The case against the Treaty of Nice

national | miscellaneous | news report Thursday June 20, 2002 17:13 by THE NATIONAL PLATFORM jcoughln at tcd dot ie 24 Crawford Avenue, Dublin 9 6081898 / 8305792

Nice II is grossly undemocratic. it introduces fundamental changes to how we are governed and live our lives without adaquate discussion.

NICE TWO IS "CONSTITUTIONALLY SUSPECT" AND "UNDEMOCRATIC," said former Attorney General John Rogers SC. (Irish Times, 6 May 2002)

The Nice One referendum in June last year was a properly conducted constitutional referendum, in which voters rejected the Nice Treaty by 54% to 46%. The proper constitutional course after this was for the Taoiseach and Foreign Minister to respect the people's judgement, given "in final appeal" under Article 6 of the Constitution. They should have said to our EU partners at the Gothenburg summit one week later that, much as they regretted it, the Nice Treaty would have to be renegotiated because of the Irish result. But Germany's Chancellor Schröder said: "The Irish people will have to decide in a new referendum," (Irish Independent, 15 June 2001).

So Taoiseach Bertie Ahern and Minister Brian Cowen,ill-advised by their Iveagh House officials, said in effect to the other EU States: "You go ahead and ratify Nice and we will re-run the referendum to get a different result. We will use the fact of your ratification to put pressure on our citizens to change their vote." That is what they are doing now. It is probably unconstitutional and certainly undemocratic to put exactly the same Treaty to the Irish people again. In all previous Irish repeat referendums - Abortion, Divorce and Proportional Representation - there was some change in the substance of the second referendum proposal. Also, nearly a decade had elapsed between these first and second referendums. Nice Two, by contrast, will be identical to Nice One. The constitutional amendment must be exactly the same. To make believe that it is different the Government will wave a political declaration on neutrality from Seville. This has no legally binding effect and does not change the provisions of the Nice Treaty one iota. It is similar to the Government declaration on neutrality at the time of 1987 Single European Act Treaty.

This did not inhibit it from subsequently joining NATO's Partnership for Peace, EU Security and Foreign Policy and the EU's Rapid Reaction Force.
This declaration does not have the legally binding character of the Abortion Protocol negotiated at Maastricht, which protected Ireland's abortion law from being overridden by European law. Or the Protocol whereby Denmark opted out of taking part in or paying for EU military activities. That would have required a Nice Treaty renegotiation, which Germany did not want, and which Ireland did not seek, never mind insist on.

WE NEED AN HONEST DEBATE ON THE COSTS OF EU ENLARGEMENT

No group in Ireland is against EU enlargement in principle. Many are strongly in favour, so long as the Applicant countries get a fair deal that is acceptable to their peoples in fair and free referendums. Some would prefer a gradual enlargement, rather than a Big Bang simultaneous addition of 10 new States to the EU, especially as the East European countries are so different. Citizens are entitled to an honest debate on the costs of EU enlargement. These are five-fold:

(a) THE 2 MILLION POLISH FARMERS: As many as in the rest of the EU put together. What will be their effect on the EU Common Agricultural Policy, the CAP, Ireland's main economic gain from the EU?;

(b) MARKETS: Eastern Europe's markets are already open for us. EU enlargement means we open our markets to them.

(c) INVESTMENT: East European workers work at wages one-third of ours. They are highly educated and skilled. In some countries company tax-rates are lower than in Ireland. UCD economist Frank Barry told the National Forum on Europe that in an enlarged EU businesses could well move from Ireland to Eastern Europe, or new US and Japanese capital could be more likely to go there rather than here;

(d) MIGRATION: East European workers will be entitled under EU law to move freely to Western Europe, where wages are much higher, after 7 years. An Irish Times letter-writer claims that the Government has given assurances to the East European governments that their nationals can come to Ireland from their first year of joining the EU (see copy of letter below). If such a commitment was made, it was presumably at the height of the boom, when there was a labour shortage here. Economic conditions have now changed. What is the true position?;

(e) NUCLEAR POWER: Nuclear power is being phased out in most West European countries, apart from Britain and France. The East European Applicants are strong users of nuclear energy. Most have nuclear plants. Some have highly polluting ones. The enlargement of the EU from 15 to 25 is likely to shift the political balance among the EU Member States in favour of nuclear power and away from phasing it out, thus strengthening the nuclear lobbyists throughout the EU.

THE NICE TREATY IS NOT NECESSARY FOR EU ENLARGEMENT. ALL 10 APPLICANT COUNTRIES CAN JOIN THE EU ON THE BASIS OF CLAUSES IN THEIR INDIVIDUAL ACCESSION TREATIES, JUST AS IRELAND AND OTHER COUNTRIES DID.

EU Commission President Romano Prodi made this quite clear in the Irish Times on 21 June 2001, shortly after Nice One: "Legally, ratification of the Nice Treaty is not necessary for enlargement. It's without any problem up to 20 members, and those beyond 20 members have only to put in the accession agreement some notes of change, some clause. But legally, it's not necessary S from this specific point of view, enlargement is possible without Nice."

Declaration 20 attached to the Nice Treaty dealt with the allocation of Council of Minister votes and European Parliament seats for an enlarged EU of 27 Member States. This sets out the common position of the current 15 Members in their Accession negotiations with the Applicants. Being a Declaration, this is not an integral part of the Nice Treaty and so was not rejected by Irish voters in Nice One. The scheme set out there can be incorporated in the Accession Treaties of the Applicant countries.

Reapportioning Council votes and EU Parliament seats in the Accession Treaties is, after all, what happened when Ireland itself joined the then EEC, and when the EU/EC went from 6 Members to 9 to 12 to 15 in the past. It does not require the Nice Treaty, as Romano Prodi stated. The 1998 Amsterdam Treaty envisaged a gradual EU enlargement, with the new Members then taking part in revising the EU Treaties. Nice provides for radical changes in the EU, primarily to benefit the Big States, before any enlargement occurs. These Nice changes have the practical effect of making enlargement more difficult for the Applicant countries than under the existing Amsterdam Treaty

THE FUTURE OF EUR0PE AND IRELAND

The first-class/second-class EU membership provisions, losing Ireland's Commissioner, majority voting for appointing Commissioners, abolishing the national veto in 30 policy areas, and EU militarization, which are all in the Nice Treaty, constitute a kind of power-grab by the Big States in advance of any enlargement. We can decide whether we want them or not byanswering the following 5 questions:

1.DO WE WANT A TWO-SPEED OR TWO-TIER EU, DIVIDED INTO FIRST-CLASS AND SECOND-CLASS MEMBERS?

At present any major new development of the EU has to be unanimous. Thus the euro-currency had to be agreed by all 15 States, even though 3 chose not to join it. Similarly with the Schengen passport-free area. Nice abolishes this unanimity requirement. It permits an inner group of 8 States, which in practice will be a group led by Germany and France, effectively to hijack the EU institutions for their own purposes and to set up a political directorate that will be able to present the rest thereafter with continual political and economic faits accomplis - even if other EU Members disagree. . . On harmonising taxes in the eurozone for example, which Germany and France are now openly speaking about. Or putting the EU Court in charge of our human rights. Or even establishing an EU Federal Government. This is the legal path towards what Jacques Delors has called, "A Union for the enlarged EU and a Federation for the avant-garde." Attorney-General Michael McDowell advised the Government that these "enhanced cooperation" provisions of Nice make such a change in the original EU that they require us to amend the Constitution to enable them to come into force.

This proposed division is an end to the EU as a partnership of sovereign legal equals, a death-blow to the European ideal. For the essence of the concept of the EU as a partnership was that each Member State, large or small, had a veto on fundamental change. Nice abolishes that veto. It means that if we vote for Nice it will literally be our last EU referendum, our last chance to affect the development of the EU as a whole. For if we ever vote No to any future EU Treaty again, the others can ignore us and go ahead without us. For by ratifying Nice we give them permission to do that.

They cannot do that now. This could also divide us further, in due course, from our people in the North, as has happened with our membership of the eurozone. By voting No to Nice the Irish showed that it is we, not the Big States, who are the responsible Europeans. We voted No on behalf of all EU citizens to prevent the Big States dividing and effectively taking over the EU. The ordinary citizens in no other country were allowed a vote on Nice. If they had been, others would have rejected it too.

2. DO WE WANT AN EU IN WHICH IRELAND WILL PERIODICALLY LOSE ITS EU COMMISSIONER AND BE UNREPRESENTED ON THE BODY THAT PROPOSES ALL EU LAWS?

Nice provides for a Commission in an enlarged EU that is fewer in number than the number of Member States. EU Commissioners will rotate. Former senior Irish EU public servants Eamon Gallagher and John Temple Lang call this provision "a serious flaw" in the Nice Treaty - and as in no way necessary for EU enlargement. It subverts fundamentally the legitimacy of the Commission as the guardian of the common interest of the EU, and as the special guarantor of the interests of Smaller States. The Big States will also lose a Commissioner from time to time, but as Eamon Gallagher said to the National Forum on Europe in Dublin Castle, the Big States "have other means of defending themselves," e.g. through their greater Council of Ministers voting power. This provision of Nice is defended ostensibly by reference to the need for efficient administration in an enlarged EU. But how can proposals for new EU laws be acceptable to Member States that are not represented on the body that makes them? Democracy is sometimes more important than efficiency.

3.DO WE WANT AN EU WHERE THE IRISH TAOISEACH AND GOVERNMENT WILL NO LONGER HAVE THE FINAL SAY IN WHO THE IRISH COMMISSIONER IS?

Under the Treaty of Nice EU Commissioners will be decided by majority vote on the Council of Ministers, rather than unanimously as up to now. This means effectively that whoever is nominated to the Commission must be congenial to the Big States. That will be worked out through a process of bargaining over nominations between, say, the Irish Taoiseach and the qualified majority on the Council. Majority voting for appointing EU Commissioners was decided in the middle of the night on the last day of the 4-day Nice conference. There was no public discussion in advance. Coupled with the Nice Treaty provision that replaces unanimity by majority voting in appointing the Commission President, and the right of the President under Nice to shuffle and reshuffle Commissioners, it will profoundly affect the political dynamics of the Commission. It makes it much more like an EU Government or Cabinet, rather than the guardian of the common interest of the Member States.

4. DO WE WANT AN EU WHERE IRELAND LOSES ITS VETO ON 30 NEW POLICY AREAS, REPLACING IT WITH MAJORITY VOTING ON THE COUNCIL OF MINISTERS?

The areas include free movement of EU citizens, the financing of EU-wide political parties, joint actions and common positions in foreign policy, EU Structural Funds after 2007, trade in most services, and appointing the President of the EU Commission as well as EU Commissioners.

5. DO WE WANT AN INCREASINGLY MILITARIZED EU?

Under Nice the EU itself becomes a military alliance, able to operate without a UN mandate, although without as yet a mutual defence commitment. Nice vests control of the 60,000-soldier Rapid Reaction Force directly in the EU, instead of relying on the Western European Union (WEU), which previously acted for the EU in carrying out decisions with defence implications, and on which Ireland had observer status. Ireland has agreed to contribute 850 soldiers to the Rapid Reaction Force. Nice establishes a Political and Security Committee to exercise direct political control of these military operations. The EU Military Committee and the EU Military Staff will be responsible to this Committee. How is continual and permanent participation in these structures compatible with a policy of meaningful neutrality? In the Amsterdam Treaty Denmark negotiated a legally binding EU Treaty Protocol opting out of all involvement with the Rapid Reaction Force and its supportive political-military structures, including financial support for it. A political declaration has no binding legal force.

EMASCULATING THE REFERENDUM COMMISSION:

To help bias the Nice Two referendum in its own favour the Government has removed from the neutral, statutory Referendum Commission the job of setting out the Yes-side and No-side arguments. In Nice One there were substantial sums of public money behind these, through the Referendum Commission's advertisements, inserted on an equal basis. The Government has ensured that this will not happen in Nice Two by an amendment to the Referendum Act, which it put through all stages of the Dail and Seanad IN ONE DAY on the eve of rising for the Christmas holidays last December - when the mind of the media and public was elsewhere, and with one day's notice to the Opposition. The removal of public money from the No-side arguments through the Referendum Commission's advertisements, clears the way for massive Yes-side advertising by private interests in Nice Two.

These have vastly greater money than the No-side groups. Newspaper reports have stated that IBEC, ICTU, the EU Commission etc. have collected a fund of 2 million euros to help push through Nice Two. The Referendum Commission however still has the function of telling citizens what the referendum is about, although not the Yes-side/No-side arguments. That job is very important.

In Nice One the Referendum Commission's initial statement describing Nice made no reference to EU enlargement, implying that the Commission itself did not see Nice as primarily an EU enlargement Treaty. The European Movement protested fiercely to the Referendum Commission about this, so much so that they compromised in their subsequent publicity material by saying that "Governments are of the opinion" . . . that various changes proposed in Nice are necessary for enlargement. Nice Two will be a real test for the Commission. Will it be able to do a good and fair job? Will it tell us that Romano Prodi says that Nice is not necessary for EU enlargement? Will it tell us what it believes and understands itself, not just what Governments say?

WHAT WILL HAPPEN IF WE SAY NO TO NICE AGAIN?

If the political will exists among the EU States, as it clearly does, the EU will be enlarged, either gradually or all at once, by the insertion of appropriate clauses in the Accession Treaties of the Applicants. The contentious issues of Nice will be put off to the next, Year 2004, Treaty, when the new EU Members will have a say on them. Far from marginalising Ireland, our rejection of the Nice Treaty puts us politically at the heart of Europe. It means that we are preventing the EU "club" being divided into two clubs for the sake of the Applicant countries, for our own sakes and for the sake of the European ideal. We are seeking in effect to prevent the Big States from establishing a political directorate over the EU for their own power purposes.

During World War 2, a much more difficult time than now, previous Irish Governments resisted huge pressures from Britain and the USA to side with them in the war. That involved saying No to some very powerful people. The pressures from Germany and France to re-run the Nice referendum because they did not like the result of Nice One, are trivial by comparison. We remain full EU Members and we should demand respect for our democratic vote on the Nice Treaty. By saying No to Nice Two we force our Government to do their constitutional duty, which they should have done but failed to do last year after Nice One. If Ireland says No again, we will not only be punching above our weight in the EU, we will be the champions of small nations, including the EU Applicants, and be the voice of democracy.

If we reaffirm in Nice Two our democratic decision in Nice One, the EU will be the same after a No vote as it was before. We will still be in it as an active member. It won't fall apart, and neither will we. The politicans will have to think again. That is good for us. It would certainly be good for them. They might even consider making the next EU Treaty they are planning for 2004, simpler, more understandable and fairer to us, the citizens. It would be a wake-up call across Europe. We would gain not only new friends, but real respect within Europe.