Abortion and the Lisbon Treaty: The Legal Issues

[marmurr1916]

Take any article from any EU treaty, actual or proposed, and juxtapose it with the Irish or Maltese Protocols on abortion.

For example, these articles:

CHAPTER 3
SERVICES

Article 49
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.

The Council may, acting by a qualified majority on a proposal from the Commission, extend the provisions of the Chapter to nationals of a third country who provide services and who are established within the Community.

Article 50
Services shall be considered to be ‘services’ within the meaning of this Treaty where they are normally provided for remuneration, in so far as they are not governed by the provisions relating to freedom of movement for goods, capital and persons.

‘Services’ shall in particular include:
(a) activities of an industrial character;
(b) activities of a commercial character;
(c) activities of craftsmen;
(d) activities of the professions.

Without prejudice to the provisions of the chapter relating to the right of establishment, the person providing a service may, in order to do so, temporarily pursue his activity in the State where the service is provided, under the same conditions as are imposed by that State on its own nationals.

Article 51
1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.
2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.

Article 52
1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.
2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.

Article 53
The Member States declare their readiness to undertake the liberalisation of services beyond the extent required by the directives issued pursuant to Article 52(1), if their general economic situation and the situation of the economic sector concerned so permit.

To this end, the Commission shall make recommendations to the Member States concerned.

Article 54
As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.

Could these be used to circumvent the Irish and Maltese Protocols on abortion? After all, abortion has been ruled to be a service.

However, these are articles in EU treaties, they are some things.

And, as the Irish Protocol says:

'Nothing* in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland.'

*i.e. no thing

So these articles in the EU treaties, which are some things, can't be used to circumvent the Irish Protocol because nothing (including all these articles and everything in them) 'shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland.'

What about the Treaty of Lisbon? As the Irish Protocol states, and will state in the Treaty of Lisbon, nothing 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland.'

The Treaty of Lisbon is a Treaty 'modifying or supplementing' the existing Treaties, and therefore, nothing in the Treaty of Lisbon 'shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland.'

What about the COFR?

"The Lisbon treaty’s ‘EU Charter of Fundamental Rights’ has the “same legal value as the Treaties” (Art. 6[1] Treaty of the EU)."

There are two things to note here.

1. The Charter 'has the same legal value as the Treaties'.

Therefore, it is subject to the same legal restrictions as the Treaties.

Since, nothing 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland',

and

since the Charter 'has the same legal value as the Treaties', therefore, nothing in the Charter 'shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland.'

2. The Charter's legal status is based on Art. 6[1] Treaty of the EU.

Since Article 6[1] TEU is an article in the Treaty on European Union, and

since nothing 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland',

then Article 6[1] TEU, which is some thing 'in the Treaty on European Union', will not affect the Irish Protocol because

nothing, including Article 6 [1] TEU (and everything in it), 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland'.

What about other articles 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties', including the Charter?

Could some things in those texts, some articles, be used to circumvent the Irish Protocol on abortion?

No. Because nothing, including every single article or provision (and everything in them), 'in the Treaty on European Union, or in the Treaties establishing the European Communities, or in the Treaties or Acts modifying or supplementing those Treaties, shall affect the application in Ireland of Article 40.3.3. of the Constitution of Ireland'.

Similarly, nothing can affect the Maltese Protocol on abortion.

How much more explanation of the word 'Nothing' do you people require?

[corelli]

I was referring to having the protocol refer to Irish legislation on abortion rather than just to Article 40.3.3. I wasn't referring to EU legislation. The fossilisation of Article 40.3.3 in the protocol has always been the object of criticism going right back to the 1992 debate over the Maastricht Treaty. It should and could have been sorted out in Lisbon or indeed in Nice or Amsterdam. The other member states wouldn't have had a problem given that they are okay with the wording of the Malta protocol.

The only Irish "legislation" on abortion, you puppet, is 1861 legislation (the Offences Against the Person Act) which made abortion illegal, and which may or many not have survived the enactment of the Constitution, but probably did. Every aspect of abortion in Ireland is governed by the Constitutional article you seem to have so much trouble with. Would you care to give me any case relating to abortion, post enactment, that did not concern article 40.3.3?