 

Speaking at the European Parliament on 10 July, French President Nicolas Sarkozy announced his intention to "engage in dialogue" with the Irish government "to try to find solutions". "The French Presidency will propose a method," he said, adding that he hopes for "a solution, in agreement with the Irish government, in October or in December". 

The potential scenarios: 

The European Council agreed to pursue ratification in the remaining countries. In the meantime, a re-run of the referendum could take place, as was the case after the Irish first rejected the EU's Nice Treaty in 2001. 

Other, more original solutions could emerge, like introducing new opt-outs to keep the Irish electorate happy, or changing key provisions of the Treaty, like the number of commissioners. 

Irish voters had expressed concern over the possible loss of their commissioner if the EU executive body were to be slimmed down according to the Lisbon Treaty. Keeping the 'one commissioner per country' principle was aired as a possible compromise solution. 

The Irish government is expected to present its proposal for a resolution of the issue to the European Council on 15 October. 

The principal solutions are: 

1. Ireland votes again,  adding a Declaration to the treaty which would be explained in a way the Irish politicians have so far failed to do. If Ireland refuses, it would find itself in an impossible political position with economic ramifications, particularly if the treaty has been ratified in all other 26 member states. Holding another vote on essentially the same issues would leave the bloc in the same legal impasse if there were a second Irish rejection, although a second referendum could have more chance of success provided that all 26 countries have ratified by then and the 'yes' campaign is more convincing. 

2. Declare the Lisbon Treaty dead and continue with the Treaty of Nice 

As the Lisbon Treaty requires 27-member unanimity to be brought into force, some have called for it to be declared dead. This would result in the EU continuing to operate under the institutional framework of the Nice Treaty. However, this option is opposed by most leading European politicians, many of whom believe it would effectively mean that almost a decade of slow and painful pan-European consensus-building had been wasted. Nevertheless, some changes are possible without the new treaty and other key provisions could be brought in when the occasion permits, such as the Croatian Accession Treaty. 

3. A new, deeper union 

In this scenario, a new union of 26 member states would be established by the treaty and would operate alongside the existing one. It is hard to imagine how this would work legally or politically, especially since the Czech Republic and Poland have rebuffed the idea of isolating one country. 

4. A multi-speed Europe based on differentiated integration 

Groups of states would cooperate in different policy areas under the existing 'enhanced cooperation' mechanism. Flexible integration includes different models ranging from 'Europe à la carte', which allows member states to pick and choose the laws and policies which suit them, to the establishment of a 'hardcore' Europe. 

This is certainly possible but it would be messy without a 'hard core' as Ireland is a member of the euro zone. It is also difficult to imagine as French President Nicolas Sarkozy strongly opposes the view that Europe could continue to function by allowing countries to engage in new, more advanced forms of co-operation should they so desire. "Europe paid a high price for letting itself be divided by a wall of shame. Let's think twice before we leave countries behind," Sarkozy said while presenting the French Presidency's priorities to the European Parliament on 10 July. 

5. New treaty 

A new treaty could be adopted, though realistically this seems impossible to contemplate. The reforms proposed by the Lisbon Treaty, as mentioned above, are the result of almost a decade of slow and painful pan-European consensus-building, and it is unlikely that European leaders would be willing to start from scratch. 

Towards a weaker EU? 

If the EU fails to find a quick way out of the crisis, it is likely to be weakened internationally, notably in its dealings with powers such as China and Russia. Indeed, a key aim of the new treaty was to lend more credibility to the EU as a political heavyweight in the international arena, notably through the establishment of a permanent EU Council President and an External Action Service as well as a strengthening of the role of the EU's High Representative for Foreign and Security Policy. 

Hopes for real progress in forging a Common Foreign & Security Policy (CFSP) and a European Security and Defence Policy could be dashed. 

However, the EU has been operating effectively under the Nice Treaty even after its enlargement to 27 members. 

European Parliament President Hans-Gert Pöttering stated that the results of the Irish referendum confront the EU "with one of the most difficult challenges in its history". "The ratification process must continue without reservation. We call upon the Irish government to submit proposals as to how we can jointly progress beyond this difficult phase in European politics," the Parliament President said in a written statement, adding that the goal is to see the Treaty enter into force before the June 2009 European elections. 

Speaking to EURACTIV, the ALDE spokesperson for Constitutional Affairs in the Parliament, UK MEP Andrew Duff, said the results were no surprise to him as "the whole pro-EU campaign in Ireland was a real mess" and "completely unprofessional", with political in-fighting. On his website, Duff said "EU leaders must reflect on their collective responsibilities in failing to explain Europe". 

Meanwhile, Czech President Vaclav Klaus called the Irish referendum result a "victory of freedom and reason" and insisted that "ratification cannot continue". His view was echoed in the Czech Senate. The Lisbon Treaty ratification process has already been slowed down in the Czech Republic, where at present, the Czech Constitutional Court is analysing the treaty at the request of the Senate, the upper house of the Czech Parliament, in a move initiated by the governing Civic Democratic Party (ODS). The eurosceptic, right-wing, neo-liberal ODS of Czech President Vaclav Klaus and Prime Minister Mirek Topolanek seems concerned that the Czech EU Presidency, starting on 1 January 2009, will be overshadowed by the future permanent EU Council President. 

In the same vein, Polish President Lech Kaczynski declared that "for the moment, the question of the treaty is pointless. It is difficult to say how all this will end. But on the other hand, to say that without the treaty there won't be a Union is not serious". He noted that the same argument was made by proponents of the EU Constitution after French and Dutch voters rejected the document in 2005. 

Monica Frassoni  and Daniel Cohn-Bendit, the co-presidents of the Greens in the Parliament, blamed the referendum tool itself for the crisis, saying: "The Irish 'no' has once again demonstrated that national referenda are not an adequate instrument to decide European questions." "It is not truly democratic that less than a million people can decide the fate of almost half a billion Europeans," they commented. Looking to the future, they said the EU could not go on under the Nice Treaty's rules, saying EU member states would have to choose if they wanted "a more integrated Europe or if they opt to be members of little more than a free trade area". 

Frassoni and Cohn-Bendit suggested introducing "a short constitution focusing on selected points that are understandable and relevant to citizens". This, they said, could for example include the Charter of Fundamental Rights, more democratic decision-making procedures and more instruments for positive policies, in a text that would be put to European citizens in a Europe-wide referendum on the same day as the European elections. 

Meanwhile, German Socialist MEP  and chair of Parliament's Constitutional Affairs Committee Jo Leinen lashed out not only at the Irish, but the entire European establishment for being incapable of communicating with citizens. 

"Communicating Europe is a disaster," Leinen said at a press conference in the European Parliament held before the results of the referendum were known. He lashed out at the Council, which failed, in his words, to develop a common communication strategy for the European institutions and accused it of making a special effort to keep the Parliament isolated. "The Council says communication is the duty of the member countries. But when the countries do nothing, or too little, nobody can do something about it," he went on to say. Then he attacked the Irish government for the way it had conducted the referendum campaign, saying it was "late, defensive and complicated". 

Spanish MEP  and Vice President of the European Parliament Alejo Vidal-Quadras continues this theme: "It seems that we have an endless communication problem. Because every time there is a public consultation on European reform in a member state, we are in trouble. It happened in Ireland with the Nice Treaty, we also had a problem in Denmark in the past, then we had this terrible failure in France and Holland of the European Constitution, and now the Irish 'no' to the Lisbon Treaty. There is a serious communication problem." 

As the French EU Presidency began, France's European Affairs Minister Jean-Pierre Jouyet stressed the importance of proceeding with the ratification process in other countries. "Then we shall see with the Irish what type of legal arrangement could be found," he said, pointing to the fact that he believes the Treaty is not dead. 

A number of MEPs felt the French Presidency had an important role to play in restoring citizens' faith in the EU: 

Francis Wurtz of the GUE/NGL group said "the French Presidency will have a heavy responsibility to prepare the European Council in October, which is supposed to provide answers to the Irish 'no'. In this regard, the experience of the past three years must serve as a lesson: trying to ignore the symptoms of the crisis of confidence revealed by the French and Dutch 'no's." 

French Green MEP Marie Anne Isler Béguin said "France must convince Europeans that the European Union still has some meaning after the Irish vote". 

Irish MEP Brian Crowley said one of the "key issues which must be dealt with by the French Presidency is putting in place new measures to communicate to the citizens of Europe". 

  • May-June 2005: French and Dutch voters reject draft European Constitution in a referendum. 
  • 13 Dec. 2007:  EU heads of state and government sign Lisbon Treaty.
  • 20 Feb. 2008: European Parliament approves treaty with 525-115 majority. 
  • 12 June 2008:  Ireland rejects Lisbon Treaty in a referendum. 
  • 18 June 2008: UK ratifies Lisbon Treaty, signalling that the EU-wide ratification process continues.
  • 19-20 June 2008: EU summit agrees to continue ratification in remaining countries and give the Irish time to come up with a solution.
  • 11 December 2008: EU leaders agreed on a package of Irish demands, paving the way for a second referendum (EURACTIV 12/12/08).
  • 24 June 2009: EURACTIV breaks the story that the second Irish referendum will be held on 2 October 2009 (EURACTIV 24/06/09).
  • 8 September 2009: Germany's Bundestag gives the treaty its final seal of approval following approval by the German Constitutional Court (EURACTIV 09/09/09).
  • 02 October 2009: Second Irish referendum. 

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