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Current Concerns - The monthly journal for independent thought, ethical standards and moral responsibility - English Edition of Zeit-Fragen
No 5, 2002
01 Aug 2014, 01:50 PM
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Facts Regarding the Nice Treaty and EU Enlargement

Sir, Professor Brigid Laffan writes (15 May) that the Nice treaty was negotiated to permit EU enlargement. How does she reconcile that statement with the following facts?

Nice replaces unanimity by qualified majority voting on the EU Council of Ministers in some 30 policy areas. These include the appointment of EU Commissioners, the funding of EU-wide political parties, international trade in services, the implementation of agreed foreign policy joint actions and common positions, and the rules of the EU structural funds. What have these to do with EU enlargement?

Nice abolishes the right of each member state to have one of its nationals on the EU Commission in an enlarged EU. Former Irish EU officials Eamonn Gallagher and John Temple Lang have characterised this provision as ‘a serious flaw’ in the treaty and as in no way necessary for EU enlargement. They see it as a dangerous erosion of the legitimacy of the Commission as the guardian of the common EU interest, and particularly disadvantageous for small states like Ireland.

Nice permits the division of the EU into first-class and second-class members by permitting eight or more EU members to ‘do their own thing’ and to use the EU institutions for that purpose, even though the other members disagree. Examples would be harmonising taxes among themselves or making the EU Court of Justice the final determinant of their citizens’ human rights.

Eight out of 15, or eight out of 20, or eight out of a possible 27 in an enlarged EU. This ends the EU as a partnership of legal equals, in which each state has a veto on fundamental change. At present the other EU states cannot go ahead and agree special arrangements among themselves without Ireland’s permission. These ‘enhanced cooperation’ provisions of the Nice treaty would allow them to do that in future.

It is these provisions which make up the new constitutional matter that requires a referendum in Ireland if Nice is to be ratified. There is no need for us to change our constitution to permit EU enlargement, anymore than we had to hold referendums on previous enlargements.

These provisions for what would effectively become a two-tier three-tier EU are not necessary for enlargement. They were brought into the treaty negotiations by France and Germany at the Feira EU Summit after the Intergovernmental Conference (IGC) to consider the implications of enlargement had  been set up. Their political purpose is to enable the big states, Germany and France in particular, to establish an inner directorate in an enlarged EU, which can then confront the rest with continual political and economic faits accomplis. They provide the legal path towards what M. Jacques Delors called for in 2000: ‘A Union for the enlarged Europe and a Federation for the avant-garde.’

Nice militarizes the EU in a new way by making the EU directly responsible for the first time for the 60,000-soldier ‘Rapid Reaction Force’ and the associated EU Military Committee and EU Military Staff, instead of using the Western European Union as the agent of the EU in military matters, as was previously the case. Again, what has this to do with EU enlargement?

The Treaty of Amsterdam says that if the EU enlarges by even one state, the big states will lose one of the two Commissioners each now has, but will be compensated by increasing their relative voting weight on the Council of Ministers or by taking their population size into account in such votes. That does not require a further EU Treaty. It is why Commission President Prodi told the Irish Times last June that ‘enlargement is possible without Nice’, and that the EU can be enlarged  by 10 or more applicant countries on the basis of their individual accession treaties, as happened with previous enlargements.

Nice both increases the relative voting weight of the big states and introduces a population criterion for council votes from January 2005, irrespective of whether EU enlargement has occurred by then, and irrespective of the number of new member states. The allocation of council votes and Euro-Parliament seats for the 12 applicant countries is set out in a declaration attached to the Nice treaty as the common position of the 15 members in their negotiations with the applicants. This is not legally part of the treaty proper. It was therefore not rejected by Ireland when we voted no to Nice last year.  There is no reason why the applicant countries cannot join the EU on the basis of the proposals in this declaration.

The logic of these facts would seem to be that the non-contentious parts of Nice should be put into another treaty which does not require a constitutional referendum in Ireland. The contentious parts, such as the ‘enhanced cooperation’ provisions, should  be left to the Year 2004 Treaty now being discussed in the EU convention, when the applicant countries can have a say on them as full EU members. May I suggest that this is the course the government should insist on vis-à-vis its EU partners, if it is to do its constitutional duty in the light of last year‘s Nice referendum result.

Anthony Coughlan, Secretary, The National Platform; published in Irish Times

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