full text of lisbon2?

gizmo555 wrote: »

But French and Dutch voters did reject the constitution in their referenda, yet, if one accept's Giscard's views (as I do), they're getting it anyway, almost unchanged, in the form of the Lisbon Treaty.

gizmo555 wrote: »

In this case, however, Lisbon is the same as the constitution already rejected at referenda in Holland and France.

32. There are undoubted differences between the two treaties. Unlike the Constitutional Treaty, the Lisbon Treaty does not purport, either by its title or in its terms, to lay down a constitution for Europe. Unlike the Constitutional Treaty, it does not repeal the existing treaties and replace them by a single text, but proceeds by way of amendment of the existing treaties; and it leaves in place the existing entities and institutions (save that the European Community is subsumed into the European Union) rather than replacing them with a new legal entity. We see no basis for dismissing such differences as obviously immaterial even if they are treated as differences of form rather than of substance.

33. There are also, on any view, differences of substance. Mr Sumption QC referred the court to an analysis by Professor Steve Peers, of the University of Essex, which identified 35 substantive differences between the two treaties. That analysis is not accepted by the claimant and has been the subject of debate between Lord Blackwell and Baroness Ashton (the Leader of the House of Lords) in correspondence that we were shown. Thankfully, detailed argument before us was confined to 5 specific examples which were said by Mr Sumption to be illustrative and were set out in a written schedule, to which Mr Singh helpfully responded in a counter-schedule. They relate in part to matters on which the United Kingdom set down its "red lines" for the negotiation of the Lisbon Treaty. They are as follows:


i) The first concerns the opt-out for the United Kingdom in the area of freedom, security and justice (Protocol 21 to the treaties as amended by the Lisbon Treaty): the opt-out is extended so as to cover matters of policing and criminal law in addition to matters of immigration and civil law which were covered by the corresponding opt-out in the Constitutional Treaty. Mr Singh did not deny that there was an extension, but referred to the existence of opt-in provisions in Articles 3 and 4 of Protocol 21 and submitted that the scope of the extended opt-out was limited by a declaration made by the United Kingdom on Article 75 of the Treaty on the Functioning of the European Union (the new name given to the EC Treaty by the Lisbon Treaty). Limited though it may be, the extension of the opt-out cannot in our view be dismissed as obviously immaterial.

ii) The second example was presented in terms of the conferment of additional powers on national parliaments to delay or resist EC legislation by reference to principles of subsidiarity. The point turns on a new provision, in Article 7(3) of Protocol 2 to the treaties as amended by the Lisbon Treaty, whereby the Commission must review a measure if there is a majority of votes from national parliaments that the measure does not comply with the principle of subsidiarity. In addition, the period of response for national parliaments has been extended from 6 weeks to 8 weeks. Mr Singh made the cogent point that it is unlikely in practice that a majority of national parliaments will respond with the required reasoned opinions even within an 8 week time-frame, and that even if they do it alters the procedure but not necessarily the outcome. Again, however, we do not think that the change can be dismissed as obviously immaterial.

iii) The third example relates to changes with regard to the application of the Charter of Fundamental Rights to the United Kingdom. The Charter formed an integral part of the Constitutional Treaty, whereas under the Lisbon Treaty the position is more complex. The Charter is not part of the treaties, but the amended Article 6(1) of the Treaty on European Union provides that the Union recognises the rights, freedoms and principles set out in the Charter "which shall have the same value as the Treaties". However, Article 1 of Protocol 30 provides that the Charter does not extend the ability of the Court of Justice or national courts to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms; and in particular, that nothing in Title IV of the Charter (concerning economic and social rights) creates justiciable rights applicable to the United Kingdom "except in so far as … the United Kingdom has provided for such rights in its national law". The precise legal consequences of those provisions will have to be worked out by the courts. Again, however, we take the view that the differences in this respect between the two treaties cannot be dismissed as obviously immaterial.

iv) The fourth example concerns an amendment by the Lisbon Treaty to Article 4(2) of the Treaty on European Union, which provides inter alia that the Union shall respect the essential state functions of member states, "including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security". As a result of the amendment this is followed by an additional sentence: "In particular, national security remains the sole responsibility of each Member State". Mr Singh submitted that the addition of that sentence did not amount to a substantive change, both in the light of the preceding sentence, which was contained in identical form in the Constitutional Treaty, and in the light of the further provision in Article 72 of the Treaty on the Functioning of the European Union, as amended by the Lisbon Treaty, that Title V of Part Three (on the area of freedom, security and justice) "shall not affect the exercise of the responsibilities incumbent upon Member States with regard to the maintenance of law and order and the safeguarding of internal security": that provision, too, was contained in identical form in the Constitutional Treaty. Although the additional sentence in Article 4(2) does seem relatively minor, we do not think it possible to conclude that an express statement that national security remains the "sole" responsibility of the member states is of no materiality.

v) The final example concerns Article 352 of the Treaty on the Functioning of the European Union, as amended by the Lisbon Treaty. The article confers residual powers for the adoption of measures necessary for the attainment of treaty objectives where the treaties have not otherwise provided the necessary powers. Article 352(4) provides that the article "cannot serve as a basis for attaining objectives pertaining to the common foreign and security policy and that any acts adopted pursuant to this Article shall respect the limits set out in Article 40, second paragraph, of the Treaty on European Union". No such limitation was contained in the corresponding provision of the Constitutional Treaty. Mr Singh submitted that the limitation is likely to have limited, if any, substantive significance. In our view, however, one cannot dismiss as obviously immaterial a provision of this kind limiting the scope for European Union measures in the field of foreign and security policy.

36. The defendants, on the other hand, point to the advice given by the Dutch Council of State on 12 September 2007 on the mandate of the intergovernmental conference that led to the Lisbon Treaty. The Council of State reached this conclusion at section 3.5:

"The Council concludes that the proposed Reform Treaty will be a treaty whose content, methodology and goals are in keeping with the EU's constitutional development as described in Section 3.1 Taken individually, many of the differences between the proposed Reform Treaty and the Treaty establishing a Constitution for Europe amount in strictly legal terms to shifts in emphasis, changes of form and abolition of symbols; the same was true, but in reverse, of the Treaty establishing a Constitution for Europe in relation to earlier treaties. Taken together, more far-reaching significance should be attached to changes such as the abandonment of the idea of a single written constitution, the decision not to include the whole of the Charter of Fundamental Rights, the sharper delimiting of the Union's competences (including those in the protocol on services of general interest and of general economic interest) and the decision not to include the symbols of European unification.

The purpose of all these changes is to rid the proposed Reform Treaty as far as possible of the elements from the Treaty establishing a Constitution for Europe which could have formed a basis of the development of the EU into a more explicit state or federation. This means that the proposed
Reform Treaty is substantially different from the Treaty establishing a Constitution for Europe."

gizmo555 wrote: »

There is opposition to Lisbon in both countries. But that's beside the point. As a citizen of an EU country, I'm entitled to express opposition to what I see as wrongdoing by the EU and its members, whether it happens here in Ireland or elsewhere in Europe.

gizmo555 wrote: »

First of all we are not voting on the consolidated treaties - we are voting on the Lisbon Treaty. Maybe the consolidated treaties will be an aid, but at about 500 pages, I can't see many voters managing to get through them.

gizmo555 wrote: »

If the French and Dutch peoples' responses to the Lisbon Treaty are anything like ours, it is equally reasonable to assume the lack of protest is due to mass incomprehension.