Three scenarios for the Lisbon treaty

Bulletin article
01 August 2008

Eurosceptics make a good point when they argue that the EU should concentrate on external challenges like climate change, energy security, migration and global trade. But Ireland’s vote against the Lisbon treaty means that the EU now has to devote more time and energy to sorting out its rules and institutions. Those who urge the EU to look outwards but celebrate the Irish No are inconsistent and hypocritical.

The demise of the Lisbon treaty would not be a catastrophe. Europe works fairly well in many areas with the current treaties. It continues to integrate and achieve results, through building intergovernmental bodies (such as Eurojust, the European Defence Agency and the intelligence-gathering Situation Centre), through practical co-operation on particular problems (such as the diplomacy over the Iranian nuclear problem) and through new laws (such as the European arrest and evidence warrants, the emissions trading scheme and the liberalisation of energy markets).

But Europeans would still be much better off with the Lisbon treaty. It would reform the currently dreadful arrangements for managing the EU’s common foreign policy. The switch to majority voting on justice and home affairs (JHA) would improve the quality of decisions in that area. And the treaty would give a bigger role to national parliaments in EU decision-making. Most EU governments want to save the treaty, and rightly so.

But can they? Three scenarios are possible. First, the Irish government may decide to hold a second referendum. New documents would reassure the Irish that the EU cannot affect their neutrality, tax rates or rules on abortion. And EU leaders would promise to scrap the plan to cut the number of commissioners to less than one per country. The Irish – like many Europeans – do not want to lose ‘their’ person in Brussels (legal experts say the Lisbon treaty would permit the governments to decide to keep one commissioner per country). If the Irish vote yes on the second attempt, the treaty will become law, though the timing matters. Unless Ireland ratifies by April 2009, the elections to the European Parliament in June, and the appointment of the new Commission in October, will take place under Nice treaty rules (which allow no more than 26 commissioners).

Second, the Irish government may say that it cannot hold another referendum. The French presidency and other governments will put Ireland under huge pressure to try and ratify the treaty. If Ireland’s leaders say no they would become extremely unpopular with other governments. But the rest of Europe would have to respect their decision and bury the treaty.

EU governments would then try to salvage the few parts of the Lisbon treaty that could be implemented without its ratification. Thus the Nice treaty permits a switch to majority voting on JHA. The High Representative could not merge with the external relations commissioner to create a revamped High Representative, as foreseen in the Lisbon treaty. But the EU could go some way towards constructing the planned ‘external action service’ by co-locating the relevant Council and Commission officials.

The EU governments could use the Croatian accession treaty – expected in a couple of years – to help their salvage operation. All accession treaties have to adjust EU voting rules, but they are not normally put to referendum. At the moment, France and Germany say they will block further enlargement until the Lisbon treaty is ratified. But that line would probably change if Croatian accession offered the chance to save parts of Lisbon. Evidently, the EU could not credibly use an accession treaty to transfer powers from the member-states to the EU, for example through more majority voting. But an accession treaty could introduce the ‘double majority’ voting rule and create the new High Representative.

Such use of an accession treaty would be politically controversial, and EU leaders would haggle over the contents. But if Lisbon was dead, they would not want to negotiate a new treaty from scratch, and they would see the arrival of the Croats as an opportunity.

The third scenario, the most poisonous, would lead to internal divisions and make it hard for the EU to look outwards. If the Irish held a second referendum and voted no again, many EU politicians would call for Ireland to accept a semi-detached status, on the Swiss or Norwegian model. The Irish, presumably, would demur. Could the EU kick out Ireland? A CER pamphlet of 2005, ‘What happens if Britain votes no?’, argues that the EU could force out a recalcitrant member-state – but only if all the other governments were determined to press ahead with complex and brutal legal procedures.

That would not apply if Ireland voted no a second time. Several countries – including Britain, and some Nordic, Baltic and Central European states – would block any attempt to push out Ireland. They would be right to do so. The EU is a community built on law, and the rules state that one country – however annoying it may be – can block any new treaty. Of course, France and others would be free to try and set up avant-garde groups in particular areas. But a two-speed Europe, in the sense of a leadership group that integrates closely across a broad range of policy areas, ranging from defence to the euro, would not be feasible. A two-speed Europe would be incompatible with the EU’s legal order, and in any case Ireland is in the euro. So the third scenario leads to the same place as the second: an attempt to salvage bits and pieces of the Lisbon treaty.

Irrespective of whether Lisbon is ratified, for the foreseeable future the EU is highly unlikely to try and adopt another big, comprehensive treaty. More plausible would be ‘sectoral’ treaties, for example to give the EU a more effective foreign, energy, or migration policy. The point of a sectoral treaty would be to deal with a specific problem, enabling voters – hopefully – to see the rationale for treaty change. As successive referendums on the Maastricht, Nice, constitutional and Lisbon treaties have shown, politicians find it hard to explain to voters why the EU needs general treaties that touch upon dozens of sectors.

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