Bruce Arnold

Critic of Public Affairs, writing about art, theatre, music and politics

We ignore legal challenge to ESM Treaty at our peril

There has been little praise for Thomas Pringle's legal action to try and stop the Government from its foolishness in seeking to push through the ratification of the ESM Treaty. And there has been virtually no interest in the media and very little intelligent comment.

Since early April, I have been writing about the Pringle challenge. His case was rooted in the idea that both Irish and European law were being breached in the interest of a new euro-centred group and not the whole EU, thus invisibly rewriting treaties. Our constitutional duty was to protect the (EU) Treaties as written and not defend the euro on behalf of the 17 euro states at the expense of the interests of the remaining 10 members who are not yet part of the euro.

Last week in the Supreme Court, Mr Pringle achieved judgments of a kind that recognised this new European dilemma. The court, it seems, is prepared to hand over to the European Court of Justice the points in the case as made by Mr Pringle that require further analysis and judgment. The hearing was unprecedented in many ways, including the number of Supreme Court judges -- seven -- who conclude their judgment tomorrow.

An appendix remains. Judgment will come tomorrow on the question of whether to grant to Mr Pringle the injunction he originally sought, staying the hand of the Government over ratification of the ESM Treaty. If the Supreme Court believes that there is a danger of the State going ahead with ratification anyway, then, as Mr Pringle maintains, there is the need for the State to be restrained from ratifying a treaty over which there are questions affecting its legality under EU law.

For reasons that are deeply perplexing, Enda Kenny says the Government is determined to go ahead with the final act of ratification as soon as the Supreme Court hearing concludes.

The Court is there to exercise constitutional constraint at the invitation of, or in response to pleadings from, anyone able to get a hearing, which means having their case answered. We shall see tomorrow where we now stand.

Any Government rush to complete ratification would be absurd. It can make no difference until after other constitutional actions in Europe have been heard, clarifying what Germany, Austria and other countries see as the legal position, and until the European Court itself has ruled on the legalities of the proposed big development in the EU's institutional architecture that is likely to emerge from the ESM Treaty.

Why then is Enda Kenny's approach like that of an eager boy scout jumping into a whirlpool in order to save someone he has heard crying for help? He is not sure who it is but it sounds like Spain. Spain's troubles are so great they are likely to consume, with a little collateral help, most of the intended ESM funding at one stroke, leaving Europe unable to cope with Italy or continue coping with Greece or other countries in trouble and looking for a place in the ESM queue, such as Cyprus and Slovenia. If ESM money does not suffice, more will be demanded from Ireland.

The seriousness of this referral to the European Court of Justice cannot be overstressed. That court has 27 judges, one from each member state. They represent two legal realities: the 17 states in the EU that are part of the euro and the 10 countries out of the total of 27 which do not belong to the eurozone.

If the larger, euro-based group follows through on the initiatives seen as the only protection of the euro, supported by the European Court of Justice, then the division between euro and non-euro groups will lead to a two-tier EU.

This changes fundamentally the architecture of the EU, and Mr Pringle's legal team contends we should recognise this and act with new laws. This would fit in with what all the EU leaders are defiantly saying -- we will do what it takes!