Thursday

8th Dec 2016

Irish to vote as treaty is outside normal EU structures

  • A poster protesting the terms of the EU-IMF bailout programme - the referendum may be held in May or June (Photo: informatique)

The drafters of the fiscal discipline treaty did everything they could to make sure it would not trigger a referendum in Ireland but a fact beyond their control - that it was a deal outside EU structures - means Irish people will get to vote on it.

The attorney general decided a referendum on the fiscal treaty was necessary because "it is a unique instrument outside the EU treaty architecture" said Irish Prime Minister Enda Kenny, when announcing the legal opinion on Tuesday (28 February).

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EU treaty architecture is outlined in the Irish Constitution which lists the international treaties that Ireland has signed up to including all the various EU treaties.

Article 29.4 of the Constitution states that: "No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the Communities."

But the article does not refer to other agreements such as intergovernmental agreements, like the Fiscal Compact is.

Ireland's decision took its EU partners by surprise, particularly as the German Europe affairs minister Michael Link last week admitted that the fiscal discipline treaty had been designed to avoid a referendum in the country.

Germany, which alone pushed for the fiscal compact enshrining a balanced budget rule into national law, said it respects the "sovereign" decision of Ireland.

The Irish government for its part will have a herculean task persuading people to vote Yes, with the poll likely to be as much on other questions - such as the extent to which citizens should be bailing out the banks - as much as on the treaty itself.

Meanwhile, a No vote would mean Ireland would not have access to the permanent eurozone bailout fund, the ESM, a fact would likely make markets nervous and lead to conditions where it would need to avail of just such a fund.

A date for the referendum has not been set yet, but the Irish Times reports that a day in May or June is being considered. Kenny is due, along with other EU leaders - except those of the UK and the Czech Republic - to sign the treaty on Friday morning.

The decision to take the intergovernmental path was prompted by the UK's refusal to condone a full EU treaty change at a December Summit.

However it has raised all sorts of difficult legal questions such as the extent to which EU institutions may be used in an intergovernmental agreement.

The resulting text does make use of the European Commission and European Court of Justice but in a legally round-about way. This has prompted concern in London which fears that the fiscal treaty signatories may be abusing this grey area - an issue that will be debated in the House of Commons on Wednesday.

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