How an obscure rule could trample EU dissenters

The EU might invoke an 'overpass' clause to head off individual nations' objections to more centralized budgetary powers. 

By , Correspondent

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    (L-R) Germany's Chancellor Angela Merkel, Greece's Prime Minister George Papandreou, France's President Nicolas Sarkozy and European Council President Herman Van Rompuy leave the EU Council building after a meeting preceeding an informal summit of European Union heads of state and government in Brussels in this February 11, 2010 file photo. Plans for amendments to the treaty governing the EU will be discussed at a summit in Brussels tomorrow.
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Plans for amendments to the treaty governing the European Union will be discussed at a summit in Brussels tomorrow, but trouble lies ahead: British Prime Minister David Cameron is threatening a veto, and Ireland's Constitution could trigger a referendum – unless the EU invokes an obscure clause in its Constitution.

First proposed Monday by German Chancellor Angela Merkel and French President Nicolas Sarkozy, the amendments to the Lisbon Treaty would centralize national budgetary powers in EU institutions. 

The move highlights a growing point of tension in the EU: the question of national politics overriding EU interests, and vice versa. Opposition could upend momentum toward greater unity, as Ireland showed was possible when it initially vetoed the Lisbon Treaty in 2008. 

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But a leak from the European Council says the EU plans to circumvent national parliaments to ensure passage of the effort.

A document from the office of European Council President Herman van Rompuy, seen by The Christian Science Monitor last night, detailed a number of potential changes, along with methods for obtaining them. The European Council is composed of the 27 heads of government in the EU.

Such moves toward fiscal union would require major changes to national constitutions. In the case of Ireland, a difficult-to-pass referendum would be required.

But the European Council document indicates the EU may attempt to avoid a referendum using a "passerelle" clause in the Lisbon Treaty. Passerelle, French for "overpass," means the European Council is enabled to override the need for an intergovernmental convention. But any changes via this method will not amount to the sweeping centralization of powers that Merkel in particular wants.

Article 126 of the treaty, which deals with excessive deficits, allows heads of government to change a protocol attached to the treaty without having to go to a convention involving national parliaments or, in the case of Ireland, a referendum.

"Passerelle clauses are narrow and small," Ben Tonra, professor of EU politics at University College Dublin. "You can't shove an elephant through a back door."

The proposal would create "automaticity" of sanctions, giving the European Court of Justice the power to impose fines on countries that failed to balance their budgets.

Political impact would be significant

Mary C. Murphy, lecturer in politics as University College Cork, says invoking the clause could be politically problematic.

"Certainly in Ireland it would have been considered a sneaky inclusion [in the treaty]. I can't see it going down well. Most people will probably be torn but this won't sit well with them, or indeed with national governments," she says.

Despite this, Ms. Murphy says any decision to attempt to do so can be understood: "There was an understanding that it would only be done in an emergency. If ever there was an emergency situation, this is it."

A post-democratic phase?

Businessman Declan Ganley, who led the campaigns against the Lisbon treaty in both 2008 and 2009, says he warned of the EU's ability to override the national parliaments and Ireland's Constitution in 2009.

"We [the No campaign] labeled Lisbon the self-amending treaty [because] they could make changes to the treaty without consulting parliaments and the public. To force a change such as this through, boy, are they making a point. If they do this, we are fundamentally entering a post-democratic phase in European affairs, and that is alarming."

Ireland's emboldened left, composed of Sinn Féin and the United Left Alliance, remains steadfast in its opposition to handing over any more powers to Brussels, now viewed as a cipher for the political will of Berlin, and will demand a referendum.

"There can be no treaty changes without it being out to the people," said Sinn Féin's spokesman.

Paul Murphy, a United Left Alliance European MP from Ireland, said action would be taken to secure a referendum.

"There's a large chance of a need to take a court case over this. It looks like they're going to push the clause to the maximum. What's happening is a major move toward fiscal union," he said.

Should one come to pass, getting the Irish to say yes to anything proposed by the EU could prove a Sisyphean task.

Two possible strategies are the carrot and the stick: debt forgiveness or ejection from the euro.

"There's a lot of hostility [to the EU] at the moment," says Tom McDonnell, policy analyst with the Dublin-based think tank Tasc. "If it was presented in such a way as [to be] the price of a write-down on Ireland's banking debt, it could pass."

Alternatively, the threat of having to go it alone on the markets could be enough to pacify Irish voters.

"An ejection of Ireland from the euro would be traumatic. Our currency would devalue, standards of living would fall, and our bank debts would become unaffordable," says McDonnell.

"The devil, as always, will be in the detail. There's a problem with the system and we need a systematic response. It can be fixed if the right policy options are pursued."

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