Sep 09
29
Treaty of Lisbon – Ireland’s legal guarantees and the Solemn Declaration on Social Policy, Workers’ Rights and Public Services
June 2008 referendum – result and follow-up On 12 June 2008 the people of Ireland voted not to ratify the Treaty of Lisbon by 53.4% to 46.6%. The turnout was 53%. Since the referendum, the Irish Government has been working intensively to find a way forward that respects the decision of the people as expressed in that referendum, while respecting also the desire of other Member States to see the Treaty of Lisbon enter into force.
Identifying concerns – analysis and Oireachtas consultation The Government commissioned research to identify the key concerns that underpinned the no vote; Government parties worked with other parties in the Oireachtas (Parliament) to establish the sub-Committee on Ireland’s Future in the European Union, which delivered its report on 27 November. The Government also began a process of consultation with other Member States, especially the Presidency, and with the Union’s institutions, principally the Council Secretariat, aimed at identifying a solution. The report of the all-party sub-Committee offered a realistic assessment of the challenges facing Ireland in the EU. It concluded that Ireland’s best interests are served by remaining at the heart of Europe and set out a number of recommendations at both EU and national level.
Key concerns At EU level, it suggested clarification be secured that “the right of each Member State to decide its own policies in areas of social and ethical sensitivity should continue to be respected”. On defence, it suggested that “any practical measure that demonstrated that [Ireland’s traditional policy of military neutrality] is and will continue to be protected and respected should be considered”. It noted that Lisbon changes nothing on tax policy and that “it does appear that having a Commissioner nominated by the Government is a matter of national sensitivity.”
Moving forward with our European colleagues The Taoiseach briefed his European colleagues on the concerns of the Irish people at the European Council in December 2008. The European Council noted these concerns and defined a path that would allow the Treaty to enter into force by the end of 2009. Retention of Irish Commissioner The Council agreed that, provided the Treaty enters into force, a decision will be taken, in accordance with the necessary legal procedures, to the effect that the Commission shall continue to include one national per Member State.
Legal guarantees The European Council also agreed that, provided the Irish Government commits itself to seeking ratification by the end of October 2009, legal guarantees will be given on the following 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 of Lisbon does not prejudice the security and defence policy of Member States, including Ireland’s traditional policy of military neutrality, and the obligations of most other Member States; and
- a guarantee that the provisions of the Constitution of Ireland in relation to the right to life, education and the family are not in any way affected by the fact that the Treaty of Lisbon attributes legal status to the EU Charter of Fundamental Rights or by the justice and home affairs provisions of the Treaty.
Solemn Declaration on Workers’ Rights and Social Policy In addition, it was agreed that the high importance attached by the Union to the following issues would be confirmed:
- social progress and the protection of workers’ rights;
- public services as an indispensable instrument of social and regional cohesion; the responsibility of Member States for the delivery of education and health services; and
- the essential role and wide discretion of national, regional and local Governments in providing, commissioning and organising non-economic services of general.
Status of the guarantees and declarations The texts of the legal guarantees and the Solemn Declaration on Social Policy, Workers Rights and Public Services were agreed at the European Council and are annexed to the Presidency Conclusions.
- Annex 1 is a decision of the Heads of State or Government of the 27 member states of the EU, meeting within the European Council, on the concerns of the Irish people on the Treaty of Lisbon. Section A of this decision deals with the right to life, family and education. Section B covers taxation and section C deals with security and defence. Section D provides that the Decision will take effect on the same date as the entry into force of the Lisbon Treaty.
- Annex 2 is a solemn declaration by the European Union on social policy, workers’ rights and public services.
- Annex 3 is a national declaration by Ireland on its participation in the European Union’s common foreign and security policy and on Ireland’s traditional policy of military neutrality. In the event of Ireland’s ratification of the Treaty of Lisbon, this declaration will be associated with Ireland’s instrument of ratification.
The Decision referred to in annex 1 (above) constitutes an international agreement, which will take effect on the date of entry into force of the Lisbon Treaty. If a second referendum is successful, Ireland’s instrument of ratification, to be lodged with the Italian Government, will refer to both the Treaty and the Decision. (Ireland’s national declaration will also be associated with its instrument of ratification.) Both the Treaty and the Decision will be registered with the United Nations since Article 102 of the Charter of the United Nations provides that all international agreements to which UN Member States are party should be registered with the UN Secretariat after their entry into force. Article 7(2)(a) of the Vienna Convention gives Heads of State or Government full powers in international law to conclude international agreements. It was also agreed at the June 2009 European Council that the provisions of the Decision will be annexed to the Treaty on European Union and the Treaty on the Functioning of the European Union as a Protocol as a Protocol at the time of the next accession treaty. This will probably be the accession of Croatia (or possibly Iceland) in 2010 or 2011. A Protocol is a text, annexed to a treaty or treaties, which usually expands upon or explains a given topic. It has the same legal force as a treaty. Furthermore, article 51 of the Treaty on European Union states that “the Protocols and Annexes to the Treaties shall form an integral part thereof.” At the June 2009 European Council the Heads of State or Government have declared that: (i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon; (ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any ratification of that Treaty; (iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon; (iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union; (v) the Protocol will in no way alter the relationship between the EU and its Member States. The sole purpose of the Protocol will be to give full Treaty status to the clarifications set out in the Decision to meet the concerns of the Irish people. Its status will be no different from similar clarifications in Protocols obtained by other Member States. The Protocol will clarify but not change either the content or the application of the Treaty of Lisbon.
