Lisbon and sovereignty

Tarobot

Sorry Greeno but you'll have to put up a bit more data than that. I don't have the time to go rooting around the internet to find exactly what you're talking about.

And I'm sorry but I just cannot understand your previous post.

greeno

Tarobot wrote: »

Sorry Greeno but you'll have to put up a bit more data than that. I don't have the time to go rooting around the internet to find exactly what you're talking about.

And I'm sorry but I just cannot understand your previous post.

What do you not understand? Read Article 48 and each of its subsections and correct me if what I said was wrong in relation to Article 48(7).

If the case i mentioned it is not of interest to you that is fine, but I gave you a valid case to back up my arguments whether or not you want to read it is your choice.

marco_polo

greeno wrote: »

The loss of the veto itself. I said how could domething be passed by QMV against our wishes when member states had a veto to prevent this!

I have asked a barrister friend of mine from my college days about Article 48 and my interpretation of it. He points to Article 48(7) which states that national parliaments will only be referred to for 48(1) or 48(2) initiatives.
48(7) allows the council to amend without recourse in all areas if it sees it necessary with the exception of military and defence.

Copied below for your reference:

7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members

I kindly suggest that you not take any more legal advice from your 'friend' as paragraphs 1 and 2 are in reference to the ordinary legislative proceedure, and paragraph 7 the simplified revision proceedure.

I does not allow for treaty amendments to be made via QMV, it allows for amendment to be made to treaty articles that currently require unaniminity to to changed to QMV with the scope specified. Any such amendment must be agreed unamiously and is subject to ratification as per normal as stated in paragraph 6

The European Council may adopt a decision amending all or part of the provisions of Part Three of the Treaty on the Functioning of the European Union. The European Council shall act by unanimity after consulting the European Parliament and the Commission, and the European Central Bank in the case of institutional changes in the monetary area. That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

If your legal friend does in fact exist I strongly recommend not taking any further legal advice from him.

greeno

greeno wrote: »

For a case where the EU even tried to and still are ignoring our veto check out the adoption by the Council of Ministers of what became Directive 2006/24/EC in March 2006. If they didn't respect our veto then and used underhand tactics to get around it, what hope do we have for the future.

Back up
www.iia.ie/resources/download/309/

www.jcfj.ie/pqs/index.php?option=com_sobi2

lots more info on this on various websites including the ECJ one

greeno

marco_polo wrote: »

I kindly suggest that you not take any more legal advice from your 'friend' as paragraphs 1 and 2 are in reference to the ordinary legislative proceedure, and paragraph 7 the simplified revision proceedure.

I does not allow for treaty amendments to be made via QMV, it allows for amendment to be made to treaty articles that currently require unaniminity to to changed to QMV with the scope specified. Any such amendment must be agreed unamiously and is subject to ratification as per normal as stated in paragraph 6



If your legal friend does in fact exist I strongly recommend not taking any further legal advice from him.

Where does it state that it is subject to ratification as per normal as stated in paragraph 6

marco_polo

greeno wrote: »

Where does it state that it is subject to ratification as per normal as stated in paragraph 6

Eh in paragraph 6? "That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements."

marco_polo

greeno wrote: »

For a case where the EU even tried to and still are ignoring our veto check out the adoption by the Council of Ministers of what became Directive 2006/24/EC in March 2006. If they didn't respect our veto then and used underhand tactics to get around it, what hope do we have for the future.

So two hours on google and all you could come up with was an Irish misintrepretation of EU law?

K-9

greeno wrote: »

We are not talking about the rest of Europe we are taking about 55% of states at double majority stage. In addition 65% at QMV stage which in effect is only Spain, Germany France and the UK. Small states will be left to put up with it.

Are you saying the 65% population requirement would be met by 4 countries?

That isn't true, http://en.wikipedia.org/wiki/Member_State_of_the_European_Union

Indeed, it would take the 6 biggest countries to reach that alone, France, Germany, Italy, Poland, Spain and the UK. Even assuming they all agreed, which is a big assumption, they still need 9 small countries.

QMV is still weighted heavily on small countries, not big ones.

K-9

If your argument is true, why did 19 small countries with a population less than 12 million agree?

greeno

marco_polo wrote: »

So two hours on google and all you could come up with was an Irish misintrepretation of EU law?

No it is an instance where our veto did not stand and the law was interreted to favour the EC

greeno

marco_polo wrote: »

Eh in paragraph 6? "That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements."

Where does it state that Article 48(7) requires member states approval?

greeno

K-9 wrote: »

If your argument is true, why did 19 small countries with a population less than 12 million agree?

Our govt would accept it too as they are on the EU gravy train. Would the people of these members states have accepted? Doubt it. But Ireland held a national referendum where the people got a chance to reject it.

So if 7 small states with a combined weighting of under 35% oppose a provision which is possible it will not matter. This is a serious flaw in the minority blocking mechanism which is talked up to be this great instrument
for small countries like ireland.

greeno

Romania (4%), The Netherlands (3%), Greece (2%), Portugal (2%), Belgium (2%), Czech Republic (2%), Hungary (2%), Sweden (1.8%), Austria (1.8%) Ireland 0.8%. =21.4%

Lets even chuck in one of the big 6 Spain at 8% takes it to 29.4%
or France at 12% would it make it 33.4%

So see how difficult ist is to block a proposal.

K-9

greeno wrote: »

Our govt would accept it too as they are on the EU gravy train. Would the people of these members states have accepted? Doubt it. But Ireland held a national referendum where the people got a chance to reject it.

So if 7 small states with a combined weighting of under 35% oppose a provision which is possible it will not matter. This is a serious flaw in the minority blocking mechanism which is talked up to be this great instrument
for small countries like ireland.

So, if your above post is true, examples of cases where small countries have been over ruled already?

Also, if the 14 smallest countries comprising 65/66 million block (13%), it can't come in.

Really I think you see sovereignty as an ideal that cannot be breached, no matter what, even if you can't really show examples of QMV over ruling our sovereignty. Fair enough.

K-9

greeno wrote: »

Romania (4%), The Netherlands (3%), Greece (2%), Portugal (2%), Belgium (2%), Czech Republic (2%), Hungary (2%), Sweden (1.8%), Austria (1.8%) Ireland 0.8%. =21.4%

Lets even chuck in one of the big 6 Spain at 8% takes it to 29.4%
or France at 12% would it make it 33.4%

So see how difficult ist is to block a proposal.

You do realise if that many counties opposed something that much, a compromise would be reached?

BlitzKrieg

Eh in paragraph 6? "That decision shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements."

Ok confusion check.

He has dropped his argument on amendments being passed without referendum and is now focusing on the loss of veto and the dangers of QMV.


section 7 of article 48 does indeed offer the mechanics for the EU to move an area of the treaty to QMV. But to do this it needs the approval of the national parliaments of every member state and the majority in the EU parliament. If even one of them refuses the change will not happen.

Now what the treaty does not say and its a completely irish matter and honestly nobody here can give an answer to this unless they are on the high court is if by the irish constitution the irish parliament has the power to remove its own veto. I assume a number of interpetations of Crotty would give ground that to do so would require a referendum (its giving up of irish sovereignty in the form of a veto).

The second paragraph of section 7 is the opposite, it is the moving of legaslation back to ordinary revision process, essentially restoring a veto to an area that might not have previously had one.

Scofflaw

I'm pretty certain there's two different discussions going on here. Greeno, as far as I can see, is arguing that Article 48.7 allows areas currently under unanimity to be moved to QMV, without any further consultation of the people in our case. This is the clause referered to as the "general passerelle" clause.

This is the clause:

48.7. Where the Treaty on the Functioning of the European Union or Title V of this Treaty provides for the Council to act by unanimity in a given area or case, the European Council may adopt a decision authorising the Council to act by a qualified majority in that area or in that case. This subparagraph shall not apply to decisions with military implications or those in the area of defence.

Where the Treaty on the Functioning of the European Union provides for legislative acts to be adopted by the Council in accordance with a special legislative procedure, the European Council may adopt a decision allowing for the adoption of such acts in accordance with the ordinary legislative procedure.

Any initiative taken by the European Council on the basis of the first or the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision referred to in the first or the second subparagraph shall not be adopted. In the absence of opposition, the European Council may adopt the decision.

For the adoption of the decisions referred to in the first and second subparagraphs, the European Council shall act by unanimity after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.

As you can see from the above, this clause does indeed allow for moves from unanimity to QMV (or to codecision) within the specified areas of the treaties, and does not require ratification as such. It would not, as Irish constitutional law currently stands, require a referendum, because that element of Crotty was ruled against, although the Supreme Court in the Crotty case specifically reserved judgement on whether future moves to QMV might require a referendum.

It does require, as you can see from the text:

1. unanimity on the European Council - so every government has to agree, and there is an Irish veto

2. consent from the European Parliament by absolute majority

3. no opposition from any national parliament.

In our case, it goes slightly beyond this, in that the proposed amendment contains the following relevant to the discussion:

8° The State may agree to the decisions, regulations or other acts—

i under the Treaty on European Union and the Treaty on the Functioning of the European Union authorising the Council of the European Union to act other than by unanimity,

ii under those treaties authorising the adoption of the ordinary legislative procedure, and

...

but the agreement to any such decision, regulation or act shall be subject to the prior approval of both Houses of the Oireachtas.

So, in our case the government must gain the approval of the Oireachtas before agreeing to any of the allowed moves from QMV to unanimity - but does not require any further referendum.

Whether one views QMV as wrong in principle (as greeno apparently does) or not, I'm not sure what the fuss is about exactly. If you believe that the member states (including, obviously, the Irish government, given it has a veto) might use the passerelle clause to move to QMV or codecision, then you should assume that they will do so, and vote based on the extent of QMV/codecision that would thus be created. There's no particular reason to make a fuss over the mechanism - what's in the Treaty is presumably better, if you object to QMV, than simply making these areas QMV outright, because they require a whole further set of hoops to be jumped before those areas could move to QMV.

cordially,
Scofflaw

BlitzKrieg

It would not, as Irish constitutional law currently stands, require a referendum, because that element of Crotty was ruled against, although the Supreme Court in the Crotty case specifically reserved judgement on whether future moves to QMV might require a referendum.

ahh ok that was the only area I was unsure of.

Scofflaw

K-9 wrote: »

You do realise if that many counties opposed something that much, a compromise would be reached?

Most people assume, given there's a voting system, that decisions are reached by voting. As it happens, that's very wrong, but you can see why people would think it.

In fact, the Council usually operates as if there was a national veto on most things, with only about 20-25% of issues decided by voting, and that's usually just so that the government in the minority can say that it voted against the proposal. Usually if there's genuine opposition to a proposal, it's shelved.

If you think about it, that's how virtually all voluntary organisations work - there's a theory of majority voting, but in practice it's so much more important to keep everyone on board that it's nearly always preferable to come to a consensus, or put off a decision (or water it down), if anyone really objects. Otherwise, as anyone with experience of voluntary groups knows, people go off in a huff, and the group tends to shrink - and when you're talking about countries going off in a huff, the consequences are fairly serious.

Whatever the voting weights on the Council (and to claim it's 0.8% is to include only one of the two criteria), the EU cannot operate on any regular basis of countries being forced to do what they oppose, because EU membership is entirely voluntary.

cordially,
Scofflaw

K-9

Scofflaw wrote: »

Most people assume, given there's a voting system, that decisions are reached by voting. As it happens, that's very wrong, but you can see why people would think it.

In fact, the Council usually operates as if there was a national veto on most things, with only about 20-25% of issues decided by voting, and that's usually just so that the government in the minority can say that it voted against the proposal. Usually if there's genuine opposition to a proposal, it's shelved.

If you think about it, that's how virtually all voluntary organisations work - there's a theory of majority voting, but in practice it's so much more important to keep everyone on board that it's nearly always preferable to come to a consensus, or put off a decision (or water it down), if anyone really objects. Otherwise, as anyone with experience of voluntary groups knows, people go off in a huff, and the group tends to shrink - and when you're talking about countries going off in a huff, the consequences are fairly serious.

Whatever the voting weights on the Council (and to claim it's 0.8% is to include only one of the two criteria), the EU cannot operate on any regular basis of countries being forced to do what they oppose, because EU membership is entirely voluntary.

cordially,
Scofflaw

Precisely.

ConsiderThis

Scofflaw wrote: »

Most people assume, given there's a voting system, that decisions are reached by voting. As it happens, that's very wrong, but you can see why people would think it.

In fact, the Council usually operates as if there was a national veto on most things, with only about 20-25% of issues decided by voting, and that's usually just so that the government in the minority can say that it voted against the proposal. Usually if there's genuine opposition to a proposal, it's shelved.

If you think about it, that's how virtually all voluntary organisations work - there's a theory of majority voting, but in practice it's so much more important to keep everyone on board that it's nearly always preferable to come to a consensus, or put off a decision (or water it down), if anyone really objects. Otherwise, as anyone with experience of voluntary groups knows, people go off in a huff, and the group tends to shrink - and when you're talking about countries going off in a huff, the consequences are fairly serious.

Whatever the voting weights on the Council (and to claim it's 0.8% is to include only one of the two criteria), the EU cannot operate on any regular basis of countries being forced to do what they oppose, because EU membership is entirely voluntary.

cordially,
Scofflaw

I was under the impression that the Lisbon treaty heralded the end of the "voluntary arrgangement " system and is moving towards a legal identity for the EU itself, with a president more recognised bythe rest of the world in terms of the "leader" of Europe, and a foreign "minister" and so on. And giving up the veto on certain issues means, in effect, giving up power on those issues also.

While its a lovely idea that its a club where nothing really happens without everyone's approval, try using that argument in a few years if the smaller countries are outvoted, and the EU steamrolls them to accept the wishes of the larger countries.

It's probably necessary that this happens, but lets not pretend that the EU in future will be run in the same was as it has been in the past. The EU is changing, and wants to play a larger role without being hampered by the smaller states. We are likely to see situations where we are out voted by other states, and Lisbon facilitates that. And maybe that's a good thing.

Scofflaw

ConsiderThis wrote: »

I was under the impression that the Lisbon treaty heralded the end of the "voluntary arrgangement " system and is moving towards a legal identity for the EU itself, with a president more recognised bythe rest of the world in terms of the "leader" of Europe, and a foreign "minister" and so on. And giving up the veto means, in effect, giving up power also.

While its a lovely idea that its a club where nothing really happens without everyone's approval, try using that argument in a few years if the smaller countries are outvoted, and the EU steamrolls them to accept the wishes of the larger countries.

it's probably necessary that this happens, but lets not pretend that the EU in future will be run in the same was as it has been in the past. the EU is changing, and wants to play a larger role without being hampered by the smaller states, and Lisbon facilitates that. And maybe that's a good thing.

Well, that's an impression you're under. I can't see where it connects to reality, given it ignores the fact that the EC (of which Ireland is a member) already has legal personality, as does the UN (of which Ireland is also a member), that the Presidency of the European Council is nothing more than a chairperson for European Summits, that we already have a representative for external affairs, and that with the exception of a handful of sovereignty-obsessed No campaigners, the majority opinion is that the treaty is a very good deal for the small countries.

The reason I say the EU is voluntary is precisely because it is voluntary. Legally, leaving the EU requires nothing more than the decision to leave, for any country, at any time.

cordially,
Scofflaw

BlitzKrieg

you know something was bugging me about when this whole the 4 blocking member states had to consist of 35% of the population and I couldnt put my finger on it so I had a quick look back through the treaty and some earlier threads on the issue.

And as I remembered, the 35% figure does not apply.

Well not all the time:

please observe:

article 236:

3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on
transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:


(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing
the participating Member States, comprising at least 65 % of the population of these States.
A blocking minority must include at least the minimum number of Council members representing
more than 35 % of the population of the participating Member States, plus one member, failing
which the qualified majority shall be deemed attained;
(b) By way of derogation from point (a), where the Council does not act on a proposal from the
Commission or from the High Representative of the Union for Foreign Affairs and Security Policy,
the qualified majority shall be defined as at least 72 % of the members of the Council representing
the participating Member States, comprising at least 65 % of the population of these States.

Yes, the 35% rule only applies if not all member states are voting on the issue. And its 35% of the members taking part in the vote. So the weight of the irish vote will vary from issue to issue depending on who is involved.

Since the 35% rule only applies in those issues then on issues that involve all membes YOU ONLY NEED 4 MEMBERS REGARDLESS OF POPULATION!

greeno

K-9 wrote: »

You do realise if that many counties opposed something that much, a compromise would be reached?

17 out of 27 need to ratify so in effect 10 countries could reject a proposal similar to I outlined. All I have done is take the facts from the treaty and apply them using the weightings. Whether you people care to accept it or not our sovereignty is diminished by this treaty

greeno

BlitzKrieg wrote: »

Ok confusion check.

He has dropped his argument on amendments being passed without referendum and is now focusing on the loss of veto and the dangers of QMV.


section 7 of article 48 does indeed offer the mechanics for the EU to move an area of the treaty to QMV. But to do this it needs the approval of the national parliaments of every member state and the majority in the EU parliament. If even one of them refuses the change will not happen.

Now what the treaty does not say and its a completely irish matter and honestly nobody here can give an answer to this unless they are on the high court is if by the irish constitution the irish parliament has the power to remove its own veto. I assume a number of interpetations of Crotty would give ground that to do so would require a referendum (its giving up of irish sovereignty in the form of a veto).

The second paragraph of section 7 is the opposite, it is the moving of legaslation back to ordinary revision process, essentially restoring a veto to an area that might not have previously had one.

That is simply your interpretation of Article 48(7) but thats the problem it is open to interpretation.

BlitzKrieg

greeno wrote: »

17 out of 27 need to ratify so in effect 10 countries could reject a proposal similar to I outlined. All I have done is take the facts from the treaty and apply them using the weightings. Whether you people care to accept it or not our sovereignty is diminished by this treaty

if it all 27 members then its only 4 regard;ess of population(as I have just pointed out using the treaty)

its an old thread but IRLconor does a fantastic breakdown on the voting weights here and their effect in comparison to the current system:

http://www.boards.ie/vbulletin/showthread.php?t=2055311438&highlight=IRLConor

greeno

BlitzKrieg wrote: »

you know something was bugging me about when this whole the 4 blocking member states had to consist of 35% of the population and I couldnt put my finger on it so I had a quick look back through the treaty and some earlier threads on the issue.

And as I remembered, the 35% figure does not apply.

Well not all the time:

please observe:

article 236:




Yes, the 35% rule only applies if not all member states are voting on the issue. And its 35% of the members taking part in the vote. So the weight of the irish vote will vary from issue to issue depending on who is involved.

Since the 35% rule only applies in those issues then on issues that involve all membes YOU ONLY NEED 4 MEMBERS REGARDLESS OF POPULATION!

YOU ONLY NEED 4 MEMBERS REGARDLESS OF POPULATION!

that is totally false read the thing it clearly states these four blocking states need to make up 35% of the population of EU

greeno

greeno wrote: »

YOU ONLY NEED 4 MEMBERS REGARDLESS OF POPULATION!

that is totally false read the thing it clearly states these four blocking states need to make up 35% of the population of EU

3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained

greeno

greeno wrote: »

3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained

You will find this Article 238 of the horizontal amendments both criteria needs to be met 4 states and 35% population

BlitzKrieg

3. As from 1 November 2014 and subject to the provisions laid down in the Protocol on transitional provisions, in cases where, under the Treaties, not all the members of the Council participate in voting, a qualified majority shall be defined as follows:
(a) A qualified majority shall be defined as at least 55 % of the members of the Council representing the participating Member States, comprising at least 65 % of the population of these States. A blocking minority must include at least the minimum number of Council members representing more than 35 % of the population of the participating Member States, plus one member, failing which the qualified majority shall be deemed attained

you really need to actually read what I said and what the treaty says!