|
|
|
Junior Member
 
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
| I have a couple of queries on the CFR that I would appreciate clarification on: 1. If a majority of the Irish electorate disagree with the Supreme Court's interpretation of the Constitution on a particular issue, we still have the power to change the Constitution via referendum. However, if a majority of Irish citizens were to disagree with the ECJ's interpretation of the CFR, what is the procedure by which we could change the CFR to disallow such interpretations? Assuming that it would require the agreement of at least a simple majority of member states, if not unanimity, in what sense is it advantageous to Irish citizens to so severely restrict our sovereignty in this manner? 2. FAQ no. 13 on the Europa website's FAQ page about the CFR states: 13. Can I use the Charter as a basis for judicial recourse in my own country?
Only on condition that this recourse concerns a subject within the field of Union law. The matter must be brought in front of the competent national judge. In most cases this is the common law judge responsible for the application of Community law. Thus the Charter comprises an additional source of protection that can be used by European citizens to strengthen their case under existing EU law.
Can anyone clarify what is the scope of Union law? For example, Article 2 of the CFR states: No one shall be condemned to the death penalty, or executed.
Does this mean that in the absence of any Union directive on the death penalty (I don’t know if there is one or not, but I’m just trying to establish the legal principle), it would not be repugnant to the CFR if Ireland were to reintroduce the death penalty? Again, I realise that the ECHR outlaws the death penalty but just trying to establish the legal principle.
|
|
|
|
|
Junior Member
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
| Thanks for the replies EU. I'll be voting No by the way.
|
|
|
|
|
Forum Member
Group: Moderators
Last Login: 07/12/2009 17:05:48
Posts: 44,
Visits: 165
|
|
Hi MacGyver,
We've been taking a look at the question and we will shortly come up with an answer.
Given the legal angle on the question, it's important that we come up with a clear answer using the references and examples you used.
Which ever way you vote, we hope the answer we give clears up your question.
------------------
www.talktoeu.ie
|
|
|
|
|
Junior Member
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
| I appreciate that you're looking into the question, but the length of time it's taking to get a response suggests to me that no one has put any thought into this before, which really makes me wonder if anyone in the Commission knows what they're doing. It also makes the whole "Talk to EU" exercise seem little more than a cynical exercise in window-dressing if you're not going to respond to my queries.
|
|
|
|
|
Forum Member
Group: Moderators
Last Login: 07/12/2009 17:05:48
Posts: 44,
Visits: 165
|
|
Hi MacGyver,
Thank you for your patiene.
Here is a response to your the question you put. As regards the time taken, it was necessary to consult a few people before giving an answer, based on the specific angle of your questions.
Question
1. If a majority of the Irish electorate disagree with the Supreme Court's interpretation of the Constitution on a particular issue, we still have the power to change the Constitution via referendum. However, if a majority of Irish citizens were to disagree with the ECJ's interpretation of the CFR, what is the procedure by which we could change the CFR to disallow such interpretations? Assuming that it would require the agreement of at least a simple majority of member states, if not unanimity, in what sense is it advantageous to Irish citizens to so severely restrict our sovereignty in this manner?
Answer
The comparison between a national constitution and the CFR is misleading, as a national constitution binds the authorities of a sovereign state (which includes the power to attribute itself new competences), whereas the CFR binds EU institutions that can only act within the competences that have been clearly conferred upon it, or Member States when implementing EU law. Article 51 (2) CFR states that "[t]he Charter does not extend the field of application of Union law beyond the powers of the Union or establish any new power or task for the Union, or modify powers and tasks as defined in the Treaties." It is thus inconceivable how interpretation by the ECJ would add to the restriction of national sovereignty. Already today the ECJ has the task of interpretation of EU law, applying the fundamental rights as guaranteed by the ECHR and the principles mentioned in Article 6 TEU.
Question
2. FAQ no. 13 on the Europa website's FAQ page about the CFR states:
13. Can I use the Charter as a basis for judicial recourse in my own country?
Only on condition that this recourse concerns a subject within the field of Union law. The matter must be brought in front of the competent national judge. In most cases this is the common law judge responsible for the application of Community law. Thus the Charter comprises an additional source of protection that can be used by European citizens to strengthen their case under existing EU law.
Can anyone clarify what is the scope of Union law? For example, Article 2 of the CFR states:
No one shall be condemned to the death penalty, or executed.
Does this mean that in the absence of any Union directive on the death penalty (I don’t know if there is one or not, but I’m just trying to establish the legal principle), it would not be repugnant to the CFR if Ireland were to reintroduce the death penalty? Again, I realise that the ECHR outlaws the death penalty but just trying to establish the legal principle."
Answer
"Within the scope of Union law" means within the competences conferred upon the European Union by Member States. For the first time this principle of conferral is explicitly mentioned in the Treaty of Lisbon (Article 5).
------------------
www.talktoeu.ie
|
|
|
|
|
Junior Member
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
jkil, thanks for the reply. I still have a few questions however. You claim that “It is thus inconceivable how interpretation by the ECJ would add to the restriction of national sovereignty” and yet you fail to answer my question about how the CFR might be amended to disallow interpretations of the CFR repugnant to a majority of the Irish electorate. If it is impossible to do so without the assent of other member states, then how exactly does this not entail the restriction of national sovereignty? In addition, how can the belief that it is “inconceivable” that the ECJ judgements might restrict national sovereignty be reconciled with the fact that both the UK and Poland have opted out of the CFR? In relation to the scope of Union law, the Europa website states: There are three sources of European Union law: primary law, secondary law and supplementary law.
The main sources of primary law are the Treaties establishing the Communities and the European Union.
Secondary sources are legal instruments based on the Treaties and include unilateral secondary law and conventions and agreements.
Supplementary sources are elements of law not provided for by the Treaties. Besides the case-law of the Court of Justice, this category includes international law and general principles of law.
How does this reconcile with your statement that: "Within the scope of Union law" means within the competences conferred upon the European Union by Member States.
For example, could the ECJ rule on the basis of secondary or supplementary sources of law, i.e. those not explicitly conferred by the member states?
Also, you have not answered my question in relation to the death penalty – am I correct in thinking that the restoration of the death penalty in Ireland would not be repugnant to Article 2 of the CFR, given that the Union has no competency in this area?
|
|
|
|
|
Forum Guru
Group: Forum Members
Last Login: 12/11/2009 11:42:47
Posts: 51,
Visits: 44
|
|
Hi McGyver - I'm not an expert on the EU and I'm not speaking for the Commission in any way - but as this is a public forum, I thought I'd ask you a question if you don't mind.
Do you agree in principle with the idea of a European Union? I ask because you seem to be intent on finding texts anywhere and everywhere to back up a baseline negativity. If you don't, then can you share your misgivings in simple language please?
|
|
|
|
|
Junior Member
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
| Hi zozimus, No I don't mind you asking, glad to see someone trying to engage on this forum to be honest. Do I agree in principle with the idea of a European Union? Yes, I don't see anything wrong with independent nations freely co-operating with each other where it is mutually beneficial to do so. My problem is that with this treaty, the Irish people are surrendering their right to self-government by permitting a clique of unelected foreign judges decide for us what laws we may and may not adopt. I fail to see how this would be of any benefit to Ireland and how it does not breach the principle of subsidiarity. Now maybe this doesn't bother Yes campaigners, that they would prefer to be a citizen of Europe rather than Ireland, but I just wish they would be open and honest about it. Because otherwise it looks like they're trying to sleepwalk a continent of 500 million into a federal Europe doesn't it? I mean, doesn't it seem strange to you that a website and media campaign bankrolled by the European Commission is either unwilling or incapable of replying to the questions above?
|
|
|
|
|
Forum Member
Group: Moderators
Last Login: 07/12/2009 17:05:48
Posts: 44,
Visits: 165
|
|
MacGyver (10/09/2009)
Hi zozimus,
No I don't mind you asking, glad to see someone trying to engage on this forum to be honest.
Do I agree in principle with the idea of a European Union?
Yes, I don't see anything wrong with independent nations freely co-operating with each other where it is mutually beneficial to do so. My problem is that withthis treaty, the Irish people are surrendering their right to self-government by permitting a clique of unelected foreign judges decide for us what laws we may and may not adopt. I fail to see how this would be of any benefit to Ireland andhow it does not breach the principle of subsidiarity. Now maybe this doesn't bother Yes campaigners, that they would prefer to be a citizen of Europe rather than Ireland, but I just wish they would be open and honest about it. Because otherwise it looks like they're trying to sleepwalk a continent of 500 million into a federal Europe doesn't it?
I mean, doesn't it seem strange to you that a website and media campaign bankrolled by the European Commission is either unwilling or incapable of replying to the questions above?
Hi MacGyver,
We shipped your Q over to Brussels for final clarification. Expecting a response soon. Since the first part of your question is a "what if" scenario it's important to give a definite answer and look into if the issue has been raised before or if any legal precedent has already been set or discussed.
In the mean time, and in response to your latest post.
My problem is that withthis treaty, the Irish people are surrendering their right to self-government by permitting a clique of unelected foreign judges decide for us what laws we may and may not adopt.
We do not surrender rights. We agree and choose to give them up in some areas. The member states decide what laws to adopt, not judges. The judges ensure the laws we adopt are properly enforced.
A clique of unelected foreign judges? Not sure where you get that from.
Each member state appoints a judge, and all member states must agree with the selection of the 27 judges.
The judges must be legal experts with impeccable backgrounds in EU law, and whose integrity and independence is beyond doubt.
The current Irish judge is Aindrias Ó Caoimh. http://curia.europa.eu/jcms/jcms/Jo2_7026/
This is not a clique. These are carefully selected people whose appointment is heavily scruntinised by each member state.
Having a European Court of Justice benefits Ireland in so far that the rule of Community Law is maintained and that the laws we sign up for are properly enforced. If an Irish citizen, business, or the Irish state deems that the rights under EU law have been infringed, they may take a case.
In relation to being a citizen of Europe, EU citizenship is additional to Irish citizenship.
Sleepwalking into a federal state. Why do you think this?
There is nothing in the Lisbon Treaty that even suggests this.
------------------
www.talktoeu.ie
|
|
|
|
|
Forum Newbie
Group: Forum Members
Last Login: 17/09/2009 11:55:06
Posts: 3,
Visits: 6
|
|
| "We do not surrender rights. We agree and choose to give them up in some areas." Aha! so that's what they mean!!!! After being misled, misguided, bullied, harrassed, taunted, threatened and then- asked again- we CHOOSE to screw ourselves over by voting yes! Thank you for the clarification!! God bless this website!!
VOTE NO-Do they really need to ask twice?
|
|
|
|
|
Forum Member
Group: Forum Members
Last Login: 14/04/2010 11:04:05
Posts: 36,
Visits: 88
|
|
MiseLeMeas (15/09/2009)
"We do not surrender rights. We agree and choose to give them up in some areas."
Aha! so that's what they mean!!!! After being misled, misguided, bullied, harrassed, taunted, threatened and then- asked again- we CHOOSE to screw ourselves over by voting yes!
Thank you for the clarification!!
God bless this website!!
Why the worst case scenario view of Europe?
We give up sovereignty in some areas because it's better to pool our resources and take these decisions at union level.
You say surrender as if they were taken by force. Using negative words to discredit a positive action. Nice.
Tell me 3 areas where it has negatively affected us after we decided to give Brussels competency in these areas?
Also, why do you assume the worst from the EU?
What bad has it done, and why do people like yourself always grossly misinterpret EU policies and treaties and envisage that they are out to get us?
|
|
|
|
|
Forum Member
Group: Moderators
Last Login: 07/12/2009 17:05:48
Posts: 44,
Visits: 165
|
|
MacGyver (01/09/2009)
jkil, thanks for the reply. I still have a few questions however.
You claim that “It is thus inconceivable how interpretation by the ECJ would add to the restriction of national sovereignty” and yet you fail to answer my question about how the CFR might be amended to disallow interpretations of the CFR repugnant to a majority of the Irish electorate. If it is impossible to do so without the assent of other member states, then how exactly does this not entail the restriction of national sovereignty?
In addition, how can the belief that it is “inconceivable” that the ECJ judgements might restrict national sovereignty be reconciled with the fact that both the UK and Poland have opted out of the CFR?
In relation to the scope of Union law, the Europa website states: There are three sources of European Union law: primary law, secondary law and supplementary law.
The main sources of primary law are the Treaties establishing the Communities and the European Union.
Secondary sources are legal instruments based on the Treaties and include unilateral secondary law and conventions and agreements.
Supplementary sources are elements of law not provided for by the Treaties. Besides the case-law of the Court of Justice, this category includes international law and general principles of law.
How does this reconcile with your statement that: "Within the scope of Union law" means within the competences conferred upon the European Union by Member States.
For example, could the ECJ rule on the basis of secondary or supplementary sources of law, i.e. those not explicitly conferred by the member states?
Also, you have not answered my question in relation to the death penalty – am I correct in thinking that the restoration of the death penalty in Ireland would not be repugnant to Article 2 of the CFR, given that the Union has no competency in this area?
The Charter of Fundamental Rights "shall not extend in any way the competencies of the Union as defined in the treaties" (Article 6 TEU). As the basis for the interpretation of the European Court of Justice is thus not extended, any claims about additional restrictions of national sovereignty are unfounded.
In relation to sources of law. The ECJ can rule on primary and secondary sources of law. The ECJ also has used the General principles of law to rule in the past. These fall under the category of Supplementary Law. So, all three sources can be used in deciding cases in the ECJ.
In terms of your question on whether Ireland can introduce a policy that is repugnant to the CFR, but the EU has no competency in the area, the EU cannot act since it simply does not have the competency.
------------------
www.talktoeu.ie
|
|
|
|
|
Junior Member
Group: Forum Members
Last Login: 14/11/2009 09:03:06
Posts: 19,
Visits: 22
|
|
We do not surrender rights. We agree and choose to give them up in some areas.
I don’t understand the distinction. I am also still waiting for someone to explain why they think it’s a good idea to give up these rights in this particular instance. I agree that it’s beneficial to pool sovereignty in some areas, e.g. trade and defence, but I don’t see why it’s beneficial to pool sovereignty in the judicial realm. The member states decide what laws to adopt, not judges. The judges ensure the laws we adopt are properly enforced.
As you have confirmed, the ECJ has the power to refer to secondary and supplementary sources of law, which means they can interpret the law above and beyond what the members states have explicitly agreed to. My major concern is that if a majority of Irish people disagree with the judges’ interpretation of the law, what will we be able to do to change it?
A clique of unelected foreign judges? Not sure where you get that from.
Well they’re all (except one) foreign, they’re all unelected and they’re all judges. Pick a synonym from here if you don’t like the word clique.
Having a European Court of Justice benefits Ireland in so far that the rule of Community Law is maintained and that the laws we sign up for are properly enforced. If an Irish citizen, business, or the Irish state deems that the rights under EU law have been infringed, they may take a case.
I’m not asking what the benefit of having the ECJ is, I’m asking what is the benefit of adopting the CFR. Which no one has answered. Personally, I don’t have a problem with the ECJ interpreting EU law as it applies to the institutions of the EU. But I do have a problem with it interpreting our laws for us.
Sleepwalking into a federal state. Why do you think this?
There is nothing in the Lisbon Treaty that even suggests this. Because the only reason it make sense to adopt the CFR is if you believe in a federal Europe in which national views are subordinate to European ones. People in Dublin or Cork or Galway can’t make laws for themselves, they are subject to Irish laws. I don’t have a problem with that because I am an Irish nationalist. But as I am not a European nationalist I don’t want foreign judges deciding what laws we may adopt. It only makes sense to adopt the CFR if you are a European nationalist but no one is being open and honest about this which is why I say “sleepwalking”. And not being open and honest has been the modus operandi of federalists since the inception of the EEC. The Charter of Fundamental Rights "shall not extend in any way the competencies of the Union as defined in the treaties" (Article 6 TEU). As the basis for the interpretation of the European Court of Justice is thus not extended, any claims about additional restrictions of national sovereignty are unfounded.
I don’t understand how you can claim this. If we allow the ECJ to rule on the validity of national law, then by definition it is a restriction of sovereignty. Instead of denying this, why not explain why you think it is a good idea to restrict our sovereignty like this?
|
|
|
|