EUROPEAN DIARY:Brian Cowen has just eight weeks to concoct a viable solution for the EU regarding the treaty
EU LEADERS may have had more important issues on their mind last week than the Lisbon Treaty - principally saving the global economy - but Lisbon hasn't gone away, you know.
Taoiseach Brian Cowen and the Irish diplomats working overtime to find a solution to Ireland's "Lisbon dilemma" have just eight weeks to deliver a viable plan to the European Union.
Last week's EU summit conclusions on Lisbon amounted to a single bland paragraph, which French president Nicolas Sarkozy dismissed as "bureaucratese". But the clear message delivered at the summit by Sarkozy was that Europe needed the institutional machinery provided by Lisbon to tackle the financial crisis and the situation in Georgia.
"We can't work as we are doing, changing every six months . . . You shouldn't be afraid of the stable presidency of the European Council. Europe is not about the lowest common denominator," said Sarkozy, whose country holds the six-month rotating EU presidency.
Sarkozy and other European leaders are too careful to say it out loud but, behind the scenes, they are telling everyone that the Eurosceptic Czech Republic would simply have been unable to handle these two crises if it had held the EU presidency.
This may be unfair to the Czech Republic, who will assume the EU presidency in January. After all, Slovenia did a pretty good job during its presidency in the first half of this year. Yet there is little doubt that a permanent president of the European Council would provide a more stable and credible EU response to tackle crises.
Cowen acknowledged this point during his speech to EU leaders on Wednesday evening, when he reiterated his own support for Lisbon while still refusing publicly to speculate on whether he wants to hold another referendum on the treaty.
But as memories of the unsuccessful June referendum begin to dim, all the signs are that Cowen will order a revote sometime next year, most likely in the autumn. News that Sarkozy has asked the Government to consult the EU council of ministers' legal service increases the prospect of the electorate getting a second chance to cast a vote on Lisbon.
The head of the EU legal service, Jean-Claude Piris, is known as something of a magician in Brussels. The French lawyer has been intimately involved in drawing up every EU treaty since Maastricht in 1992 and was the key legal architect behind Lisbon.
When the EU constitution was rejected in referendums in France and the Netherlands in 2005, he was the official who turned Sarkozy's proposal for a mini-treaty into reality. He achieved this by transforming the constitution into an amending treaty, which makes changes to two existing treaties - the Treaty of the EU and the Treaty on the Functioning of the EU - rather than consolidating the EU rule book in a single "constitutional" text.
He was also involved in helping to craft the Danish opt-outs from the Maastricht Treaty following a failed referendum in 1992. Piris famously drafted the plan for Denmark's future relationship with the EU on a copy of the Financial Times on a flight from Brazil to Oslo because he couldn't find any paper. He still keeps the crumpled newspaper in his safe with his musings on opt-outs on the euro, defence and justice policy for the Danes.
Last week, Cowen told EU leaders the areas he needs tackled: the make-up of the commission; neutrality and
conscription; taxation; and ethical issues such as abortion. Piris may already have scribbled down on a piece of paper a list of possible opt-outs and explanatory declarations that could help to make Lisbon more palatable to the electorate.
Opt-outs from European security and defence policy and/or the European Defence Agency, which seeks to improve the military capabilities of member states, are possible. Declarations which are not legally binding and therefore do not require other member states to re-ratify the treaty on tax, abortion, neutrality and conscription are likely.
Piris's legal expertise would also be required if the Government rethinks the type of question that it asks in a future referendum. Fine Gael MEP Colm Burke has suggested a second vote should offer the public a choice of how much European integration it wants by asking it to vote on whether to opt in or out of various EU policy areas. Piris is well placed to iron out any legal issues that arise from dining a la carte on the treaty.
But could Piris help Cowen to bypass a referendum altogether? Last year, he was one of a core group of EU officials who drafted Lisbon in such a way as to ensure that Denmark would not have to hold a referendum. They did it by addressing nine specific legal points contained in the EU constitution that would have triggered a referendum in Denmark. Some points were dropped altogether, while others were kept but introduced under a new legal base requiring the consent of governments. He could conceivably work with the Attorney General to help him pinpoint elements of Lisbon that could be ratified through the Oireachtas.
This type of fancy legal footwork is more difficult to pursue now that Lisbon has already been ratified by the other 26 EU states and cannot be rewritten. Avoiding a second referendum also raises fundamental political questions that cannot be erased through intelligent legal manoeuvres.
Yet if opinion polls suggest next year that a second vote on Lisbon cannot be won, perhaps Cowen will be forced to turn to Piris for a way out.