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Labour MP: Lisbon 'puts future of democracy at stake'

A former UK government minister has warned that the Lisbon Treaty puts the future of democracy at stake. Labour MP Gisela Stuart - who helped draw up the original EU Constitution, since renamed as the Lisbon Treaty - said that the Treaty breaches the fundamental democratic principle that voters can get rid of those in power ...

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 Guide to Lisbon

At more than 300 pages of articles, protocols, annexes and preambles, the Lisbon Treaty is not an easy read, even for the specialist in EU affairs. Below is a guide to the main elements of the Lisbon Treaty, and an explanation of the main changes it will introduce if it comes into force.

What is the Treaty?
What does Lisbon do?
Key features of the Treaty

- A ‘division of competences’ meaning more and more power for the EU
- Making it easier to change the EU treaties in the future
- A ‘self-amending’ Treaty
- Far fewer powers for national parliaments
- Majority voting in foreign policy and moves towards a common defence
- New EU powers over justice and home affairs
- Charter of Fundamental Rights becomes legally binding
- New EU powers in many policy areas including health & social security

What the Treaty fails to do

For a briefer look at the issues surrounding the Treaty, see the ‘Why we say no’, and ‘FAQs’ sections.

A carbon copy of the rejected EU Constitution

Back in December 2001, EU leaders admitted that citizens “feel that deals are all too often cut out of their sight and they want better democratic scrutiny” and agreed that a way needed to be found to stop the “creeping expansion of the competence of the Union”.

The so-called ‘Laeken declaration’ called for “better responses to practical issues and not a European superstate or European institutions inveigling their way into every nook and cranny of life.” The political leaders also talked about “restoring tasks to the Member States,” and said that powers could be returned back to the national and local level.

A so-called Convention on the Future of Europe was convened in order to draft a new Treaty which would reflect these principles.  However, former French President Valery Giscard d’Estaing was appointed its President and instead of reform and decentralisation, the group drafted a new Constitutional Treaty, which proposed to hand important new powers to the EU, without sufficient compensation for national parliaments. 

Because the Treaty was deemed to be so important, many EU governments initially promised their people a referendum on the text.  However, in 2005, the electorates of two of the EU’s founding member states – France and the Netherlands – said ‘no’ to the Constitution.  In France, 55 percent of people voted no, with a turnout of 69 percent, and in the Netherlands, 62 percent of people voted no, with a turnout of 63 percent.

But instead of respecting these votes, EU leaders decided to press ahead with the Treaty regardless.  In what became one of the biggest cons in recent political history, EU officials changed the appearance of the text and renamed it the Lisbon Treaty. 

96% of the content of the Treaty remains exactly the same as the Constitution rejected by France and the Netherlands four years ago. Of the few changes there are, none are of any real significance – for example, the new version no longer mentions the symbols of the Union, like its flag and anthem. However, of course these symbols already exist in reality.

Virtually every EU Government has admitted that the Lisbon Treaty maintains the substance of the Constitution.

The author of the Constitution, Valery Giscard d’Estaing, said: “All the earlier proposals will be in the new text, but will be hidden and disguised in some way.”

The Spanish Prime Minister Jose Zapatero admitted: “We have not let a single substantial point of the Constitutional Treaty go… It is, without a doubt, much more than a treaty. This is a project of foundational character, a treaty for a new Europe.”

The German Chancellor Angela Merkel said: “The substance of the Constitution is preserved. That is a fact.”

But despite this, several EU leaders decided that no more referendums should be held, except in Ireland, which is the only country which is constitutionally bound to hold referendums on such Treaties.  Despite cries for politicians to keep their promises to let the people have a say in many countries, the promises were forgotten, the people ignored, and the Treaty was pushed through parliaments across Europe – in most cases with minimum, if any, debate.

This is in spite of the fact that according to the only independent poll of voters in all 27 EU countries, conducted in 2007, 75% of people across the EU, and a majority in every single country, said they wanted to be consulted on any new Treaty which proposes to give more powers to the EU. 

When the only country that was allowed a referendum on the Treaty – Ireland – said ‘no’ in a clear vote in June 2008, the decision was once again ignored and now Irish people are being asked to vote again on exactly the same text.  Once again, some politicians are pretending that the Treaty has changed since last time, but the reality is that Irish people will be voting on exactly the same text they have already rejected.

The good intentions of Laeken have been well and truly forgotten.  Instead of allowing decisions to be taken as close to the citizen as possible, EU leaders decided to favour ‘integration by stealth’ – pushing through closer EU cooperation without consulting the voters.   And where the voters have had a say, in Ireland, they have been ignored. Unless this undemocratic approach is challenged now, it will become the norm for decades to come.

“This treaty is the tipping point. It is the point at which we will begin to adopt the European Community method on most matters, apart from tax and social security, and in a number of respects—perhaps most of them—in common foreign and security policy. In most other things, we will move into a situation where we will have QMV [Qualified Majority Voting], where the Commission will administrate and where the European Court of Justice will judge.”
Michael Connarty, Chairman of the UK’s cross-party Commons European Scrutiny Committee, House of Commons, 21 January 2008

Some people try to claim that the Lisbon Treaty is just a ‘tidying up’ exercise.  However, EU politicians themselves admit that this is not the case:

“This is a big change from the basic concept of nation states. It’s a change of centuries of history.”  (Former Italian Prime Minister Romano Prodi)

“It is a birth of a political union, not only an economic and social union; an event unique in the history of our Continent, a turning point in the history of humanity.” (Former Italian President Carlo Azeglio Ciampi)

"The Constitution is the capstone of a European Federal State." (Former Belgian Prime Minister Guy Verhofstadt)

“The EU Constitution is the birth certificate of the United States of Europe. The Constitution is not the end point of integration, but the framework for – as it says in the preamble – an ever closer union.” (Former German Europe Minister Hans Martin Bury)

Indeed the Lisbon Treaty is very important and represents a turning point in the development of the EU. 

To name just a few things, it creates several big new EU institutions, ends the national veto in 60 areas of policy, and makes it easier for the EU to change the rules of the game in the future.  This means it will be able to take on more powers without even less national parliamentary scrutiny than we have at present.  It represents a huge step backwards for democracy in Europe.

Weakens Ireland’s power to block legislation by 40%

Changes to the system by which votes in the EU Council are taken will mean that almost all member states would find it more difficult to block legislation under the Lisbon Treaty. According to academics at the London School of Economics, out of all 27 member states, Malta is the only country which stands to gain in its power to block EU legislation it disagrees with. The net effect of this change is that it will become easier for the EU pass law, which means more regulation at a time when many people, including small businesses, feel there is already far too much regulation.

Ireland will be one of the biggest losers under the new arrangements.  Under the Lisbon Treaty Ireland will lose more than 40 percent of its power to block EU legislation it disagrees with in the Council.  This means Ireland is likely to be outvoted far more often under the Lisbon Treaty, and end up having to implement laws it does not necessarily agree with.  This is a dilution of democracy.

National vetoes scrapped in 60 areas

The Treaty introduces 60 new areas where qualified majority voting applies. This would be the largest number of vetoes given up in any of the EU treaties to date. The veto is given up in all kinds of significant areas: the powers of Europol and Eurojust, immigration and border controls, energy, transport, employment policy, the ECB’s powers over financial regulation, the appointment of the EU President, and many areas of foreign policy.

For the first time, majority voting is made officially the norm in EU politics, and described as the “ordinary legislative procedure”. The few remaining exceptions to majority voting are described as being decided under a “special legislative procedure”.

Controversially, the Treaty also says that any remaining vetoes can in future be abolished without the need for a further treaty, using the ‘simplified revision procedure’ found in Article 46 TEU (see below).

New unaccountable and distant EU institutions

The Lisbon Treaty creates powerful new positions and institutions in Brussels, and will make existing EU institutions more powerful in relation to the member states. Setting up new institutions like an EU President, an EU Foreign Minister, and an EU diplomatic service would mean a major shift of power from EU member states, and they are also likely to grow in strength over time.

An EU President
The Lisbon Treaty would create a powerful new EU President, whose exact role is yet to be determined.  It is thought he or she will be paid the same as the (appointed) European Commission President, who currently earns the same basic salary as the democratically-elected President of the United States.

Currently, EU member states take it in turns to be President of the EU for six months at a time.  While not perfect, this system does at least ensure that the smaller member states like Ireland get to set the agenda in Europe on an equal basis with the larger countries.

It also means that the democratically elected prime ministers and presidents of EU member states set the agenda in Europe and represent the EU on the world stage.  Under the Lisbon Treaty, the President of the EU will be nominated, not by the people but by the European Council, by a qualified majority vote and without consultation with national parliaments.  He or she will sit for terms of two and a half years.

The likelihood is that the post will go to an ex-prime minister or president of Europe.  This means that whoever is appointed is likely to have lost the support of their own electorate at home – such as Tony Blair, who is currently being touted as a future EU President.

During negotiations on the Treaty, the Irish government was strongly opposed to the creation of a permanent EU President.  Irish Europe Minister Dick Roche appealed to the Convention drawing up the Treaty to stick to the status quo, whereby EU member states take it in turns to be President of the EU for six months at a time.  This system ensures that the smaller member states like Ireland get to set the agenda in Europe on an equal basis with the larger countries.

However, his suggestion was ignored.

An EU Foreign Minister
The Lisbon Treaty creates a new post of High Representative of the Union for Foreign Affairs and Security Policy, widely referred to as the EU Foreign Minister, as was originally intended under the EU Constitution.

The Foreign Minister will also be a Vice-President of the European Commission, giving the supranational body a role in foreign policy for the first time.  He or she will be appointed by a qualified majority vote in the European Council, and when the Council asks the Foreign Minister for a proposal on a particular subject, once he or she has made that proposal it will be subject to majority voting.

The Foreign Minister will also Chair the meetings of EU Foreign Ministers.  During negotiations on the text of the treaty, the Irish government was opposed to this idea, but its objections and suggested amendments were ignored.  His or her exact role, payment and tasks remain to be decided.

An EU diplomatic service
The Lisbon Treaty would set up a new “European External Action Service”, combining national officials with hundreds of staff who work in the European Commission’s DG External Relations department. (Article 27 TEU) Decisions relating to the creation of the diplomatic service will be taken by majority vote on a proposal from the EU Foreign Minister.

Spanish Prime Minister Jose Luis Zapatero has said that as a result of this: We will undoubtedly see European embassies in the world, not ones from each country, with European diplomats and a European foreign service.” (AP, 17 February 2005)

Prominent Swedish author and journalist Nathan Shachar recently argued that common EU embassies could be detrimental for human rights.  He said: “If the Lisbon Treaty is ratified and we submit our diplomacy to the EU, our ability to promote a dissenting view and to put up resistance when commercial interests and ideological complacency are attempting to trick us out of our ethical foreign policy will cease”. (Dagens Nyheter, 31 July 2009)

The Lisbon Treaty was supposed to set out a clear division of powers between the member states and Brussels, to stop the gradual drift of powers from member states to the EU. However, it does the opposite - it defines most powers as “shared”, and says that where powers are “shared” the member states can only act if the EU has chosen not to. (Article 2 TFEU)

Indeed it is often claimed by supporters of the Treaty that it will help to end legal uncertainty on the issue of member states’ relations with the Union. Nothing could be further from the truth.

Aside from the specific new powers which the Treaty creates for the EU, it is also a legal toolbox which provides activist EU institutions (particularly the notoriously expansionary European Court of Justice) with the means to incrementally build on existing powers and expand into new areas. The Treaty provides for EU action in virtually every policy area – from health to defence – and can be used as a basis for radical future developments in Union policies.

There are a large number of important ‘unanswered questions’ relating to how the new arrangements would work in practice. A confidential strategy paper prepared by the Slovenian EU Presidency for Heads of Governments identified 31 such areas of the Lisbon Treaty.

A few examples of these include: the structure, operation and field of action of Europol; the new powers and operation of Eurojust; the rules governing the European Public Prosecutor and its functions; the "organisation and functioning" of the EU External Action Service (diplomatic service); the role and powers of the EU Foreign Minister; and arrangements for the implementation of the Defence "Solidarity Clause." The leaked Presidency paper noted that these tough negotiations will only take place after ratification in "difficult" countries, such as Ireland.

The widening in the jurisdiction of the European Court of Justice to almost all areas of policy is particularly significant in this respect. The new legal force given to the Charter of Fundamental Rights is also likely to amplify this effect further. The Charter is a sprawling agglomeration of rights and obligations – it is both vague and wide-ranging, and is likely to provide a rich resource for the expansion of Union power through the judicial avenue.

The Lisbon Treaty would effectively make the EU treaties self-amending for the first time.

Several articles found in the Lisbon Treaty would allow EU leaders to change the treaties incrementally, without the need for a new treaty and the parliamentary and public scrutiny that currently goes with that process.

At present, the treaties on which the EU is based can be amended only by the convening of an Intergovernmental Conference (IGC) such as the one that agreed the original text of the Lisbon Treaty. Any amendments must be agreed unanimously by all governments and then ratified in the member states according to their Constitutional traditions, i.e. by referendum or by parliamentary vote. 

In the past, changes have been made all at once and made into ‘package deals’. This is a process that has hitherto sparked public interest and debate – such as the one we now see in Ireland on the Lisbon Treaty, or the debates on the Nice, Amsterdam or Maastricht Treaties.

By contrast, under the Lisbon Treaty, EU leaders would be able to gradually alter the treaties on which the EU is based, which would be likely to dramatically reduce the level of public scrutiny of future changes to the treaties.  In future, changes to the treaties, even where they give more powers to the EU, could go unnoticed by the public and many MPs.

Several articles in the Lisbon Treaty allow for future changes to be made more easily and with less democratic participation: 

A ‘simplified revision procedure’
Article 48 (6) TEU allows the Council to vote by unanimity to change any of the text of part three of the Treaty on the Functioning of the Union (which deals with the detail of all the EU’s internal policies). 

The German Constitutional Court recently noted that this clause would give the European Council “a broad scope of action for amendments of primary law” which is insufficiently predictable for German MPs. 

It said:

The implications of the authorisation to amend provisions of Part Three of the Treaty on the Functioning of the European Union can only be determined to a limited extent; as regards substance, they are hardly predictable for the German legislature. Article 48.6 TEU Lisbon opens up to the European Council a broad scope of action for amendments of primary law.” (Paragraph 311)

A ‘bridging clause’ which allows the Council to abolish remaining vetoes without giving national parliaments a say
Article 48 (7) of the Lisbon Treaty is referred to as the ‘general bridging clause’, or passerelle, from the French word for ‘bridging’.  This will allow the Council to decide to move a policy area from unanimous voting to qualified majority voting in the future.

For the first time, such changes will not need to be ratified by national parliaments. National parliaments must only be “notified”, and the proposal automatically goes through unless a Government allows parliament time to vote on it and the parliament then makes known its opposition within six months.  The “consent” of a majority of the members of the European Parliament must also be given.

The German court marked the distinction between this and the current arrangements, when it said:

“To the extent that the general bridging procedure pursuant to Article 48.7(3) TEU Lisbon and the special bridging clause pursuant to Article 81.3(3) TFEU grant the national parliaments a right to make known their opposition, this is not a sufficient equivalent to the requirement of ratification.” (Paragraph 414)

A much-extended ‘flexibility’ clause, and no say for national parliaments
Under the current EU treaties, Article 308 allows the EU to take on new powers which are not currently provided for in the Treaty, if it proves necessary to attain one of the objectives of the European Community.  However, this is currently restricted to actions in the course of the operation of the internal market.

As it currently stands, Article 308 has given rise several controversial decisions, including the establishment of a European Agency for Fundamental Rights, to administer the Charter of Fundamental Rights even before it becomes legally-binding.

Article 352 TFEU of the Lisbon Treaty extends the current ‘flexibility clause’ to include all policies in the EU treaties, so that it can apply to anything (with the exception of the common foreign and security policy) – not just decisions related to the internal market as is currently the case. 

The Commission will only be obliged to “draw national parliaments’ attention” to future proposals based on that article.

As noted by the German Constitutional Court:

“The provision can thus serve to create a competence which makes action on the European level possible in almost the entire area of application of the primary law… The approval by the Member States in accordance with their respective constitutional requirements is not a requirement for the decision entering into force.” (Paragraph 327)

It continued:

“The provision meets with constitutional objections because the newly worded provision makes it possible to substantially amend Treaty foundations of the European Union without the mandatory participation of legislative bodies beyond the Member States’ executive powers… The duty to inform the national parliaments set out in Article 352.2 TFEU does not alter this; for the Commission need only draw the national Parliaments’ attention to a corresponding lawmaking proposal.” (Paragraph 328)

On the basis of these significant new provisions for future treaty change, the German Court ruled that a German Minister will not be allowed to agree to such changes without the express prior permission of both houses of the German Parliament through a similar act of parliament as is currently required for any changes to the EU treaties.  This is a far cry from the virtually non-existent role for national parliaments envisaged in the Lisbon Treaty. 

Some countries, including Britain and Ireland, have made some provision for giving national parliaments a say over these future decisions, but they do not amount to the same safeguards that parliaments currently have over Treaty change, and fall short of what the German Constitutional Court said should happen in Germany. 

For instance, while the British government has allowed for some future uses of the passerelle or the ‘simplified revision procedure’ (but not the ‘flexibility’) clauses to be approved by parliament, it refused to specify that an Act of Parliament (i.e. a new law, which demands maximum parliamentary scrutiny) will be necessary, despite the attempts of some MPs.  The Government also refused to make clear that if the parliament did object to such a proposal, then the Government would be obliged to vote against it. 

Similarly, in Ireland, it is almost certain that the current requirement for referendums on major EU treaty change will be circumvented by these provisions. 

Indeed it is a common myth that the Lisbon Treaty brings greater powers for national parliaments.  In fact, the combination of the loss of policymaking powers to the EU level, the loss of the national veto brought by the increase in the use of majority voting, and the new arrangements for amending the treaties detailed above means that national parliaments will have less influence on policymaking than ever before.

As the German Constitutional Court recently pointed out:

“The status of national parliaments is considerably curtailed by the reduction of decisions requiring unanimity and the supranationalisation of police and judicial cooperation in criminal matters.” (Court ruling, Paragraph 293)

The Treaty pays lip-service to involving national parliaments, but a close look at the text shows that the provisions are so minimal as to be meaningless.

A protocol attached to the Lisbon Treaty says that, if, in the unlikely event that a third of national parliaments in the EU (that’s 9), within eight weeks of seeing a draft EU law, object to it on the specific grounds that it does not comply with the principle of subsidiarity (the idea that the EU should only act in areas where it can add value), then the European Commission will have to “review” it.

After this “review”, the Commission is free to decide to override national parliaments and maintain the law as long as it gives reasons for its decision. This is exactly what happened the very first time the mechanism was given a ‘trial run’ several years ago.

If, however, a majority of parliaments object to the draft law (that’s 14), again on the narrow grounds of ‘subsidiarity’ and again within a short 8-week window, and the Commission decides to maintain the proposal after review, then in order to the draft law to actually be scrapped, a majority in the Council or the European Parliament must agree with the 14 national parliaments that the proposal does not comply with the subsidiarity principle.

There are several severe (and deliberate) problems with this text.  The thresholds for getting the Commission to “review” a proposal, let alone scrap it, are set unfeasibly high. 

Indeed, MEP Andrew Duff, who was involved in the drafting of the Treaty, has admitted that:

“It was understood by those of us involved in its drafting and, then, re-drafting that the mechanism, although a necessary addition to the system of governance of the Union, was not really intended to be used.”

8 weeks is a very short window for a national parliament to receive a proposal, consider it, and then indicate its objection to it.  Especially bearing in mind that many national parliaments take long recess periods several times a year.  The protocol makes no allowance for the fact that national parliaments may not even be sitting during all or part of those 8 weeks. 

Another problem is the fact that national parliaments may only object to proposals on the grounds of ‘subsidiarity’, and not just because they do not like the proposal. 

Crucially, it will still be up to the EU institutions to decide whether a proposal conflicts with ‘subsidiarity’.

The UK Parliament’s cross-party EU Scrutiny Committee concluded that “we doubt the significance of the 'greater opportunities' for national parliaments to be involved in any meaningful manner in the workings of the EU.”

Such proposals are actively damaging, because they give the impression of accountability without the reality, and are used to fob off proposals for real democracy in Europe.

Controversially, the Lisbon Treaty introduces majority voting into eleven areas of foreign policy – meaning smaller countries will find it much more difficult to make themselves heard on important decisions.

1. Proposals from the EU Foreign Minister
2. The design of the EU diplomatic service
3. Setting up an inner core in defence
4. Terrorism and mutual defence
5. Urgent financial aid
6. Humanitarian aid
7. The election of the EU Foreign Minister
8. Civil protection
9. Terrorist financing controls
10. The new EU Foreign Policy Fund
11. Consular issues

Article 42 TEU states that "The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides.”

The Irish government objected to this, wanting to change the word “will” to “might”. However, it failed.

Article 42 also states that, “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.” This is essentially a mutual defence commitment, and some argue that it constitutes a threat to Irish neutrality.

Polling shows that concerns about the Lisbon Treaty’s impact on Ireland’s policy of neutrality were among the most prominent of reasons for voting no the first time around. 

In a series of articles for the Irish Times in November and December in 2008, Dr. Karen
Devine, expert in Irish neutrality and researcher at Dublin City University, warned that “A neutral state cannot legally or politically sign up to the Lisbon Treaty mutual assistance clause because it violates neutrality.”

However, despite agreeing some warm words on this subject, Ireland secured no exemption from this clause at the EU summit in June this year.  Experts argue that
this would be the only way to guarantee that the Treaty does not threaten Ireland’s neutrality.

Article 32 TEU contains a requirement for a Member State to consult other Member States before taking foreign policy action:

“Before undertaking any action on the international scene or any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.”

Article 222 TFEU states that “Should a Member State be the object of a terrorist attack or the victim of a natural or man-made disaster, the other Member States shall assist it at the request of its political authorities” and adds that “The Union shall mobilise all the instruments at its disposal, including the military resources made available by the Member States.”

The Irish government wanted to insert important changes to this article, including a line that “the other Member States shall provide such assistance as they each deem necessary and as would be consistent with international law.” This would explicitly allow Ireland to respond using assistance other than military.

Dick Roche also wanted to clarify that “such assistance may involve the deployment of all the instruments at the Union’s deployment”, instead of the more certain language that the “Union shall mobilise”, as above.

Thirdly, the Irish government also wanted to insert a line which said: “Deployment of military capabilities for the purposes set out in this Article shall be limited to the territory of the Union.”

Dick Roche argued:

The deployment of military capabilities under the terms of this provision should be confined to the territory of the Union.”

However, all of these failed to make it to the final text.

New articles allow the EU to set common rules concerning legal procedures in criminal cases. EU rules, decided by qualified majority voting, could determine the rights of criminal suspects and control the admissibility of evidence in Court. There is also a provision for EU rules to cover “any other specific aspects” of legal procedure if EU leaders so decide. (Article 82 TFEU)

As the German Constitutional Court recently ruled:

The Treaty of Lisbon considerably extends the European Union’s competences in the area of the administration of criminal law.” (Paragraph 352)

One problem with this proposal is that it would no longer be possible for voters in individual member states to alter the balance of the legal system between the rights of victims and suspects’ rights. For example, if EU rules were to set the balance in such a way as to favour protection for suspects, voters in any one member state would not be able to vote for a policy which would make it easier to secure convictions. The rules could only be changed subsequently if the majority of other EU members agreed.

During negotiations on the Treaty, the Irish government opposed many of the Treaty’s proposals relating to civil and criminal law and legal procedures, and in particular the introduction of majority voting.  Dick Roche said: “Given the sensitivity of the matters involved, and the diversity of Member States’ legal systems, unanimity is the appropriate decision-making procedure.”  The government tried several times to get these provisions changed, but failed.

The Treaty allows the EU to set up a Common European Asylum system (Article 78 TFEU). This becomes a treaty objective for the first time, and will lead to the laying down of uniform standards on how asylum applications are processed and the benefits asylum seekers will receive while their cases are being considered. The Treaty requires that any new asylum policies should be governed by the principle of solidarity and fair sharing. This paves the way for what the Commission has called “corrective” burden sharing (i.e. transferring successful asylum seekers from one member state to another). Indeed, the Commission has already proposed to amend existing EU asylum legislation in order to build in burden sharing.

The Treaty allows the EU to set “rules concerning the definition of criminal offences and sanctions” and lists the types of crimes over which the EU can harmonise sentences. These include drug trafficking, people smuggling and money laundering. The list was supposed to limit the EU to dealing with cross-border crimes. But the list of crimes over which the EU can rule includes vaguely-defined categories such as “organised crime” and “corruption”, which is likely to enable the EU to rule over a wide variety of offences. The list of offences is also designed to be expanded over time, as a clause allows EU leaders to add to the list of crimes on which the EU can legislate.

During negotiations on the Treaty, the Irish government opposed many of the Treaty’s proposals, “Given the sensitivity of the issues involved.”  In particular, the government did not want such rules to be set by majority voting, and wanted to make it clear in the treaty that the prosecution, trial and punishment of offenders would remain a matter within the exclusive competence of member states.  However, it failed.

The Treaty gives the European prosecutors’ network “Eurojust” sweeping new powers. The relevant article states that the tasks of Eurojust, to be defined by qualified majority voting in the EU Council, “may include the initiation of criminal investigations”. (Article 85 TFEU)

Again, the Irish government strongly opposed these new provisions, attempting to delete this language and arguing that “Eurojust should not have a direct role in prosecutions”, and that the tasks of Eurojust be determined by unanimous vote.  Again, it failed.

The new Treaty states that: “In order to combat crimes affecting the financial interests of the Union, the Council, by means of a regulation adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor's Office from Eurojust.”

The Irish government strongly opposed the creation of European Public Prosecutor, saying “the proposed arrangements do not respect the different legal traditions of Member States.”  However, it was ignored.

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Charter of Fundamental Rights becomes legally binding

The Charter is likely to affect national law and give the European Court of Justice substantial new powers. While the debate in some countries has focused on the effect of the Charter on business, it does, in fact, cover a very wide range of topics.

The Court will have substantial new powers to review and change national laws.  But how the Court will use these powers is difficult to predict. The net result of giving the Court greater power through the Charter is unlikely to be a clear “left” or “right” outcome. It would, however, mean that the small group of judges on the Court of Justice would be called upon to make contentious and essentially political judgements in a wide range of areas.

Provisions of the Treaty would put the EU in charge of standards for pharmaceuticals, medical equipment and medical products like blood and tissue. The EU would also be given the power to legislate by QMV on any “serious cross border threats to health”. (Article 168 TFEU)

The Treaty states that: “The Union may take initiatives to ensure coordination of Member States' social policies”. It also allows the Commission to establish “guidelines and indicators” for social policies. (Articles 5, 156 TFEU)

Social security rights for migrant workers are shifted to majority voting, something which the Irish government originally opposed.  While an ‘emergency brake’ applies to this area, EU policy in this area has traditionally been driven forward by European Court of Justice, with EU legislation ‘catching-up’ with Court rulings.

The Lisbon Treaty abolishes the veto on employment law relating to self employed workers. (Article 53 TFEU) This covers everything from whether plumbers, electricians and other self-employed service providers have their qualifications recognised in other countries, health and safety questions and their rights at work.

The Treaty states that: “The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.” (Article 5 TFEU)

The European Commission notes that the Treaty “will extend the scope of the trade policy to include all foreign direct investments and makes it clearly an exclusive competence of the Union.”

Under current arrangements, in some fields both the member states and the EU can negotiate trade deals, allowing member states to have their own trade agreements alongside those of the EU as a whole. For example, EU member states have signed a number of Bilateral Investment Treaties with other countries around the world. Exclusive competence in this area would make such bilateral agreements impossible. The Lisbon Treaty deletes the clause in the existing treaty (Article 133.5 TEC) which states that EU trade policies “shall not affect the rights of the Member States to maintain and conclude agreements with third countries”.

As noted by the German Constitutional Court, under the Lisbon Treaty:

“the Union shall have exclusive competence for the conclusion and the ratification of international agreements in the context of the common commercial policy… the necessity and the possibility an agreement being concluded (also) by the Member States and the participation of the national parliaments in accordance with their respective constitutional requirements… cease to exist.” (Paragraph 373)

It continues:

“With the exclusive competence presented, the Union attains the sole power of disposition of international trade agreements which may result in essential reorganisations of the internal order of the Member States. The shift of competences by the Treaty of Lisbon that has been presented concerns the Member States beyond the loss of their competence for concluding international trade agreements - and the elimination of the legislative participation of the Bundestag and the Bundesrat [German Parliament]… also to the extent that it might reduce the status of the Member States’ membership in the World Trade Organization to a merely formal one. The right to vote in the bodies of the World Trade Organization could solely be exercised by the European Union. Furthermore, the Member States would lose their formal entitlement to be a party in the dispute settlement procedures of the World Trade Organization. Additionally, the Member States would be excluded from the global negotiations on new or amended agreements in the context of the extended common commercial policy, the so-called rounds of world trade talks.” (Paragraph 374)

Trade in health and education services, currently decided by unanimity, would also be affected – under the new treaty the EU would have the same powers over these issues that it has over trade in goods.

The Irish government strongly objected to the inclusion of “foreign direct investment” in this article, and attempted to get it deleted.

Does nothing to solve corruption and waste
The new Treaty has no provisions to sort out the EU’s chronic problems with fraud and waste. According to its own figures, the EU loses £1 million every working day to fraud. Its budget has not been signed off by its own auditors for fourteen years in a row.

The EU now has 63,000 civil servants working full-time churning out new laws.  EU officials, MEPs and Commissioners have been criticised for the excessive amounts of expenses and perks they receive on top of their basic salary.  The European Parliament spends £200 million a year just ferrying euro-MPs back and forth between its two buildings in Strasbourg and Brussels every month. All of this will remain unchanged under the new Treaty, and with more powerful institutions, it may prove even more difficult to reform these things in the future.

No power to improve failing environmental policies
Supporters of the Treaty claim that the Treaty is essential to enable the EU to ‘take action’ on important transnational issues like the environment.  However, in fact, the Treaty makes almost no changes to the EU’s capacities in this respect, merely adding a few words to emphasise the importance of the objective fighting climate change.

In reality, the EU currently has (and already exercises) plenty of power over environmental policy, but has simply failed to use it effectively due to flawed policies and lack of political will. The EU Emissions Trading Scheme has failed to cut emissions and has been converted by politically powerful corporate interest groups into a means of covert industrial subsidy.

Additionally, EU renewables targets will push investment away from more cost effective options for reducing carbon emissions – this is a misallocation of limited resources in the fight against climate change.

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