Sinn Féin during the course of the referendum have made two quite specific claims about the ESM and its relationship to the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union.
Firstly, they claim that Ireland has a veto with respect to establishing the European Stability Mechanism and secondly, that the vote is purely on fiscal discipline measures, and has nothing to do with a European funding mechanism. that is, the ESM.
The veto claim has been made by numerous members of Sinn Féin and can be found in section 6 of their analysis of the treaty. This claim hinges on the ratification, or otherwise of a change to Article 136 of the European Treaties that allows for the establishment of the ESM (although the need for this change is disputed clearly by Gavin Barret and not so clearly by the Department of Finance.)
Sinn Féin believes that not ratifying this change would prevent the ESM from being established.
This claim was disputed by Justice Kevin Feeney, head of the Referendum Commission, as reported by the Irish Times. They wrote:
[Justice Feeney] did say that both article 136 and the ESM treaty remained to be ratified by the Dáil and the Seanad and this would happen after the referendum. Mr Justice Feeney accepted that it was theoretically possible that the Dáil and Seanad could refuse ratification but that was unlikely given the composition of the Oireachtas.
The Department of Finance also disputed that article 136 was required to establish the ESM in the same article:
…the Department of Finance, in a statement yesterday, said the article 136 amendment was not a precondition for the ESM being established.
Since only the change to article 136 requires unanimity, this is the only one that is important from the point of view of a veto. The argument about whether a veto with respect to the ESM exists or not, however politically unlikely, hinges on whether or not this article is required to create it, and this cannot be answered with any certainty either way unless the article is tested in court, irrespective of the claims of either Sinn Féin or the Department of Finance.
The second claim (that Ireland is not voting on funding but rather on fiscal discipline measures) was made by Mary-Lou McDonald on the European Debate on TV3 (38 minutes into the debate.)
Let’s make it very clear to people watching at home: on the 31st of May, you are not being asked to accept, or reject, a European funding mechanism at European level. What you’re being asked is to vote on this particular treaty, which is all about putting the brakes on capacity to borrow and to invest in the economy.
It is true to say that the articles of the treaty concern fiscal rules, however it is not true to say that voting on this treaty does not entail making a decision on a funding mechanism at European level. The following is contained in the preamble:
STRESSING the importance of the Treaty establishing the European Stability Mechanism as an element of the global strategy to strengthen the economic and monetary union and POINTING OUT that the granting of financial assistance in the framework of new programmes under the European Stability Mechanism will be conditional, as of 1 March 2013, on the ratification of this Treaty by the Contracting Party concerned and, as soon as the transposition period referred to in Article 3(2) of this Treaty has expired, on compliance with the requirements of that Article;
Clearly, given that access to the ESM is contingent on ratifying this treaty, not ratifying this treaty would mean denying Ireland access to the ESM. This self-evidently means that the decision is not merely about our capacity to borrow and invest but also about our ability to access funding at a European level.