LEGAL ISSUES:A legally binding decision by EU heads of state is favoured by some, writes JAMIE SMYTHin Brussels
IRISH AND British officials worked into the early hours trying to find a compromise over the precise legal form of the Irish guarantees on tax, neutrality and ethical issues.
Taoiseach Brian Cowen yesterday stuck firmly to his request for an assurance from his EU partners that Ireland can get a protocol in the future which, when ratified, enshrines the guarantees into the text of the EU treaties.
But he faces opposition from several EU states such as Britain, Poland and the Netherlands, which are all anxious that their parliaments will not have to ratify a new protocol related to the Lisbon Treaty.
Instead, they want Ireland to accept a legal decision of the 27 EU heads of state, which is legally binding but does not enshrine the Irish guarantees into the text of the European treaties.
A legal decision by EU heads of state is the mechanism used by the union to provide Denmark with the guarantees it needed to hold a second referendum on the Maastricht treaty in 1993.
The Danes lodged this decision by heads of state with the UN, which makes it a legally binding agreement under international law. The Danes were only able to enshrine these legally binding guarantees in the form of opt-outs into the text of the EU treaties four years later in 1997 when the Amsterdam treaty was agreed by EU.
Anti-Lisbon campaigners such as former Danish MEP Jens Peter Bonde dismiss a council decision as worthless. “It is a creative way of giving people a feeling of legal certainty which does not and cannot exist since only properly ratified EU treaties, with their protocols, can offer binding legal guarantees in EU law,” he told The Irish Times.
But European experts dispute this. UCD professor Brigid Laffan said a decision issued by EU heads of state at the European Council had never been questioned and would be legally binding under international law.
“European heads of state are not in the business of reneging on commitments made to individual member states,” she said.
A protocol is described by Irish officials as the “belt and braces” option because it has the same legal force as an EU treaty.
It would have to be ratified by all 27 EU states before it enters into force, at which time it enters the text of the EU treaties to become primary law. This would help the Government to counteract the argument by No campaigners that it has not managed to change “a comma” in the Lisbon Treaty.
“A protocol and a decision are of course both legally binding texts but a protocol is higher in the hierarchy of EU norms,” says Dr Laurent Pech, lecturer in EU law at NUI Galway. “In particular a protocol has the same value as treaty provisions.
“This means, for instance, that the European Court of Justice must take into account provisions of a protocol when interpreting EU secondary law such as regulations, directions and decisions.”