European Council's guarantees and assurances on the Lisbon Treaty

Lisbon Treaty referendum

The Treaty of Lisbon came into effect on 1 December 2009. The European Council has given specific guarantees about how it affects Ireland in a number of areas. These are the areas which the Irish government identified as having caused concerns to Irish people in the first referendum:

• Taxation policy
• The right to life
• Education and the family
• Military neutrality.

These guarantees are contained in a decision of the European Council. The European Council has also made a declaration on other social issues including the rights of workers.

European Council guarantees

Right to life, family and education 

The European Council decision states that nothing in the Lisbon Treaty attributing legal status to the Charter of Fundamental Rights, or in its provisions on the area of Freedom, Security and Justice, affects the scope and application of the articles of the Constitution of Ireland which deal with the right to life (Article 40.3.1), the protection of the family (Article 41) and the protection of rights in respect of education (Articles 42, 44.2.4 and 44.2.5).

Taxation

The European Council decision states that nothing in the Lisbon Treaty makes any change of any kind for any member state in relation to the powers of the EU in respect of taxation. Decisions by the EU on taxation must be made unanimously.

Security and defence

The European Council decision restates the guiding principles of the EU’s international actions. These are democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. The EU’s common security and defence policy is an integral part of the common foreign and security policy and provides the EU with an operational capacity to undertake missions for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter.

The decision goes on to state that the EU’s common security and defence policy does not prejudice the security and defence policy of each member state, including Ireland, or the obligations of any member state. It further states that the Treaty of Lisbon does not affect or prejudice Ireland’s traditional policy of military neutrality. It will be for each member state to determine the nature of aid or assistance to be provided to another member state which is the object of a terrorist attack or the victim of armed aggression on its territory. Any decision to move to a common defence requires a unanimous decision of the European Council. It would be a matter for each member state, including Ireland, to decide whether or not to adopt a common defence. It is also a matter for each member state to decide whether to participate in permanent structured cooperation or the European Defence Agency.

The Treaty of Lisbon does not provide for the creation of a European army or for any form of conscription. It does not affect the right of Ireland or any other member state to determine the nature and volume of its defence and security expenditure and the nature of its defence capabilities. It will be a matter for Ireland or any other member state, to decide whether or not to participate in any military operation.

Irish Government declaration

At the meeting of the European Council at which this decision and declaration were made, Ireland made a declaration in relation to military neutrality. This sets out the Irish Government’s policies and practices. It reiterates that, in order for members of the Irish Defence Forces to take part in overseas operations including those carried out under the
European common security and defence policy, all the following requirements must be met:

• Authorisation of the operation by the Security Council or the General Assembly of the United Nations
• The agreement of the Irish Government
• The approval of Dáil Éireann.

This declaration is associated with the instrument of ratification.

Solemn declaration on workers’ rights

This is a declaration by the European Council that it confirms the high importance which the EU attaches to:

• Social progress and the protection of workers’ rights
• Public services
• The responsibility of member states for the delivery of education and health services.
• The essential role and wide discretion of national, regional and local authorities in providing, commissioning and organising services of general economic interest. In doing so, it underlines the importance of respecting the overall framework and provisions of the EU treaties.

Legal status of the guarantees

The guarantees are contained in a new international treaty which is legally binding on all 27member states of the EU. They are not part of the Lisbon Treaty. The Lisbon treaty itself is not changed by this new treaty. The European Council has agreed that protocols will be added to a later EU treaty to give full effect in EU law to the guarantees (this is likely to be a Treaty of Accession for a new member state – Croatia or Iceland).

The main difference between this international treaty and a protocol to an EU Treaty is that an international treaty, while binding on the signatories, does not have an enforcement mechanism. An EU treaty and any protocol to it becomes part of EU law and is enforceable by the European Court of Justice in the same way as other EU laws.

The new international treaty came into force on the same day as the Treaty of Lisbon. 

The solemn declaration is a political statement. It is not legally binding.

Member of the Commission

The previous treaties governing the EU required that the number of Commissioners be reduced to less than 27. 

The Treaty of Lisbon includes a mechanism for deciding which member states would nominate a Commissioner for a particular five-year term. It also includes a provision that allows the European Council to decide that each member
State may nominate a Commissioner. The European Council decided that, provided the Treaty of Lisbon came into force, it would make a decision to allow each member state to nominate a Commissioner.