EU Treaty - what are we voting on?

[FutureTaoiseach]

So I'm right.

No you are not right. You purposely give the impression that the Reform Treaty provides a new dimension to Community Law in regard to the doctrine of supremacy. It does not, it merely reinforces the position which has been in place since 1974 - probably a large perecentage of your lifetime.

The Charter of Fundamental Rights is a radically new departure in terms of European law and the ability of the court to strike down national law. Bringing up 1974 is a joke considering the literally hundreds of vetos abolished since then (111 in Maastricht alone). And never before did the ECJ have a role in asylum cases. The Charter gives it that role.

[ivnryn]

I've just written a few thousand words on the subject

Interesting, does that technically mean that the Irish SC can strike down EU law, i.e. could we appeal an ECJ ruling to the Irish SC ?

[FutureTaoiseach]

I've just written a few thousand words on the subject

Interesting, does that technically mean that the Irish SC can strike down EU law, i.e. could we appeal an ECJ ruling to the Irish SC ?

It's the other way around. EU law supersedes national law, and that means that the Charter of Fundamental Rights, which is given legal-affect in this treaty, overrides the Irish Supreme Court. So it makes the EU a federation in all but name. The ECJ is the boss.

[johnfás]

I've just written a few thousand words on the subject

Interesting, does that technically mean that the Irish SC can strike down EU law, i.e. could we appeal an ECJ ruling to the Irish SC ?

No, the Supreme Court would have to make a reference to the ECJ in order to strike down something which it saw as illegal in Community Law. EU law takes supremacy over Irish law. Of course Ireland has negotiated opt outs of various parts of treaties and indeed Ireland has a Commissioner sitting on the European Commission. It is not like EU Law comes about as a result of some form of fascist regime.

However, interestingly, the District Court can disapply a piece of Irish legislation if it contradicts a piece of EU legislation. That was pretty much unheard previously as only the Supreme Court could strike down law. That said, all of this dates back to the 70s, it's not a new development.

The Charter, granted, is a new development. However, vast tracts of the Charter are merely restatements of the European Convention of Human Rights which is already part of Irish Law.

[johnfás]

The ECJ is the boss.

Depends on your definition of boss of course.

The ECJ upholds European Law. It doesn't make it. If you want t he ECJ to have a more restricted power a Reform Treaty is in fact the best place to do it. Owing to the fact that there are so many gaps in the Treaties the ECJ often needs to build its own role on the basis of the 'spirit of the Union'. A tighter Treaty would abolish the necessity of this.

Also interesting to note that any case from Ireland to the ECJ will always have an Irish judge sitting on it.

[FutureTaoiseach]

The ECJ is the boss.

Depends on your definition of boss of course.

The ECJ upholds European Law. It doesn't make it. If you want t he ECJ to have a more restricted power a Reform Treaty is in fact the best place to do it. Owing to the fact that there are so many gaps in the Treaties the ECJ often needs to build its own role on the basis of the 'spirit of the Union'. A tighter Treaty would abolish the necessity of this.

Also interesting to note that any case from Ireland to the ECJ will always have an Irish judge sitting on it.

Your references to the ECHR are disingenuous because the Constitution has precedence over it. The govt always made it clear that this was the context in which the ECHR was being ratified - for it to be otherwise a referendum would have been required as with for example the International Criminal Court. But the Charter is so vague it's impossible to be sure how it would apply in practice in terms of how the ECJ would interpret it. It bans "collective expulsions" without defining the term. It claims a "right to collective bargaining" in a blanket way. These articles in particular could have huge implications for Irish asylum and labour-law. You know that well. It would inevitably clog up the ECJ with asylum-appeals. The Charter also requires free legal-aid for those who cannot afford it. The affect of this will be to prevent us ending the current nonsense whereby deportation orders are challenged for yrs with taxpayers' money.

The notion as implied by you, that somehow this Treaty restricts the powers of the ECJ is nonsense. Existing EU law does not give the ECJ a role in asylum cases. This Charter explicitly does - the ban on collective expulsions. It is so vague that legal challenges to deportations under it are inevitable. You sir, are either supporting this Treaty because you want a Federal Europe, or else you are blind to the true implications of this treaty. Politicians are not to be trusted and the experience after Nice when stuff happened we were not told about shows this.

[johnfás]

FT - you do also realise that it is at the discretion of an Irish judge to make a reference to the ECJ. It is not as if the ECJ goes around handing down rulings. There is plenty of scope for a judge to state that someone does not a have a case in law thus no reference to the ECJ will be made. Beyond which, if the person does have a case, they should be fully supported in their search for the full and rigorous protection of the law.

[cyberianpan]

I did a select all and copied the EU constitution into Word

I did likewise for Bunreacht

160,022 v 16,867 words


Now normally an ammendment is for at most a few hundred words, is this forthcoming referendum to lob in ~160,000 new ones ?

(I'm aware that the new treaty isn't same as Constitution but the fact was they wanted people to declare a 160,000 word document a constitution )

cYp

[FutureTaoiseach]

FT - you do also realise that it is at the discretion of an Irish judge to make a reference to the ECJ. It is not as if the ECJ goes around handing down rulings. There is plenty of scope for a judge to state that someone does not a have a case in law thus no reference to the ECJ will be made. Beyond which, if the person does have a case, they should be fully supported in their search for the full and rigorous protection of the law.

The point is that the ECJ has the power to interpret the Charter. That is fact. With the Charter being EU law, and the ECJ having the final judicial right to interpret it - explicitly in the treaty - this leaves the door wide open to federalist judicial activism and the interpretation of this vague document to grab more powers incrementally for the court. Especially in the areas of asylum and immigration and industrial relations. The fact is that the Treaty states that EU law supersedes national law. It follows then that ECJ rulings supersede Irish court ones.

[johnfás]

You sir, are either supporting this Treaty because you want a Federal Europe, or else you are blind to the true implications of this treaty.

You sir, need not tell me my position on anything. I am merely playing devil's advocat on the discrepencies in what you are putting forward. I have no problem with you creating a discourse against the Reform Treaty. You would want to make it on solid ground though,

Politicians are not to be trusted and the experience after Nice when stuff happened we were not told about shows this.

You are getting a referendum on it.