The Treaty on the Functioning of the EU is the new name for the Treaty Establishing the EC, effectively the amended version of the original Treaty of Rome. This is really the historic meat of European integration emerging form the establishment of the single market. Given many of these articles have existed for a long time they tend to arise in debate even though often there is no substantial change to what has existed.

Part One gives equal value to the two treaties

Title I sets out the categories and areas of competence of the EU. This is a simplification and clarification of this area. The respective competences of the member state and the Union are set out including exclusive competences of both and shared competences. This is quite a useful check list and of course is legally enforceable by the ECJ.

Areas where policies are co-ordinated are set out and areas where the Union can support, co-ordinate and supplement member states actions

Title II covers provisions having general application, these are effectively cross cutting provisions which shadow and govern other parts of the treaty. These include consistency, equality, a high level of employment, social protection, combating discrimination, environmental protection, consumer protection, animal welfare. There is specific provision on services of general economic interest (public services). Openness of decision making, access to documents, holding meetings in public, personal data. Recognition of national approaches to churches and a dialogue with churches is provided for.

Part two covers non discrimination and citizenship.

There are robust provisions on anti-discrimination. European citizenship is restated and continues to be additional to citizenship of member states, their rights and duties are clearly set out, including free movement, voting, diplomatic protection, citizens initiative, European ombudsman, languages,

Part Three covers Union Policies and internal actions

Title I specifically covers the Internal Market. This has been a cornerstone of the EC/EEC since its foundation.

Title II restates provisions on free movement of goods and customs union. Possibly exemptions are provided for in Article 37. There is very little change here.

Title III restates much of the provision on agriculture and fisheries, the objectives of the CAP are clearly set out. There is little change here but the European Parliament is brought in to the legislative process.

Title IV covers free movement of persons, services and capital. There are no major changes except some extension of QMV

Title V of Part 3 Covers The Area of Freedom, Security and Justice

Many of these provisions were originally introduced at the Treaty of Amsterdam to enhance the notions of freedom of movement. Much of the common provisions represent recodifying of language. One of the new provisions relates to combating the financial side of terrorism. Ireland has secured an opt out or more accurately the right to opt in in much of police and judicial co-operation, immigration and asylum along with continuing an opt out on the schengen passport free travel area. The main difference here is Ireland has expressed a willingness to be part of these arrangements if it can. The opt out gives the Government and the Oireachtas the right to decide and this is contained in the wording.

Much of this area comes in to the “community method” i.e. with a role for the parliament and the ECJ as opposed to the previous intergovernmental method. In fact this is the main change in this whole area

Title VI concerning transport contains no major changes bar some moves to QMV

Title VII covers taxation and competition again there are very few substantive changes here bar one or two moves to QMV, Ireland has also received a legal guarantee on taxation remaining a national competence

Title VIII on economic and monetary policy again contains few changes except moves to QMV

Titles IX, X, XI, XII, XIII on employment, social policy, the ESF, youth sport, education and culture contain no major changes bar some moves to QMV

Similarly Titles XIV, XV, XVI, XVII, XVIII, XIX Public Health, Consumer Protection, Trans European Networks, Industry, economic, social and territorial cohesion, research and technological development and space follow the same pattern

Title XX sees an additional aim of combating climate change added to the treaties. Title XXI and XXII provides for greater co-operation in the area of energy policy and tourism

Title XXIII covers civil protection in areas such as natural disastrous where member state actions will be assisted in a speedy fashion

Title XXIV covers administrative co-operation

Part Four of the Treaty covers association of the overseas countries and territories, there are no major changes

Surely one of the greatest things about politics and public life in this country is that we have a written constitution. A relatively simple document (not counting millions of pages of judgements which are effectively part of it), which of course gives rise to our referendums on Europe.

The Crotty Judgement is often misinterpreted as meaning we have to have a referendum on every treaty. A careful read of it shows this is not the case. It is more accurate to say that only major transfers of sovereignty or changes in the nature and reach of the EU require referendums. As the Government has never published or really commented on the AG’s advice in this area it is hard to know the precise reasons for each referendum.

However it is reasonably clear that having a written constitution increases our prediliction for European referendums. We have seen fit to vote 6 times in 25 years on Europe putting us top of the referendum charts, with Lisbon 2 being our seventh go at relatively similar issues.  

Such a fixation makes us prey for a whole load of others who have an interest in these topics. I suppose generally it is a good thing to have others take an interest and I don’t go along with the idea that it’s not anybody else’s business. However what I think most people would like to think was that outside involvement in a referendum here (remember SIPO makes it illegal for non Irish people to donate to a campaign) is at the invitation of Irish people or groups and respects some of the basics of our democracy and culture. In the end of the day I am far from convinced about it’s effectiveness anyway. Of late it is UK based groups that are showing a renewed interest in our debate. It’s a bit like the Battle of the Boyne all over again, English interests fighting out their European battles in Ireland.

Lisbon 2 promises to be a new watermark in this regard with UKIP and Nigel Farage promising to put in an appearance. UKIP of course welcomed the last Irish vote by using the national flag instead of beer mats in Kitty O’Sheas. A former leader opined that Ireland was a land of peasants and pixies and several of their MEPs have been prosecuted for various types of fraud and malpractice…takes all sorts I suppose

The Daily Mail’s Irish edition has similarly thrown it’s lot in with the Irish No campaign, along with the Trade Union Unite. While Unite have several Irish members they still like to categorise us as a region of somewhere…presumably the UK. The BNP European Election manifesto incidentally committed them to re-incorporating Ireland into the UK

Again I’m sanguine enough about all this and don’t believe in the little Irelander approach. What do these guys feel they will bring to the debate? Are our own naysayers not up to the job given that they have actually won two referendums.

Well one thing some of them bring is a good shot of honesty. UKIP state clearly that they wish to withdraw from the EU. Yes I said withdraw form the EU. Now nobody amongst the Irish No campaign on the surface advocates that. Of course they have campaigned against every referendum to date but they are all very clear in saying that the like Europe as it is. That’s quite a statement if you opposed all the building blocks that make it what it is like QMV, supremacy of EU law and the common institutions.

So roll on UKIP and their hangers on, let’s have the real debate that our No side won’t have. Under the surface many No campaigners don’t want the EU as it is, they oppose any move to QMV which brought us workers rights, better environmental legislation and the single market. They oppose the very notion of the EU Commisison which watches out for smaller states and pulls up the Microsoft’s of this world, they want only co-operation amongst independent states which is a charter for domination by the large states. They want no military role thus abandoning Bosnia, Kosovo and many more to the ethnic cleansers.

At least UKIP have the honesty to come out and say what the real agenda is, to leave the EU and to halt it’s progress. If only the Irish No campaign accorded us with the same honesty.

For years the European project has struggled with the idea that there is a democratic deficit a it’s heart. From the outset I must say I don’t go along with this and I think it’s yet another example of those who favour European integration conceding far to much in debate to those who do not. The EU has the only existing multi-national directly elected parliament in the world and moreover it functions primarily along party rather than national lines. Fortunately those who argued it lacked any real power know that argument has been simply redundant for many years.

To cut a long story short I tend to go along with the German Constitutional court, anyone who expects a replica of a nation state’s democracy in the EU will be inevitably disappointed but anyone comparing it to other international organisations will be overwhelmed. The institutional balance between the European interest (Commission), Member State (Council) and Citizen (Parliament) is central to how Europe works.

Anyhow politics being what it is the Convention which drafted much of Lisbon and it’s precursor put a lot of work into addressing the perceived democratic deficit and much of the result can be seen in the new title two of the Treaty of European Union

Article 9 is a basic statement of citizenship and equality indicating that European citizenship which has existed since Maastricht is additional to national citizenship

Article 10 set’s out clearly the EU’s commitment to representative democracy and how the institutions represent citizens

Article 11 commits the Commission to consulting civil society and introduces the citizens initiative where one million citizens can petition the Commission, a new concept in the EU

Article 12 sets out the role of national parliaments. This was an area which received a lot of attention from the Convention as it was seen to be a major element in addressing the perceived democratic deficit and in reconnecting the EU with it’s citizens. This is further added to in different roles in different policy areas and with a specific protocol on National Parliaments

Most of the provisions of this Title are new

Title III: Institutions

Article 13 serves to outline directly and simply the different institutions of the EU and that they can only act within the powers conferred on them

Article 14 sets out a basic description of the Parliament and it’s role and function

Article 15 sets out the role and function of the European Council (heads of state and Government) including the new provision for a more permanent president

Article 16 sets out the role and function of the Council of Ministers including the new QMV regime worth quoting in full

“As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.

A blocking minority must include at least four Council members, failing which

the qualified majority shall be deemed attained.

The other arrangements governing the qualified majority are laid down in Article

205(2) of the Treaty on the Functioning of the European Union.”

This provision has given rise to key claims by the no side in the campaign, however like many of the so called “complex” aspects of the Treaty the wording is relatively straightforward. This whole area will be the subject of another entry but for now some basic points should be noted. There are two (well technically three) aspects to QMV, not one. Anybody concentrating on one only is fibbing. The Convention was asked to simplify this area and simplify it did. The previous system was apples and this is oranges so it is practically impossible to compare them…as I say more anon.

Article 17 covers the role and function of the Commission, including it’s president and the way it is selected (notably allowing for a reversion to one Commissioner per member state as decided at the June Brussels Summit

Article 18 provides for the new High Representative on Foreign Policy, this position is already provided for however the Treaty makes some changes principally the idea of “double hatting” i.e. the High Representative will be a member of both Council and Commission effectively becoming the EU’s chief diplomat. This brings together what are currently disparate areas such as intergovernmental decisions on foreign policy and aid policy for example.

Article 19 sets out the role and function of the European Court of Justice

Again much of this text is new

One of the more genuine civil society groups to emerge from the Trade Unions is The Charter Group. As the names suggests they see the legal status Lisbon proposes for the Charter of Fundamental Rights in the Treaty as a major step forward for workers.

Not a great victory for the workers as they march across Europe; yet not a charter for neo liberalism either. Just a step forward.

In fact, it is rare for the language of left or right to predominate in the basic law of any state. Most independent academics note that the history of the EU has been one of a compromise between the forces of Christian Democracy and Social Democracy: a compromise, which secured a single market combined with a high degree of social protection.

In terms of Ireland, practically all socially progressive legislation has emanated from Europe, such as equal pay, maternity leave, the working time directive etc. Yet it is not the various treaties per se that deliver these measures into law. Rather it is the political make-up of the Council of Ministers and the European Parliament, which decides this agenda even if the Treaty is a prerequisite to make it possible.

With Joe Higgins now in the campaign as an MEP, I suspect we may hear lot more about these issues. He has argued that Lisbon is a “charter for neo liberalism and privatisation”. Recently, at the National Forum on Europe, I invited Joe to do a search of the PDF of the consolidated version of the treaty to find the word privatisation.

Guess what: it’s not there!

Now competition is and always has been a competence of the EU (think airlines, telecoms what we paid years ago and what we pay now). This is the power that allowed the EU fine Microsoft, one of the largest corporations in the world!

In actual fact, Lisbon changes little in this respect. So if people are opposed to EU competition policy they need to start the campaign to repeal the current treaties, which effectively means leaving the EU.

However there are new provisions in Lisbon relating to workers rights and various progressive issues. And the Charter is the most obvious. It is now given the full legal force of treaty law.

I will try to avoid over egging my argument here. The charter is deliberately limited to the EU institutions but also, importantly, to the member states when they are implementing EU law.

The other major area of controversy and debate in this area is a series of recent European Court of Justice rulings on issues of workers rights. Here Higgins and Coir would both have us believe that our entire system of social protection will be removed. Yet all these cases were taken under the treaties as they stand today.

Of course it is not even true that the current treaties led directly to these cases (For Ruffert, Laval, Viking and Luxembourg: see the Charter group’s case file).

In truth, it was the transposition of the Posting of Workers Directive into domestic law that gave rise to the problems in mainly Scandinavian countries who have different systems of labour market regulation. Ironically, it is Ireland’s legally enforceable minimum wage is one of the reasons why the same rulings could not have been made in relation to similar cases here!

So then the question is whether such rulings are more or less likely under Lisbon. Certainly the elevation of the Charter to the same level as the treaty suggests things will change if Lisbon is passed. It also provides for the EU to accede to the European Convention on Human Rights: a very progressive legal instrument.

The Treaty also contains, for the first time ever, a commitment to public services (Art 14 TFEU & Protocol on Services of General Economic Interest) and full employment (Art 3 TEU). These were both key demands of the left in the European Convention, which drew up the previous Constitutional Treaty. So all in all Lisbon is one of the most progressive treaties that the EU has produced.

Maybe some people just need to look at it in a little more detail.

Jim Hacker knew a thing or two about politics UK style, his infamous defence of the British Sausage saw him into Number 10 in a comedy series that we now know owed a lot more to real politics than was admitted at the time. Comedy or not many the domestic politician realises that bashing Brussels and the “eurocrats” is good for domestic appeal. Fine as far as it goes politicians have to get by. However the constant euro bashing down the years inevitably comes home too roost. It is hard to have the informed debate that everyone claims to want if prominent politicians insist on passing off all difficult issues and bad news on to the hapless officials in Brussels.

This also applies to over simplifying and reducing what Europe is all about. Like for example explaining the benefits of Europe as being loads and loads of cash and a big free lunch for us like structural funds etc. Down the years those favouring European integration in Ireland unfortunately did the cause little service with this sort of carry on, anybody remember Albert Reynolds promising 7bn for a yes vote in the Maastricht Treaty! While the EU did bring many undoubted benefits it is important to communicate what it does warts and all, the “flags and balloons” approach to the EU does nobody a service. Often the issues are more complicated. The differing institutions and their respective roles viz a viz the national governments can mean communications need to be subtle and nuanced.

So are there many Jim Hackers in the Irish political ferment? Too many unfortunately, all trading on the hope that mere mortals don’t know or won’t find out how things really work. So instead of the Great British Sausage let’s look at the great Irish water debacle.  The water framework directive is a major piece of EU legislation to ensure the quality and availability of drinking and other water, a key benefit for European citizens. The directive went through a long and arduous legislative journey with little or no interest from the Irish or indeed many others. In early 2008 it transpired that schools in Ireland would now be liable for water charges.

The general response of the Government (and the Eurosceptics) was…blame the EU. The Questions and Answers programme led with a question “Are we to have a no flush no wash policy in our schools just because Brussels says so?”  However unlike many decisions taken in Ireland, it is possible to see the documents when EU decisions were made, another part of the EU democratic system. They’re here http://register.consilium.europa.eu/pdf/en/00/st12/12294en0.pdf

It’s worth quoting in full

STATEMENT 88/00 Statement by the Irish delegation

“The Irish delegation fully supports the objectives of the Water Framework Directive and its basic provisions. Ireland is satisfied, following legal consultations, that the final text accommodates the case advanced by Ireland in relation to the domestic sector, enabling that sector to continue to be exempt from water charges in accordance with established practice.”

So the Irish Government “fully supported” the adoption of the directive…pass the sausages please Sir Humphrey!

http://www.trashface.com/lisbontreaty2009.html 

Launching August 15…sounds irreverant so why not!