The 26+1 Formula

In an interview with the Irish Times, the Swedish Prime Minister Fredrik Reinfeldt floated the idea of a 26+1 solution to the legal problem of the Commission's size if Lisbon was voted down in the Irish referendum on October 2nd. Though he warned against a No vote, Reinfeldt said that the Swedish presidency was thinking of a back-up plan in the case that the Treaty is rejected:

"Mr Reinfeldt said talks have been held about what to do if there is a No vote, particularly on how to comply with the Nice treaty provision that mandates an immediate reduction in size of the next European Commission.

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Mr Reinfeldt said a “26 plus one option” was probably the best solution, whereby 26 states retain their commissioner and the 27th state is offered the post of high representative for foreign affairs instead. This would give all 27 countries a top EU job, while complying with the legal condition for an EU executive of less than 27 members, which is stipulated in the Nice treaty."

However, he also said that the time could come when the Commission needs to be reduced:

"But he said was still a question about the efficiency of having up to 30 commissioners in an EU executive if further enlargement occurred. “We might in the future get back to this discussion. What if we keep on enlarging? But for now it’s very important that this was a call from the Irish people and we have met it. I know this was a factor in the Irish referendum.”"

It's an issue that I've argued we can't duck forever, but it's clear that for the foreseeable future there will be attempts to keep the Commission as big as possible. That's not to say that this is a definite Plan B - Reinfeldt has only described it as an "option", and there's no written political commitment from the entire Council, in comparison with the Lisbon Treaty guarantees. Since the No side rejects the validity or trustworthiness of these guarantees, it's hard to see how they could (honestly) capitalise on this statement as a "guarantee" for the No side. There are still some states in favour of slimming down the Commission (particularly Germany), and the original Lisbon system of a member state having a Commissioner for 10 out of every 15 years could be revived in some form in the case of a No vote.

Still, a No vote represents political uncertainty when it comes to European constitutional reform. Even though amendments to the Treaties must be unanimously passed, the fact remains that the member states are still sovereign states who can decide to carry on in a different direction if need be. The idea of a multi-speed or two-tier Europe isn't a fanciful idea, especially given the range of opt-outs and opt-ins there are already. Since the last 9 years have been focused on achieving a common agreement; if Lisbon is rejected without any clear path or solution for the way forward (i.e. do we know what we would want changed, and is it possible politically to change it?), then a multi-speed Europe can't be ruled out.

The Irish (Provisional) Guarantees

The guarantees for Ireland are coming ever closer to being finalized, with EU ambassadors scheduled to work through a draft text later today. You can read the draft text here (via RTÉ). The guarantees will be passed via Croatia's Accession Treaty, though there is a chance that it could be passed along with a Spanish proposal to amend the Treaties so that the extra MEPs it, along with Germany and others, would have had, had the Treaty been in place before the elections, could be elected without waiting for the next election in 5 years time.

Croatia's accession wasn't brought back on track after talks to get Slovenia to unblock the opening of several new acquis chapters after ministerial meetings in Luxembourg. Since Croatia has disputed borders with Bosnia and Herzegovina, if it is finally admitted, we might have to go through the whole process again in a few years time.

The guarantees are quite comprehensive on the first reading of the draft; it's interesting to read the provisional language for each area. The strongest language is reserved for the issue of defense, to counter the claims of Sinn Féin and neutralist groups of militarisation. It is stated that the Treaty creates no army; that there'll be no conscription; that there's no obligation to increase defence spending; that the clause concerning mutual solidarity doesn't impose an obligation to provide military aid; it guarantees the Triple Lock system; and that it doesn't affect Ireland's military neutrality. There's a categorical statement that the Treaty doesn't change the tax competence of the EU (this guarantee applies to all member states).

The Constitutional provisions concerning rights to do with life, the family and education are also guaranteed not to be affected.

The commitment to workers rights however (something the Labour party was keen to see emphasised), seems to be qualified by the sentence: "In doing so, it underlines the importance of respecting the overall framework and provisions of the EU Treaties." The provisional draft simultaneously underlines that there will be (under Lisbon) a positive obligation for the EU to consider the social effects of legislation and to guarantee a high level of social protection, as well as underlining the discretion of national and local authorities in setting standards. This wording, and the final wording, will try to seek a balance between the desire to ensure social standards, and safeguarding the right of member states to set lower standards. It will only apply to Ireland, but the balance is to prevent any worries of it affecting other member states.

This is the provisional draft, and, though the final guarantee will probably pretty much do the same thing (the general shape of these guarantees has been quite certain for a while now), it could be tweaked later today.

The most important part of the guarantee will be that of one commissioner per member state, as the other guarantees really just restate and clarify the situation under the Lisbon Treaty. There have been some ominous noises out of Germany that it could push for a drastically reduced Commission if the Lisbon Treaty isn't passed - from 27 to between 12 and 18 commissioners. Under the Nice Treaty the number of commissioners must be reduced for the next Commission to be lower than that of the number of member states.

(On a side note, I wonder if the number of Commissioners is reduced, would this create pressure from the small states to make the appointment of the Commission more directly the responsibility of the EP in order to lessen the influence of the big states in setting the agenda?)