June 14, 2008
It wouldn’t be Nice if the Irish had voted for Lisbon
The voters of the Republic of Ireland have rejected the Lisbon Treaty (officially the Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community) in the referendum held on June 12. According to the rules of the EU, as found in the Nice Treaty, this means that the Lisbon Treaty cannot come into effect, as the unanimous ratification of the Treaty by all EU member states is required for this.
No point moaning that 4 million Irish cannot be permitted to thwart the will of 490 million other Europeans. That argument is bogus and dangerous, even if the 8 remaining EU member states that have not yet reached a formal decision on the Lisbon Treaty were to ratify it - something that is by no means a done deal. The rules for ratification of the Treaty were clear. To change the rules when you are losing is a violation of the rule of law. Respect for the rule of law is even more important than the fate of the Lisbon Treaty.
The Lisbon Treaty had all the charm and appeal of the Manhattan Yellow Pages: the Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the
European Union, plus Protocols, Annexes and Declarations runs to 392 pages. Trying to read it is like having root canal work done without the benefit of novocaine. Nevertheless, I regret its demise. I am a European federalist, and the Treaty of Lisbon would have represented a small further step towards a federal Europe. Now that process has suffered a setback and precious years will be lost in the swamp of European nation state irrelevance.
It is, however, important that the death of the Lisbon Treaty is acknowledged in Brussels and in the national capitals that favoured the Treaty. Trying to achieve a resurrection of Lazarus for the Lisbon Treaty by telling the Irish people: “keep on voting till you get it right”, would be both contemptible and counterproductive. This tactic worked once, when the Irish voters rejected the Nice Treaty in May 2001, held another referendum in October 2002 and passed the Treaty on that occasion. It will not work again. If it were to be attempted, I am certain that many of those who did not vote this time, and quite a few of those who voted in support of the Treaty, would want to hold up two fingers in the direction of the would-be bullies of Brussels, Paris and other corners of the continent.
When the European Constitution (officially the Treaty establishing a Constitution for Europe) was rejected in referenda in France and the Netherlands in 2005, plan B was to bury the Constitution pro forma, but to resurrect it without substantive modifications as the Lisbon Treaty (that, incidentally, is why the UK should have had a referendum on the Lisbon Treaty, and ought to have one even now - the government had promised a referendum on the European Constitution; reneging on that commitment after changing the name of the Treaty but nothing of substance, is dishonourable). Plan B has now back-fired. Both the form and the substance of the European Constitution are now dead. There is no plan B for the Lisbon Treaty (or plan C for the Constitution).
So what will happen? The EU will muddle on with the Nice Treaty. It has not led to gridlock thus far. It will not lead to gridlock in the future. Certainly, many of its institutional arrangements and decision-making bodies and procedures are ill-designed for an EU of 27 members.
I am sure love will find a way. There will be informal institutional adaptations and a proliferation of constitutional ‘common law’, born out of practice. The UK has evolved its largely unwritten constitution in exactly this manner. We have already seen it with the Eurogroup, the ministers of finance of the 15 full EMU members, which has taken over most of the power and many of the functions of Ecofin, the ministers of finance of the 27 EU members. There is no mention of the Eurogroup in any of the Treaties. The Lisbon Treaty would have been the first to officially recognise its existence. But it exists and it works. There will be many more such informal developments as the written Treaty arrangements and institutions become intolerable constraints on desirable actions an policies.
There will be a further impetus given to a multi-speed Europe (where every member state arrives at the same destination eventually, but not necessarily at the same time) and even to Europe-à-la-carte (where there may be permanent differences in the degree of integration along some dimensions). Of course already have a multi-speed Europe. Only 15 of the 27 EU members are also full members of the EMU. The rest have derogations from or, in the case of the UK and Denmark, opt-outs from the requirement to progress to the third stage for achieving economic and monetary union (to adopt the euro and join the Eurosystem). Indeed, with the opt-outs from stage 3 of EMU for the UK and Denmark, we already have a potential Europe-à-la-carte in the existing EU. Only 13 EU member states (plus Norway and Iceland) are part of the Schengen arrangement.
Enhanced cooperation
It is possible that a greater recourse to multi-speed Europe will be achieved through the enhanced cooperation arrangements. The Treaty of Amsterdam first brought the “enhanced cooperation” concept into the Treaty on European Union (in connection with regards judicial cooperation on criminal matters) and into the Treaty establishing the European Community (under the EC Treaty the initiative for enhanced cooperation is taken by the Commission at the request of the member states concerned; under the EU Treaty the initiative comes from the member states). In either case, enhanced cooperation is subject to a decision of the Council, acting by a qualified majority.
The Treaty of Nice introduced major changes. In particular, a Member State may not oppose the establishment of enhanced cooperation (except in the area of foreign policy). This matters because it removes the national veto over the enhanced cooperation proposals of other member states . Does this mean that if, say, 26 member states were to ratify the Lisbon Treaty, but Ireland did not, they could simply adopt the Lisbon Treaty for themselves and leave Ireland to potter along with the Nice Treaty?
If it ever were to come to that, the issue would no doubt end up in the European Court of Justice. I am not a lawyer, fortunately, but it seems unlikely that proceeding to create an EU of 26 countries under the Lisbon Treaty under the enhanced cooperation cloak would be compatible with the existing (Nice) Treaty. It also would not be Nice. According to the existing Treaties, enhanced cooperation may not constitute discrimination between the participating states and the other(s). Enhanced cooperation has to respect the single institutional framework of the Union. In addition, the actions and decisions taken under enhanced cooperation cannot become part of the EU acquis itself. (Less relevant, for the issue under consideration, is that enhanced cooperation must further the (Nice) Treaty objectives, must respect the whole of the acquis communautaire and the powers of the various parties, and may not apply to an area that falls within the exclusive competence of the Community).
There are further constraints on using the threat of enhanced cooperation by the member states that ratify the Lisbon Treaty as a stick to beat Ireland with. Enhanced cooperation does not allow extension of the powers as laid down by the existing Treaties. The general arrangements for enhanced cooperation require at least eight member states to be involved in enhanced cooperation (the arrangement must also remain open to any member state that wishes to participate). Also, while enhanced cooperation may involve the areas of the common foreign and security policy (CFSP), it cannot touch on military or defence matters, so the 26 could do nothing to threaten Ireland’s neutrality.
So the EU will muddle on, until events, dear boy, events will make it clear even to the most dedicated eurosceptic that there are a number of policy areas that can no longer be managed effectively even by the largest EU member state at the national level. For some of these, intergovernmentalism may suffice. Most, I would argue, require a supranational solution. For the UK and the other European nation states, the EU is the only currently available supranational solution framework.
The policy areas that will have to be transferred to the EU level include foreign policy, defence, immigration, environmental policy addressing border-crossing externalities like global warming, energy security, monetary policy, financial regulation (a common framework and, for financial institutions with significant cross-border activities, a single regulator/supervisor), and policies towards tax havens and regulatory havens. No doubt I have left out a few.
The logic of border-crossing externalities and border-crossing economies of scale for the above-mentioned policy areas is so blatantly obvious, that even the English will eventually recognise it - the rest of the British do already. Perhaps not in my time. But here’s hoping!
I am curious: reneging on the commitment to hold a referendum, after changing the name of the treaty but nothing of substance is dishonourable, but allowing European “common law” to develop a set of informal institutional arrangements that exactly mimic what would have been formalised by the doomed treaty is less so?
Conclusion: the idea of a referendum was inane, voters might as well have been asked if they accept the laws of physics. If not, the earth would of had to be sent on a different trajectory.
Posted by: Ron Cohen-Seban | June 14th, 2008 at 8:15 pm | Report this commentVery true! a good answer to both the crowd of sad committed european and to a certain british press (is there an english word for Schadenfreude?). Life goes on since anyway EU institutions mostly decide by consensus!
On the variable geometry Europe idea, a way forward could be to re-use the core Europe or concentric circle Europe concepts, expressed at an other uncertain time (1994) by the German MPs Schauble and Lamers. After a long debate in the 1990s, France and Germany seemed to agree on that principle in 2001: Chirac presented it at the Bundestag (under the name “groupe pionnier”) after Joshka Fischer had made a clear and acceptable proposition at Humbolt university in Berlin (”gravity center”). Many “great europeans” have made or agreed to similar propositions, albeit on a more federalist vein: Jacques Delors, Angela Merkel, Helmut Schmidt and Giscard d’Estaing. But the proposition disappeared for the latter’s Constitution.
Now that this saga seems over, it might be useful to restart where all was abandoned. I am not sure that Mr. Sarkozy will prove European enough to come up with such a proposal, even if it may be a solution to his Turkish obsession and to the pledge to make the French vote in case of any further enlargement (Ukraine, Macedonia and the other: Brace, your faith depends on the number of traffic enforcement cameras, the size of bus lanes in Paris and the price of Camembert!).
Posted by: Sebastien Morard | June 14th, 2008 at 9:29 pm | Report this commentI agree with much of what Professor Buiter says on this topic.
In particular, I too believe that there will be a further impetus to a multi-speed Europe (where every member state arrives at the same destination eventually, but not necessarily at the same time) and to Europe-à-la-carte (where there may be permanent differences in the degree of integration along some dimensions). Though, here I would add Liechtenstein and Switzerland (through a referendum vote) to the countries that have accepted Schengen.
Having 26 member states ratify the Lisbon Treaty, but leaving Ireland on the Nice Treaty? That would also be impractical. How could one have a two-and-a-half-year president of the European Council for 26 members, and a six-month rotating presidency for Ireland? I understand that EU Commissioner Günter Verheugen has already pointed to such practical problems.
Posted by: Edward S | June 15th, 2008 at 2:11 pm | Report this commentA nice article.
I think the root of the difficulties here is that the European project is not bottom-up change, but rather the result of leadership from the top. The leaders are right though. It is a wise and sympathetic vision. As a young European I am extremely grateful to be living in a free, internally peaceful and prosperous Europe.
The problem with top-down change is that the visionaries often fail to sufficiently motivate it to everyone else affected by it. This needs to be done better. It is not clear to me what incentives member state leaders have for doing this though. Furthermore, the journalistic reporting on European-level affairs is sparse and poor (with the FT a notable exception), presumably because the media tends to be national. Those two issues (incentives for member state leaders, media) need to be addressed.
Posted by: Oscar D | June 15th, 2008 at 6:57 pm | Report this commentI think the root of the difficulties here is that the European project is not bottom-up change, but rather the result of leadership from the top. The leaders are right though. It is a wise and sympathetic vision.
Posted by: Robert Carruthers | June 16th, 2008 at 9:30 am | Report this commentPosted by: Oscar D | June 15th, 2008 at 6:57 pm | Report this comment
You (and they) may think they are right, but in the end, it is up to the voters of each country to say whether the basis put forward for a common European project, whereby they cede substantial amounts of sovereignty, is acceptable. And so far, in three cases where they have been given a vote, they have said ‘no’. If you say they voted against it because they don’t understand it, the simple question is this: would you sign up to a document that is (deliberately) unreadable and incomprehensible? The prudent among us would assume it had been made so in order to hide the real contents (which is the truth). Is this really an honest and acceptable way to build a durably united Europe?
I do not believe in different speeds, all european countries do not want to reach the same goals, not even at very different times. This leaves us with Europe à la carte, which I think is an excellent proposition, Let those who want go ahead and those who don’t sit back and go the same way as the Etruscans.
Posted by: Juan Sancho | June 16th, 2008 at 10:15 am | Report this commentThis is the first rational analysis I have read since the Irish result on Friday.
Posted by: Tom Paine | June 16th, 2008 at 11:31 am | Report this commentAs an Irishman who voted yes (with many misgivings) I was delighted to have had the opportunity to read the Lisbon and related treaties for the first time. I also believe if the voters in other countries are given the same opportunity many of them will be very unhappy with the institutional arrangements in the EU.
Professor Buiter is a federalist and obviously supports an ultimate European Federation. I am not a federalist but in favour of a very close union of independent states who wish to share power (sovereignty) in many areas.
My main concern after reading the treaties is the lack of democracy in the very design of the institutions , particularly when it comes to the most important aspect of lawmaking. It seems all EU laws have to be initiated by the (unelected) commission. Neither the Council nor Parliament has the right to propose new laws for the EU.
These draft laws are then voted on by the Parliament (elected on population) and by the Council (with voting powers related to population).
This arrangement is very far removed from a union of independent states. Even in the US, laws are proposed by an elected President and voted on by the Senate (2 members from each state irrespective of population) and the House (elected on basis of population).
I realise it is very late in the day to go back to basics but if the EU is to have democratic legitimacy we must at some stage be able to draft a basic document ( call it a constitution or partnership agreement or whatever) that is passed by a majority of the population in each EU member state.
In the meantime we can continue to work under the existing EU treaties.
“Democracy is a mechanism that guarantees us that we are not governed better than we deserve” said George Bernard Shaw. I subscribe to the opinion that sometime democracy gives the people what they want but not necessary what they need. This doesn’t mean that I am against democracy god forbided, but just that I don’t belive in “vox populi vox dei” is 100% correct.
Posted by: EU Citizen | June 16th, 2008 at 1:32 pm | Report this commentThe idea that foreign policy and defence
will have to be transferred to the EU level seems to me a complete nonsense.
Surely a moments thought shows that one day the talk may have to stop and at the final throw most of the young men doing the killing and the dying will be French and British.
Can anyone really imagine either French and British mothers sending their sons to war on a majority vote - and their own country was against it?
The number of fictions that underlie the EU is astonishing.
Posted by: Brussels Resident | June 16th, 2008 at 3:18 pm | Report this comment“The number of fictions that underlie the EU is astonishing.”
I think the biggest problem with the EU was the way the 2004 enlargement was handled. Not only was a large number of countries added but a variety of type of countries that had very different futures in mind for the EU however are all given an equal voice (exception being Greece in 81 which was the first non rich geographically connected country admitted).
The best chance for Lisbon to have been passed was when the was smaller and the pace of change slower. We could then have moved towards a more federal model with future states being given provisional membership then progressing to full once certain requirements had been met (like voting towards joining including Lisbon).
We are beginning our first economic downturn in many years, once the more prosperous/large countries start to feel the pinch (more than fuel price rises) you will see more eurosceptic parities be able to win seats domestically (the only way in many countries for votes to demonstrate disagreement) by stating they will use current EU funds for internal spending rather than building roads abroad (physically and politically).
Unfortunately not giving the people of France, UK etc the opportunity to support the large policy decisions (enlargement, Lisbon etc) they will feel no conflict with supporting opaque legal means to ensure there own self interest.
Countries such as Switzerland and Norway (again when put to popular vote) have always been outside the EU however have very little downside to show for it. Once a significant EU country (population of GDP i.e. not Greenland) leaves then we shall see what the future of the EU shall be.
Posted by: JBA | June 16th, 2008 at 6:27 pm | Report this commentIf one wants to know what is going to happen now with the EU, I strongly suggest listening to what the French and German leaders are saying about Ireland. It seems they are planning to go ahead with the treaty and in doing so isolate Ireland. Wolfgang Munchau actually gives a good heads up for those who think the no vote is going to change anything.
Posted by: Christian G. | June 16th, 2008 at 7:27 pm | Report this commentPersonally I couldn’t care less about Ireland being in the EU. If it thinks it could fare better outside then it knows where the door is.
A two speed Europe is not desirable. We already have one with the euro opt-outs and non-Schengen countries. The more we have of this two-speed business the less desirable it is. The other poster also had a point, we cannot have one presidency for 26 or so nations and another for a single European nation. I seems that the other solution is to further break down the Lisbon treaty and do what should have been done in the first place, introduce each “needed” change one-by-one or in smaller packages.
Posted by: P | June 17th, 2008 at 12:46 am | Report this comment@Robert Carruthers
I agree that there should be more direct democracy on European issues. There should be votes, but only on the essential issues, not on long documents. Furthermore they should take place simultaneously all over Europe so that we don’t get these absurd situations where we have to infer everyone’s position from that of a couple of countries.
Note that Spain and Luxembourg had popular votes in favour of the constitution.
Luxembourg is a particularly good model for what should happen. A visionary leader (Mr Juncker) has explained the motivations to the people and given them a vote on it.
Posted by: Oscar D | June 17th, 2008 at 8:18 am | Report this commentWell done Prof Buiter. One vital underlying issue that Mr Buiter did not put on his list of ‘common space’ subjects is the continuing creation of a European labour market (ELM). Immigration and cross-border working is now a fact of the EU but it does not sufficiently describe this dimension of the single market. Solutions need to be found here and it is obvious that how to regulate such a development lies at the heart of the European dilemma. On the one side the neo-liberals (all main UK parties and most UK business lobby groups) want either no regulation in common, or only light measures. The European social democrats and Christian parties and the social liberals want some regulation. No one, including the Commission is quite sure exactly what is appropriate. Irish ‘No’ voters include both those trade unionists and left-wing groups which say the Treaty lacks sufficient social protection in a globalising age, while others - business organisations and individuals say the treaty has gone too far. It is time for the clever staff in Brussels, in all organisations to bite the bullet and work out just what social regulation of the ELM is required to make the rest of the single market work. Otherwise, the political crisis will deepen and the core single market objectives will fail. Moreover, once in draft form, these proposed measures must be widely communicated and their implications spelt out to the European population. Do this and no referenda will be needed. The nationalists can then shout on the sidelines.
Posted by: Dave Feickert | June 17th, 2008 at 9:12 am | Report this commentImagine every Member State would hold a referendum on each new EU Treaty (and would be able to block the adoption of the Treaty in the case of a “no”). This would certainly mean that no Treaty change would ever have been adopted. Why? One important reason is that referenda on complex package deals under quasi consociational conditions (as in the EU) will inevitably focus on the negative (the real or imagined “give” from a particular national perspective) rather than the positive. Holding referenda under these circumstances has absolutely nothing to do with democracy. Referenda are confronted with almost insurmountable collective action problems under these circumstances (package deal, consociation). This guarantees that there is only the illusion of choice; in reality there is no choice because the outcome will always be a “no” (There will always be at least one negative referendum). Do similar, though perhaps somewhat less severe, collective action problems occur in situations in which only some Member States hold a referendum? Quite possible… PS: Of course, Irish politicians cannot simply override the Irish constitution. But they should perhaps give Irish voters a real choice: Do you accept Lisbon or do you want to leave the EU? That would make much more sense and would provide for some real, though perhaps weak, democratic control.
Posted by: Ivo Huber | June 17th, 2008 at 9:28 am | Report this comment“Of course (we) already have a multi-speed Europe. Only 15 of the 27 EU members are also full members of the EMU. […] Only 13 EU member states (plus Norway and Iceland) are part of the Schengen arrangement.”
This paragraph is both misleading and on the Schengen aspect wholly inaccurate.
With regards to Schengen, Mr Buiter, I suggest you check your facts.
There are 27 EU countries and 2 EEA countries. Additionally there are two de facto EEA countries: Switzerland and Liechtenstein. Of all these 31 countries, only two have opted out of the core Schengen provisions: the UK and Ireland. Of these two, only one has ‘refused’ to join, the other one has been forced out by the refusal of the first, on account of the Common Travel Area between them. Needless to say, the first one of them is the UK, the second is Ireland.
Of the countries that have signed up to Schengen, 24 are already full members. Three EU countries, Rumania, Bulgaria and Cyprus are committed to join, but for reasons related to transitional periods will wait until 2011 to become full members. Switzerland voted in favor of joining in 2004 and will become a full member by the end of 2008. Same applies to Liechtenstein.
Suggested reading:
http://en.wikipedia.org/wiki/Schengen_Agreement
Now, for the multi-speed Europe. I said that this was misleading. Why?
Because the reality of the multi-speed Europe is as follows:
The vast majority of EU members have no opt-outs from key pillars, e.g. the euro, Schengen, the Charter of Rights. Of course, several of them are not yet full members of these, but this is because they are subject to transitional periods, they are legally bound to join.
A handful of countries have no more than one opt-out from these key pillars: Sweeden, Ireland, Poland
One country has more than one opt-out: Denmark
One country has opted out of ALL these key pillars: the UK
Posted by: JorgeG | August 5th, 2008 at 10:13 am | Report this comment