Read: Essential Steps for the European Union after the 'No' Votes in France, the Netherlands and Ireland

From: Irish Foreign Affairs: Articles

Date: July, 2009

By: John Temple Lang & Eamon Gallagher

Essential Steps for the European Union after the 'No' Votes in France, the Netherlands and Ireland

We have created Europe. Now we have to create Europeans.
Bronislaw Geremek, Former Foreign Minister of Poland
Introduction
In the referendum on the Treaty of Lisbon in June 2008, Irish
voters who voted against the Treaty gave several specific reasons
as well as a variety of vague or general reasons that were unrelated
to anything that was in the Treaty. These vague or general reasons
are important because they probably were also significant influences
in the “no” votes in France and the Netherlands. Moreover,
they may be shared by a substantial but unknown number of
people in other EU member states who did not get an opportunity
to vote in a referendum on the Lisbon Treaty or the Treaty for a
Constitution. There were positive referendum results in Luxembourg
and Spain. Other countries promised referenda, but did not
hold them.
These vague or general reasons for voting “no” can best be
described as a distrust of the EU and a dislike of changes or
anticipated changes associated, correctly or incorrectly, with the
EU. Some of these reasons are imaginary, others are entirely
unrelated to the EU and many of them could be refuted by any
well-informed observer of the EU. But they cannot be simply
dismissed or ignored by any of the governments.
This distrust of the EU and the various reasons that are given
for it in public opinion polls are not confined to Irish voters or to
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voters in France and the Netherlands. What seems to be a similar
distrust, and apparently at least some broadly similar reasons for
it, exists to a greater or lesser degree throughout the EU. It is now
clear that this distrust is widespread and serious enough to
concern all 27 heads of State and government. The absence of
referenda in most member states that have ratified or still intend
to ratify the Lisbon Treaty should not reassure them. This distrust
cannot be assuaged by a short-term crash course informing the
public about the EU or about a treaty on which they might be
asked to vote. The lack of adequate knowledge of the EU makes
it possible for those opposed to the EU or to the treaty in question
to make statements that are patently untrue. And while it is
impossible to believe these statements were made honestly, they
have, nevertheless, influenced significant numbers of voters.
This problem must be tackled. If it is not, the EU will continue
to be distrusted and will not have the support that it needs.
The Laeken Declaration
The heads of State and government themselves identified the
problem in the Declaration of Laeken on 14-15 December 2001,
and pointed to a solution. They said that changes had to be made
that would bring citizens closer to the European design and
European institutions. The Convention on the future of Europe,
set up at Laeken, was instructed to propose measures to increase
the democracy, transparency and efficiency of the EU, but it
shelved any serious efforts at transparency to concentrate on
efficiency.
At the end of its deliberations, the Convention submitted a
draft treaty establishing a Constitution for Europe to the European
Council in 2003. This led to two proposed treaties which,
whatever their other merits, were extremely complicated and
difficult to understand. There seem to have been several reasons
for this:
- There was no committee on institutional questions during
the Convention. As a result, the institutional plans of Mr. Giscard
d’Estaing were not adequately discussed, and their implications
were not understood clearly, in particular by the representatives
of the smaller member states.
- Almost all those attending the subsequent intergovernmental
conferences followed the Convention draft and primarily
discussed institutional measures to make the EU a more effective
political force.
- The changes to strengthen the EU’s political role did not
bring foreign policy and security policy issues under the existing
decision-making process, the ‘Community method’. Instead they
confirmed the distinct intergovernmental method of decision
making, for foreign and security policy, and introduced a version
of that method in which the Commission has no role. The EU
would be the only international body in the world with two
entirely different decision-making procedures. This basic dichotomy
makes the whole structure far more complicated and far
less transparent and democratic.
Understanding the Treaty
- This complexity might not have mattered if the new Treaty
arrangements had been based on a clear and intelligible concept
or set of principles and if the reasons for them had been explained
clearly. They were not.
- The added complexity is not because the Lisbon Treaty has
been drafted as an amendment to the existing Treaties, rather than
replacing them, but is inherent in the institutional structure that
emerged from the Convention. The complexity therefore cannot
be resolved by having a consolidated version of the Treaties.
Greater power of Parliament
As a result, although under the Lisbon Treaty the powers of
national parliaments and of the European Parliament would be
increased and, therefore, in some respects the new institutional
arrangements seem more democratic, the aims of the Laeken
Declaration have not been fulfilled. The real or supposed gains in
efficiency and democratic control are not enough to offset the
institutional complexity that would result from an illogical compromise
that combines two different decision-making processes
in the same institutions. The other improvements are insufficient
and of too little interest to the general public to outweigh the
complex arrangements for foreign policy and security. The
intergovernmental decision-making process is essentially undemocratic.
Unfortunately the aims of the Laeken Declaration are not
optional extras or unnecessary luxuries for the EU. They are
essential for public understanding of the EU and for public
support for it. Before considering what now needs to be done,
some longer-term factors deserve mention:
- The original Treaty of Rome was never explained by
any document corresponding to the Federalist Papers, which
explained with great clarity the reasons for the design of the US
Constitution. There were 84 Federalist Papers, discussing a
Constitution of (then) seven Articles. A comparable explanation
of the EU institutions would be longer, because the EU, even
without the complications added by the Lisbon Treaty, is much
more complex. An EU policy Declaration, setting out the EU
objectives of peace, prosperity, and human rights in Europe,
environmental conservation, and generous aid to developing
countries would be valuable as a job description, but would not
be a substitute for carrying out the tasks that were agreed in
Laeken, and then put aside and never carried out.
The Community method of decision-making
- The Community method of decision-making comes from
mediation theory. It says, in short, that to make majority voting
acceptable to a heterogeneous group it is necessary to have all
proposals made by an autonomous body that is representative of
the group as a whole. Its proposals may be adopted by a majority
vote (in the EU, a qualified or weighted majority). But the
interests of minorities are safeguarded because of the impartiality
4
of the autonomous body and because its proposals may be
amended only by unanimity. The Community method also involves
democratic control by the European Parliament, and
judicial control by the Court of Justice. Once explained, this is not
hard to understand, but surprisingly it has never been officially
explained anywhere. So even the reasons for the well-established
Community method were not well or widely understood. This is
remarkable, because this method and the role of the Commission
are the foundation stones on which the Community was built in
1958, and they are the reasons why it has been accepted as the best
available way of managing European economic affairs. If the
method had been better understood, there would have been
greater unwillingness to depart from it. (In the Convention there
was a group of smaller states called the “Friends of the Community
Method”, but they did not stick to their position.) Because the
Community method means that the Commission must have the
exclusive right to propose new measures, the European Parliament
is not entitled to propose them. MEPs who are not aware of
the reasons for the method resent this. It is not surprising,
therefore, that many people are easily misled on this issue. Even
if everyone understood it, that would not explain the procedures
for foreign policy decisions under the recent draft treaties which
are based on the wholly different intergovernmental method.
- In all member states, governments have blamed ‘Brussels’
for unpopular decisions that they have been associated with and
that, in many cases, they have voted for. This inevitably leads to
incomprehension, dislike and distrust of the EU. The governments
have denigrated the institutions that they have helped to set
up and which they operate.
- In terms of democracy, the Lisbon Treaty would take several
steps in one direction and several steps in the opposite direction.
In the long-standing economic and social sphere of the ‘First
Pillar’, the Lisbon Treaty would introduce greater powers for the
national parliaments and the European Parliament. But in the area
of common foreign and security policy, no democratic safeguards
apply and there is no judicial control.
European Foreign Policy
Foreign policy measures would not involve national parliaments,
the European Parliament or the Commission. It is not
intended that the Commission be given any right of proposal in
relation to foreign policy measures. The two separate decisionmaking
processes that result from the Lisbon Treaty would give
rise to repeated controversy and litigation over which procedure
is legally appropriate for particular measures. Such an institutional
structure, whatever its merits, is extremely complicated,
and the opposite of what was called for in Laeken. Since it is clear
that the intergovernmental approach will apply to foreign policy
for the foreseeable future, it is crucially important that in all other
respects the EU institutions are as rational and intelligible as
possible.
What should be done?
Non-treaty measures
It is clear that all EU governments need to take a number of
measures to give effect to the Laeken objectives. Fortunately
there are many things that are clearly desirable and uncontroversial
and that can be done quickly without any change in the
existing treaties. They should be done as soon as possible.
Cumulatively they would make the EU institutions much more
easily understood, more acceptable and more interesting to the
public. These measures need to be taken by all the member states,
not only by France, the Netherlands and Ireland.
Public Discussions
The first and most important of these changes would be to
hold discussions in the European Council and the Councils of
Ministers much more frequently in public. This was envisaged
in the Treaty for a Constitution and in the Lisbon Treaty, so it
already has the agreement of the governments of all the member
states. It would make a great difference for the public to know
what was said and done during Council meetings and for the
media to be able to report on them. The Council is, in effect, one
chamber of a bicameral legislature (the other ‘chamber’ is the
Parliament) and legislatures should meet and debate in public.
This simple change would also enable national parliaments to see
what their Ministers were saying and how they were voting.
Everyone would understand better whatever difficulties there
might be in obtaining agreement.
A second simple, clearly desirable and non-controversial step
would be to establish a practice by which members of the
Commission (not only the Commissioner nominated by the
country in question) would routinely visit each national capital at
regular intervals to discuss current EU policies and Commission
proposals in public with members of national parliaments. This
should not be done only when an especially difficult or controversial
issue arises.
A third desirable and non-controversial step would be to have
regular meetings, in public, between MEPs (not only MEPs of the
country concerned) and members of the national parliament.
Again, this should be done regularly as a matter of routine, and
not only when controversies have broken out.
A fourth measure would be for the Commission to publish
papers on long-term EU policies and strategies explaining the
arguments for and against each possible policy or course of
action. This would help to inform public opinion before individual
issues arose on which Commission proposals are needed.
Unique position of Ireland
The combined effect of these steps would be very great even
if their influence on public understanding and opinion might not
be fully clear for some time. But if, as seems clear, Ireland can
expect to have referendums again in future, it is obvious that the
Irish government needs to do more than most other governments
to inform public opinion. In this respect, the Irish government is,
perhaps, in a unique position. More generally, the members of the
national parliaments and, in particular, e.g. the members of
committees of the Irish Parliament (Oireachtas) concerned with
EU affairs, need to be much more active and to spend more time
discussing and explaining the reasons for particular EU proposals
and policies, as well as explaining the views of the government
and the Oireachtas on them. When more Council discussions are
open to the public and national parliaments are discussing the
issues, there would be much more interest in the views expressed
and they would receive much more attention from the media than
they do at present.
All this would lead, and in Ireland could certainly be expected
to lead, to greater use of modern information technology. Individuals
would start to participate, either online or by talking to
their TD (a member of the lower house of the Irish Parliament, the
Dail), in discussions. The European Commission’s offices in the
member states could have websites or weblogs on which individuals
throughout the country could make known their views or
ask their questions. Politicians and Commission officials would
become aware, more clearly than they seem to have been in recent
years, of the questions and concerns of the average citizen.
Phone-in radio programmes and letters to the editor have a similar
effect but their capacity is limited by the time or space available.
5
It is worth pointing out to city dwellers that this would have a
tremendous effect in towns and villages far from capitals, and
even further from Brussels, from which farmers and fishermen
could email views, questions and criticisms. The democratic
potential of online communication is enormous, but it can only be
exploited if the people know what is going on and why.
If all this were done quickly, it would show that all governments
of all the EU member states have listened to what the “no”
voters in France, the Netherlands and Ireland were saying,
however confusingly.
These are the concerns that governments should be dealing
with rather than issues wholly unaffected by the Treaty of Lisbon.
Even if some additional guarantees were given to Ireland on
issues like abortion, neutrality or taxation, the problem of distrust
would be unresolved and such guarantees would leave the underlying
problem untouched.
It is only after distrust of the EU has been properly addressed
that EU governments could expect to have popular support for the
EU or for their own policies in the EU, or could ask for popular
approval of any new EU Treaty in a referendum. These suggestions
are necessary but not sufficient conditions for popular
understanding of the EU. When the Laeken Declaration has been
implemented as far as it can without Treaty amendment, the next
stage is to see what else should be done to make the EU more
democratic, more transparent and more efficient.
Maintaining a representative Commission
Since the Nice Treaty, it has been proposed that the Commission
should no longer be composed of nominees of all the member
states. Under the Lisbon Treaty, the Commission would be made
up of nominees of only two-thirds of the member states, “unless
the European Council, acting unanimously decides to alter this
number”. The full significance of this reduction in size has not
been widely or clearly understood in any of the member states. It
means that there would always be, for five years at a time, onethird
of the member states without a nominee in the EU’s policyproposing
institution, which is also the body that ensures that the
obligations of member states are carried out. Since there are six
large member states, there would always be two large states
without nominees, and those states at least (and no doubt others)
would be likely to say that they would not accept proposals or
decisions of a body on which they were not, in any sense,
represented. This would inevitably and seriously weaken the
Commission, and make it at all times less able to deal with
whichever states were without nominees.
One measure that would greatly help to overcome public
distrust of the Union is both important enough and conspicuous
enough to make a substantial contribution. That measure is to
restore the representative nature and integrity of the Commission.
As explained above, the rationale for having a Commission is that
the EU needs an autonomous body, equally independent of all the
member states and representative of the whole Union, to propose
EU measures and policies so as to make majority voting acceptable.
For this purpose the Commission must be composed at all
times of nominees (not representatives, because they must be
independent) of all of the member states, not just some of them.
In addition, none of the members of the Commission must be
subject to instructions from any other institution, whether the
Council, the Parliament or national governments of any of the
Member States. In short, the provisions in the Nice Treaty which
deprive member states of the right to nominate a Commissioner
at all times should be repealed and the Community method,
which worked so well for so long, should be applied to all
economic, social and police ‘First Pillar’ and ‘Third Pillar’
matters.
There are a number of reasons why this is now essential:
- The reduction in the size of the Commission is probably the
most important single reason for objecting to the Lisbon Treaty.
(The Nice Treaty had envisaged a reduction but did not specify
what the reduction should be, so it did not arouse the same depth
of opposition.)
- Restoring each state’s right to nominate a Commissioner at
all times would help to obtain or improve public support for the
EU in all member states and not only in France, the Netherlands
and Ireland.
- Restoring the right to nominate a Commissioner from each
state would avoid a situation that would certainly erode public
support for the EU in every state that finds itself, for five years at
a time, without a nominee. No surer way of provoking public
antagonism could be devised than to deprive member states of
their nominees.
- Restoring the full Commission would represent a genuine
and substantial improvement in the future institutional arrangements,
which have given rise to such widespread distrust.
- This would maintain the proven Community method that has
worked well for 50 years, which is based on a fully representative
Commission.
- It would ensure that the Commission can at all times stay in
touch with public opinion in all the member states.
- It would be the best, clearest and simplest single change that
could be made to convince voters that governments, not the
Commission, had really understood what voters are saying to
them. It was governments, not the Commission, that were responsible
for creating the Nice and Lisbon Treaties.
- It is a change that will be increasingly strongly demanded
anyway as the date for reducing the size of the Commission
comes nearer, and nine member states realise that they will have
no nominee on the Commission for five years.
- Only a Commission composed of nominees of all the
member states would be capable of fulfilling the Commission's
increased role and responsibility, which must be to ensure that the
EU and its policies are properly explained to, and understood by,
the peoples. It is now clear that much more needs to be done to
explain the EU to national parliaments. This needs to be done by
Commissioners. The argument that there is not enough work for
27 Commissioners is now clearly wrong; there is more than
enough work for all of them.
- It would avoid undignified and controversial wrangling over
which nine member states would be the first to lose their nominees
as Commissioners for five years.
- It would displease only those who want to reduce the
influence of the Commission, which is the guardian of the treaties
and of the legitimate interests of small states and states in a
minority on particular issues.
- Restoring the size of the Commission confers the same
benefits on all member states. It would not be a ‘concession’ to
Ireland, nor would it mean ‘cherry picking’ among the provisions
of the Lisbon Treaty. It is a change that would be widely
welcomed in all member states, and would avoid weakening the
Commission. (It is true that small states would benefit more than
big states, which need a Commissioner less.)
- As more countries join, as they must, the EU will become
more heterogeneous, and the need for an impartial policy-proposing
mediator to reconcile all the competing interests will be even
greater than in the past.
- Europe today needs leadership. An independent minded
policy-proposing think-tank is more needed than ever.
- Restoring the Commission to its normal strength also bal6
ances the re-weighting of votes in the Council in favour of the
large member states, in particular Germany, and makes it more
widely acceptable. This is discussed below.
- If the principle that each member state may nominate a
Commissioner was maintained, no referendum in Ireland would
be needed on this issue. A decision to maintain one nominee from
each member state would involve a change from the Nice Treaty,
but would not involve an amendment of the Lisbon Treaty
because, as mentioned above, the Lisbon Treaty empowers the
Council by unanimity to alter the size of the Commission. If
therefore it was expected that the Lisbon Treaty would come into
force, the Council could decide that each member state should
always have the right to nominate a Commissioner, and this
decision would come into force at the same time as the Lisbon
Treaty itself.
Maintaining the independence of the
Commission
As already mentioned, the Community method requires the
Commission to be representative of the Union as a whole, and
equally independent from all the member states. The independence
of the individual Commissioners is essential for the role, and
indeed the raison d’etre, of the Commission. That is why the
treaties have always stipulated that Commissions may not accept
instructions from any government or other body. If they did, they
would be unable to carry out their responsibility to propose
policies and measures in the interests of the Union as a whole,
including as far as possible any member state that may be in a
minority on any particular issue. It is also the reason why
Commissioners cannot be elected, just as judges should not be
elected.
A high representative for foreign policy
Unfortunately, some provisions of the Lisbon Treaty are
inconsistent with this basic requirement. They provide for a high
representative for foreign policy who would be appointed by (and
therefore responsible to) the Council, and who would be simultaneously
vice-president of the Commission and chairman of the
foreign affairs council. The effect of this would be, and was
intended to be, to reduce the independence of the Commission in
foreign commercial and economic policy, to place a key member
of the Commission under the direct control of the Council and to
take foreign economic policy away from the existing institutional
system, and make it essentially intergovernmental. (The way the
high representative is intended to operate is not clear: See Articles
18(4), 42(4) of the consolidated version ofthe Treaty, Council
document 6655/08.)
So the Lisbon Treaty not only envisages two entirely different
decision-making processes, but it also would introduce a hybrid
system involving mutually incompatible roles for the foreign
policy representative. The integrity and independence of the
Commission will not be restored only by ensuring that all
member states can have their nominees as Commissioners at all
times. It also requires that the role of the foreign policy representative
should be completely separate from the Commission.
Otherwise the Lisbon Treaty would involve, in this important
respect, a big step away from the Community method and the loss
of all the safeguards that the Community method provides.
In short, the proposals for a double-hatted foreign policy
representative are undemocratic, inefficient (because they create
conflicts), confusing and difficult to understand. They are also
incompatible with the Community method, which until now has
applied fully to the common commercial policy of the Community
and the Union. These proposals are one of the worst features
of the Lisbon Treaty.
It might be said, in the defence of the dual capacity of the
foreign policy representative, that there could be no objection to
the Council appointing a representative (which is true) and that it
is necessary that he or she is a member of the Commission, to coordinate
the work of the two bodies (which is not true). The
Commission, under the Community method, proposes policy to
the Council. If the views of the two bodies are inconsistent, the
Council can solve the problem, either by altering the Commission’s
proposal by unanimity or by inviting the Commission to
modify its proposal to solve the problem. There is no need for the
president of the foreign policy council to be a member of the
Commission, or to be a member of the Commission with special
powers. A foreign policy representative who was not also a
Commissioner could be appointed by the Council without a
change in the treaties. The only purpose of the dual role is to take
away from the Commission and the Community method, with all
its safeguards, the responsibility for proposing foreign commercial
and economic policy measures, and to enable them to be
managed by the Council, by an intergovernmental procedure in
which the large member states will have overwhelming influence,
if they choose to exercise it.
A serious defect
The mutually incompatible roles of Commission vice president
and president of the foreign policy council do not distort only
the relations between the institutions in connection with foreign
economic policy. As a member of the Commission, the individual
concerned should not be subject to the instructions of any other
body. And in particular he or she should not be subject to the
instructions of one of the institutions to which the Commission
may be obliged to make proposals that may not be readily
acceptable to some of the member states in the Council. The
likelihood of a conflict of interest arising, and the possibility of
influence that is inconsistent with the independence required of
Commissioners, are contrary to the Community method, whose
formula has made the European Union successful and acceptable.
The use of the intergovernmental method in foreign policy
matters is regrettable, but it is not new, and one day it may perhaps
be abandoned. The mutually inconsistent roles suggested for the
foreign representative are new, and damaging to the existing
institutional system. It is profoundly worrying that the dangers of
this suggestion have not been more widely understood.
This is a serious defect. It is not merely an undesirable and
unnecessary complication, although it is certainly that. To correct
this defect, it would be necessary to amend the Lisbon Treaty, to
keep the Council and the Commission separate, so that their
respective roles are clear and understandable. To see the role of
the foreign policy representative in context, it is necessary to look
at the other new post, the president of the Council.
The President of the Council
At present, the Presidency of the Council is held by each
member state in rotation for a six-month period. Under the
Lisbon Treaty, a long-term and full-time President would be
elected by the Council. This is said to be desirable for efficiency
and continuity, although the role and tasks of the President are not
defined. What is clear is that the President will not be elected or
subject to democratic control. Unless he is a mere figurehead, he
is almost certain, like the foreign policy representative, to work
closely in practice with the three largest and most influential
member states, Germany, France and the UK. So the Lisbon
Treaty would establish two new posts, clearly important although
their powers are undefined, in addition to the post of President of
7
the Commission. Such an arrangement, whatever its other merits,
is the opposite of the democracy and simplicity called for by the
Laeken Declaration and seems destined to lead to rivalry and
demarcation disputes between the three individuals concerned,
and their respective officials. It is certainly impossible to explain
clearly to the peoples of Europe, and indeed the only explanations
offered have been superficial and unconvincing. If the President
were to be elected by all the peoples of the EU, the post would be
intelligible even if his powers were unclear, but that is not
suggested.
Treaty amendments that would not require an
Irish referendum
There seems to be a widely held impression that any amendment
of the EU Treaties necessitates a referendum in Ireland. This
is incorrect, for several
reasons.
The first reason is that the Irish people in several referendums
have allowed Ireland to ratify treaties that clearly envisage
changes that affect, or might be thought to affect, the national
sovereignty of all member states. Such changes are envisaged
when new member states join the EU. The accession of any new
member state means that the proportion of the votes in the
Council exercised by each of the existing member states is
reduced, and this of course involves treaty changes. Other Treaty
provisions envisage that police and judicial co-operation matters
(‘Third Pillar’ issues) can be transferred from the former intergovernmental
procedures, requiring unanimity, to qualified majority
voting under the Community method. The treaties have
always included a provision under which, by unanimity, measures
could be adopted for purposes for which no mechanism was
expressly provided by the treaties (Article 235 of the Treaty of
Rome, now Article 308). So the Constitution of Ireland, as
amended by successive referendums expressly approving a series
of Community Treaties, authorises substantial changes in the
terms and operation of the EU treaties without any need for
further referendums. These changes, of course, can be made only
with Ireland’s consent: the point made here is that they are already
envisaged, and do not require a referendum.
The second reason why Ireland is free to ratify some changes
in the EU treaties without a referendum concerns the Crotty
judgement. In short, that judgement said that Treaty changes not
approved by previous referenda would require a further referendum
if they significantly restricted Ireland’s freedom of action
and national sovereignty in foreign policy. In retrospect, the
language of all three judges seems exaggerated. But, as is well
known, the Irish people by referendum approved the Single
European Act, including Title III, and since then have approved,
by referenda, the Maastricht, Amsterdam and Nice Treaties,
which provided for co-operation on foreign policy matters, and
which therefore restricted, to a limited extent, Ireland’s freedom
of action in foreign policy. It follows that only a very substantial
reduction in Ireland’s sovereignty or in its influence in the EU,
not already envisaged by any of the treaties approved by referendum,
would require a new referendum. If treaty amendments do
not alter the essential scope of objectives of the EU, no new
referendum is needed.
The re-weighting of the votes in the Council
The Lisbon Treaty provides for re-weighting of votes in the
Council. Where the Council is acting on a Commission proposal,
a qualified majority of the Council shall be “ ... at least 55% of the
members of the Council, comprising at least fifteen of them and
representing Member States comprising at least 65% of the
population of the Union.” This is the ‘double majority’ rule,
which is intended to replace the present system of weighted votes,
in particular to give Germany the additional voting weight to
which its size entitles it.
Ireland’s vote reduced
This is not to come into force until 2014, even if the Lisbon
Treaty were to come into operation soon. The effect, when it
comes into force, would be to alter Ireland’s weighted vote under
the population requirement from 7 votes out of 345 (just over 2%)
to 4.2 million out of 497 million (a ratio of just under 1%, but this
does not allow for the increase in the total EU population due to
further accessions or otherwise in the future).
The question may arise whether it would be permissible under
the Constitution of Ireland for Ireland to ratify a new Treaty
providing only for the adoption of the ‘double majority’, in the
same terms as Article 191 of the Lisbon Treaty. The question is
important because the large member states, in particular Germany,
are unwilling to agree to new states joining the EU until the
votes in the Council have been re-weighted, since at present the
smaller states collectively have more power than their populations
would justify.
In 1972 the Constitution was amended to allow Ireland to join
the European Community, and on some issues to be outvoted by
a qualified majority calculated in accordance with the weightings
set out in the Treaty at that time. These weightings were repeatedly
adjusted without controversy in Ireland on the accession of
a total of 18 more countries (and by the Treaty of Nice), and the
question may now arise as to whether they could be re-adjusted
by a clause of the kind included in the Lisbon Treaty without a
referendum. The effect, as already indicated, would be to reduce
the weight of Ireland’s vote from about 2% to about 1%. This
would be part of a rationalisation of the voting strengths to make
voting in the Council correspond to population size. Although
clearly reasonable, and indeed more democratic if the EU population
is looked at as a whole, small member states had previously
been given somewhat more voting weight (in Luxembourg’s
case, much more) than their populations suggested.
However, at no time was there ever an explicit formula or
rationale for the weightings, and they were always subject to
pragmatic arguments about the relative sizes of particular pairs or
groupings of member states. There would, therefore, be no basis
for saying that Ireland had a right to expect a vote of any particular
percentage of the whole, or to insist on the application of any
particular formula.
This is clear when one simple and obvious fact is taken into
account. When Ireland joined the Community in 1973, it was one
of nine member states and had 3 votes out of a total of 58 votes
(5.2% approximately). But the treaties envisaged the accession of
additional member states, and every time a new member state
joined, Ireland’s vote, as a percentage of the total votes, was
automatically reduced. Therefore, it is clear that Ireland had no
assurance that its vote, as a percentage of the total, would remain
at any particular level. Similarly, when Germany was reunited,
what had previously been a separate state became a part of the
Community, and it was certainly appropriate to alter Germany’s
voting strength accordingly, although this was not done until
later.
The question therefore is whether the suggested reduction of
Ireland’s voting weight from 2% to 1% as part of a re-weighting
of all member state’s voting rights, should be regarded as such a
significant reduction of Ireland’s influence in the Council that it
would require formal approval in a referendum. To answer that
8
question, it must also be kept in mind that the Council rarely takes
a decision by voting, and when it does, there must always be two
sets of member states under the double majority rule, in both of
which Ireland would always have a small proportion of the votes
available. The only circumstance in which the difference between
2% and 1% could matter would be if the two voting groups
were so evenly matched that there was only about 1% between
them. Such a scenario is mathematically possible but so extremely
unlikely as to be discounted. A reasonable conclusion is
that the proposed change, apart from being a democratic rationalisation
and a simplification of the voting rules, would not
involve any significant reduction in Ireland’s voting influence in
the Council and so would not require a referendum.
This conclusion is confirmed by the Supreme Court’s finding
in the Crotty case that the change from unanimity to qualified
majority voting for certain issues did not require a referendum.
The Court was careful to say that its finding did not imply that a
change from unanimity could never require a referendum. But a
change from unanimity to qualified majority voting is much more
significant than a relatively small reweighting of Ireland’s vote in
the Council. The re-weighting of the votes in the Council could
be done on the accession of the next state to join. It does not need
to be done before then, and the Lisbon Treaty is not necessary to
do this.
Conclusion
This paper points to a number of things that need to be done
to make the EU more comprehensible and acceptable to all its
peoples – not only the peoples of France, the Netherlands and
Ireland. The paper also points to steps that could be taken to
implement uncontroversial parts of the Lisbon Treaty by actions
not requiring treaty change, or by treaty changes that would not
need a referendum in Ireland. There are other matters that can be
similarly treated. In particular, we point out that there are very
strong arguments for maintaining the right of each member state
to nominate a Commissioner at all times. This could be arranged
by a simple amendment to the existing Treaty of Nice. If the
Lisbon Treaty is to be adopted, no treaty change would be needed
to maintain a fully representative Commission. We also call
attention to the fact that the re-weighting of the votes in the
Council, which is regarded as a prerequisite for further enlargement
of the EU, could be done by a simple treaty change without
a referendum in Ireland. Re-weighting would also make acceptable
the change from unanimity to qualified majority voting on a
number of matters. The French and Dutch governments avoided
the risks of second referenda on the Treaty for a Constitution
which was not significantly different from the institutional provisions
of the Lisbon text. For good or ill, the Irish government
has not got that freedom of manoeuvre.
The postponement of the Lisbon Treaty is hardly the disaster
for the EU that some of its advocates claim. The Union has
worked for 50 years with an autonomous Commission and a sixmonthly
rotation of the Presidency, and without a double-hatted
foreign policy representative. There is no good reason to believe
that work cannot proceed on new issues, including further enlargement
if Council votes are reweighted, with the same success
as in the past. It certainly seems unnecessary and undesirable to
make changes whose main effect would be to upset the institutional
balance and make the EU more complicated and harder to
understand, and so less acceptable to its citizens.
We believe that the EU will not be understood or accepted by
its peoples until Council discussions are made public, much
greater efforts are made by Commissioners to explain policies,
and one Commissioner for each member state is permanently
assured. We accept that for the foreseeable future foreign policy
and security will be intergovernmental, and will not provide the
safeguards for small member states given by the Community
method for other EU measures. Having two entirely different
decision making procedures is inevitably complex. Therefore, to
make the EU more intelligible, governments should now first do
what was agreed in Laeken, and make the institutional system
simpler and more open. That would mean revising the Lisbon
Treaty before it is ratified by any more countries, in particular to
get rid of the anomalous position of foreign policy Representative
in both the Commission and the Council. When those
simplifications have been carried out, it should be possible either
to have all member states ratify the revised and improved treaty,
or to have the elements of the improved treaty adopted as a series
of amendments to the existing treaties, for example at the time of
the accession of the next new member state.
It is said that governments do not want to renegotiate the
Lisbon Treaty. But governments should not, merely for their own
convenience, or because they think they know best, be unwilling
to do what is needed to make the EU understood and accepted by
its peoples. It is also said that the Irish people should not be able
to veto the Lisbon Treaty. But the French and the Dutch also voted
against essentially the same thing, and some other peoples would
do likewise. Even more important, the French constitution is now
being amended deliberately to give the French people a veto on
enlargement of the EU, the Union’s most important and most
successful policy. This development may have much more serious
consequences for the EU than the French, Dutch and Irish
votes against the Constitutional and Lisbon Treaties. If this is not
to obstruct dangerously the expansion of the Union, the French
government will have to do much to inform the French people.

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