Monday, 21 May 2012


May 21st 2012

There is much discussion lately on the Fiscal Compact and the upcoming referendum, the pivotal argument being access to the ESM fund. What of that body itself, however, what of the ESM, how much do we know about that, how much debate has there been on it? This is at least as important a Treaty as the Fiscal Compact yet we know little or nothing of it, won’t be given any opportunity to vote on it – why not?

Perhaps this is part of the reason; here, unedited and in its entirity, is just one part of that ESM Treaty.

Article 32 - Legal status, privileges and immunities

1. To enable the ESM to fulfil its purpose, the legal status and the privileges and immunities set out in this Article shall be accorded to the ESM in the territory of each ESM Member. The ESM shall endeavour to obtain recognition of its legal status and of its privileges and immunities in other territories in which it performs functions or holds assets.

2. The ESM shall have full legal personality; it shall have full legal capacity to:
(a) acquire and dispose of movable and immovable property;
(b) contract;
(c) be a party to legal proceedings; and
(d) enter into a headquarter agreement and/or protocols as necessary for ensuring that its legal status and its privileges and immunities are recognised and enforced.

3. The ESM, its property, funding and assets, wherever located and by whomsoever held, shall enjoy immunity from every form of judicial process except to the extent that the ESM expressly waives its immunity for the purpose of any proceedings or by the terms of any contract, including the documentation of the funding instruments.

4. The property, funding and assets of the ESM shall, wherever located and by whomsoever held, be immune from search, requisition, confiscation, expropriation or any other form of seizure, taking or foreclosure by executive, judicial, administrative or legislative action.

5. The archives of the ESM and all documents belonging to the ESM or held by it, shall be inviolable.

6. The premises of the ESM shall be inviolable.

7. The official communications of the ESM shall be accorded by each ESM Member and by each state which has recognised the legal status and the privileges and immunities of the ESM, the same treatment as it accords to the official communications of an ESM Member.

8. To the extent necessary to carry out the activities provided for in this Treaty, all property, funding and assets of the ESM shall be free from restrictions, regulations, controls and moratoria of any nature.

9. The ESM shall be exempted from any requirement to be authorised or licensed as a credit institution, investment services provider or other authorised licensed or regulated entity under the laws of each ESM Member.

Is anyone else concerned about this? And it continues through the next six Articles in similar vein, demanding immunity not just from prosecution but even from investigation for itself and all its employees. Whatever happened to openness, to public accountability, to Enda’s statement, ‘Paddy likes to know’? Why would any official body want or need all this immunity, unless it was planning something pretty drastic? This stinks, stinks to the highest heavens, and I for one want no part of it.

Regards, Diarmuid O'Flynn.