Stanley's blog

The Presidency conclusions of the Brussels, 11-12 December meeting states that Ireland would hold a second referendum before the end of the present Commission’s mandate provided that, first the Commission shall continue to include one national of each Member State, and second, the necessary legal guarantees will be given on three points.

• Nothing in the Treaty of Lisbon makes any change of any kind, for any Member
State, to the extent or operation of the Union’s competences in relation to taxation

• The Treaty does not prejudice the security and defence policy ofMember States, including
Ireland’s traditional policy of neutrality, and the obligations of most other Member States.

• A guarantee that the provisions of the Irish Constitution in relation to the right to life, education and the family are not in any way affected by the fact that the Treaty attributes legal status to the EU Charter of Fundamental Rights or by its justice and home affairs provisions.

That’s as far as the Conclusions go. They do not address how or when the decision will be implemented. However, “legal guarantees” are to be given, which means adopting a Protocol and not a Declaration. President Sarkozy stated that he expects Lisbon to come into force “only one year late” – presumably January 2010. The first opportunity to adopt a Protocol is the Croatian Accession Treaty (although this was not mentioned as such in the Conclusions). But negotiations are not expected to be concluded before well into 2009, if not later. The very earliest likely date of entry is therefore 2010, but 2011-2 is more likely, allowing for ratification.

This raises two questions. First, clarifications by way of assurance and declarations are fine, but is giving one Member
State a Protocol on the Lisbon Treaty, attached to a treaty of accession, one step too far.

Second, is the solution workable?

It is planned to extend the present Commission’s mandate to 31 December 2009 and the second Irish referendum is to be held before then. The earliest possible date for the Croatian Treaty to come into force is 2010. But the Irish referendum is to take place in 2009 and the new Commission take office at the beginning of 2010.

This mean that the Irish will have take on trust that all 28 Parliaments will ratify the Croatian Accession Treaty (including a possible Conservative-controlled British House of Commons). Will the Irish voters accept the risk.

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  1. It’s an interesting issue, and it’s true that there are many “what ifs” that can derail the smooth running of the deal, but the legal guarantees are merely setting out what would have been the case anyway under Lisbon (apart from the make-up of the Commission, but then that’s a political agreement on how the member states will vote, not a legal guarantee). So the functioning of the Union would be the same with or without the guarantees. The legal guarantees aren’t legally necessary, just politcally necessary – though I may be wrong when it comes to the Charter of Fundamental Rights.
    In fact, some concerns have been voiced that a legal guarantee about CFSP could end up hobbling Ireland, much as Denmark found to be the case after 1992/3.

    As for the (possibly Conservative-controlled) British Parliament, I don’t think that they, or any other of the main British political parties, have any ideological hang-ups about enlargement. But it is true that other states could pose a problem. Is France committed to a referendum on any future EU enlargement?

    On the attachment of the protocols to the Accession Treaty, I’d say it may come across as somehow underhand (in the sense that “it sounds like something they’d do just to get out of this mess”), but it’s a good practical/political solution.

    In a way it just shows that it’s extremely hard to mix democracy and diplomacy – they have opposing cultures of openess and secrecy.

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