Lisbon Essay (31): Checks, balances and a stronger social dimension

And in the last of our Lisbon essays, Labour Party leader Eamon Gilmore rather trenchantly asserts that Lisbon is not about transfering power from Dublin to Brussels. It is he believes, in contrast to Jimmy Kelly in LE26, enhances a social Europe by setting the Charter up as a watchdog on all EU institutions when it comes to the framing and passing of law. And in contrast with Joe Higgins’ concerns in LE4 he believes it would provide a bulwark against those “who instead call for unrestricted free-market capitalism”.By Eamon Gilmore TD

First, let’s get one thing straight: this treaty is not about transferring powers from national governments to “Brussels”. Rather, it changes the way the European Union exercises its existing responsibilities while adding extra checks and balances – both in terms of democratic accountability and in terms of social protection.

Let’s start with the democratic accountability. Under Lisbon, no EU legislation can be adopted without, first, prior examination of proposals by national parliaments, second, approval by the EU Council of Ministers (composed of national ministers accountable to those national parliaments) and third, approval of the European Parliament (composed of our directly elected MEPs).

This is a level of scrutiny that exists in no other international organisation. Anyone genuinely worried about accountability should focus on the IMF, the WTO, the World Bank, the OECD and so on, which lack such accountability.

The treaty will also require the Council of Ministers to meet in public when discussing legislation – entrenching a long overdue reform.

Lisbon also provides for the President of the Commission to be elected by the European Parliament. The European Council must make a nomination taking account of the European election results and the majorities that are possible in the European Parliament. At the very least, this (and the need for a vote of confidence by Parliament in the whole Commission) will make it clear that the Commission is not a group of unaccountable bureaucrats, but is a political executive dependant on the confidence of the elected parliament.

As an extra safeguard, the treaty obliges the EU institutions to respect a Charter of Rights, failing which its decisions can be struck down by the courts. This will ensure the EU cannot undermine rights commonly accepted across Europe, including key workers’ rights.

With these democratic reforms come some practical changes to help the institutions function better in an enlarged Union: merging the two EU foreign affairs positions into one role of High Representative and replacing the 6-month rotating European Council presidency (changing chairman every second meeting) with a longer 30-month term.

Equally important are the changes on the social front.

The Lisbon Treaty will strengthen the European Social Model. It will enshrine the values of social justice, full employment and solidarity in the EU’s mission statement and commit the EU to “a social market economy, aiming at full employment and social progress”. The Treaty emphasises that the EU must work to “combat social exclusion and discrimination”, and will be legally required to promote social justice, gender equality and solidarity between generations. It is values such as these that clearly differentiate the EU from the American model of capitalism that allows private wealth and public squalor.

A new protocol will require the Union to safeguard public services, including the way they are organised and financed in each country. The treaty also requires the Union, in all policy areas, to take account of “the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health”.

Lisbon reaffirms the existing obligation on the Commission to “promote the consultation of management and labour at Union level”, to “facilitate their dialogue by ensuring balanced support for the parties”, and to “consult the social partners before submitting proposals on social policy”.

The Charter of Rights, approved by every Member State government in 2000, but which will with Lisbon become legally binding on the EU institutions, sets out the civil, economic and social rights that the EU will be obliged to respect. These include the right to fair and just working conditions, to collective bargaining and collective action, including strike action, equal pay for men and women, the right to social security and freedom from discrimination.

The Lisbon treaty is, of course, a compromise and, indeed, falls short of some aspirations. However, it provides a base to protect and develop a social vision of Europe. The overwhelming majority of socialist parties and of trade unions across Europe support the Lisbon Treaty, despite some reservations, precisely because it will enshrine the European Social Model.

Moreover, a rejection of the treaty would further galvanize those who are bitterly opposed to the values of social inclusion and solidarity that are enshrined in the EU, and who instead call for unrestricted free-market capitalism. It is no coincidence that the treaty’s strongest opponents are the British Conservative and UKIP parties and the Czech President Vaclav Klaus. This would be a disaster – the social model is central to the European project and is too important not to be fought for.

For those of us who believe in a European Union that is fit for purpose, this treaty is a result to be welcomed – a set of useful reforms that should put an end to years of institutional wrangling and will make the EU institutions more responsive to citizens, to Member States, their parliaments and their peoples.

In other words, it will deliver a more focused EU, better capable of delivering in those policy areas where we benefit from common European action, not least the social, environmental and consumer protection legislation that tames market forces. At the same time, it subjects the EU to stronger safeguards and more scrutiny. This, surely, deserves our support.

Eamon Gilmore TD is Leader of the Irish Labour Party…

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  • Dave

    “It is no coincidence that the treaty’s strongest opponents are the British Conservative and UKIP parties and the Czech President Vaclav Klaus. This would be a disaster – the social model is central to the European project and is too important not to be fought for.”

    Yawn. And presumably its strongest proponents such as Michael O’Leary correspondingly support it because it guarantees workers rights, upholds the social model, and restricts “unrestricted free-market capitalism.” Mr O’Leary being, of course, well-known for his respect for workers rights.

    Is there any of these overpaid political hacks that don’t spew propaganda and fallacies which they confuse with rational arguments?

  • “Is there any of these overpaid political hacks that don’t spew propaganda and fallacies which they confuse with rational arguments?”

    Physician, heal thyself 😉

  • Dave

    Don’t be sore just because you were caught proffering falsehoods in on your own contribution about the Nord judgement and exposed as ignorant about the impartiality of the ECJ. 😉

    [i]”In the area of ethical and family issues, for example, the Nold case found that the Court: “cannot uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States”. This principle is reinforced by the Lisbon Treaty with protocols. It essentially means the Irish Constitution is untouchable. The European Court cannot interpret the Charter of Fundamental Rights in any way that would change this. Most importantly, the overwhelming experience of the ECJ is that it acts in a fair manner to balance the rights and responsibilities of member states and the EU institutions, principally for the benefit of citizens.” – Naoise Nunn[/i]

    Contrary to your proffered falsehood about ECJ Case 4/73 (Nold v. Commission), the ECJ declared that it is not required to uphold a national constitution of a Member State but rather it has an obligation to “draw inspiration from constitutional traditions common to the Member States” and from other documents and treaties that are common to them all in ascertaining the value of the disputed fundamental right.

    The ECJ could never, as you falsely proffered, uphold a provision of a national constitution in a decision without considering other constitutions of Member States since decisions of the ECJ become EU law that effects all Member States. Where constitutions of Member States would conflict with each other and where such decisions are on a case-by-case basis, EU law would then conflict with itself. That is why the ECJ will only use provisions of national constitutions of Member States as “guidelines” and not as binding imperatives.

    Incidentally, and this is relevant to Mr Gilmore too, the ECJ found in the same case that the ECJ also has the right to curtail whatever fundamental rights it sees fit “in accordance with the public interest” and the “overall objectives pursued by the Community.” In other words, your fundamental rights are subject to the discretion of the EU.

    “THE COURT IS BOUND TO DRAW INSPIRATION FROM CONSTITUTIONAL TRADITIONS COMMON TO THE MEMBER STATES, AND IT CANNOT THEREFORE UPHOLD MEASURES WHICH ARE INCOMPATIBLE WITH FUNDAMENTAL RIGHTS RECOGNIZED AND PROTECTED BY THE CONSTITUTIONS OF THOSE STATES .

    SIMILARLY, INTERNATIONAL TREATIES FOR THE PROTECTION OF HUMAN RIGHTS ON WHICH THE MEMBER STATES HAVE COLLABORATED OR OF WHICH THEY ARE SIGNATORIES, CAN SUPPLY GUIDELINES WHICH SHOULD BE FOLLOWED WITHIN THE FRAMEWORK OF COMMUNITY LAW .

    THE SUBMISSIONS OF THE APPLICANT MUST BE EXAMINED IN THE LIGHT OF THESE PRINCIPLES .

    IF RIGHTS OF OWNERSHIP ARE PROTECTED BY THE CONSTITUTIONAL LAWS OF ALL THE MEMBER STATES AND IF SIMILAR GUARANTEES ARE GIVEN IN RESPECT OF THEIR RIGHT FREELY TO CHOOSE AND PRACTICE THEIR TRADE OR PROFESSION, THE RIGHTS THEREBY GUARANTEED, FAR FROM CONSTITUTING UNFETTERED PREROGATIVES, MUST BE VIEWED IN THE LIGHT OF THE SOCIAL FUNCTION OF THE PROPERTY AND ACTIVITIES PROTECTED THEREUNDER .

    FOR THIS REASON, RIGHTS OF THIS NATURE ARE PROTECTED BY LAW SUBJECT ALWAYS TO LIMITATIONS LAID DOWN IN ACCORDANCE WITH THE PUBLIC INTEREST .

    WITHIN THE COMMUNITY LEGAL ORDER IT LIKEWISE SEEMS LEGITIMATE THAT THESE RIGHTS SHOULD, IF NECESSARY, BE SUBJECT TO CERTAIN LIMITS JUSTIFIED BY THE OVERALL OBJECTIVES PURSUED BY THE COMMUNITY, ON CONDITION THAT THE SUBSTANCE OF THESE RIGHTS IS LEFT UNTOUCHED .” – ECJ Case 4/73

    Now that’s your lie dealt with, let’s turn to your ignorance. The ECJ has a constitutionally binding obligation under its charter to promote “ever-closer union” between Member States, so it must rule in favour of whatever will increase the competency of the EU and this is what it has consistently done. As former German President Roman Herzog commented, the ECJ acts “not as part of the judicial power but as the legislature.”

    Roman Herzog is also a former president of the Federal Constitutional Court of Germany and a chairman of the convention drafting the EU’s Charter of Fundamental Rights, so forgive me if I prefer the word of someone who knows what he is talking about and who does not proffer falsehoods:

    “Judicial decision-making in Europe is in deep trouble. The reason is to be found in the European Court of Justice (ECJ), whose justifications for depriving member states of their very own fundamental competences and interfering heavily in their legal systems are becoming increasingly astonishing.”

  • “Dave”, I love your use of language like “proffering falsehoods”. It makes you sound like a Dickensian book-keeper or something 😉

    Regarding those “falsehoods”:

    ECJ rulings in respect of national constitutions apply a highest common denominator approach and will not overturn any aspect of a national constitution in respect of which competence has not been voluntarily given to the European intitutions. The final and crucial phrase you quote from the ruling is that:

    “WITHIN THE COMMUNITY LEGAL ORDER IT LIKEWISE SEEMS LEGITIMATE THAT THESE RIGHTS SHOULD, IF NECESSARY, BE SUBJECT TO CERTAIN LIMITS JUSTIFIED BY THE OVERALL OBJECTIVES PURSUED BY THE COMMUNITY..” the ultimate and decisive codicil to which is:”ON CONDITION THAT THE SUBSTANCE OF THESE RIGHTS IS LEFT UNTOUCHED.”

    Regarding my ignorance of the EU:

    Contrary to what you say,the EU does not have a constitution and the ECJ does not have a charter. Therefore, the ECJ can hardly be bound by a non-existent charter to a non-existent constitution. The phrase “ever-closer union of the peoples of Europe” is one of the aims expressed in preamble to the 1957 founding Treaty of Rome.

    Regarding Roman Herzog:

    He is a very distinguished lawyer and statesman. Did you know he was also President of Germany? He has expressed political opinions to which he’s entitled but just because he says it’s so, don’t make it so. There are many other equally distinguished lawyers, judges and former Presidents who disagree.

    I’m not a European lawyer and I think it’s safe to assume you’re not one either so rather than argue jurisprudence, I think a more common sense approach to this would be as follows:

    The ECJ is made up of the distinguished nominees of the 27 member states who impartially adjudicate on issues of law which affect the European institutions and their interaction with member states. http://europa.eu/institutions/inst/justice/index_en.htm
    Our experience for 36 years has been almost entirely positive. I will take that common sense and experience any day over paranoid notions of what might happen in the future. Especially when they are so woefully misinformed.

    Finally, I would like you to address the questions I posed to you on the thread of my contribution and which you ignored:

    What specific ECJ cases cause you so much concern? What specific elements of Bunreacht na hÉireann do you think are under threat? What cases support your theory that the ECJ is not impartial and is pursuing a power-grab. What conspiracy do you believe to be afoot and what is your evidence to support this?

    Good night and good luck.

    Naoise.

  • Dave

    Why did you edit the quote from the ECJ to change its meaning completely? Did you feel that you needed to invent ‘facts’ to support your non-factual claim?

    Here is how you edited it: “cannot uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States”.

    The effect of your misleading edit is reinforce your bogus claim that “the Irish Constitution is untouchable” because the ECJ must uphold it.

    In fact, the unedited quote says the exact opposite: “The Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognised and protected by the Constitutions of those States.”

    You edited the first part of the sentence which makes it clear that the Court must not, contrary to your claim, uphold the constitution of a particular Member State but that it must “draw inspiration from constitutional traditions common to the Member States” in determining fundamental rights.

    The ECJ declares that these national constitutions are used by it as “guidelines” only and that any rights therein are not “unfettered prerogatives.” That, of course, applies if all of the national constitutions declare the same right. If only one constitution declares it, then the Court may feel free to wipe its arse with it.

    Anyway, moving on from your deliberate attempt to mislead…

    “ECJ rulings in respect of national constitutions apply a highest common denominator approach and will not overturn any aspect of a national constitution in respect of which competence has not been voluntarily given to the European intitutions.” – Naoise Nunn

    Who claimed that they would? Why refute a claim that wasn’t made? To throw in a fact about the ECJ just to show that you’re acquainted with one? The claim I made is that the ECJ will overturn a provision of a national constitution, contrary to your claim that “the Irish Constitution is untouchable.” It is only “untouchable” if it does not conflict with EU law (which has supremacy). Clearly, it cannot adjudicate over areas where it does not have competency.

    But you now appear confused as to whether you were originally claiming that the ECJ does not have competency to declare or that it has competency but that its declarations cannot overrule the Irish constitution because “the Irish Constitution is untouchable.” If it doesn’t have competency, then there would be no declaration from it and nothing to attempt to touch the Irish constitution; and if it does have competency the issue is whether or not its declarations override the Irish constitution.

    The answer is that its judgements do take precedence over the Irish constitution.

    “Contrary to what you say,the EU does not have a constitution and the ECJ does not have a charter. Therefore, the ECJ can hardly be bound by a non-existent charter to a non-existent constitution. The phrase “ever-closer union of the peoples of Europe” is one of the aims expressed in preamble to the 1957 founding Treaty of Rome.”

    If you’re going to astound me with stunning displays of logic, try to base it on something more substantial than silly word games.

    Charter [i]noun[/i]
    A document defining the formal organization of a corporate body; constitution: the Charter of the United Nations.

    So the ECB has no document stating its purpose or aims? It just sprang into being and exists without format, function or rules, having no connection to the Treaty of Paris for instance or no constitutionally-binding obligation to promote “ever-closer union” and gets not a mention in the Maastricht Treaty?

  • Dave

    [b]Continued[/b]

    Now to skip on past the rest of your waffle, you could have saved yourself the trouble if you read the linked article. The ECJ, contrary to your other bogus claim, is not an impartial arbitrator between the rights of Member States and their duties under the various treaties. It is a biased court that must promote the interests of the EU over and above the interests of Member States, specifically were it applies to taking competencies from Member States and transferring them to the EU. The ECJ cannot be independent or impartial because it has a constitutionally-binding obligation to be partial. It is, in fact, the exact opposite of what you claim it to be.

    [i]”The cases described show that the ECJ deliberately and systematically ignores fundamental principles of the Western interpretation of law, that its decisions are based on sloppy argumentation, that it ignores the will of the legislator, or even turns it into its opposite, and invents legal principles serving as grounds for later judgements. They show that the ECJ undermines the competences of the member states even in the core fields of national powers.

    The conclusion one comes to is clear: The ECJ is not suitable as a subsidiary controller in the last instance and a protector of the member states’ interests. This is not surprising, as first of all, according to Articles 1 and 5 of the EU Treaty, the ECJ is obliged to participate in the “process of creating an ever closer union”. Secondly, an EU-biased jurisdiction of the ECJ leads to the situation that the areas where the ECJ may judge are also growing, thereby displacing member states’ courts, which means that the ECJ is constantly gaining influence. This general tendency is not modified by the occasional deliberately cautious ECJ judgements passed in order to serve as a sedative to the growing resentment of the member states. Against this background and in light of the achieved integration level in the EU, it is absolutely vital that an ECJ independent court for competence issues be set up.

    The ECJ was created with the aim of providing a arbitrator to mediate in the interests of the EU and those of the member states. In assigning the ECJ with comprehensive rights of decision-making, the assumption was that they could be trusted to take on this responsibility in an unbiased way and in compliance with the rules of the judiciary. If the ECJ abuses this confidence, it need not be surprised when it breaks down.”[/i]

    “Finally, I would like you to address the questions I posed to you on the thread of my contribution and which you ignored…”

    Read the article for some relevant examples or acquaint yourself with the facts before you lecture us on why we should trust an institution that you know nothing about. As regards what concerns me about the ECJ. Well, you see, I’m a bit odd in that I believe in weird concepts like democracy and sovereignty, so I tend to the view that people should determine laws for themselves rather than allow their laws to be imposed by a biased foreign court that has an agenda to undermine their state. I wouldn’t care if it had a constitutionally-binding obligation to fix me up with Cameron Diaz, it would still be a violation of democracy to say that nations should not determine their own affairs.

  • Wilde Rover

    “People have made a decision. The Lisbon Treaty cannot now be ratified. And I think that the decision that has been made by the Irish people has got to be respected by everybody. Got to be respected by the Taoiseach, by the Government, by the other Member States, by the political leadership in Brussels”

    Eamon Gilmore 13/06/2008

    “In other words, it will deliver a more focused EU, better capable of delivering in those policy areas where we benefit from common European action, not least the social, environmental and consumer protection legislation that tames market forces. At the same time, it subjects the EU to stronger safeguards and more scrutiny. This, surely, deserves our support.”

    Eamon Gilmore 01/10/2009

  • “Dave”,

    I didn’t edit anything. I merely quoted the final and decisive sentence of the judgment you yourself quoted. It is you who is editing by omitting the final phrase..”ON CONDITION THAT THE SUBSTANCE OF THESE RIGHTS IS LEFT UNTOUCHED.” I merely wanted to highlight this. The rest is clear for everyone to read. it seems to be you who is confused.

    You claimed that:”The ECJ has a constitutionally binding obligation under its charter to promote “ever-closer union” between Member States…”

    It is not “word games” for me to point out that this is impossible since the ECJ does not have a charter (if it does link to it) and the EU does not have a constitution. Likewise the reference to “ever closer union” to which you refer is in the preamble to the founding Treaties of Rome and applies to the “ever closer union of the peoples of Europe” not to member states. It is not “word games”. It is statement of fact and it underlines the fact that you actually don’t have a clue what you’re talking about. You clearly have a preconceived paranoid notion about the ECJ and trawl the Internet relentlessly looking for selectively (or incorrectly) quoted bits of judgments and subjective opinions to back up your theory that the ECJ causes: “laws to be imposed by a biased foreign court that has an agenda to undermine their state.”

    You didn’t address any of the questions I asked, I presume because you cannot. You describe yourself as a bit weird and a bit odd in your conception of democracy and sovereignty. I tend to agree.

    I will repeat my questions again: What specific ECJ cases cause you so much concern? What specific elements of Bunreacht na hÉireann do you think are under threat? What cases support your theory that the ECJ is not impartial and is pursuing a power-grab. What conspiracy do you believe to be afoot and what is your evidence to support this? In answering, it would be helpful to avoid quoting other people’s opinions. We can all link to someone who agrees with our theories, somewhere…

  • Greenflag

    wilde rover ,

    Even Gilmore is capable of learning that when the ship is sinking it’s best not to hold on to a concrete block .

    His piece above is to be commended in it’s grasp of how the EU can benefit the mass of Europeans and provide some social and economic safeguards against the so called ‘perfect market’ which has driven the USA and other major economies to the edge of the economic and political abyss. Even now it’s not clear that the USA economy will recover anytime soon . There is a lot of hype in the stock market but the truth is 15 million are out of work , 35% are living in homes that are worth less than they paid for, their Private Health Insurance creates almost a million bankruptcies a year . The big banks anf financial instituions are holding back credit from the small companies that created almost 70% of new jobs over the past decade . Instead of getting pay rises which would enable them to spend more on consumer goods americans ‘productivity ‘ gains have been swallowed up by the increasing cost to their employers of health insurance premiums .

    Europes social market model for all it’s faults is a better human model than the dog eat dog world of American ‘raw ‘ capitalism .

    Englishman John Maynard Keynes is being dug up and listened to again .

    So it’s a massive YES to Lisbon . Many of those who were scared into voting NO the last time were not scared this time .

    The Irish voters are to be congratulated for rejecting SF , the ultra Catholic Coir , and Ganley’s Libertas and their neo conservative shower of cryto fascists , UKIP, BNF and Tory short sighted little englanders !

  • Greenflag

    ‘You (Dave)describe yourself as a bit weird and a bit odd in your conception of democracy and sovereignty. I tend to agree.’

    I’ll second that agree 😉