EU 94: Letter to the Chairman of the Committee from the

Secretary of State for Foreign and Commonwealth Affairs:

European Council Decisions: Ireland and Denmark

 

 

I undertook to write to the Committee to provide more detail on a Decision of the European Council, of the type agreed for Ireland at the June European Council and for Denmark in 1992. As I said to the Committee on 17 June, and repeated to the European Scrutiny Committee (ESC) on 2 July, such a Decision is binding in international law. The June European Council conclusions state that: "the Decision is legally binding and will take effect on the date of entry into force of the Treaty of Lisbon." States have, of course, the capacity to make binding agreements between themselves. That is what this Decision does. The European Council closely followed the precedent of the 1992 Danish Decision, which as you know agreed a solution to the issues raised by the Danish Government following their first referendum on the Maastricht Treaty. That Decision was also binding in international law. As the then Prime Minister, Sir John Major, said to Parliament on 14 December 1992: "this is a legally binding, intergovernmental agreement. It is binding in international law. That was the clear and unequivocal advice of Council legal services, accepted by the European Council-but it does not change the substantive nature of the treaty itself."

The Danish Decision was registered at the UN as an international agreement; the Irish are intending to do the same. The Irish Decision clarifies what the Lisbon Treaty does and does not do in the areas of tax, defence and ethical issues of particular importance to the Irish. As the Government has made clear to Parliament, it accords with what was already our interpretation of the impact of the Treaty on tax, defence and the Charter and Justice and Home Affairs.

 

The European Court of Justice may use a Decision such as this as an aid to interpretation of the EU Treaties. But that is what the Decision is - a clarification. Such a Decision could not change the Treaties. The Treaty agreed by the Member States in 2007 is unchanged, and the Irish guarantees provide further - and from an Irish point of view definitive - clarification of the relevant provisions of the Lisbon Treaty. The ECJ could therefore take the Decision into account in interpreting the EU Treaties, as I explained at the ESC.

 

The June European Council conclusions confirm that Member States: "...will, at the time of the conclusion of the next accession Treaty, set out the provisions of the annexed Decision in a Protocol to be attached, in accordance with their respective constitutional requirements, to the Treaty on European Union and the Treaty on the Functioning of the European Union." The purpose of a Protocol is to give full Treaty status to the Decision. The Protocol will be subject to ratification by each Member State, which in the case of the UK means, in accordance with Section 5 of the EU (Amendment) Act 2008, that Parliament will have to pass a Bill before the UK can ratify that Protocol. Parliament has the final say.

 

Rt Hon David Miliband MP

Secretary of State

Foreign and Commonwealth Office

 

15 July 2009