Nice Treaty Referendum Re-run?

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Irish given second chance to give right answer on Nice

The incoming Irish Government should "get down at once" to re-running the Nice Treaty referendum, Irish EU Commissioner David Byrne said on the Republic of Ireland's national radio station, RTE, earlier this week. Anthony Coughlan reports.

Commissioner Byrne is one of the 21 members of the EU Commission  who recently proposed to the EU Constitutional Convention that the Commission must become the effective government of Europe, the sole source of EU legislative proposals on economic policy, EU-wide taxes, foreign policy, and an EU frontier police and public prosecutor in an EU area of harmonised civil and criminal law.

If the latter should come about - and big steps in this direction have been already taken - it would mean an end to trial-by-jury and "habeas corpus," as these pillars of the justice systems of the English-speaking world do not exist in the continental EU systems, which permit preventive detention and inquisitorial judges.

Key elements of Irish civil society such as the Trade Unions, the Business Confederation and the Churches must play their part to ensure Nice 2 is ratified following its rejection in the Nice 1 referendum last summer, said EU Commissioner Byrne.

Mr Pat Cox MEP, Irish President of the European Parliament, gave a similar message in a speech he made in Malta on Tuesday 21 May during an official visit. Mr Cox told the Maltese that he intended spending much of the time between now and the Nice 2 referendum in Ireland campaigning vigorously to ensure that Nice 2 will be ratified this autumn, and that all the resources of the European Parliament and European Commission would be thrown into this task.

In assessing Commissioner Byrne's remarks - and Mr Cox's -  one should bear in mind that the EU Commission, and Mr Byrne as one of its members, has a significant selfish vested interest in the ratification of the Nice Treaty. Nice's abolition of the national veto in some 30 policy areas means that the Commission becomes the sole proposer of EU law in these areas, which obviously increases its power.

Other Nice Treaty provisions have the effect of moving the Commission towards becoming a quasi-EU Government, an aspiration which Commission President Romano Prodi's proposals to the EU Convention puts further flesh and bones on.

These include the provision of the Nice Treaty that removes from national governments and prime ministers the final say in deciding who will be their national Commissioner.  Under Nice this is to be done by majority Council of Ministers' vote, rather than unanimously as heretofore.  Under Nice, Governments also lose their veto on the appointment of the Commission President, who will henceforth be able to shuffle and reshuffle Commissioners after their appointment, much as a national prime minister can shuffle a cabinet.

This replacement of unanimity by qualified  majority vote will have the effect, if Nice is ratified, of ensuring that both the President of the Commission and individual national Commissioners must be congenial from the outset to the qualified majority on the EU Council -  which means effectively the EU's Big-State Members.

Couple these provisions of Nice with the Treaty's  proposals for a rotating EU Commission in an enlarged EU, and the fact that the ultimate size of the Commission is still undecided, and one can see why former senior Irish EU officials Eamon Gallagher and John Temple Lang told the Forum on Europe in Dublin Castle recently that Article 4 of the Nice Treaty's  Protocol on EU Enlargement, which provides for rotating Commissioners, is "a serious flaw" in the Nice Treaty, and is in no way necessary to facilitate EU enlargement.

As Eamon Gallagher said: "If the principle of one member of the Commission per Member State is given up now, you will not get it back later."

These are some of the reasons  why all democrats in Ireland and abroad should be pleased that the Nice Treaty was rejected by the Irish people last summer; for it gives the opportunity of deleting these objectionable proposals in a revised EU Treaty, or one that does not require a constitutional referendum in Ireland, before it is too late. Or else leaving the contentious issues of Nice to the 2004 grand constitutional EU Treaty now being discussed in the EU Convention.

On Irish radio this morning Commissioner Byrne also repeated the canard that the Treaty of Nice is necessary for EU enlargement, despite the statement of his superior, Commission President Romano Prodi, last summer that " Legally, ratification of the Nice Treaty is not necessary for enlargement. It is without any problem up to 20 members, and those beyond 20 members have only to put in the accession agreement some notes of change, some clause. But legally, it's not necessary... from this specific point of view, enlargement is possible without Nice."

Anthony Coughlan is secretary of the Irish National Platform. The facts about the relation between the Nice Treaty and EU enlargement are given in the following  letter, published on May 22 in the Irish Times. It was written in reply to an article by Jean Monnet Professor Brigid Laffan of University College Dublin, in which she gave the same tendentious twist as Commissioner Byrne does to what the Nice Treaty is about.

Sir,

Professor Brigid Laffan writes (15 May) that the Nice Treaty was negotiated to permit EU enlargement. How does she reconcile that statement with the following facts?

Nice replaces unanimity by qualified majority voting on the EU Council of Ministers in some 30 policy areas. These include the appointment of EU Commissioners, the funding of EU-wide political parties, international trade in services, the implementation of agreed foreign policy joint actions and common positions, and the rules of the EU Structural Funds. What have these to do with EU enlargement?

Nice abolishes the right of each Member State to have one of its nationals on the EU Commission in an enlarged EU. Former Irish EU officials Eamonn Gallagher and John Temple Lang have characterised  this provision as "a serious flaw" in the Treaty and as in no way necessary for EU enlargement. They see it as a dangerous erosion of the legitimacy of the Commission as the guardian of the common EU interest, and particularly disadvantageous for small States like Ireland.

Nice permits the division of the EU into first-class and second-class members by permitting eight or more EU Members to "do their own thing" and to use the EU institutions for that purpose, even though the other Members disagree. Examples would be harmonising taxes among themselves or making the EU Court of Justice the final determinant of their citizens' human rights.

Eight out of 15, or eight out of 20, or eight out of a possible 27 in an enlarged EU. This ends the EU as a partnership of legal equals, in which each State has a veto on fundamental change.  At present the other EU States cannot go ahead and agree special arrangements among themselves without Ireland's permission. These "enhanced cooperation" provisions of the Nice Treaty would allow them to do that in future.

It is these provisions which make up the new constitutional matter that requires a referendum in Ireland if Nice is to be ratified.  There is no need for us to change our Constitution to permit EU enlargement, anymore than we had to hold referendums on previous enlargements.

These provisions for what would effectively become a two-tier three-tier EU are not necessary for enlargement. They were brought into the Treaty negotiations by France and Germany at the Feira EU Summit after the Intergovernmental Conference(IGC) to consider the implications of enlargement had  been set up. Their political purpose is to enable the Big States, Germany and France in particular, to establish an inner directorate in an enlarged EU, which can then confront the rest with continual political and economic faits accomplis. They provide the legal path towards what M. Jacques Delors called for in 2000: "A Union for the enlarged Europe and a Federation for the avant-garde."

Nice militarizes the EU in a new way by making the EU directly responsible for the first time for the 60,000-soldier "Rapid Reaction Force" and the associated EU Military Committee and EU Military Staff, instead of using the Western European Union as the agent of the EU in military matters, as was previously the case. Again, what has this to do with EU enlargement?

The Treaty of Amsterdam says that if the EU enlarges by even one State, the Big States will lose one of the two Commissioners each now has, but will be compensated by increasing their relative voting weight on the Council of Ministers OR by taking their population size into account in such votes. That does not require a further EU Treaty.  It is why Commission President Prodi told the Irish Times last June that "enlargement is possible without Nice," and that the EU can be enlarged  by 10 or more Applicant countries on the basis of  their individual Accession Treaties, as happened with previous enlargements.

Nice BOTH increases the relative voting weight of the Big States AND introduces a population criterion for Council votes from January 2005, irrespective of whether EU enlargement has occurred by then, and irrespective of the number of new Member States. The allocation of Council votes and Euro-Parliament Seats for the 12 Applicant countries  is set out in a Declaration attached to the Nice Treaty as the common position of the 15 Members in their negotiations with the Applicants.  This is not legally part of the Treaty proper. It was therefore not rejected by Ireland when we voted No to Nice last year.  There is no reason why the Applicant countries cannot join the EU on the basis of the proposals in this Declaration.

The logic of these facts would seem to be that the non-contentious parts of Nice should be put into another Treaty which does not require a constitutional referendum in Ireland. The contentious parts, such as the "enhanced cooperation" provisions, should  be left to the Year 2004 Treaty now being discussed in the EU Convention, when the Applicant countries can have a say on them as full EU Members. May I suggest that this is the course the Government should insist on vis-à-vis its EU partners, if it is to do its constitutional duty in the light of last year's Nice referendum result.