EU justice protocol poses a tricky question for Lenihan

European Diary: The picturesque Portuguese city of Viana do Castelo proved the perfect location for EU foreign ministers to …

European Diary:The picturesque Portuguese city of Viana do Castelo proved the perfect location for EU foreign ministers to try to come to a consensus on the future of Europe. With its winding streets, dramatic location looking out to the Atlantic ocean and glorious weather, the city persuaded even some of Europe's stiffer political personalities to don designer sunglasses and spend a few hours chatting in the sun before the formal talks began.

Top of the agenda was the continuing effort to solve Europe's constitutional crisis. With just six weeks left before Europe's leaders are expected to reach a political agreement on the new EU reform treaty at a summit in Lisbon, several political problems still stubbornly refuse to go away.

Britain and Poland remain the biggest potential obstacles to getting agreement on the treaty, which will streamline how the EU takes decisions and set new goals for the Union, such as tackling climate change.

British foreign secretary David Miliband told his colleagues he was concerned the treaty could potentially award the European Court of Justice (ECJ) jurisdiction to make rulings over some EU foreign policy decisions. He argued for clearer language in the treaty to stress national sovereignty over foreign affairs and ensure that Britain's permanent seat at the UN security council cannot be usurped by the new High Representative for Foreign Affairs who will be appointed if the treaty is ratified.

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London is also anxious to ensure that its hard won opt-out from the charter of fundamental rights - a catalogue of citizens' rights - is not undermined by a proposal from MEPs to have the presidents of all three EU institutions proclaim the charter before the reform treaty is signed and have it published in the EU official journal.

But Miliband will face an uphill battle to persuade any of its EU partners to agree to any modifications that depart from a mandate for the treaty drawn up following intense and, at times bitter, debate in the early hours of the last European Council.

"It's not a question of what problems the Brits or Poles have with the treaty, it is a question of what problems they are causing everyone else," says Andrew Duff, a liberal MEP and a member of the InterGovernmental Conference, who noted at the talks in Viana do Castelo that the patience of pro-EU states is now wearing thin.

"Spain and Germany expressed disapproval at the protocol in the draft treaty that gives Britain an opt-out from taking part in EU justice decisions," says Duff, who is sceptical that either member state can wring any more concessions on the treaty.

This protocol, which Ireland may still join in coming weeks, could enable Britain to take part in shaping legislation at EU level in discussions at justice councils and then choose at the final stage of ratification to "opt-out" of the final legislation. The Spanish and Germans fear it gives London the ability to water down key justice proposals that it will not have to live with because it can later opt-out of the law.

This poses a tricky question for Minister for Justice Brian Lenihan who must make a recommendation to the Cabinet shortly on whether Ireland should follow Britain and reserve its right to opt-out of EU decisions on judicial and police co-operation.

But while negotiations with Britain are difficult, particularly given continued pressure from the Conservatives and some Labour MEPs for a British referendum on the treaty, "unpredictable Poland" is still the most troublesome negotiating partner.

With a general election planned for October 21st - just a few days after the Lisbon summit - there are concerns that the treaty could be dragged into electioneering. Polish foreign minister Anna Fotyga, who shrugged off her serious image by enjoying a dance during the evening entertainment, sought to ease European concerns, stating that there was no reason the treaty should get dragged into the election campaign.

But Warsaw is still insisting on having a complex mechanism to delay EU decisions written into the text of the draft reform treaty, a move that all other states reject. It also wants better representation at the ECJ by getting the right to an advocate general and confirmed on Friday that it will follow London in opting out of the charter of fundamental rights.

It bases its objections to the charter on family and moral grounds, rather than London's fear it could bolster British workers' right to strike.

Yet despite an eerie mist that emerged on the final morning and threatened to ruin the traditional family photograph of ministers, the positive mood in Viana do Castelo suggests that solutions can be found for the treaty next month. And then all eyes will fall on Ireland, which is, for now, the only State that will allow a public vote on the treaty.