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The  Dáil and Seanad should insist on  parliamentary control over the Taoiseach and Government Ministers in exercising the self-amending powers of the Lisbon Treaty, just as the German Constitutional Court requires the German Parliament to do.

Ireland should not be content with a lesser standard of parliamentary control of  Government Ministers than Germany if the Lisbon Treaty should be ratified.

The Government should make provision for Oireachtas control of Lisbon’s self-amending powers  in legislation accompanying the Lisbon Treaty Referendum Bill.

Otherwise not only the people, but the Dail and Seanad,  would be agreeing to give extraordinary powers to Ministers if the Lisbon Treaty should come into force.

The Simplified Treaty Revision Procedure proposed by Lisbon (Art.48.7, amended Treaty on European Union) would permit the Prime Ministers and Presidents on the European Council to shift European Union decision-taking from unanimity to qualified majority voting in most of the Treaty on the Functioning of the Union (TFEU), as long as they agreed this unanimously amongst themselves.

This could apply, for example, to the Treaty article dealing with harmonising indirect taxes (Art.113 TFEU), where unanimity is currently required

Lisbon also has   several “bridge articles” or “ratchet-clauses“, which would allow the European Council to switch from unanimity to majority voting in certain specified areas, such as judicial cooperation in civil matters (Art.81.3 TFEU), in criminal matters (Art.83.1 TFEU), in relation to the EU Public Prosecutor (Art.86.4 TFEU) and the Multiannual financial framework (Art.312.2 TFEU).

While the Lisbon Treaty provides that National Parliaments have to be notified of shifts from unanimity to qualified majority voting in some, though not all,  of these cases,  National Parliaments are not required to give their formal agreement.  The Taoiseach and Government Ministers would be able therefore to exercise these powers without  proper parliamentary control.

Of concern also is the enlarged scope of the “Flexibility Clause” (Art.352 TFEU), whereby if  the Treaty does not provide the necessary powers to enable the Union attain its very wide objectives, the Council of Ministers may take appropriate measures by unanimity.

The Lisbon Treaty would extend this provision from the area of operation of the Common Market, where it operates at present,  to all of the new Union’s policies directed at attaining its much wider post-Lisbon objectives. The Flexibility Clause has been widely used to extend EU law-making over the years. The consent of National Parliaments  is not required for Government Ministers to use it.

As the judgement of the  German Constitutional Court states (par. 414):  “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. It is therefore necessary that the representative of the German Government  in the European Council or in the Council may only approve the draft Resolution if empowered to do so by the German Bundestag and Bundesrat within a period yet to be determined …”

And again: ” …the silence of the Bundestag and the Bundesrat  may not be construed as approval.” (par. 416)

As things stand, Ireland’s Dail and Seanad will be expected to remain silent while Irish Government Ministers exercise these extraordinary new powers at EU level  in a post-Lisbon EU - unless legislation comparable to what Germany’s Constitutional Court proposes makes their actions subject to parliamentary approval in advance, and subject indirectly to the approval of Ireland’s citizens.

On Tuesday the German Constitutional Court ruled that ratification of the Lisbon Treaty would only be constitutional for Germany if parliamentary control  - and indirectly citizens’ control - over German Government Ministers operating at EU level were instituted in these “self-amending: Treaty areas.

This should also be done in Ireland.

(Signed)

Anthony Coughlan
Director