Three years ago I wrote anarticle on the European Constitution, or to be more precise, the treaty to establish a Constitution for Europe. When the editor asked me to revisit the subject on the occasion of the Lisbon referendum in Ireland I was immediately encouraged by the words of former Taoiseach or Ireland, Bertie Ahern: “Thankfully, they have not changed the substance … 90 per cent is still there.” All I need to do, then, is re-print 90% of my 2005 article.
That 2005 article began with the controversy over the rejection of the treaty by the voters of France and Holland. This time around only one country’s people is being asked to vote: Ireland. Denmark’s government decided in the end that no handover of sovereignty was involved and that therefore the people need not be asked. France and Holland this time require no referenda. The controversy so far has mainly concerned the reduction in the number of commissioners, qualified majority voting and voting weights – issues of power.
The European Constitution was difficult enough to wade through but the Lisbon treaty is practically impossible to come to grips with. This is because rather than as one thick document, the treaty is presented as a few hundred pages of amendments and changes to the other treaties and agreements that form the basis of the European Union. Here is a fairly typical excerpt:
‘Article 21 shall be amended as follows:
(a) the first paragraph shall be replaced by the following: “The High Representative of the Union for Foreign Affairs – shall ensure that the views of the European Parliament are duly taken into consideration.”‘
The above is an example of a change of form but not of substance: the labels have changed since the times when it was article III-304 (1). Back then, it made reference to a minister. Now he or she is to be a High Representative. Also, the flag, the motto and the anthem no longer figure in the constitution (or treaty, if you insist). Defenders of the Lisbon treaty are disarmingly honest about the cosmetic nature of the changes:
‘The difference between the original Constitution and the present Lisbon Treaty is one of approach, rather than content … the proposals in the original constitutional treaty are practically unchanged. They have simply been dispersed through old treaties in the form of amendments. Why this subtle change? Above all, to head off any threat of referenda by avoiding any form of constitutional vocabulary …’ V. Giscard D’Estaing
Angela Merkel is also frank: “The substance of the constitution is preserved. That is a fact.” (http://www.dailymail.co.uk/news/article-469118/EU-treaty-simply-old-constitution-reborn-says-creator-Giscard-dEstaing.html) (And remember, we were told the constitution was mostly a repackaging of already existing laws, such as the Protocol on the Excessive Debt Procedure.)
In 2005 I wrote “Little if any attempt is made to persuade voters that the governments of the EU should be constitutionally forbidden from pursuing certain economic policies.” This could certainly be transplanted into today’s article, perhaps changing the word “voters” (since there are to be so few of them) to “the public.” This led to the article of the constitution guaranteeing free and undistorted competition in the market place (article I-3 (2) of the original constitution). Here there has been a change: there is no reference to “free and undistorted” in the treaty. But there is mention of it in the rather shadowy Protocol 6 (“On the Internal Market and Competition”). I was unable to find the protocol on the official web site (http://europa.eu/lisbon_treaty/index_en.htm) but hunting around on the internet turned up the following from a UK parliament research paper (December 2007):
‘At French insistence, Lisbon does not refer to the objective of “free and undistorted competition” but a Protocol on the Internal Market and Competition confirms the principle that “the internal market as set out in Article 3 of the Treaty on European Union includes a system ensuring that competition is not distorted” and provides for the Union “if necessary, [to] take action under the provisions of the Treaties, including under Article 308 of the Treaty on the Functioning of the European Union”.’
There is a Polish saying: you kick them out the door and they come back in the window. Following from the insistence on free and undistorted markets I suggested that, for instance, it would be “illegal to forbid private operators from cherry-picking more profitable bus routes.” These worries remain high on the agenda of those concerned with public services, and understandably so, since some of the clauses that protect the public service ideal seem to have gone missing. For instance, ‘Aids shall be compatible with the Constitution if they meet the needs of coordination of transport or if they represent reimbursement for the discharge of certain obligations inherent in the concept of public service,’ vague as it was, is not there any more. There is a reworking of the old article III-166 (2), tucked away in the “Protocol on Services of General Interest” and reading ‘The Provisions of the Treaties do not affect in any way the competence of Member States to provide, commission and organise non-economic services of general interest.’ ‘General interest’ is not defined.
More worrying for trade unions is the Rüffert Ruling. The European Court of Justice was asked ‘Does it amount to an unjustified restriction on the freedom to provide services under the EC Treaty if a public contracting authority is required by statute to award contracts for building services only to undertakings which, when lodging a tender, undertake in writing to pay their employees, when performing those services, at least the remuneration prescribed by the collective agreement in force at the place where those services are performed?’ The Court of Justice said yes: it is an unjustified restriction under Article 49 EC. The 5,000 word judgement is here.
Article 49 EC, in turn, reads: ‘Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of Member States who are established in a State of the Community other than that of the person for whom the services are intended.’ However, it is worth noting that this is already EU law.
In other words: it is illegal to require of subcontractors that they adhere to collectively bargained wages. The implications of this should be obvious. A country where wages are low (e.g. Poland) can send employees to work in one where wages are high (e.g. Ireland) and pay them less than the industry agreed rate. It is because of the Rüffert case that the 45,000 strong Technical, Engineering and Electrical Union (TEEU) in Ireland called for a ‘no’ vote, though there is also concern over the Laval and the Viking cases, both of which involve the undercutting of union rates. (http://www.teeu.ie/news/show.asp?id=219) It would seem that the obligation to provide free and undistorted markets trumps union rights. The pro-constitution Irish Alliance for Europe group claims that the Charter of Fundamental Rights will protect Irish workers and indeed, mention is made there of trade unions. Article 12 gives everyone the freedom to assemble and associate, which includes the right “to form and to join trade unions for the protection of his or her interests,” (http://www.europarl.europa.eu/charter/pdf/text_en.pdf) while article 28 states “Workers and employers, or their respective organisations, have, in accordance with union law and national law and practices, the right to negotiate and conclude collective agreements at the appropriate levels and, in the case of conflict of interest, to take collective action to defend their interests, including strike action.”
In the article on the European Constitution I pointed to the difficulty of finding out the legal implications of the various provisions of the constitution. The answers are coming in: article 28 – whatever a layperson might think of its wording – was not enough to prevent the Rüffert judgment.