This article was published in the Financial Times on 30 December 2008.
The ebullient performance by French President Nicolas Sarkozy in the European Parliament in mid-December rather glossed over the complexity of how to salvage the Lisbon treaty.
On the face of it, Mr Sarkozy had done well at the European Council the previous week.
The Irish premier Brian Cowen committed his government to a second crack at ratifying the treaty. This commitment had been demanded by Mr Sarkozy during his trip to Dublin in July, in the immediate aftermath of the Irish referendum. He had caused some affront on that occasion. Since then, Mr Cowen and his Fianna Fail party have had a difficult time as the embers of the lost referendum were raked over and the financial storm broke over Ireland.
The agreement between the Irish Taoiseach and the French President was a surprise to those who had been led to expect the European Council merely to scope the options of a deal, invoking a bit of seasonal melodrama. This would have left the embattled Irish leader to declare his struggle victorious only in June or July, once the municipal and European Parliamentary elections were out of the way. But the strong leadership of Mr Sarkozy forced the deal to be done there and then. Or did it?
The package agreed by the European Council consists of four elements. First, contrary to the provisions of the current Treaty of Nice, the European Commission is to continue to have one member from each of the EU’s state nationalities. Such a radical departure from the decision to reduce the size of the Commission to 18 is technically possible under the terms of the Treaty of Lisbon. But this reversal of policy is a big concession by those more federalist EU states which have long argued that a smaller Commission will be more efficient and less likely to be dominated by vested national interests. It also marks a concession by the larger member states which had already traded in a second Commissioner and accepted fewer seats in the European Parliament as their contribution to the Union’s overall constitutional settlement.
There are, of course, respectable arguments on both sides. Commission Vice-President Margot Wallstrom, in a departure from the official line, has long believed that what a small Commission would gain in efficiency it would lose in legitimacy. It is certainly true that the formula of Lisbon, which was for equal rotation in the Commission among member states, would have left the college from time to time without a French citizen inside it. It is, in truth, quite difficult to conceive of a Commission that would work well without a Frenchman.
It is also true that Ireland’s representatives in the constitutional talks have always complained about their possible exclusion from the Brussels executive.
Yet it would be foolish to think that December’s summit has resolved the issue of large versus small in the Commission for all time. A Commission of more than 30 members will not work unless a hierarchy is established within the college. Guess whose Commissioner will never be a senior member?
The second part of the Cowen-Sarkozy deal is that “necessary legal guarantees” will be formulated with the aim of ensuring that Ireland will continue to be free to make its own decisions in matters of taxation, neutrality and family law. Nobody knows what these necessary legal guarantees are. Over-interpretation can lead to misinterpretation. The treaty already means what it says, giving ample safeguards to Ireland by way of opt-outs on defence policy, Schengen, justice and home affairs. The treaty confers on the EU only certain competences, which are clearly defined. The Charter of Fundamental Rights is binding only within the scope of those conferred competences and within the limitations of the institutions’ treaty-based powers.
Mr Sarkozy declared with brio that a protocol or two can be glued on to the next EU treaty after Lisbon, which is expected to be the Croatian accession treaty. But the procedures for the EU’s enlargement to Croatia are less ponderous than those for a constitutional revision of the type required by Ireland. A hybrid treaty that attempted to deal with both Croatia and Ireland would risk being knocked down by the European Court of Justice. On the other hand, an Irish protocol bound as an afterthought to the Lisbon treaty would trigger a new intergovernmental conference (risking a wider renegotiation) followed by national ratification, yet again, in all 27 member states.
In 1992, when a Danish referendum had blocked the entry into force of the Treaty of Maastricht, an elaborate package was concocted, involving a decision of the heads of government made under international law (rather than EU law), alongside two declarations of the European Council and a unilateral declaration by Denmark. But the Danish precedent is not wholly apt because Denmark was seeking, and getting, real opt-outs – a course not open to Ireland today. So instead of Mr Sarkozy’s legally binding protocols, Mr Cowen will have to settle for appropriately solemn declarations which the EU and Irish courts may use in the future to interpret accurately certain treaty clauses hitherto, at least in Ireland’s populist democracy, interpreted erroneously.
A further element of the deal at the European Council is that “high importance” will henceforward be attached to social progress and the protection of workers’ rights. This was a hard nut for Britain’s Labour prime minister Gordon Brown, in particular, to swallow. Negotiations went on all night between officials before the British were reassured that this new posture of the European Council would not materially affect the standing of the EU in domestic labour law. At the same time, the Irish had to be given satisfactory confirmation that the treaty does not mean that the right to deliver public services will be surrendered to Brussels.
Lastly, as always at these events, seats in the European Parliament were traded to sweeten the deal. The Parliament elected next June will have 736 MEPs. Thereafter, once Lisbon comes into force, the extra seats foreseen in that treaty will simply be added, making an eventual total size of 754. A tricky agreement will have to be reached about how to choose these lucky extras. Moreover, the principle of degressive proportionality which is supposed, under Lisbon, to guide the distribution of seats between states is comprehensively abused. Parliament will have to insist that the derogation from primary law is only temporary, until 2014, by which time a radical overhaul of Parliament’s electoral procedures will have to be agreed.
MEPs will also be bound to take a hard look at the timetable and procedures for the appointment of the new Commission. Parliament will be unhappy to begin the election of a new Commission in July without knowing what the competences of the Union and the powers of the institutions are eventually to be. And it will only be once the Irish have voted again in October that we will know whether one of the new Commissioners is to be Portuguese.
So there are still choppy seas ahead for the European Union, steered from 1 January by the Czech Republic – which, with Ireland, is the other country not yet to have ratified Lisbon. Happy New Year.
The European Council on Foreign Relations does not take collective positions. ECFR publications only represent the views of its individual authors.