A Commentary on the Referendum Commission website
Original Referendum Commission text is in black; comments are in brown
The Lisbon Treaty would make a number of changes to the policies and activities of the EU.
The main areas are:
A. Areas of Competence
B. Areas where Ireland may opt in or opt out
C. Religion
D. Common Foreign and Security Policy
E. Mutual Assistance
F. Solidarity Clause
G. Charter of Fundamental Rights
A. Areas of Competence
The EU has the competence to decide policies and make laws only in those areas which are set out in the treaties. This has always been the case.
The Lisbon Treaty would specify who has the power to do what by listing the areas in which:
• the EU has exclusive competence – this means that the decisions must be made at EU level and not at national government level;
• the EU and national governments have joint competence;
• the national governments have exclusive competence but the EU may support and help to co-ordinate.
EU exclusive competence
The Lisbon Treaty states that the EU has exclusive competence in a number of areas including the customs union, the establishment of the competition rules necessary for the functioning of the internal market and monetary policy for the Member States whose currency is the Euro.
Joint competence of EU and Member States
The Lisbon Treaty states that the EU and the Member States have joint competence in a number of areas including the internal market, agriculture, environment, consumer protection and energy. ( THE LISBON TREATY STATES THAT "The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence" (Arts.2.2 TFEU). SO THAT THE EXERCISE OF MEMBER STATE COMPETENCE IS SUBORDINATE TO THE EXERCISE OF EU COMPETENCE IF THE LATTER SHOULD DECIDE TO ACT.)
Member States’ exclusive competence, but with the EU having competence to support Member State action
The Lisbon Treaty states that the EU would have competence to carry out actions to support, co-ordinate or supplement the actions of the Member States in various areas including human health, industry, culture, tourism and education.
Changes in competence
The Lisbon Treaty would give the EU joint competence with Member States in a number of new areas. These include energy and aspects of the environment and public health. It does not propose to give the EU any new exclusive competence.
B. Areas where Ireland may opt in or opt out
Ireland is not obliged to take part in, or be bound by, decisions in what is known as the “Area of Freedom, Security and Justice”. This covers issues such as asylum, immigration, border controls, judicial co-operation in criminal matters and police co-operation.
Ireland and the UK may each decide to be involved in particular issues - they may opt in or opt out of particular decisions. This special arrangement for Ireland and the UK has been in existence since these areas came within the remit of the EU in 1999. In practice, Ireland has opted in to a number of decisions, for example, in relation to asylum and judicial co-operation and has not exercised its right to opt in to others, for example, border controls.
The Treaty provides for the opt-out for Ireland and the UK to continue. Ireland has issued a non legally binding declaration that it proposes to opt in to decisions in this area to the maximum extent possible and to review the entire opt-out clause within three years.
The wording of the proposed amendment to the Constitution proposes to allow Ireland to opt in to particular decisions only with the approval of the Dáil and Seanad (this would continue the present constitutional requirement). It also allows for Ireland to withdraw totally from the opt-out, again only if there is prior Dáil and Seanad approval.
C. Religion
The Treaty of Lisbon states that the EU respects the status under national law of churches and religious associations or communities in the Member States. It also states that the EU equally respects the status under national law of philosophical and non-religious organisations and would maintain an open, transparent and regular dialogue with these churches and organisations. The Treaty also states that the EU draws inspiration from the cultural, religious and humanist inheritance of Europe.
D. Common Foreign and Security Policy
Common Foreign and Security Policy covers foreign policy and defence policy. The main decisions in this area must be made unanimously. The proposed change to the Constitution would continue the present arrangements for Ireland’s military neutrality BUT IRELAND WOULD UNDERTAKE TO PROGRESSIVELY IMPROVE ITS MILITARY CAPABILITIES.
E. Mutual Assistance
The Treaty provides that Member States have an obligation to aid and assist another Member State which is the victim of armed aggression. This assistance is to be in accordance with the UN Charter. The type of aid and assistance that is required is not specified. Mutual assistance is expressly stated not to compromise the specific character of the security and defence policy of certain Member States which includes Ireland’s policy on neutrality.
F. Solidarity Clause
This is a clause in the Treaty which states that Member States are obliged to assist each other if one is the victim of a terrorist attack or a natural or man made disaster. The precise details of this co-operation would have to be agreed unanimously by the Council.
G. Charter of Fundamental Rights
The Treaty proposes to give the Charter of Fundamental Rights of the Union the same legal value as the main treaties. THIS WOULD GIVE THE EU COURT OF JUSTICE THE FINAL SAY IN DECIDING WHAT ARE THE RIGHTS OF EU CITIZENS.
Contents of the Charter
The Charter of Fundamental Rights lists the civil, political, social and economic rights recognised by the EU. These are listed under the headings of Dignity, Freedoms, Equality, Solidarity, Citizens’ Rights, and Justice. Specific principles apply to groups such as older people, children and people with disabilities.
Effect of the Charter
It is proposed that the Charter will apply to the EU institutions, bodies, offices and agencies and to the Member States when they are implementing EU law. The Treaty states that the Charter does not extend the field of application of EU law or give the EU any new area of competence. THE EU ALREADY HAS A HUMAN RIGHTS COMPETENCE IN RELATION TO SUCH RIGHTS AS EQUALITY AND NON-DISCRIMINATION. IF THE CHARTER IS MADE LEGALLY BINDING B Y THE LISBON TREATY THE COURT OF JUSTICE WOULD BE ABLE TO DECIDE THE MEANING AND FIELD OF APPLICATION OF ALL THE OTER RIGHTS SET OUT IN THE CHARTER FOR EU CITIZENS, AND IN ALL AREAS OF EU LAW.
The rights set out in the Charter are not absolute. Some are already provided for in the Constitution of Ireland, and/or in EU law and/or in the European Convention on Human Rights. Some are statements of principle rather than specific rights. Some are stated to be subject to, regulated by, or in accordance with national laws. The precise effect of the Charter is dependent on the right invoked, the limitations on it, the manner in which it is protected by the Charter and the competence of the EU in the area in question. IT WOULD BE FOR THE THE EU COURT OF JUSTICE, AS THE SUPREME COURT OF THE POST-LISBON EUROPEAN UNION, TO DECIDE ALL SUCH MATTERS IF THEY SHOULD COME INTO CONTENTON.
European Convention on Human Rights
All the Member States have ratified the European Convention on Human Rights. The Treaty proposes that the EU itself (that is, not just the Member States) accede to that Convention. If this accession occurs then the EU would be required, in all of its activities, to respect the European Convention on Human Rights. Individuals who believe that their rights under the Convention have been breached by the EU could then bring a case against the EU before the European Court of Human Rights.
THE PROPOSAL FOR THE EU TO RATFY THE EUROPEAN CONVENTION ON HUMAN RIGHTS INCLUDES A PROPSAL THAT IT SHOULD ACCEDE TO PROTOCOL 6 OF THAT CONVENTION RATHER THAN PROTIOCOL 13, IN CONTRAST TO THE POSITION OF ITS MEMBERS STATES. PROTOCOL 6 permits the use of the death penalty in times of war, in contrast to Protocol 13, which bans the use of the death penalty in all circumstances! That this is so is indicated in the "Explanations" which are attached by the Treaty to the Charter of Fundamental Rights to guide the EU Court of Justice in interpreting and applying it. )
