Treaty hits a snag in Germany

FutureTaoiseach

PopeBuckfastXVI wrote: »

I'm really asking in a legal context, not a moral one.

AFAIK Crotty only applies to the components of EU Treaties affecting external relations policy, where the EU competency is increased, so the vast majority of Lisbon; QMV changes, numbers of Commissioners etc. aren't actually subject to the Crotty judgement.

It might be an interesting legal exercise to take the government to court to prevent them holding a referendum, given that Crotty was just one guy acting alone in the first place, maybe it would work the other way too?

I'm wondering if it's even possible to challenge that judgement, legally, or at least have it restated on a treaty by treaty basis.

As above, it certainly seems like the government have completely abdicated their responsibility, by just chucking these things wholesale at the populace, without even checking that they have to.

That is not the reality pertaining to Crotty. Crotty ruled that a referendum would have to be held if an EU treaty changed the 'scope or objectives' of the EC/EU. The ruling also stated that just because the expansion of QMV was not what required a referendum, that did not mean that all future expansions of QMV would not require one. I have read the ruling and that is the case. It is disingenuous to imply that any and all expansions of QMV in the future were constitutional. That is not what it said.

I also resent the implication of your post that somehow ratification of EU treaties pertaining to national sovereignty would not be understood by the public and that we should leave it to the political-elites. This epitomises what people mean when they talk about a "democratic-deficit" in the EU. Just because they don't like the answer sometimes doesn't in any way detract from the legitimacy of the no vote and the right of the Irish people to vote to reject that Treaty. As Charlie McCreevy says, the vast majority would have voted no in several other EU states too, especially our neighbours in the UK. The problem is not the no vote, but rather this flawed EU Constitution/Lisbon Treaty blueprint. We are the third nation to turn it down. The political-elites should have dropped Lisbon or renegotiated it. The fact that after the no vote, Commission President Barroso insisted that ratification should continue showed scant regard and little respect for the rights of the Irish people to self-determination. An EU treaty cannot come into force without all member states ratifying it. Whatever the elites and their hangers-on and the Federalists say, that is an inescapable reality.

This talk of how the EU treaties should be left to the politicians to ratify and amend is reminscent of the 19th century idea that "men of property" should make the decisions, while what Edmund Burke called "the swinish multitude" should do what they're told and not get ideas above their station. But here's the rub: since 1937 the govt has been forced to defer to the people on matters of national sovereignty. As such, our democratic tradition differs from that of most other EU member states which are purely representative-democracies. Ireland, on the other hand, has been a hybrid-system blending elements of direct and representative-democracy. And that is a good thing. Remember what happened in 1800?

Scofflaw

FutureTaoiseach wrote: »

That is not the reality pertaining to Crotty. Crotty ruled that a referendum would have to be held if an EU treaty changed the 'scope or objectives' of the EC/EU. The ruling also stated that just because the expansion of QMV was not what required a referendum, that did not mean that all future expansions of QMV would not require one. I have read the ruling and that is the case. It is disingenuous to imply that any and all expansions of QMV in the future were constitutional. That is not what it said.

It is entirely correct to state what PopeBuckfastXVI stated. To say that "QMV changes, numbers of Commissioners etc. aren't actually subject to the Crotty judgement" is entirely correct, because they're not, and they are specifically stated as not forming part of the judgement, since they were one of the grounds for Crotty's challenge. They are the subject of a proviso in the judgement stating that they are not necessarily automatically exempt from a future ruling on their constitutionality.

Please don't start your posting career here by putting incorrect interpretations on what other posters write. There's quite enough of it as it is.

cordially,
Scofflaw

evercloserunion

Scofflaw wrote: »

It is entirely correct to state what PopeBuckfastXVI stated. To say that "QMV changes, numbers of Commissioners etc. aren't actually subject to the Crotty judgement" is entirely correct, because they're not, and they are specifically stated as not forming part of the judgement, since they were one of the grounds for Crotty's challenge. They are the subject of a proviso in the judgement stating that they are not necessarily automatically exempt from a future ruling on their constitutionality.

Please don't start your posting career here by putting incorrect interpretations on what other posters write. There's quite enough of it as it is.

cordially,
Scofflaw

In legal terms, it was an obiter dictum as opposed to a ratio decidendi.

petronius

Wonder if the German Courts found it un-constitutional (even after new legislation) would the Irish Government proceed with a 2nd Referendum?

Scofflaw

petronius wrote: »

Wonder if the German Courts found it un-constitutional (even after new legislation) would the Irish Government proceed with a 2nd Referendum?

I'd presume they wouldn't. However, they haven't found Lisbon unconstitutional, they have found that their own democratic oversight is inadequate.

Thinking about it, I'd probably trade that kind of judgement for the Crotty one. Referendums here are great in theory, but in practice they don't exactly generate real debate so much as a recapitulation of everyone's entrenched positions. Regular enforced Dáil debates on European decisions made by Ireland would probably be more effective in strengthening democratic oversight than occasional referendums interspersed with long periods of complete invisibility.

cordially,
Scofflaw

FutureTaoiseach

Scofflaw wrote: »

It is entirely correct to state what PopeBuckfastXVI stated. To say that "QMV changes, numbers of Commissioners etc. aren't actually subject to the Crotty judgement" is entirely correct, because they're not, and they are specifically stated as not forming part of the judgement, since they were one of the grounds for Crotty's challenge. They are the subject of a proviso in the judgement stating that they are not necessarily automatically exempt from a future ruling on their constitutionality.

Please don't start your posting career here by putting incorrect interpretations on what other posters write. There's quite enough of it as it is.

cordially,
Scofflaw

The point I am making is that Crotty shouldn't be taken as meaning that all further potential expansions of QMV were in keeping with the Constitution.

djpbarry

German court ruling aims to lessen Lisbon confusion

Politicians and lawyers streamed out of the wood-panelled chamber of Germany’s constitutional court, exhausted but happy, after listening for more than two hours to the red-robed judges read aloud their landmark Yes, but ruling on six challenges to the Lisbon Treaty.
…
Three months before the second Lisbon referendum, Karlsruhe has clarified many issues that caused confusion in the first referendum. The ruling is a calm checklist of just what the EU is and isn’t, where it is headed and where it isn’t headed – and reminds us that the “member states remain the masters of the treaties”.

http://www.irishtimes.com/newspaper/opinion/2009/0702/1224249906917.html

Quite a few of the issues raised by the ‘No’ campaign should be well and truly put to bed as a result of this. No doubt plenty of new “reasons” to vote ‘No’ will be forthcoming.

FutureTaoiseach

Another way of looking at it is that it exposes as a myth claims that substantial powers over the process of EU decisionmaking are being devolved to national-parliaments, which figures such as Dick Roche claimed in the first Lisbon campaign.

Scofflaw

FutureTaoiseach wrote: »

Another way of looking at it is that it exposes as a myth claims that substantial powers over the process of EU decisionmaking are being devolved to national-parliaments, which figures such as Dick Roche claimed in the first Lisbon campaign.

No, it has no relevance to that. The Germans are strengthening their parliamentary control over their Ministers (in certain circumstances), which is separate from the red-card subsidiarity system Lisbon introduces. It's something the German courts recommended at Nice, but which wasn't carried out.

The former is an arrangement between the German parliament and the German government. It is part of government accountability to parliament, which is a feature of all representative democracies.

The latter is an arrangement between the German parliament and the EU legislative process. It is a braking mechanism on European-level joint decision-making.

Do you see where the difference lies?

correctively,
Scofflaw

FutureTaoiseach

Scofflaw wrote: »

No, it has no relevance to that. The Germans are strengthening their parliamentary control over their Ministers (in certain circumstances), which is separate from the red-card subsidiarity system Lisbon introduces. It's something the German courts recommended at Nice, but which wasn't carried out.

The former is an arrangement between the German parliament and the German government. It is part of government accountability to parliament, which is a feature of all representative democracies.

The latter is an arrangement between the German parliament and the EU legislative process. It is a braking mechanism on European-level joint decision-making.

Do you see where the difference lies?

correctively,
Scofflaw

I understand the difference from a legal point of view, but nonetheless, I feel the impression that will be gained from this is that the role of national parliaments in the Treaty is weak - which I actually think is true. The Protocol on the Role of National Parliaments doesn't given them - even as a group - a veto on EU legislation. Had it done so, it would have been welcomed as a genuine return of power to the member states, and as a sign that when the EU talks of subsidiarity, it means it.

djpbarry

FutureTaoiseach wrote: »

...I feel the impression that will be gained from this is that the role of national parliaments in the Treaty is weak - which I actually think is true.

That makes no sense; the impression given by the judgement supersedes the legal ramifications?

PopeBuckfastXVI

djpbarry wrote: »

That makes no sense; the impression given by the judgement supersedes the legal ramifications?

It makes perfect sense, if all you're interested in is creating FUD.

FutureTaoiseach

djpbarry wrote: »

That makes no sense; the impression given by the judgement supersedes the legal ramifications?

I wouldn't go that far. But it will be used by the no camp to argue that this ruling undermines the arguments of the yes side that Lisbon makes the EU more democratic by giving national-parliaments a role.

K-9

FutureTaoiseach wrote: »

I wouldn't go that far. But it will be used by the no camp to argue that this ruling undermines the arguments of the yes side that Lisbon makes the EU more democratic by giving national-parliaments a role.

It will, no matter if it's correct or not.

The EU cannot supercede Germany's constitutional requirements. This really should be of comfort to some who argue this, but as per usual it is spinned by Euro sceptics.

FutureTaoiseach

K-9 wrote: »

It will, no matter if it's correct or not.

The EU cannot supercede Germany's constitutional requirements. This really should be of comfort to some who argue this, but as per usual it is spinned by Euro sceptics.

But the EU can supersede the Irish Constitution. That is because of this provision in the Irish Constitution:

Article 29.4.10 wrote:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the Communities or by institutions thereof, or by bodies competent under the Treaties establishing the Communities, from having the force of law in the State.

K-9

FutureTaoiseach wrote: »

But the EU can supersede the Irish Constitution. That is because of this provision in the Irish Constitution:

And this has never been an issue. It is what EU Referenda are generally about, since 1972.

Why is this point always trotted out in every EU Referenda. Is it a hangover from 1972 or is it SF policy?

Hitman Actual

FutureTaoiseach wrote: »

But the EU can supersede the Irish Constitution. That is because of this provision in the Irish Constitution:

All that line means is that EU legislation cannot be challenged on the basis of the Irish Constitution (but I think you know that?). However, when it comes to the supremacy of EU law over member state law, the scope is the same for all member states. This has been borne out in several ECJ rulings dating back to the 60's, with Costa v ENEL the first such case.

FutureTaoiseach

K-9 wrote: »

And this has never been an issue. It is what EU Referenda are generally about, since 1972.

Why is this point always trotted out in every EU Referenda. Is it a hangover from 1972 or is it SF policy?

It is an issue on this basis: As the EU's competences expanded since 1972, the Irish Constitution became more and more overridden than before.

View

FutureTaoiseach wrote: »

It is an issue on this basis: As the EU's competences expanded since 1972, the Irish Constitution became more and more overridden than before.

Expansions of the EU's competences take place when the EU's Treaties are amended.

Since all such Treaties have been approved in Ireland only after the people have authorized the Oireachtas to do so, the above basically boils down to you having a problem with the decisions of the electorate.

FutureTaoiseach

View wrote: »

Expansions of the EU's competences take place when the EU's Treaties are amended.

Since all such Treaties have been approved in Ireland only after the people have authorized the Oireachtas to do so, the above basically boils down to you having a problem with the decisions of the electorate.

I think a lot of us feel we were deceived about the consequences of the Nice Treaty in particular and that in consequence, there was an element of "once bitten - twice shy" about the no vote last year. That is my contention, as someone who voted yes in the previous 3 EU referenda. The fact that over 860,000 people voted no means that much of the former yes vote in previous EU referenda must have defected to the no side, so it can't cimply be written off as new voters or caused by a low turnout, unlike Nice I were the no vote was around 500,000.