The long-awaited changes to the European Union (EU) are now under the umbrella of the Lisbon treaty. Whether and when the treaty will come into force remains uncertain. Following an overwhelming “yes” to the second referendum held in Ireland on the 3^rd of October 2009, the Polish President signed the Lisbon document. Poland and the Czech Republic had been the last members of the European Union to not have ratified the treaty. The spotlight now lingers on the Czech President Vaclav Klaus, whose Euro-scepticism prompts him to withhold his signature while Europe waits. It is important to understand the reasoning of Lisbon treaty opponents because the anticipation leaves enough time to seed doubt on the utility of the Lisbon treaty, and the future of the European Union. This article, by drawing on the Irish example and more extensively on the Czech case, argues that hostility towards the Lisbon treaty is not exemplary of disbelief in the EU, but rather confusion as to its content and legal status, and is motivated by political gains.  

Comparing objections to the Lisbon treaty with Euro-scepticism

Euro-scepticism is identified as opposition to the EU or the process of European integration. There are objections put forward against the Lisbon treaty that can be qualified as Euro-scepticism. These range from the fear of creation of a European superstate (the so-called federalist argument), to more and more power being given to Brussels without any democratic accountability in the other direction. This article will address these Euro-sceptic objections presented against the treaty of Lisbon through the Irish and Czech example and will refute them. It will seek to prove that neither case can simply be equated to Euro-scepticism. Other doubts regarding the treaty are caused by the fear of loopholes caused by the fine print of the document. Such objections show an understanding of the document and can be alleviated. The Polish and UK governments’ negotiated opt-outs from the Charter of Fundamental Rights, to ensure that it would not override their courts in certain areas of law.  

Ireland

In June 2008, the first referendum was held in Ireland on the Lisbon treaty. The rejection (more than 53 percent said “no”) was primarily explained in terms of inherent Irish anti-EU sentiments. However, this article argues that this is a minor force. The problem began with Irish politicians’ equation of the implementation of the treaty as entailing an amendment to the Irish constitution; thus demanding a referendum. This is a legally grounded matter based on an Irish Supreme Court ruling from 1987, the discernment of which must be left to the experts. However, the issue must also be explained to the voters because it leads them to believe that the Lisbon treaty will cause major changes to the European Union and the Irish constitution.

Does the Lisbon Treaty carry significant changes to the EU? The main institutional changes engendered by the treaty are the new president of the European council, a new "high representative" for foreign affairs and greater powers for the European parliament. The Economist called these modifications important, yet technical. They primarily affect the EU’s rule book, not the EU citizens. The most noteworthy alteration put in motion by Lisbon could be the chance at a united European voice in foreign affairs. Some Euro-sceptics fear that this will give a lot of power to Brussels.  Nevertheless, unanimity remains the rule in foreign policy and its success will continue to depend on the political will among national leaders.

The Irish “no” did not symbolise Euro-scepticism, but a lack of understanding.  Prior to the 2008 referendum Irish politicians put little effort in explaining the content and significance of the treaty. It is not a document that can be read and understood on its own, it is a supplement to other EU treaties. Its complexity makes it vulnerable to misgivings, and, as was the case in Ireland: to being the victim of mis-portrayals. The Lisbon treaty contains no grand project, such as the euro or enlargement to the east, to engage the public. What was the result? Uncertain about what the treaty meant, the Irish used the referendum to express their dissatisfaction with domestic politics. One striking difference between the first and second Irish referendums (67 percent backed the treaty) was the level of knowledge displayed by Irish voters about the treaty.

The Czech Republic

Shortly after the 2009 Irish referendum, a group of Czech senators close to President Klaus filed a complaint with the Czech Constitutional Court stating that the Lisbon treaty lays the foundation for a superstate and so violates Czech laws. A superstate is defined as an extremely powerful centralized government maintaining close control or supervision over its member states and their inhabitants. Would the Lisbon treaty bear a European superstate? Such an assumption is mostly based on the comparison of the treaty with the 2004 proposition of a European constitution. The Lisbon treaty amends the Treaty on the European Union (Maastricht 1992) and the Treaty Establishing the European Community (Rome 1957), but does not replace them. By contrast, the Constitution would have not just “simplified”, or “tidied up” existing treaties, it would have involved a radical alteration of the underlying reality these treaties represent. It would have entailed a transformation in the political-legal existence of the EU creating an entirely new and vastly more powerful European Union in the constitutional form of a Federal European State. Although it is a fact that the substance of the constitution is preserved in the Lisbon treaty, as confirmed by German Chancellor Angela Merkel in 2007, the difference lies in its legal standing. The Lisbon treaty gives the EU legal personality but this is not equivalent to a political-legal existence. The European Union already has implicit legal personality because of the legal personality of the two Communities that comprise it (European Community and Eurotom – the ‘pillar’ system). The Lisbon treaty dissolves this ‘pillar’ system hence transferring the legal personality to the EU. However this does not create a new legal situation, it simply recognises an existing one because the EU has already been signing up to international treaties using the legal personality of the European Community. To conclude and refute the federalist argument directed against Lisbon, legal personality is a legal fiction that allows the EU to sign up to international treaties and does not create an EU superstate.

In anticipation of the treaty

The Czech Constitutional Court has yet to give its verdict on this matter. In the meantime, The President announced that his hesitation had another cause: it is linked to a part of the treaty, the Charter of Fundamental Rights. The President claims that the Charter could be used as a legal basis for a flood of property claims related to the expulsion of three million Germans from Czechoslovakia after World War II. Experts refute this claim and the New York Times called it a “face-saving manoeuvre aimed at clearing the way for him to sign a treaty he has long ridiculed”.  Vaclav Klaus is well known for his Euro-scepticism, however to understand his plea against the Lisbon treaty requires familiarity with his character and role as President. According to Marion Van Renterghem of the European service of “Le Monde”, Vaclav Klaus is a man who likes to stand in the spotlight, alone against everything. By delaying the Lisbon treaty he is not representing the Czech opinion for two reasons. Firstly, the Czechs are content with the advantages of EU membership and are mostly pro-European. Secondly, their President is elected by Parliament which has already ratified the treaty.

This situation could be easily mended by allowing the Czech Republic to opt-out of the Charter of Fundamental Rights. However it is undecided whether President Klaus will settle for such an arrangement and whether it will not be necessary to revise the entire treaty. If the treaty is withheld until June or May 2010, its existence becomes even wearier. This is the time of the UK general election and if, as the opinion polls suggest, the Conservative party takes power, then leader David Cameron could offer voters a "consultation" on relations with Europe. Brussels predicts a negative outcome. Therefore, not mistaking Lisbon-scepticism for Euro-scepticism is crucial in the context of the Lisbon treaty not going through. If it is later thought that its failures were based on wide-spread Euro-scepticism, the development of any new EU institution-enhancing project would be rendered more challenging, or even futile.

Drawing the right conclusions