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Reality Check? Irish Criticism Towards Treaty Reform Proposals

It was almost 20 years ago, on the 29th of May and on the 2nd of June of 2005 when the ratification of the Draft treaty establishing a constitution for Europe failed during the French and Dutch referenda. Later on, the first Irish referendum held on the 12th of June 2008 on the Treaty of Lisbon—the Treaty that had taken over many elements of the draft European constitution—was also rejected. The second Irish referendum finally agreed to the text currently in force.

What was the reason for the hesitation of the Irish public? Why did the French and Dutch citizens not support the original text? The question is not only of historical significance, as the European Parliament initiated the ordinary revision procedure of the founding Treaties of the European Union. If the process is successful and a European Convent takes place, the question of whether some proposals will gain the support of the peoples of Europe will become an important one. It is not only necessary to win over all Member States to support the result of the process, but there is a ratification process as well. In many cases, a referendum is required by the constitution of certain Member States for a successful ratification process.

Interestingly, the Committee on Constitutional Affairs of the European Parliament just visited Ireland and discussed the matter with Irish partners. In the report of the AFCO committee, it is stated that during the meetings it was made clear by the EPLO (European Parliament Liaison Office) that it is necessary to approve any Treaty changes in Ireland with a referendum, however, without informing the Irish citizens about the advantages, it would be particularly difficult to win a referendum in Ireland.

The meetings in the Oireachtas, Ireland’s national parliaments were also sobering for the EP delegation. Irish MPs reminded the delegation that the Conference on the Future of Europe—as a unique and unprecedented democratic exercise—was a good chance for citizens to discuss key priorities and challenges and the EU they want to live in, but, unfortunately, there were some flaws during its organization. According to the Irish MPs, the selection of citizens was not transparent; the participants did not represent the full spectrum of society. They were also calling for an appropriate follow-up to the final report.

The significance of whether the Conference on the Future of Europe was conducted correctly lies in the fact that the European Parliament included many of the recommendations in its proposals for treaty changes. If the conclusions of the Conference on the Future of Europe did not reflect the opinion of the citizens, that could lead to a problem during the ratification of the proposals of the European Parliament on the amendment of the Treaties.

In my opinion, the reason for the missing public support during the ratification process of the Draft treaty establishing a constitution for Europe and of the Lisbon Treaty was the fear of losing sovereignty, democratic participation in decision-making, and control, i.e. having a say in public issues. Since the notion of popular sovereignty, the principle of democracy is closely connected to the concept of sovereignty. In parliamentary democracies, the people elect the legislative branch, which selects the government and plays an important role in the selection of the judiciary (at least in some countries, where the self-administration of judges is not absolute). Sovereignty means in this respect the possibility for a nation to make decisions for itself. The ratification problems, but also the Brexit referendum, can be signs of the angst of people losing control over their own lives.

The draft Treaty establishing a Constitution for Europe included expressions that suggested a strong leap towards Europe becoming a federation. The language applied clearly represented constitutionalist views—the whole process was aiming at the goal of adopting a “constitution” for the EU. Article I-26 (5) would have established a “Union Minister for Foreign Affairs” or another example is Article I-34 (1), which aimed to establish “European laws” and “European framework laws” as sources of EU law.

If we regard the proposal of the European Parliament for the amendment of the Treaties, we see similar tendencies. Establishing the office of the “President of the European Union”, of the “Secretary of Foreign Affairs and Security Policy”, renaming the European Commission the “Executive” of the EU, and formalizing and codifying the lead candidate system in the Treaties are only some examples from the proposal that sound like a leap towards a European federation. The modification of the different decision-making procedures (like extending the role of the European Parliament in current special legislative procedures or the changes regarding the inner workings of the Council) could also lead to further anxiety of the citizens of the Member States losing democratic control over decisions in their vital interests.

The Article 48 TEU procedure is only in its first phase. The next step is for the European Council to debate the necessity to convene a European Convent. It is necessary to keep in mind what the citizens are looking for in such a process, how to make the EU more capable, but also how to tackle questions of legitimacy and accountability. It might be possible that some of the proposals of the European Parliament will be taken on board during the negotiations. The only question is, did the situation change enough in the last two decades for such changes to be supported by the peoples of the Member States in referenda? If not, the inclusion of too many of the proposals in the conclusion of the treaty revision process will ultimately lead to feelings of déjà vu in some EU Member States and perhaps in all of us. History may yet again repeat itself.

Árpád Lapu has been a policy adviser on constitutional issues at the European Parliament since 2019 and a PhD student of the Károli Gáspár University of the Reformed Church in Hungary. Between 2017-2019, he worked as an adviser at the Cabinet of the Minister of Justice of Hungary, conducting comparative constitutional analyses. He has earned his JD at the Pázmány Péter Catholic University in Hungary, has a BA in international relations from the University of Szeged, and an MA in European and international administration from Andrássy Gyula German Speaking University in Budapest. He has completed an Edx MicroMaster in cooperation with the Catholic University of Louvain (UCLouvain) in international law. His field of research is non-participation in armed conflicts in international law and constitutional norms regarding non-participation in armed conflicts. He has written publications regarding the future of the EU ETS system of the European Union, institutional reform proposals of the Union, and research in the field of social sciences.

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