European Union: A short and readable basic law?

Is a short and readable basic law for the European Union pure fantasy, or could it become a reality?

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Piecemeal amendments and minute compromises between member states under veto threat have resulted in detailed treaties. They are unsystematic, hard to read and contain redundant material.

The draft Constitution by the European Convention and the Constitutional Treaty by the intergovernmental conference made an attempt at reform of the institutions, but they produced updated and more systematic texts as well.

The Treaty of Lisbon meant a backward step, but many of the substantial and systematic improvements were preserved. In the end, the Lisbon Treaty is more readable than the existing treaties.


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Structure

The Lisbon Treaty is structured in a more logical way than the current treaties. Basic provisions are situated in the amended Treaty on European Union (TEU), while more technical details and policy areas are found in the Treaty on the Functioning of the European Union (TFEU), which replaces the Treaty establishing the European Community (TEC).

Clarity is added by abolishing the distinction between the European Union and the European Community.


But the latest intergovernmental conference (IGC 2007) baulked at placing the whole of external action into the TFEU. Not only did it preserve the intergovernmental character of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP); the provisions remained in the TEU, together with general provisions on the European Union’s external action.

The substantial limitations mean that, despite incremental improvements, the European Union will remain unable to speak with one voice in the world.

But here we are more interested in the supposition that the European Union could have a short and readable basic law.


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Technically possible

Leaving the Table of Contents outside, and shifting the external action including the CFSP and the CSDP to a second order document would leave us with us with a basic document of less than twenty pages.

Even as it is, the TEU text proper is only about thirty pages long.

As a literary document the TEU is nowhere near the level of the US Constitutions, but tolerably readable if ridded from the references to the TFEU and Protocols.

If the US Constitution could be re-written today, including the amendments, it would get rid of redundant provisions, and it would be even more elegant the existing one.

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Political difficulties

The main problem is not technical, but political. The European Union is based on international treaties between member states, not a union by the people.

About 200 pages of treaty text and about 160 pages of protocols and declarations follow from the member states’ desire to control events in minute detail.

This is the old covenant, European Union 1.0 based on diplomats and technocrats.

The Lisbon Treaty is version EU 1.1 with added powers for the European Parliament and other reforms.

To demand, as Libertas does, a strong TREATY, but short and readable, is not realistic. Where should the detailed provisions be placed? Would the member states suddenly let go their grip?

As long as the basic documents are international treaties between member states, I see no inherent reason to accept the calls for referendums. (Ireland, due to a domestic constitutional interpretation, happens to be the odd man out.)

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Solution

If the power is vested in the people, the European Union could have a strong, short and readable basic document.

It would not be a treaty, but a basic law or constitution. This would be the new covenant, EU 2.0.

The shift from the old covenant to the new – from EU 1.0 (or 1.1) to EU 2.0 – would leave the detailed legislation to be approved by the European Parliament and the policies to be pursued by an accountable government.

The federation’s Constitution could be short and clear for all to understand.

The move from EU 1.0 (or 1.x) to EU 2.0 would be groundbreaking. Therefore, as a union of people, the new European Union would need the consent of the governed.

In my view, the willing electorates would form the new union, and the states with negative referendum results would stay outside the new union.

But afterwards the Constitution could be amended by the Parliament, probably by a qualified majority. Representative democracy is the norm; referendums the exception.


Ralf Grahn

Why Europe?

There are fairly small groups of vehement and vocal anti-EU campaigners, but they resonate with varying proportions of national electorates hostile to or suspicious of ‘Brussels’, although profound indifference towards the European Union is probably the prevalent mood, equally frustrating for the anti-EU crowd as for Europhiles.

My attempt to sum up the European malaise is: Distant and meddling.

Distant bureaucrats fine-tuning standards for different products in the internal market, incomprehensible treaties and tons of secondary legislation, unclear responsibilities and poor accountability, almost faceless politicians ushered in from black cars to do, what?

At the same time, a pervasive feeling that these tentacles reach into every nook and cranny, somehow threatening our daily lives and comforts, as well as our jobs and futures.

Thus far, the feelings are common to large swathes of the peoples, but more prevalent among the poor, the uneducated, the old and the rural populations, in short, those who live precariously.

The causes of discontent vary wildly, too, from accusations of an ‘ultra-liberalist’ conspiracy trampling workers’ rights to ‘socialist’ over-regulation choking free enterprise.

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There is no magic cure. ‘Washington’ is as much of a swearword in US politicking as ‘Brussels’ in Europe, and there is a guaranteed market for various shades of populist hopefuls nationally, regionally and locally.

Although the division of labour between the EU and the member states is far from perfect, the questions decided at the European level tend to be far from the daily concerns of individuals, unless they happen to be directly affected like farmers or fishermen.

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But something needs to be done. Something could be done.

The European Convention, the Constitutional Treaty and the Lisbon Treaty (in the consolidated version) made some gestures towards presenting the basic rules of the European Union in a readable form, but they all carried with them the luggage of previous treaties.

Their improved aims and principles are admirable. In the long run they strengthen the foundations for progress towards a citizens’ Europe, although the process may be a long one.

But the basic principles and necessary institutions would have to be presented in an even shorter document than the proposed Treaty on European Union. If, despite its intergovernmental character, the common foreign and security policy, including the common security and defence policy, was moved to the proposed Treaty on the Functioning of the European Union, we would be near a readable basic document for EU citizens (as legal texts go).

The constitutional document could be fairly neutral, leaving it to the various political parties to try to convince the EU citizens of the merits of their programmes.

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Every home in the EU would receive this fundamental document and it would have to be produced in a form which would make people voluntarily place it in their bookshelf for further reference.

The objectives and principles of the European Union tell us something about what the EU has been established for and how it is supposed to work, but more is needed as to why.

More about that in a coming post.


Ralf Grahn

Consolidated Lisbon Treaty: Update

Some additional information on the available unofficial but convenient consolidated versions of the Treaty of Lisbon, which I presented in my 10 January 2008 posting ‘Consolidated Treaty of Lisbon’.

The Wikipedia article on the Lisbon Treaty (to be recommended in itself) had noticed that there is a new English consolidation:

Markus Walther, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without tables of content, annexes, protocols or declarations). See:

http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf

Until now we have had the reader-friendly English consolidations offered by Statewatch and the Irish Institute of European Affairs.

A commentator mentioned that a Hungarian user-friendly consolidated version exists, and offered me a link (which did not work). Not knowing Hungarian, I was not able to locate the consolidation on my own, but I suppose that those who know the language would be able to find this language version of the consolidated Reform Treaty on the government web pages.

There would now seem be seven readable language versions out of 23 official languages.

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No deeds contradict Jens-Peter Bonde MEP when he says (19 December 2007, http://www.bonde.com/):

“The intergovernmental conference decided that no institution should be allowed to publish a consolidated version before the treaty had been finally ratified by all 27 member states.”

Therefore, it is up to national governments, NGOs, think-tanks and individuals to make readable treaties available to the citizens of the Union and to spread the word.

I am, as ever, grateful for information on consolidations of the Lisbon Treaty, the ratification processes and literature on the subject.


Ralf Grahn

Sack the spin doctor!

Someone must have given the European leaders bad advice on how to present the Treaty of Lisbon to the public.

The drafting technique is a deliberate choice. Therefore, I will quote one example of the amendments made by the Reform Treaty to the existing EU Treaty:

31)”Article 14 shall be amended as follows:

(a) in paragraph 1, the first two sentences shall be replaced by the following sentence: "Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions.";

(b) paragraph 2 shall become the second subparagraph of paragraph 1, and the other paragraphs shall be renumbered accordingly. In the first sentence, the words "to joint action," shall be replaced by "to such a decision," and the words "that action" shall be replaced by "that decision". The last sentence shall be deleted;

(c) in paragraph 3, renumbered 2, the words "Joint actions" shall be replaced by "Decisions referred to in paragraph 1";

(d) the current paragraph 4 shall be deleted and the remaining paragraphs shall be renumbered accordingly;

(e) in the first sentence of paragraph 5, renumbered 3, the words "pursuant to a joint action, information shall be provided in time to allow," shall be replaced by "pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow,";

(f) in the first sentence of paragraph 6, renumbered 4, the words "failing a Council decision," shall be replaced by "failing a review of the Council decision as referred to in paragraph 1," and the words "of the joint action" shall be replaced by "of that decision";

(g) in paragraph 7, renumbered 5, the words "joint action" in the first sentence shall be replaced by "decision as referred to in this Article" and in the second sentence by "decision referred to in paragraph 1".”

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In spite of the fairly insignificant amendments, the drafting technique leads to time consuming comparison for anyone trying to fix the exact wording of the Article. Even after checks, mistakes are probable. Clear amendments could have been written once, centrally by the Council, instead of the unnecessary multiplication of work all around Europe caused by the reader-unfriendly drafting.

With even a token of regard for readers, Article 14 TEU and many others like it could have been written ‘in extenso’. The end result in Article 14 EUT, does not differ much from the present Article 14 TEU, but it looks a lot like the Constitutional Treaty. Surprised, anybody?

It is as if everyone interested in European affairs should be punished for wanting to read, understand or use the Reform Treaty.

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The drafting technique would not have caused major problems, if the Council had published reader-friendly consolidated versions at the same time, in every official language of the EU. But the real disaster became clear by the Council’s deliberate refusal to produce timely consolidated versions of the Lisbon Treaty, the Union’s most important document in 2007 and 2008 and, perhaps, beyond that.

Has the presentational technique eliminated the phantasmagorical allegations against the contents of the Lisbon Treaty? Not as far as I know, but a lot of ordinary citizens have been alienated by the antics of the Council.

There is a lot more re-engaging to do, now.

If anybody wants a schoolbook example of how not to communicate with the public, it is here. I hope it finds extensive use in time for the needed replacements, namely:

Somebody’s spin doctor should be sacked!


Ralf Grahn