It ain't over till it's over

And that could apply to just about everything: the euro, the Coalition government, the Greek economy (no, I guess, that one is over) and the latest Irish referendum vote, which will not require a second one as it went the "right" way.

Our chaps are not giving up, though. I had the following e-mail from Anthony Coughlan of The National Platform EU Research and Information Centre, which is the leading eurosceptic group in that country:

Dear Friends,

The item below may interest you in that it seeks to draw attention to the constitutional challenge which is taking place in the Irish Courts to the ratification of the European Stability Mechanism Treaty and the Article 136 TFEU amendment of the EU Treaties which authorises the ESM Treaty for the Eurozone.

This constitutional challenge has been launched by an Independent member of the Irish Parliament (Dáil) for Co.Donegal, Mr Thomas Pringle. His case is due for hearing in the High Court in Dublin on 19 June.

There are also constitutional challenges to the ESM Treaty in Germany and Estonia. The item below is a copy of a letter to the German Ambassador in Ireland requesting him to urge his Government not to ratify the ESM Treaty until the issues raised by Deputy Pringle have been adjudicated on by the Irish Courts.

The letter sets out the reasons for regarding the ESM Treaty and the Article 136 TFEU amendment in so far as it authorises that treaty as in breach of the EU Treaties and in violation of the Irish Constitution.

Similar letters have been sent individually to the Ambassadors in Ireland of the other EU/Eurozone countries which have not yet ratified the ESM Treaty or approved the Article 136 TFEU amendment.

Here is the letter itself:

FROM: 


The National Platform EU Research and Information Centre 
24 Crawford Avenue 
Dublin 9 
Ireland 
Tel.: 00-353-1-8305792 


 Friday 1 June 2012 


 Your Excellency, 


I am writing to you on behalf of this organisation to request you to draw your Government’s attention to the fact that the proposal to ratify the European Stability Mechanism Treaty as it stands and to approve the Article 136 TFEU amendment to the EU Treaties as authorizing the Stability Mechanism envisaged in the ESM Treaty, are unlawful under the EU Treaties and are therefore unconstitutional in Ireland and the other EU Member States. 


I am writing on similar lines to the Ambassadors to Ireland of the other EU Member States which have not yet ratified the ESM Treaty or approved the Article 136 TFEU amendment. 


You are doubtless aware that there are constitutional challenges to the ESM Treaty and the Article 136 TFEU amendment in your own country, in Estonia and in Ireland. In this country Independent Dáil Deputy for Donegal Mr Thomas Pringle has launched a constitutional challenge on these matters which opens in the Irish High Court on 19 June. 


We are informed that Deputy Pringle’s lawyers are seeking a constitutional referendum in Ireland on the ESM Treaty. They are also claiming that the EU Treaties should be amended under a different provision of the Art.48 TEU treaty revision procedure than that being currently used if the ESM Treaty as it stands is to be lawfully ratified under EU law. 


Deputy Pringle’s legal action is seeking to defend the principle that the EU is an entity governed by the rule of law in face of a political attempt to change the EU treaties by subterfuge and to open a way to transforming the present EMU into a fiscal-political union for the Eurozone. 


While my colleagues and I are not involved in Deputy Pringle’s action, we and many other Irish people share his concerns that the integrity of the existing EU Treaties and the Irish Constitution be upheld in face of the attempt by some Eurozone Governments effectively to take the Eurozone captive for their own ends and to organize the Economic and Monetary Union on quite different principles from heretofore by means of this ESM Treaty. 


May we respectfully request you therefore to urge your Government not to proceed with your country’s ratification of the ESM Treaty or approval of the Article 136 TFEU authorisation until the Irish Courts have ruled on the issues raised by this constitutional action. 


The reasons which lead us to believe that the ESM Treaty as it stands is illegal under EU law and unconstitutional in Ireland are the following:- 


1.) Article 3 TFEU of the EU Treaties which have been agreed by all 27 EU Member States provides that monetary policy for the countries using the euro is a matter of “exclusive competence” of the EU as a whole. It is not therefore open to the 17 Member States of the Eurozone to attempt effectively to diminish the competence of the Union and to establish among themselves a Stability Mechanism entailing a €700 billion permanent bailout fund to lend to Eurozone governments as envisaged in the ESM Treaty. 


This ESM fund, to which Ireland would have to make significant contributions for the indefinite future, would trench profoundly on monetary policy for the euro area. The Stability Mechanism envisaged in the ESM Treaty is effectively an attempt to find a way round the “no bailouts” provision of Article 125 TFEU, whereby it is forbidden for the EU to take on the debt of Member States or for Member States to take on the debt of other Member States. It also breaches other EU Treaty articles. 


The ESM Treaty if ratified as it stands would effectively amount to an attempt to open a legal-political path to what France’s President Nicolas Sarkozy called for last November, namely “A Federation for the Eurozone and a Confederation for the rest of the EU”. 


A radical step of this kind, which would transform the Economic and Monetary Union from what it has been up to now, may only lawfully be taken by means of the “ordinary” treaty amendment procedure of Art.48.2 TEU. It cannot lawfully be done by means of a mere Decision of the European Council of Prime Ministers and Presidents under the “simplified” treaty amendment procedure of Art.48.6 TEU. 


The latter procedure is meant to deal with minor technical amendments to the treaties, but it is currently being used by the governments of the 17 Eurozone countries in an attempt to alter radically the character of the EMU by ratifying this ESM Treaty as it stands. 


2.) How can it be lawful for the ESM Treaty to permit a permanent ESM loan fund to be established for the 17 Eurozone countries when the express terms of the Article 136 TFEU amendment, agreed by all 27 EU Governments, authorises a Stability Mechanism only if that is established unanimously by the Eurozone States, as the general provisions of EU law require, viz: “THE Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area AS A WHOLE ” (emphasis in capitals added)? 


The Art.136 amendment to the EU Treaties does not say that “Member States”, meaning SOME of them, may establish a Stability Mechanism, but rather “THE Member States”, namely ALL of them (In French “LES” Membres rather than “DES” Membres). 


Yet the ESM Treaty which has been concluded among the 17 provides that the Stability Mechanism it envisages may come into being once States contributing 90% of the capital of the proposed fund have ratified the treaty. 


The eight largest Eurozone States, a minority of the 17, can therefore establish this Stability Mechanism, while other Eurozone States that may need assistance from it badly are excluded. How then can this be a Stability Mechanism “for the euro area as a whole”, as Article 136 TFEU, which still has to be constitutionally approved by all 27 EU Member States, requires? 


Likewise the so-called "Fiscal Treaty" - the Treaty on Stability, Coordination and Governance in the EMU – on which Irish voters have just voted and which cross-refers to the ESM Treaty, provides that it can come into force when it is ratified by 12 Eurozone Members. Does not this treaty also require unanimous ratification by all 17 Eurozone Members before it can be lawfully binding on them under EU law? 


3.) How can the ESM Treaty be lawfully ratified by July 2012, as is the stated intention of the 17 Eurozone governments concerned, when the Article 136 TFEU amendment to the EU Treaties authorising a Stability Mechanism does not have legal effect, once it has been constitutionally approved by all 27 EU Member States, until 1 January 2013? 


Does not this mean that any treaty purporting to establish an ESM before 2013 must be legally void? ESM Treaty No.1 which was signed by Eurozone Finance Ministers in July 2011 but was never sent round for ratification, conformed to the 2013 time-frame set by the Art.136 TFEU authorisation, whereas ESM Treaty No. 2 which was signed by EU Ambassadors on 2 February 2012 does not. 


This shows again how the exigencies of a political response to the financial crisis by some Eurozone States puts them in breach of EU law and therefore of the Irish Constitution. 


4. ) EU Member States may only sign international treaties that are compatible with EU law. The EU Court of Justice has made clear that intergovernmental agreements cannot affect the allocation of responsibilities defined in the EU Treaties. The provisions of the ESM Treaty and the Fiscal Treaty which involve the EU Commission and Court of Justice in the implementation of the proposed ESM go well beyond what is permissible under the current EU treaties and are therefore unlawful. 


May I inform you that copies of this letter are being released to the Irish and international media for their information regarding the concerns which are widely shared in this country that the proposed ESM Treaty is in violation of EU law and in breach of the Irish Constitution. 


Yours sincerely 
Anthony Coughlan 
Director


One wishes them all the very best of Irish (and other) luck but nobody holds out much hope that legal arguments will sway the euro-elite and the desperate promoters of the European project. Still, this is something to watch with interest.

I asked Anthony Coughlan if he had had any responses. His answer was "none of sufficient interest to merit publicising". I can well believe that.

Hmmm, don't know about that

Der Spiegel is a little worried about the Irish referendum on the fiscal pact tomorrow (for the benefit of those who have not been paying attention, let me point out that this is the treaty that does not exist because the Boy-King has vetoed it and on which we cannot vote in any shape or form because it does not exist).

All of Europe is looking to Ireland as the country prepares to vote on Thursday in a referendum on the unpopular fiscal compact for greater budgetary discipline. If the Irish reject the new treaty, it won't just be a major blow to its main advocate Angela Merkel. It could also spark panic on the financial markets.

Really? I should have thought if the Irish reject the new treaty then they will just have to have another referendum.

Bulgaria lays down conditions

Or so they say. In fact, the Bulgarian Parliament has voted to join the Fiscal Pact. But, said the Foreign Minister, there are six conditions:

Foreign Affairs Minister, Nikolay Nladenov, informed the MPs that the country has set six conditions for the joining, such as no tax harmonization in the EU.

The Eurozone pact aims at establishing more rigid fiscal discipline and stronger coordination of economic policy.

On Wednesday, MPs from three Parliamentary Committees - on Foreign Policy, on European Affairs, and on Budget, at a joint meeting, passed the proposal with which the Parliament gives the cabinet green light to take part in negotiations for the Pact.

The decision states that in joining the Pact, Bulgaria should not assume fiscal responsibilities and will not coordinate its economic policy with the one of the countries in the Eurozone; will not harmonize taxes with the Eurozone, and will have a status of observer at meetings of Eurozone members.

Another condition is for the rules to be valid for the entire EU, without exceptions and parallel structures. The decision also states that Bulgaria will fully endorse the Treaty after joining the Eurozone.

Can't wait to see how they will negotiate all those conditions.

More problems with that pact

According to Der Spiegel there is more dislike of the propose fiscal pact than anyone will openly admit to. But the high expectations awakened by Merkel are unlikely to be fulfilled. Several elements in the agreement are of questionable legality. It can't be written as an EU treaty because Great Britain won't sign it, which means it will only be an "inter-governmental agreement" between the 17 euro-zone countries and a handful of other countries participating voluntarily.

It's turning out to be a big handicap. On the one hand, the European Commission's hands are tied, because it can only act on behalf of all 27 EU members. Despite Merkel's wish, the Commission cannot legally take those that violate budgetary rules to the European Court of Justice. According to the fiscal pact proposal, national governments can only do this among themselves. But no country has ever taken legal action against another in EU history. Such a case would be seen as a gross violation of diplomatic etiquette.

Even if it comes to that, the authority of the European Court of Justice's (ECJ) remains in question. The treaty proposal states that the Luxembourg judges can impose fines of up to 0.1 percent of a country's GDP if they don't properly anchor the debt brake in their national law.

But these sanctions aren't actually provided for by EU law. In fact, they deviate from Article 126 of the Lisbon Treaty. And, according to Matthias Ruffert, a European law expert at the University of Jena, it is likely that all 27 EU members will have to ratify the fiscal pact for any ECJ sanctions to be binding.

Other lawyers argue that the sanctions would not be as binding as other ECJ verdicts. Because the fiscal pact terms involve only an intergovernmental agreement, they aren't EU law, which means they don't automatically come before national law, says European law expert Ronan McCrea, from University College London. Thus, in the case of an emergency, it would be easier for a national government to disregard such a verdict.

It comes to something when the pet project of the German Chancellor is dismissed by the Prime Minister of Luxembourg as being "a waste of time and energy". That is, apparently, what M. Jean Asselborne said.

Troubles with that fiscal compact treaty

Poland is being troublesome again. (Not that it ever lasts too long but while they grumble people listen.)

Donald Tusk, Poland's prime minister, is threatening to keep his country out of the nearly-finalised treaty on greater economic discipline, in a dispute over the right to attend eurozone summits.

Poland is insisting that it should be allowed to attend eurozone summits even though it is not expected to adopt the euro for several years. Tusk told Polish radio on Tuesday (24 January): “If Poland does not win an appropriate status of participant in the eurozone meetings, which would give us a feeling that we take part in the decision-making process, ...we will find it difficult to sign the fiscal pact.”

While it is not unreasonable for the Polish Prime Minister to demand those rights but he is not going to get them. Poland is not in the eurozone and that is the way the colleagues will regard the matter. Mr Tusk should have foreseen this problem when he first agreed to the proposed "treaty", which, as we know is not a treaty because that was "vetoed" by the Boy-King.

He has been lecturing the colleagues on something or other at Davos but even now he will not do the right thing and that is demand a full IGC and a completely new treaty. As CNN reports

Hungary, Sweden and the Czech Republic also expressed reservations about treaty change -- but left the door open, pending parliamentary debate.

Whether anything comes of those reservations is a moot point but it is good to know that somebody will have parliamentary debates about the new proposals.