EU LEADERS SET PATH FOR NEW IRISH VOTE ON LISBON TREATY

UNCLAS SECTION 01 OF 02 BRUSSELS 001892

SIPDIS

E.O. 12958: N/A
TAGS: PREL EUN EI

SUBJECT: EU LEADERS SET PATH FOR NEW IRISH VOTE ON LISBON TREATY

REF: Brussels/USEU 1590


1. SUMMARY: Irish PM Brian Cowen at the December 11-12 European
Council committed to put the Treaty of Lisbon to another referendum
before the end of October 2009 in exchange for assurances on Irish
concerns which motivated the "No" in June 2008. The leaders
concurred that the Commission would continue to include one national
per Member State and that other Irish concerns on taxation, social,
and ethical issues as well as respect of the country's neutrality
would be addressed "to the mutual satisfaction of Ireland and the
other Member States." Legal technicalities of the deal will be
completed by mid-2009 before the Irish government formally announces
the re-run. If this path is successful, the Treaty of Lisbon will
come into force by the end of 2009. END SUMMARY.


2. EU leaders in their December 11-12 European Council found a
"path" for the Treaty of Lisbon to take effect "by the end of 2009."
Under the understanding reached by Irish PM Brian Cowen and his
fellow Heads of State and Government, another referendum on the
Treaty will be held in Ireland before the end of the current
Commission's term in office (end of October 2009). The re-run will
take place in light of commitments by the European Council to
address Irish concerns with EU reforms and "detailed follow-up work"
to be completed by mid-2009. Ireland is constitutionally bound to
ratify the Treaty by referendum. All but one of the other 26 EU
Member States already approved the Treaty using the parliamentary
route, with the exception of the Czech Republic (upcoming
Presidency),where the Parliament is expected to pronounce early in

2009. EU Treaties can only enter into force when all Member States
have formally deposited their instrument of ratification, which
normally requires a couple of months after the last approval has
been recorded.


3. PM Cowen's presentation and the ensuing deal in the European
Council were based on recognition of concerns found by the Irish
government to have led to the June 2008 rejection of the Treaty.
Cowen told colleagues that while Ireland waned to remain deeply
involved with the EU, the concerns of his citizens needed to be
addressed. The fear that Ireland might lose its right to nominate a
Commissioner was crucial in this respect. Other concerns also
needed to be taken on board through legal guarantees and assurances
robust enough to withstand any domestic challenge.

ONE COMMISSIONER PER MEMBER STATE
--------------


4. The leaders consequently agreed: "Provided the Lisbon Treaty
enters into force, a decision will be taken, in accordance with the
necessary legal procedures, to the effect that the Commission should
continue to include one national of each Member State." Under
Lisbon, the Commission size would be reduced as from 2014, with only
two-thirds of Member States being allowed to nominate a
Commissioner. The current provisions, based on the Nice Treaty,
require an earlier reduction in the Commission's size, to be applied
to the Commission that will take over from the current Barroso team.
The Benelux countries were reluctant to drop a reform they had
sought and secured a few years ago (subject to agreement on the
modalities) with the aim of preventing the Commission becoming
inefficient and enhancing the supranational character of the
institution. However, they could not afford to block the deal
cooked up by the French Presidency and the Irish. Speaking at his
December 12 press conference, French President/European Council
chair Sarkozy did not hesitate to call "an error" the decision by
the Lisbon negotiators to deprive EU Member States from the
responsibility to chair top-level EU meetings (by way of creating a
new position of permanent President of the European Council),while
asking them not to nominate a Commissioner. In Sarkozy's words:
"That was too much."

FURTHER LEGAL GUARANTEES
--------------


5. The leaders also noted other concerns of the Irish people
related to "taxation policy, family, social and ethical issues, and
common security and defense policy with regard to Ireland's
traditional policy of neutrality." The necessary legal guarantees
will be these:

-- Ensuring that the Treaty of Lisbon provisions make no change of
any kind to the extent or operation of the EU's competences in the
area of taxation;

-- Ensuring that the Treaty of Lisbon does not affect the security
and defense policy of the Member States, including Ireland's
traditional policy of neutrality, nor the obligations of most other
Member States;

-- Ensuring that the provisions of the Irish Constitution in
relation to the right to life, education and the family the terms
are not affected in any way by the binding character enshrined in
the Lisbon Treaty will of the EU Charter of Fundamental Rights and

BRUSSELS 00001892 002 OF 002


the Treaty provisions concerning justice and home affairs.


6. President Sarkozy told his European Council final press
conference the legal guarantees could be enshrined as a Protocol to
the Accession Treaty that will be concluded with the 28th Member
State (expected to be Croatia) and will have to be ratified by the
EU-27 (through parliamentary vote). Both Sarkozy and Commission
President Barroso expressed their belief that Irish voters will
realize "how much they need the EU" (and its reforms) "just like the
EU needs Ireland."

OTHER CONCERNS NOTED
--------------


7. A statement annexed to the Summit conclusions further lists the
Irish concerns, including "Confirming that the Union attaches high
importance to social progress and the protection of workers' rights;
public services, as an indispensable instrument of social and
regional cohesion; the responsibility of Member States for the
delivery of education and health services; and the essential role of
local government in providing commissioning and organizing
non-economic services of general interest, which is not affected by
any provisions of the Treaty of Lisbon, including those relating to
the common commercial policy."


8. PM Brown had raised last-minute reservations on the legal nature
of the guarantees to be provided to the Irish. EU sources said the
UK was sensitive to anything that might introduce Treaty changes
through the back door and provide ammunition to Brown's political
opponents. The strictly delineated legal guarantees were therefore
crafted to ensure that any legally binding protocol attached to
future EU treaties does not impact on the national legal systems of
other Member States, in particular concerning workers' rights.
Brown assured domestic media that the assurances to be provided to
the Irish do not "in any way" change the British "red lines" with
Lisbon Treaty reforms. Sarkozy publicly paid tribute to Brown's
"constructive attitude."


9. The Irish government reportedly also forced changes to the
separate draft Declaration on European security and defense policy
(ESDP),to have the UN's role highlighted. The Declaration, pledges
to give a "fresh impetus to European security and defense, in full
complementarity with NATO. It also asserts the EU's "determination
to continue its support for the UN and for the efforts made by
regional security organizations, including the African Union, to
promote international peace and security."


10. The leaders stated in a separate declaration that if Lisbon
comes into force after a date when a six-monthly Presidency has
already begun, the competent authorities of the Member State holding
the six-monthly office the Presidency will continue to chair all the
European Council (top-level) and Council (ministerial-level) as well
as third-country meetings (Note: including the EU-US Summit) until
the end of their six-month term. Provisions are also envisaged for
the European Parliament to be elected in June 2009 (based on current
Nice Treaty provisions implying a Parliament of 736 members) to
increase "if possible during the year 2010" the total number of MEPs
from 736 to 754 for the remainder of the legislative period. (Note:
The adjustment will likely appease MEPs; some of them may have to
wait only a couple of months to regain/take up seats won in June
2009.)

COMMENT
--------------


11. Though the agreed "path" may not be exempt from further legal
challenges, the French Presidency managed to produce a best-case
scenario. PM Cowen set out his concerns and received political
understanding for his problems. In return, the Irish agreed to
provide long-awaited clarification on the timeframe within which the
Lisbon Treaty may be ratified. The Irish concern about "their"
Commissioner resulted in a decision to come back on a reform that
was part of a broader, overall compromise on EU institutional
changes. Critics will say that those who created a problem will
eventually be rewarded. President Barroso, who was instrumental in
helping the French Presidency behind the scenes, will not be
bothered. A large Commission suits his managerial style, which is
based on strong presidential authority and limited leeway for his
Commissioners in running the Brussels bureaucracy.

SILVERBERG