‘Danish’ scenario ‘most likely outcome’ of EU Treaty crisis

A ‘Danish scenario’ based on opt-outs from the EU’s new Reform Treaty seems to be the most likely outcome of the stalemate following the failed referendum on the text in Ireland on 12 June, according to an Irish-based scholar writing for the Robert Schuman Foundation.

Laurent Pech, a lecturer at the Jean Monnet Chair of EU Law at the National University of Ireland, argues that whatever the legal arguments may be, at the end of the day, political considerations will determine the Irish government’s decision on the way forward. 

The scholar argues that from the legal point of view, the option of passing the Lisbon Treaty via parliamentary ratification was perfectly valid, but politically unacceptable following a failed referendum. 

In Pech’s view, over the years the Irish government has submitted several EU treaties to popular vote without strong legal reasons for doing so, acting rather out of “tradition”. 

Past mistakes 

Pech points to a controversial 1987 decision of the Supreme Court, which he says explains the intricacies of the Irish practice of submitting amended European treaties to referenda. Earlier that year, historian and social scientist Raymond Crotty launched legal action against the Irish government, aimed at dismissing the ratification by Parliament of the Single European Act, on the grounds that it contradicted the Irish constitution. By three votes to two, the Court ruled that Title III of the Single Act ran contrary to the Irish constitution, as it was judged to limit the country’s sovereignty on foreign affairs issues. 

The Single Act was finally put to popular vote to amend the Constitution, and the same procedure was later repeated later for further modifications of the EU treaties, despite the fact that ratification through parliament would have also been a valid option in cases where the Union’s competences and objectives were not fundamentally changed, the scholar argues. 

Indeed, except for the Maastricht Treaty, which established the European Union and introduced changes to the competences and the functioning of the Union, no referenda were needed to pass the Amsterdam and Nice treaties, Pech believes. 

However, legal arguments carry little weight with the ‘no’ camp, which is adamant that the Lisbon Treaty introduces major changes to the functioning of the Union. As an overarching argument, the ‘no’ camp considers that if the Irish are unsure what they are voting for, they should reject the text. 

New situation 

In the past, referenda passed relatively smoothly, the scholar argues. The Single European Act was approved by 69.9% in 1987, then the Masstricht treaty was adopted with 69.1% in 1992, followed by the Amsterdam Treaty with 61.7% in 1998. In 2002, the first Nice Treaty vote was negative, with 50.4% against after a low turnout of 34.8%, which helped to hold a successful revote the next year with 62.9% in favour, at a turnout of 49.5%. 

The problem following the failed Lisbon referendum, according to the author of the study, is that the turnout was high (53.13%). Moreover, external interference, such as an alleged incitation last July by French President Nicolas Sarkozy for the Irish to re-vote (EURACTIV 16/07/08), has strengthened the ‘no’ camp, Pech writes. 

Likely scenarios 

The Oireachtas (Irish Parliament) Joint Committee on the Constitution is already exploring the option of passing the Lisbon Treaty via parliament. Meeting on October 23, the committee agreed to review the framework governing the referendum process. As part of its review, “it will examine whether referendums are constitutionally required or if a supra-majority of both Houses of the Oireachtas could change the Constitution”. 

But Pech rejects the option of passing the Lisbon Treaty via parliamentary vote as “unrealistic” as it would amount to lawmakers disregarding the sovereign will of the people. But he thinks it is possible for the Irish government to obtain a “Lisbon Plus” treaty from its European partners which would survive another referendum. This would involve adding an additional text to the present treaty (a European Council declaration, for instance), to argue that it was not exactly the same treaty that the Irish rejected on 12 June. 

The scholar does not expect the Irish Government to ask the Supreme Court to rulw on whether the Lisbon Treaty is compatible with the Irish Constitution. This would be risky, in his view, since the Court, seen by the author as conservative and nationalist, may be tempted to humiliate the government by issuing a negative assessment. 

The most realistic scenario, according to Pech, is a “Danish scenario” (Denmark negotiated four opt-outs from the Masstricht Treaty, following its rejection in a 1992 referendum). In the case of Ireland, these opt-outs could include a right of derogation from the Charter of Fundamental Rights and defence agreements. 

“It is possible that such a manoeuvre would convince sceptics that the [Lisbon] Treaty will not require the Irish to die for Georgia or for their country to accept abortion,” Pech writes. He adds that the package could include a deal on the size of the Commission, as a recent poll showed that the Irish want to keep their commissioner (EURACTIV 10/09/08). 

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