What did they get?

A note from Anthony Coughlan in which he analyzes tentatively, because that is all we can do at this stage, the difference in what Ireland got from the EU and what the Czech Republic got. My view remains the same: none of it is worth a dime. I think Professor Coughlan may not disagree too much. Here is the text in full:

Different promises for the Czechs and the Irish to secure the ratification of the Lisbon Treaty
Dublin ... Sunday 1 November 2009

Czech and Irish opposition to ratifying the Lisbon Treaty has been dealt with by different political promises that are supposed to be embodied in the next EU Accession Treaty.

This can be seen from the text of Friday's October European Council Conclusions, as compared with those of June last, which prepared the way for the Ireland's second Lisbon Treaty referendum. Relevant excerpts are given below.

The Czechs have been promised an opt-out from Lisbon's Charter of Fundamental Rights at some future date, even after the Charter has become legally binding on them as a result of Lisbon coming into force. A Draft Protocol that could - or might - do this when the time comes is annexed to last Friday's European Council Conclusions.

Last June the Irish were given interpretative declarations on concerns such as tax, abortion and neutrality and were promised that these would be embodied in a future Accession Treaty Protocol. In contrast to the promise to the Czechs, no draft of such a Protocol was agreed, but the European Council Conclusions stated that it "will clarify but not change either the content or the application of the Treaty of Lisbon" (See text below).

So the Czechs have been promised a real change in the Lisbon Treaty at some future date, and an actual draft of such a Protocol has been drawn up to keep them happy while President Vaclav Klaus permits the ratification of Lisbon. The Irish have been promised a draft Protocol to meet their concerns in some future EU Accession Treaty, but the promise has been accompanied by a statement that this Protocol will not change anything in Lisbon.

Will these promises be fulfilled?

There is no problem with the Irish. Their promised future Protocol will be redundant anyway, for it will not change anything which is already contained in Lisbon. This qualification was explicitly made when this future Protocol was first mooted.

The promise to the Czechs is more problematic, for the following reasons:

1. When the next EU Accession Treaty comes around the Czech Government then in office may no longer wish for a full opt-out from the EU Charter of Fundamental Rights, either because it takes a different view of it from the present Czech Government or because of domestic opposition at the time to such a step, in particular from the Czech trade unions.

2. The main Hungarian Opposition party, Fidesz, which is expected to win next year's elections in Hungary, has stated that it will vote against ratification of the EU's pledge to give the Czechs an opt-out from the Charter of Fundamental Rights because of its concern over Hungarian property claims arising from the post-World War 2 Benes decrees; and any such opt-out would have to be unanimously agreed by all Member States when they come to ratify the future Accession Treaty to which it was attached.

3. Czechs, Germans, Hungarians etc. will all become citizens of the constitutionally new European Union which would be established by the Lisbon Treaty once that Treaty comes into force. In implementing Union law at national level thereafter the Member States will have to recognise the EU citizenship of their national citizens and the rights and entitlements as EU citizens which their national citizens will acquire under the Charter. It would be open to all EU citizens - Germans, Hungarians, Czechs or whatever - to institute legal actions and claims under the Charter of Fundamental Rights immediately the Lisbon Treaty comes into force, including property claims arising from the Benes decrees - and to expect that such actions would be justiciable in national courts as actions of EU citizens. If legal actions over such claims are already instituted under the Charter, it is hard to see EU Governments whose nationals are involved in such legal actions agreeing to ratify an Accession Treaty one of whose purposes would be to make such actions invalid or ultra vires.

4. The Heads of State or Government who will be in office when the next EU Accession Treaty comes up for ratification will be different from the present group. There is no guarantee that they will all feel similarly bound by the political commitment regarding the Czechs given by their predecessors the other day, not least because the legal status of the European Council itself will be changed by the Lisbon Treaty. For Lisbon proposes to make the European Council into an EU institution for the first time, whose actions and failures to act would thereafter be subject to review by the Court of Justice. It is arguable therefore whether the present European Council can bind a future one based on a different legal constitution in the way that is proposed in last Friday's EU "summit" Conclusions.

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October 2009 European Council Conclusions ... Excerpts re the Czech Republic

2. The European Council recalls that the entry into force of the Treaty of Lisbon requires ratification by each of the 27 Member States in accordance with their respective constitutional requirements. It reaffirms its determination to see the Treaty enter into force by the end of 2009, thus allowing it to develop its effects in the future.

On this basis, and taking into account the position taken by the Czech Republic, the Heads of State or Government have agreed that they shall, at the time of the conclusion of the next Accession Treaty and in accordance with their respective constitutional requirements, attach the Protocol (in Annex 1) to the Treaty on European Union and the Treaty on the Functioning of the European Union.

In this context, and with regard to legal application of the Treaty of Lisbon and its relation to legal systems of Member States, the European Council confirms that:

a) The Treaty of Lisbon provides that "competences not conferred upon the Union in the Treaties remain with the Member States" (Art.5(2)TEU);

b) The Charter is "addressed to the institutions, bodies, offices and agencies of the Union with due regard for the principle of subsidiarity and to the Member States only when they are implementing Union law" (Art 51(1) (Charter)

ANNEX 1:
PROTOCOL ON THE APPLICATION OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION TO THE CZECH REPUBLIC

The Heads of State or Government of the 27 Member States of the European Union, taking note of the wish expressed by the Czech Republic,

Having regard to the Conclusions of the European Council,

Have agreed on the following Protocol:

Article 1
Protocol No 3o on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom shall apply to the Czech Republic.

Article 2
The Title, Preamble and operative part of Protocol No 30 shall be modified in order to refer to the Czech Republic in the same terms as they refer to Poland and to the United Kingdom.

Article 3
This Protocol shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union.
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June 2009 European Council Conclusions ... Excerpts re Ireland

The European Council also agreed that other concerns of the Irish people, as presented by the Taoiseach, relating to taxation policy, the right to life, education and the family, and Ireland's traditional policy of military neutrality, would be addressed to the mutual satisfaction of Ireland and the other Member States, by way of the necessary legal guarantees. It was also agreed that the high importance attached to a number of social issues, including workers' rights, would be confirmed.

4. Against this background, the European Council has agreed on the following set of arrangements, which are fully compatible with the Treaty, in order to provide reassurance and to respond to the concerns of the Irish people:

(a) Decision of the Heads of State or Government of the 27 Member States of the European Union, meeting within the European Council, on the concerns of the Irish people on the Treaty of Lisbon (Annex 1);

(b) Solemn Declaration on Workers' Rights, Social Policy and other issues (Annex 2).
The European Council has also taken cognisance of the unilateral declaration of Ireland (Annex 3), which will be associated with the Irish instrument of ratification of the Treaty of Lisbon.

5. Regarding the Decision in Annex 1, the Heads of State or Government have declared that:
(i) this Decision gives legal guarantee that certain matters of concern to the Irish people will be unaffected by the entry into force of the Treaty of Lisbon;

(ii) its content is fully compatible with the Treaty of Lisbon and will not necessitate any re-ratification of that Treaty;

(iii) the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon;

(iv) they will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union;

(v) the Protocol will in no way alter the relationship between the EU and its Member States. The sole purpose of the Protocol will be to give full Treaty status to the clarifications set out in the Decision to meet the concerns of the Irish people. Its status will be no different from similar clarifications in Protocols obtained by other Member States. The Protocol will clarify but not change either the content or the application of the Treaty of Lisbon. (emphasis in bold added)