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When anti-Lisbon becomes anti-EU

by Frank Schnittger Sat Jul 11th, 2009 at 09:21:59 AM EST

The debate on the Lisbon Treaty in Ireland is taking an increasingly legalistic turn with No campaigners arguing that the Lisbon Treaty is "self-amending" and that it will make Ireland subject to the federalising agenda of the European Court of Justice.

Lisbon Treaty referendum - The Irish Times - Thu, Jul 02, 2009

The European Court of Justice has in the past been described as "a court with a mission" and that mission is to advance the further integration of the countries of the European Union.

I am not a lawyer, much less an expert on European or Constitutional law, but these arguments seem to me to be especially specious and disingenuous. The No strategy appears to be to try and create as much fear and uncertainty around EU powers and intentions as possible. I have drafted some letters to the Editor in response, but these have not, to date, been published.

Perhaps those of us here with greater legal expertise can point out to me where I am going wrong.


First, Paul Williams wrote:
Lisbon Treaty referendum - The Irish Times - Thu, Jul 02, 2009

Madam, - Lucinda Creighton (Opinion, July 1st) asks us to stick to the facts "because everyone is entitled to their own opinion, but not their own facts."

The Treaty of Lisbon is a legal document and is subject to interpretation by the European Court of Justice (ECJ). In many cases, it will only be when a case relating to this treaty comes before the ECJ, and is ruled on, can one say what is fact and what is not. This is the case with all legal documents but especially in the case of the Lisbon Treaty which is especially tortuous in its wording.

The European Court of Justice has in the past been described as "a court with a mission" and that mission is to advance the further integration of the countries of the European Union.

If the Treaty is passed, some of the claims by the No side, derided as "outlandish" by Lucinda Creighton, may well come to pass at a future date if the ECJ decides to so rule as a means of furthering the further integration of EU nations.

It is notable that the claim of primacy of the ECJ over national decisions was in article I of the proposed constitution but has now been relegated to declaration 17 of the Lisbon Treaty in the hope that fewer people will notice. Hardly, in Deputy Creighton's words, "honest and clear". - Yours, etc,

PAUL WILLIAMS,

I responded in an unpublished LTE as follows:

Madam, - Paul Williams (Letters, 2nd. July) writes that "If the [Lisbon] Treaty is passed, some of the claims by the No side, derided as "outlandish" by Lucinda Creighton, may well come to pass at a future date if the ECJ decides to so rule as a means of furthering the further integration of EU nations."

However the European Court of Justice (ECJ) has had jurisdiction over all EU Treaties since it's foundation in 1952 and has had an Irish Judge as a member since our accession in 1973. Perhaps Mr. Williams might like to give some previous examples of it's "outlandish" judgements in furtherance of EU integration.

It should also be noted that the Lisbon Treaty doesn't change the jurisdiction of the ECJ in any way, so an argument against the ECJ is an argument against membership of the EU, not the Lisbon Treaty per se.  So is it really our EU membership that Mr. Williams has a problem with?

For some reason, the Irish Times seems to be publishing a preponderance of Anti-Lisbon letters, all of which repeating ad nauseam the same few points.  So here we go with Paul Williams again:

Lisbon Treaty Referendum - The Irish Times - Sat, Jul 11, 2009

Madam, - Jason Fitzharris (July 6th) omits a salient point.

He claims the supremacy of the European Court of Justice (ECJ) over national courts was first established in the case of Costa V ENEL but what he does not point out was that this was the court itself claiming it had supremacy as were all subsequent claims of supremacy by the ECJ.

This supremacy was not, until now, written into any EU Treaty.

It is also debatable whether the ECJ has the supremacy it thinks it has.

The recent German constitutional court's decision clearly stated: "The peoples of the member-states are the holders of the constituent power. The Basic Law does not permit the special bodies of the legislative, executive and judicial power to dispose of the essential elements of the constitution."

Contrary to Mr. Fitzharris's assertion that "to argue against the primacy of European law is essentially to argue against membership of the EU" it is perfectly correct to want to put a brake on the ECJ and stop it intruding into areas into which it has no business intruding.

To do otherwise is to accord the European Union the status of sovereign State which, no matter much eurofederalists want it to be so, the EU does not have. - Yours, etc,

PAUL WILLIAMS,

So here is me trying to set the record straight.  Does anybody know any better arguments or can you point to any flaws in my logic?

Madam - you continue to publish letters by Paul Williams (July 2nd. and 11th.) in which he argues against the Lisbon Treaty on the grounds that it confers some new powers to the European Court of Justice (EJC).  

However the Third Amendment to the Irish Constitution which ratified our membership of the EU in 1972 clearly states that "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State."

In other words we accepted the primacy of EU law and the EJC when we joined the EU and new constitutional amendments are only required when we confer additional powers to the EU.  The recent ruling of the German Consitutional Court reaffirms the same thing, except that in Germany, a referendum is not required to transfer additional powers to the EU.

The Lisbon Treaty does confer new powers to the Dail and to the the European Parliament, to a new office of President of the Council, and new rights of petition to EU citizens.  However it is disingenuous to imply that the Lisbon Treaty somehow makes us subject to the EJC for the first time.

Ireland has agreed the primacy of EU law as part of our terms of accession in 1973 and we been subject to, and have had an Irish Judge on the EJC ever since.  To argue against the Lisbon Treaty on this basis is to oppose our very membership of the EU.

It is, of course perfectly legitimate to argue against our EU membership, but the No campaigners have consistently sought to disguise their anti-EU agenda as purely anti-Lisbon because they know they would lose the referendum very badly if their anti-EU politics is exposed.  I am surprised that the Irish Times is publishing their claims without publishing the refutations...

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The anti-Lisbon strategy is to lie outrageously.
by Colman (colman at eurotrib.com) on Sat Jul 11th, 2009 at 09:31:38 AM EST
"Activist" courts/judges: Courts/judges that issue rulings you disagree with.

When a court rules in your favour, it is obviously right and no sane person could possibly find fault with it. When it rules against your preferred position, it is evil activism and an encroachment upon the prerogatives of the legislative branch.

See? Simple.

There is, of course, a valid debate to be had about the precise balance of power between the different branches of government. But hysterical talking points about the European Court are not a part of that debate.

(As an aside, it's probably something they've borrowed from Declan Ganley's friends on the American far right - they've been running that schtick in the last couple of years whenever a judge told President Cheney and his trained monkey that they had to observe the constitution.)

- Jake

Austerity can only be implemented in the shadow of a concentration camp.

by JakeS (JangoSierra 'at' gmail 'dot' com) on Sat Jul 11th, 2009 at 02:29:57 PM EST
In Ireland's case its all about furriners telling good upstanding Irish people how to live their lives when we know so much better, obviously.

notes from no w here
by Frank Schnittger (mail Frankschnittger at hot male dotty communists) on Sat Jul 11th, 2009 at 02:59:42 PM EST
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