No change

The Irish Times reports that the conclusions from the Council meeting on the 'Irish situation' have been finalised. The conclusions are meant to give the Irish assurances on retaining a Commissioner, on neutrality, abortion and taxation. The draft conclusions made clear that EU leaders want the Treaty to come into force by January 2010, with a referendum likely to be held in autumn 2009 - after the European elections.

Speaking at a press conference in Brussels at lunchtime Taoiseach Brian Cowen said: "On the basis of today's agreement ... I am prepared to go back to the Irish people next year." Nicolas Sarkozy celebrated the fact that “The Irish will be consulted again".

A leader in today's Times hits the nail on the head:

Europe's - and Mr Cowen's - impatience with Ireland's voters have revealed a basic misunderstanding of democracy next to which the EU's other problems pale. Europe can and must thrive as a coalition of the willing. That is not what the Lisbon treaty promises to build.

A re-run vote on the already rejected Treaty is hardly a surprising outcome. But, equally expected, these 'assurances' are riddled with uncertainties. The exact legal nature of the assurances now needs to be sorted out, which will take us well into 2009.

What EU leaders absolutely want to avoid is having to re-ratify the Treaty in each member state, which would need to happen if anything in the Treaty changes. Adding a legally binding protocol to the Lisbon Treaty, for instance, changes the content of the Treaty, effectively making it a new Treaty requiring re-ratification in all 27 member states. At the same time, the Irish obviously cannot be seen as voting again on the exact same text as in June. The solution must lay elsewehere. So how do you change a Treaty without changing the actual Treaty? That is an equation that should not add up, at least according to all known laws of logic.

But this is EU politics, remember.

According to EUobserver, Nicolas Sarkozy said today that a protocol will be added to the Croation accession treaty. Sarkozy said:

"To give a legal value to the engagements made to Ireland by the 26 other member states, we have committed that at the time of the next EU enlargement – whether that will be in 2010 or in 2011, when probably Croatia will join us ... we will use that to add a protocol [on Ireland] to Croatia's accession treaty,"

If this was to happen, the Irish would hold a referendum next year based on future concessions.
Still, the details are very unclear - on Ireland retaining the Commissioner, for instance. As pointed out by former EP President Pat Cox in today's Irish Times:

A key concession is the European Council's unanimous agreement to allow each member state to nominate a commissioner in perpetuity. This concession does not require a change to the Lisbon Treaty, which already provides the European Council with the right to decide the number of commissioners, subject to unanimity.

The Council could simply agree on this by means of unanimity - but how such an agreement would be 'legally guaranteed' is unclear. For the other issues, the precise formulation and legal implications of the "guarantees" remain anyone's guess. There is, of course, a general issue with protocols and EU treaties. As the House of Commons EU Scrutiny Committee has pointed out in regards to the UK's proposed protocols on the Lisbon Treaty - they're far from watertight. And unlike the Danes in 1992, the Irish will not get opt-outs per se, but rather 'clarifications' that their laws will not be affected by some presumptive future EU decisions in general policy areas.

Tony Barber points out, that there's also a risk for EU leaders here. The move would be perceived - rightly in our minds - as EU leaders trying to sneak changes to the Treaty through the backdoor. There's a possible scenario, of course, that EU leaders in fear of a second No vote in Ireland, will find ways to insert the institutional changes of the Lisbon Treaty into the accession treaty.

And let's not forget, in 2010 the Tories could well be in power in the UK with everything that that implies.

It's important to keep in mind, adding such protocols to the Croation accession treaty would not be the same changing-the-treaty-without-changing-it solution that the Danes got in 92/93 after their rejection of the Maastricht Treaty. The solution then was the so-called Edinburgh Agreement which laid down the Danish opt-outs in the areas of defense policy, justice and home affairs, the euro and union citizenship. However - bizarrely - this agreement between Denmark and the then 11 other EU member states was not formally a text either of the EU nor of the European Council - as pointed out by Cox in today's Irish Times.

The text was actually lodged with the UN in New York and was legally binding by virtue of being international law. It was then essentially codified by protocols in the Nice Treaty a few years later. The Edinburgh Agreement stated that the Danish opt-outs "are compatible with the Treaty and do not call its objectives into question." In other words, it did not change the content of the Maastricht Treaty. A few months ago the Irish reportedly consulted Danish legal experts on such a solution.

To a large extent, all of this is academic. The prevailing point is that the Irish are going to be asked to vote again on the entirety of the Lisbon Treaty - with all the loss of power and influence that entails. There is far more in there to object to than any of these 'guarantees' - legal or not - have a hope of covering. Technical and complicated discussion about protocols and declarations and opt-outs is an elite-flavoured distraction from the fact that Cowen, Brown, Sarkozy, Merkel and the rest of them simply will not take no for an answer. Depressing and predictable, but true.