European Union: Non-confessional ethics uninteresting?

The Treaty of Lisbon is not yet in force, but in many instances it is the updated compilation of how the European Union is supposed to act.

Let us take Article 17 of the Treaty on the Functioning of the European Union (TFEU), published in the Official Journal of the European Union (OJEU) 9.5.2008 C 115/55:


Article 17 TFEU

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.


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Faith based dialogue

Today the Commission has issued two press releases:

Presidents of Commission and Parliament discuss ethical contributions for European and global economic governance with European faith leaders (Brussels, 11 May 2009; IP/09/730)



Presidents of Commission and Parliament will discuss ethical contributions for European and global economic governance with European faith leaders on 11 May 2009 - Participants' list (Brussels, 11 May 2009; MEMO/09/227).




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In these trying times, we are given the impression that worthy contributions were made by Commission President José Manuel Barroso and EP President Hans-Gert Pöttering as well as the representatives of the Anglican Church, the Churches of the Reformation, the Conference of European Churches, the Islamic Communities, the Jewish leaders, the Orthodox Churches and the Roman Catholic Church.


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Non-confessional ethics?

Article 17 TFEU includes the philosophical and non-confessional organisations in the open, transparent and regular dialogue maintained by the European Union.

The Commission made no mention of these organisations.



Ralf Grahn

EU TFEU: Churches and non-confessional organisations

Can a member state of the European Union contemplate the death penalty for apostasy, the renunciation of a religious faith, since the relations between state and church are exclusive competences of the member states?

We take a look at what the Lisbon Treaty has to say about state powers in religious matters, and we outline the limits of these competences.

Europe is no Iran.

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The intergovernmental conference (IGC 2007) inserted a new Article 16c on churches and religions into the Treaty of Lisbon (ToL), in Part One, Principles, Title II, Provisions having general application, of the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU). See the Official Journal (OJ) 17.12.2007 C 306/50:

30) The following new Article 16 C shall be inserted:

Article 16c TFEU (ToL), after renumbering Article 17 TFEU

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

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There is no corresponding provision in the current treaties, but the first two paragraphs derive from Declaration 11 attached to the Treaty of Amsterdam. Available at:

http://europa.eu.int/eur-lex/lex/en/treaties/dat/11997D/htm/11997D.html#0133040028

11. Declaration on the status of churches and non-confessional organisations

The European Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

The European Union equally respects the status of philosophical and non-confessional organisations.

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The European Convention debated the place of God, churches and religion in the draft Treaty establishing a Constitution for Europe, and ended up with the following provision in Part I, Title VI The democratic life of the Union (OJ 18.7.2003 C 169/20):

Article I-51 Draft Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and religious associations or communities in the Member States.

2. The Union equally respects the status of philosophical and non-confessional organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open, transparent and regular dialogue with these churches and organisations.

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We can see that the two paragraphs of Declaration 11 were numbered, but inserted ‘verbatim’. The third paragraph, on a regular dialogue with churches as well as religious and non-confessional organisations was new.

The IGC 2004 continued the discussion on the place of God and religion in the secular Treaty establishing a Constitution for Europe, but as in the draft Constitution, there was no specific mention of God. The Constitution began its Preamble with the following referral:

DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law, …

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As you can see, the Constitutional Treaty took over the provision of the draft Constitution, in Part I, Title VI The democratic life of the Union, adding ‘under national law’ to the second paragraph (OJ 16.12.2004 C 310/36):

Article I-52 Constitution
Status of churches and non-confessional organisations

1. The Union respects and does not prejudice the status under national law of churches and
religious associations or communities in the Member States.

2. The Union equally respects the status under national law of philosophical and non-confessional
organisations.

3. Recognising their identity and their specific contribution, the Union shall maintain an open,
transparent and regular dialogue with these churches and organisations.

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These provisions of the Lisbon Treaty TFEU and the Constitution are identical.

If God is universal, the relations between states and churches are manifold. The European Union recognises that these relations are within the exclusive competence of the member states.

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On the other hand, the powers of the member states may be exclusive, but not without limits. All the EU members are members of the Council of Europe, and they are parties to the pan-European Convention for the Protection of Human Rights and Fundamental Freedoms, available at:

www.coe.int

The Charter of Fundamental Rights of the European Union expressly recognises the right to freedom of thought, conscience and religion. This right includes the freedom to change religion or belief (OJ 14.12.2007 C 303/4):

Article 10 Charter
Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

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The first stop for the background of Charter provisions are the Explanations relating to the Charter of Fundamental Rights (OJ 14.12.2007 C 303/21):

Explanation on Article 10 — Freedom of thought, conscience and religion

The right guaranteed in paragraph 1 corresponds to the right guaranteed in Article 9 of the ECHR and, in accordance with Article 52(3) of the Charter, has the same meaning and scope. Limitations must therefore respect Article 9(2) of the Convention, which reads as follows: ‘Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.’

The right guaranteed in paragraph 2 corresponds to national constitutional traditions and to the development of national legislation on this issue.

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Article 2 of the Charter protects the right to life, which includes the abolishment of the death penalty (OJ 14.12.2007 C 303/3):

Article 2 Charter
Right to life

1. Everyone has the right to life.

2. No one shall be condemned to the death penalty, or executed.

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The European Union, which sees its values as universal, has predictably condemned the Iranian Parliament’s draft criminal code, which would sanction apostasy with the death penalty. See the CFSP Statement on the web site of the Slovenian Presidency of the EU Council, “Declaration by the Presidency on behalf of the EU concerning the consideration of a draft Penal code in the Islamic Republic of Iran”:

http://www.eu2008.si/en/News_and_Documents/CFSP_Statements/February/0225MZZiran.html

The Iranian draft code contradicts two fundamental values of the European Union (and the Council of Europe): right to freedom of thought, conscience and religion, including the freedom to change religion or belief, and the ban on the death penalty, seen as barbarous and cruel.

The leadership of Iran has shown little concern for human rights and international public opinion, but some reader might be interested enough to sort out Iran’s commitments under international law, including conventions on human rights.

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The amended Treaty on European Unionof (TEU), Article 8b TEU (ToL), renumbered Article 11 TEU, already provides for exchanges of views, dialogue and consultations with citizens, representative associations, civil society and parties concerned (OJ 17.12.2007 C 306/14):

Article 8b TEU (ToL), after renumbering Article 11 TEU

1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union's actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens' initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

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The general TEU clause on dialogue leaves the EU institutions wide scope to select the issues and participants, whereas the specific TFEU provision on dialogue with religious and non-confessional organisations creates an obligation with some minimum content for the institutions.


Ralf Grahn

EU Treaty of Lisbon: participatory democracy

Representative democracy is the basic rule of EU governance (Article 8a amended TEU), although only partially developed. Citizens’ participation in addition to European and national elections is complementary.

The Convention proposed a new Article on participatory democracy. Much of the contents are codified practice, enshrined in secondary legislation and evolved within the framework of improved governance. Still, giving these practices of information, dialogue and consultation treaty status is an improvement.

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The citizens at large are mainly offered the possibility to express their opinions, but this at least presupposes that information on legislative proposals and planned actions is freely available.

Representative associations and (organised) civil society is given a somewhat more privileged position, including open, transparent and regular dialogue. Selectivity and means to participate can influence the conduct of such dialogues.

Interestingly, Article 8b(1)-(2) places an obligation on all the EU institutions, although it is difficult to see how the intergovernmental European Council and Council as well as the European Central Bank have acted on or plan to fulfil their obligations. Traditionally, they deal behind closed doors and only report the results after the fact.

Are we going to experience a miracle when the Lisbon Treaty is in force, the Treaty itself being a prime example of how not to communicate?

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The European Commission has an obligation to consult stakeholders (parties concerned). Since the European Parliament is usually involved as a co-legislator, there are some checks on selectivity and partiality.

The fundamental questions concerning the basic structure of the European Union, the content of the Treaties, resources and expenditure as well as foreign, security and defence policy remain outside the effective reach of the European Commission, the European Parliament, citizens, civil society and “stakeholders”. Intergovernmentalism remains the black hole until later reforms.

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The real innovation of the Convention was the pan-European citizens’ initiative. It can be seen as a safety valve, giving active groups of citizens the possibility to mobilise in order to demand EU legislation on a certain topic.

One would suppose that the European Commission has at least the obligation to give a reasoned reply, if it has received more than a million signatures from a sufficient number of member states.

At the same time, the citizens’ initiative is severely limited, since it is restricted to questions within the powers of the European Commission. Treaty matters and intergovernmental areas, which actually could mobilise citizens, are excluded.

For instance, the One seat campaign concerning the waste caused by the European Parliament’s regular exoduses to its formal seat in Strasbourg, was not only raised before there was a Treaty clause on citizens’ initiatives. The seats of the institutions have been fought over and decided by the governments of the member states, annexed to the Treaties and subject to veto powers. The Commission has no powers to legislate.

But citizens and NGOs are creative and active. Let us wait and see what they will present as citizens’ initiatives when the Treaty of Lisbon is in force.

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Drafting history: The draft Treaty of the Convention introduced a new Article I-46 on participative democracy, which with a slightly altered fourth paragraph became Article I-47 of the Constitutional Treaty with the headline The principle of participatory democracy.

In the Lisbon Treaty, the three first paragraphs and the first subparagraph of paragraph 4 of Article 8b have the same wording as the Constitution, except for the fact that the “Commission” is called the “European Commission”.

Article 8b(4) TEU second subparagraph builds on the end of the Constitution Article I-47(4) and concerns the legislative procedures and conditions required for a citizens’ initiative, referring to Article 21 TFEU.

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The Treaty of Lisbon (OJ 17.12.2007, C 306/1) introduces a new Article 8b:

Article 8b

1. The institutions shall by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action.

2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society.

3. The European Commission shall carry out broad consultations with parties concerned in order to ensure that the Union’s actions are coherent and transparent.

4. Not less than one million citizens who are nationals of a significant number of Member States may take the initiative of inviting the European Commission, within the framework of its powers, to submit any appropriate proposal on matters where citizens consider that a legal act of the Union is required for the purpose of implementing the Treaties.

The procedures and conditions required for such a citizens’ initiative shall be determined in accordance with the first paragraph of Article 21 of the Treaty on the Functioning of the European Union.

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The following look at the Treaty of Lisbon is going to concern the role of National Parliaments.


Ralf Grahn

Lisbon Treaty decrypted in 2009?

The latest answer from an EU institution spells it out: A decrypted version of the Reform Treaty, soon to be known as the Lisbon Treaty, seems to be in the offing in 2009, if ever. I quote the reply from Europe Direct:

“The consolidated version will be available only when the Draft Reform Treaty is signed and ratified by the Member States.”

At this juncture the Lisbon Treaty is the most important document of the European Union, and we citizens are at the centre of the European project, we have been told.

Somehow there is a mismatch when publishing an intelligible version of the proposed treaties at once is stonewalled by the EU institutions.

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Think-tanks, scientific research institutes or non-governmental organisations to the rescue of democratic EU debate!


Ralf Grahn

Plan-D and the Lisbon Treaty

Am I the only one to gripe about an unreadable and incomprehensible Reform Treaty or Lisbon Treaty in its present form?

No, I am not. Let us see what a few distinguished Europeans have said.

Valéry Giscard d’Estaing, who led the Convention which prepared the draft Constitutional Treaty called the new treaty illegible for citizens:

”Il est illisible pour les citoyens, qui doivent constamment se reporter aux textes des traités de Rome et de Maastricht, auxquels s’appliquent ces amendements.”

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Jens Peter Bonde MEP, a known Eurosceptic, described the Lisbon Treaty in the following way in the introduction to his book on the Reform Treaty:

”They have managed to make the new text as difficult and inaccessible as humanly possible. The amendments can only be read by a few initiated specialists who are generally in favour.”

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Giuliano Amato, a well-known expert in European Union law and vice president of the Convention, earlier gave his view on the mandate the leaders of the EU member states gave the intergovernmental conference, as reported by EUobserver:

”They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that was the sort of perception.”

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More testimonies are hardly needed. The Reform Treaty is simply impossible to read and to understand for the citizens of the European Union, our witnesses conclude.

In addition, the legal experts chose to present the amendments in a manner which makes it hard to follow the proposed changes even when you have the existing treaties at hand. If whole paragraphs had been presented, in a logical order, reading would have been somewhat easier.

I have seen no publicly announced reasons for these choices of presentation.

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Many of us remember the Commissions Plan-D for Democracy, Dialogue and Debate.

A short while ago Margot Wallströmin spoke on the participation of citizens:


“It will not be possible to continue this project of European integration without the citizens and without their participation.”

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In spite of this, the members of the European Council have made no haste to give the citizens of the European Union correct, sufficient and user friendly information on the proposed Lisbon Treaty.

Perhaps the leaders of the member states want to create a void to be filled by false and misleading propaganda from the political fringes, which seems to be taking place in Britain and France.

If our political leaders do not understand that readable basic texts are essential for a democratic EU debate, their non-publishing blunder is going to alienate even those citizens who see the Lisbon Treaty as an improvement on the present Nice Treaty and who would favour normal parliamentary ratifications of the new treaty.

If the Council fails to publish complete consolidated versions of the Lisbon Treaty promptly, the Commission of the European Communities as the guardian of the common interest or the European Parliament as the representative of the citizens of the EU should step in quickly to repair the mistake of the leaders.

Instant publication of consolidated versions of the Lisbon Treaty on the web, in all the official languages of the Union, is the most important and most urgent communication task for the European Union. It is an elementary requirement for democratic debate.

Or is Plan-D for Democracy, Dialogue and Debate just a bad joke?


Ralf Grahn


Sources:

Le blog de Valéry Giscard d’Estaing, pour la démocratie en Europe : La boîte à outils du traité de Lisbonne ; 26 octobre 2007 ; http://vge-europe.eu/

Jens Peter Bonde: New name – Same Content: The Lisbon Treaty – is it also an EU Constitution? 2nd edition, 22 October 2007

The Commission’s contribution to the period of reflection and beyond: Plan-D for Democracy, Dialogue and Debate; Brussels, 13.10.2005, COM(2005) 494 final

Wallström wants more citizens’ engagement but no referenda; EurActiv 18 September 2007; http://www.euractiv.com/