Can Irish protocol be added to Croatian Accession Agreement?
Irish Taoiseach (prime minister) Brian Cowen has re-confirmed that the ‘guarantees’ promised by EU leaders at the December summit “must be legally robust in order to reassure the public about the treaty”. He said: “Whilst I respect the fact that other member states do not wish to re-ratify the Lisbon Treaty, I made it clear that for my part the legal guarantees will have to be attached to the EU treaties at the next possible opportunity.”
Denmark’s guarantees and opt-outs, promised after the first referendum on the Maastricht Treaty in 1992, were only legally implemented by the Amsterdam Treaty. But Croatia is expected to join the EU in 2010-11 and the idea is to add a protocol to the Treaty of Accession.
The question arises, however, whether it is legally possible to
add to an accession treaty an Irish-specific protocol containing such legal guarantees, or whether only issues pertaining to a state’s accession may be dealt with. “Adding this protocol to the Croatian accession treaty would leave the treaty wide open to attack in the courts.” says Andrew Duff MEP.
If an accession treaty is not used, the legal implementation would have to await a new EU treaty to be drawn up and ratified. The ‘Irish Protocol’ could, of course, be ratified by the Member States at the same time as, but separate from, the Croatian Treaty of Accession. In either case, ratification is not guaranteed.
A final decision on how to structure the guarantees is supposed to be taken at the June EU summit.
The objection raised is fascinating for lawyers but may not have any political or practical relevance. The procedure adopted by the institutions and Member States can only be invalid if (a) a case is brought before the European Court of Justice (ECJ) and (b) the Court strikes down the procedure.
There are precedents of the institutions and the Member States living with legally unsatisfactory situations. Provisions of the original treaties – notably those relating to qualified majority voting – were not implemented, not least, but not entirely, because of the Luxembourg Compromise. In some cases, they were re-enacted in the Single European Act, as if they were new. Despite extensive criticism on legal grounds the issue was never tested.
And this is what is most likely to happen with the Irish protocol. There is unlikely to be anyone with locus standi who would challenge in the ECJ non-compliance with Community law.
Even were someone with locus standi willing to bring a case, it is unlikely that the ECJ would strike the provisions down.
European of British nationality, for nearly 30 years Bruxellois. Deep believer in the principle of ’mutuality’ and Monnet’s axiom ”Thought cannot be divorced from action”, equivalent to Wang Yangming’s ”Zhixingheyi”. 
