The Gurantees: Comment by Jens-Peter Bonde

An arranged drama and roles played to perfection for the Emperor's New Clothes

"They cannot claim a legally binding victory and then avoid the necessary ratification together with the Lisbon Treaty. Under EU law a protocol is only legally binding when it is ratified by all Member States. There is no other way."

On Friday 19th June 2009, a little before 3.00 p.m. the Taoiseach, Brian Cowen entered his briefing room in the Justus Lipsius building in Brussels to claim a big political victory.

“We came to have legally binding guarantees, and we got them”.

The Irish Government had arranged a drama with the Council Presidency and the British delegation by leaking a confidential letter from the Irish Prime Minister to the other Prime Ministers. He asked them to support a legally binding protocol on Irish concerns, to enable him to call and more importantly, to win a second Lisbon referendum.

The British played their role to perfection. It would be very difficult to deliver that to the Irish. The negotiations could not be finished on the first day. Both Brown and Cowen would have to work through the night in order to bring these very difficult negotiations to a conclusion. There were loud echoes of the antics leading to the Nice II Council agreement. And what was the result of all this hard work? Well, a document that was actually finalised some days before.

The press was then invited to play their role in what looked like a re-play of the famous fairy tale of Hans Christian Andersen: The Emperor's New Clothes. Claim a big Irish victory to help the Irish Prime Minister convince the Irish voters to change their No into a Yes.

There is no real content in these so-called Irish guarantees. But they will be inserted in the next treaty following the implementation of the Lisbon Treaty. It may be the next accession treaty with Croatia, provided the border dispute with Slovenia is solved. It could also be included with a new protocol changing the numbers of seats in the European Parliament. Any treaty can include a document or part of a document called ‘Ireland and the Treaty of Lisbon’.

That will make it legally binding. Until then it exists simply as a political agreement between prime ministers to agree on something at some point in the future. This is possible politically, but not legally. No government can bind the next government, just as no parliament can bind voters to give support for this Protocol.

If the government insists that the agreement made on 19th June is legally binding, then there is only one way forward: to open the ratification process on the Lisbon Treaty again and have all 27 Member States sign and ratify an amended Lisbon Treaty. They cannot claim a legally binding victory and then avoid the necessary ratification together with the Lisbon Treaty. Under EU law a protocol is only legally binding when it is ratified by all Member States. There is no other way.

So while the guarantees change nothing, they establish enough legal uncertainty regarding the interpretation of existing treaty articles to render it legitimate to require new ratifications in all Member State parliaments.

Lawyers will support this argument. For example Leolin Price CBE QC has said that: “The Lisbon Treaty is not yet in force. To be in force it requires ratification by all ‘Member States’. The Irish ‘No’ means that the present position in domestic UK law is that the Treaty is not yet operative and does not have any relevant legal status”.

Changes to the Treaty to help the Irish Government get the Irish ‘No’ replaced, in a Second Referendum, by a new Irish ‘Yes’, will mean that existing ratifications by Member States, including the UK, will be without effect; and re-ratification of the Treaty including the changes, will be necessary in order to give the changed Treaty operative effect and status under UK law.

‘Guarantees’ given to the Irish, or new ‘interpretations’ which change the effect of the Treaty have the same consequence as any more formal changes: they make existing ratifications irrelevant and require reratification by all Member States which have so far given their ratification. In particular the UK ‘ratification’ already given will not be effective and under UK law there will have to be a new ratification in order to give any effect to the Treaty. So, there may be some moves to re-ratify in some Member States.

In 1992 the Danish Government tried to bind a future Danish parliament by ratifying a change to come at a later day. A professor of State Law, Henrik Zahle, issued a memorandum against “giving up sovereignty in advance”. The result was that the Danish Government had to withdraw this future decision from their Referendum Bill and give a free hand to future politicians. It is just as illegal to try to bind future politicians as to include the guarantees in a future treaty. So, the Irish Government will claim that the guarantees are legal under international law. The agreement will be sent to the Register of International Agreements at the United Nations and thereby will become legally binding between governments.

However, this is a breach of the Lisbon Treaty Art. 344 and of a similar rule in the Nice Treaty, forbidding Member States from settling conflicts of interpretation outside the EU institutions. There is only one court that is able to settle conflicts between EU Member States, and that is the European Court of Justice (ECJ) in Luxembourg.

The European Council has now made a ‘decision’ of the prime ministers and presidents of the EU Member States. This “decision” changes absolutely nothing in the treaties. If it did change anything, even the smallest change could only be validated through new ratifications by all 27 Member States in their national parliaments or by referendums.

The Irish “assurances” or guarantees include an explicit statement that “these concerns (are) in conformity with that treaty”. This is the core sentence in the Summit document. In the so-called “Irish assurances” not one single comma in the Lisbon Treaty will be changed. Neither is this “decision” of the EU summit signed by the heads of state and government. In legal form it is simply an Annex to a Summit Declaration which, in contrast to a Treaty Protocol, is not binding in EU law. The “decision” is followed by a common “solemn declaration” which may express the intentions of the politicians taking part. It does not however prevent politicians at future summits changing these “assurances”.

Finally, the government has its own Irish Declaration. A unilateral Declaration of this kind has to be interpreted as a statement of position by one state which the others do not necessarily agree with. If they did agree to it, it would have been part of the joint declaration or the earlier “decision”, in the name of all 27 Member States.

In summary then, there has been no change to the Lisbon Treaty. If there had been, it would have to be re-ratified in the Member States that have already ratified it and we see no sign of that being proposed.

~ By Jens-Peter Bonde
President of the EU Democrats
Member of the European Parliament from 1979-2008
http://www.bonde.com