A Supreme Court judge said Ireland’s ratification of the European Stability Mechanism Treaty did not impermissibly transfer sovereign powers, in a separate judgment agreeing that this aspect of Thomas Pringle’s constitutional challenge should be dismissed.
Justice William M. McKechnie delivered his judgment on 19 October 2012. He said he agreed with the other judgments dismissing the application and would add only brief observations. He also agreed with the Chief Justice on the injunction issue.
The question he addressed was whether the State’s entry into the ESM Treaty breached principles from the Supreme Court’s 1987 decision in Crotty v An Taoiseach. McKechnie said the Government’s power to conduct foreign affairs is constrained by the Constitution and can be reviewed by the courts. But he said the relevant constitutional principles did not prohibit the ESM Treaty.
McKechnie distinguished the treaty from Title III of the Single European Act, the provision at issue in Crotty. He described Title III as a broad, open-ended framework that would have committed Ireland to developing and pursuing a common European foreign policy, taking account of other states’ positions and avoiding steps that could impede consensus or joint action.
By contrast, he described the ESM Treaty as establishing a detailed international financial institution to provide conditional assistance to member states unable to borrow on reasonable and sustainable terms. In his view, it implemented policy rather than making it, and did not fundamentally transfer sovereign power to the institution or other states.
The judgment noted that Ireland had a voice in the institution and that its contribution was capped, subject to possible review under the treaty. McKechnie said any increase would require members to complete their national procedures and reasoned that Dáil approval would be required. He stated that he was not making a definitive interpretation of the treaty provisions, which he said would ultimately be a matter for the General Court.
He also considered the consequences if Ireland defaulted on its contribution or repayment obligations, including loss of voting rights while the default continued. He said this did not amount to an open-ended commitment and was a consequence the State could avoid. He concluded that ratification, with knowledge of the commitments, was an exercise of sovereign power and could further the common good.