Difficult European social market economy

Legal, political and economic scholars have encountered difficulties, when dealing with the treaty based aim of the European Union as a highly competitive social market economy.

Negative integration in order to remove or to lessen obstacles in the internal market and external trade can be promoted by harmonisation and the Court of Justice of the European Union, flanked by rules to ensure fair competition.

However, despite the kind words the Treaty on the Functioning of the European Union (TFEU) offers on social policy - Title X - the real powers lie with the member states, as illustrated by Article 153. The powers for positive integration (harmonisation) are weak in the EU we have today:

Article 153 TFEU

(ex Article 137 TEC)

1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:

(a) improvement in particular of the working environment to protect workers' health and safety;

(b) working conditions;

(c) social security and social protection of workers;

(d) protection of workers where their employment contract is terminated;

(e) the information and consultation of workers;

(f) representation and collective defence of the interests of workers and employers, including codetermination, subject to paragraph 5;

(g) conditions of employment for third-country nationals legally residing in Union territory;

(h) the integration of persons excluded from the labour market, without prejudice to Article 166;

(i) equality between men and women with regard to labour market opportunities and treatment at work;

(j) the combating of social exclusion;

(k) the modernisation of social protection systems without prejudice to point (c).

2. To this end, the European Parliament and the Council:

(a) may adopt measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States;

(b) may adopt, in the fields referred to in paragraph 1(a) to (i), by means of directives, minimum requirements for gradual implementation, having regard to the conditions and technical rules obtaining in each of the Member States. Such directives shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.

The European Parliament and the Council shall act in accordance with the ordinary legislative procedure after consulting the Economic and Social Committee and the Committee of the Regions.

In the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees.

The Council, acting unanimously on a proposal from the Commission, after consulting the European Parliament, may decide to render the ordinary legislative procedure applicable to paragraph 1(d), (f) and (g).

3. A Member State may entrust management and labour, at their joint request, with the implementation of directives adopted pursuant to paragraph 2, or, where appropriate, with the implementation of a Council decision adopted in accordance with Article 155.

In this case, it shall ensure that, no later than the date on which a directive or a decision must be transposed or implemented, management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure enabling it at any time to be in a position to guarantee the results imposed by that directive or that decision.

4. The provisions adopted pursuant to this Article:

— shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof,

— shall not prevent any Member State from maintaining or introducing more stringent protective measures compatible with the Treaties.

5. The provisions of this Article shall not apply to pay, the right of association, the right to strike or the right to impose lock-outs.

European social market economy reading

Already at the time of the Treaty Establishing a Constitution for Europe,

Christian Joerges and Florian Rödl discussed the social deficit of the EU, the genesis of the social market economy at the national (Germany) and the Europena level, as well as the limits of EU competences in the social field, in  “Social Market Economy” as Europe’s Social Model? EUI Working Paper LAW No. 2004/8 (25 pages).  

Klaus Dieter John discussed various forms of economic liberalism in the article The German Social Market Economy – (Still) a Model for the European Union? (8 pages)

In a December 2011 publication, the Swedish Institute for European Policy Studies (Sieps) let four authors discuss the lack of EU powers and the necessity (risk) to move towards a federal state, if Europeans want a social market economy: Giuseppe Bertola, Jörgen Hettne, Fritz W. Scharpf och Daniel Tarschys: Är EU en social marknadsekonomi? Sociala Europa – en antologi; SIEPS 2011:2op (88 pages).

Two of the contributions had been published earlier in English and are still available:

Scharpf, The Socio-Economic Asymmetries of European Integration (2010:10epa) och Bertola, Social and Employment Policy in the EU and in the Great Recession (2010:11epa).

Václav Šmejkal, Stanislav Šaroch: EU As a Highly Competitive Social Market Economy – Goal, Options, and Reality; Review of Economic Perspectives Vol. 14, Issue 4, 2014 (18 pages), another example:  

The paper is a combination of economic and legal -political analysis through which the authors try to answer three main questions: What is the contemporary meaning of the term “social market economy” in the both economic and EU-law academic theory? Can the EU within the powers conferred to it positively fulfill such an objective, or can it just approach it by weakening the still prevailing tendency towards liberalization and deregulation brought about by the construction of the EU internal market and by the promotion of its freedoms?

To round off the reading part, a few random excerpts from Floris de Witte, in The Architecture of a Social Market Economy; LSE Law, Society and Economy Working Papers 13/2015 (24 pages):  

This paper traces the evolution of the nature of the EU’s internal market, from its origin in the 1950s to its current redesign in the aftermath of the Euro-crisis. It suggests that the relationship between ‘the market’ and ‘the social’ has shifted multiple times throughout the Union’s history.  

In doing so, however, they overlook a number of institutional asymmetries, normative biases and legal implications, which mean that any attempt to create a ‘social market economy’ – as Article 3 (3) TEU commits the EU to do – is bound to be distinctively light on ‘social’ and heavy on ‘market’.

The third phase has started since the outbreak of the Euro-crisis. Increasingly, Union institutions are pushing towards social policy coordination and even harmonisation in the EU. The purpose of EU social policy here, again, is very different from the previous two phases. Social policy is now considered as an auxiliary instrument for the stabilisation of monetary and economic policy across the Eurozone. Diversity and national autonomy, on this view, are problematic.

Social policy differentiation throughout the EU, to put it as simply as possible, disrupts both the operation of the internal market and the operation of the economic and monetary union. (page 17)

In blunt terms, the current architecture of the EU simply cannot support a ‘social market economy’ – which comes with far-reaching implications for the stability of the Union’s market and polity.  (page 18)

The legitimacy of their answer presupposes that it is answered through a representative and democratic process. Allowing apolitical institutions to answer such questions will almost inevitably lead to these being answered as if they are regulatory questions.  (page 19)

In the absence of a sufficiently thick political sphere on the European level, any attempt at socialising the EU’s market will be doomed.  (page 21)

A ‘social market economy’ may simply be beyond the capacity of EU law to produce.   (page 22)

Despite the talk about the future of Europe, do we see the EU institutions forging the powers for these representative and democratic processes at the European level?

European social market economy questions

After looking at the asymmetries, I want to finish this blog post by referring to the intelligent questions posed by Stefan Collignon in the web journal Social Europe: How To Create A Real European Social Market Economy; Social Europe 3 February 2015:  

The single most important contribution to revive Europe would be starting a wide debate about who are the winners and losers in the single market; who are the extractive elites that resist a fair distribution of advantages and privileges? How is the idea of sovereignty (mis)used as an instrument to protect these elites? What mechanisms must be designed to create a fair system of distributing the net gains from integration? How can one overcome the veto power and “agency capture” of national governments by local pressure groups? The European social market economy – with new institutions – must emerge from these debates. Without them, it will fail.

Ralf Grahn

Euro crises exposed and added to EU lack of legitimacy and democracy

The discussion began in the entries Transparency during the eurozone crises and Euro crises: European Council eviscerated? and Eurozone governance: Fundamental flaws but better presentation. This is the fourth instalment based on my speech at the 22 February 2012 Attac seminar about the implications of the new fiscal discipline in the EU. This text contains some modifications, updates and documentary references, which complement the oral presentation.


Democracy

The preceding discussion about openness (transparency) brings us to the the need for democracy.

Let me start with the good news.

In addition to EU citizenship and the principle of equality of citizens (Article 9 TEU), Article 10(1) of the Treaty on European Union tells us:

The functioning of the Union shall be founded on representative democracy.

Even the second paragraph – Article 10(2) – looks promising:

Citizens are directly represented at Union level in the European Parliament.

However, the European Union is essentially ”owned” by the member states, represented in the two most important institutions, the European Council and the Council, by their governments. The member states hold the treaty making powers (and fairly little radical change can be accomplished without bumping into the walls of the absurdly detailed treaties).

New competences (powers) require treaty change, almost a mission impossible with unanimous decisions and national ratifications by every member.

The member states control expenditure through the long term budget (officially the multiannual financial framework MFF), so the European Parliament is allowed to play along with regard to the annual budget within the framework.

The member states limit the EU's opportunities to tax and to borrow for its policies.

Most importantly, the citizens are not able to vote in, or out, those who govern the union.

In short, the European Union could not become a member of the EU, because it is not a functioning democracy, although it has democratic elements or ornaments.


A democratic union

In my view, it would be better for the security and prosperity European citizens in a globalising world to have a fully democratic union, with accountable government, robust structures and needed powers, starting with foreign and security policy and a common defence, plus a real federal budget.

It is not for the Basic Law to prescribe the contents of the policies to shape, but to offer the ground rules for democratic government and to guarantee fundamental rights.

The arrangement with multiple unanimity rules, 27 national governments dealing with each other in diplomatic mode and as many national parliaments more or less diligently scrutinising what they are up to, was artificial.

The repeated financial, economic and sovereign debt crises since 2008 have exposed fundamental flaws.

The informal coteries and intergovernmental agreements have worsened the situation.

The current system is neither legitimate nor effective.

In interdependent 21st century Europe the question should be the sovereignty of the people, not the sovereignty of states.



Ralf Grahn
speaker on EU affairs, especially digital policy and law

P.S. 1: For better or for worse, between the global issues and the national level, the European Union institutions and the eurozone coteries shape our future. At the same time we see an emerging European online public sphere. More than 900 euroblogs are aggregated by multilingual Bloggingportal.eu. Is your blog already listed among them? Are you following the debates which matter for your future?

P.S. 2: Referring the anti-piracy treaty #ACTA to the Court of Justice of the European Union (CJEU) marks a lull in the proceedings, but not an end to the political battle. A few moments ago, the online petition launched by @Avaaz for the European Parliament (and the national parliaments) to reject ACTA had already been signed by 2,436,282 netizens, but more are welcome until the official burial.

Time for a UK mass exodus from the clutches of the EUSSR? (5 x updated)

Was I uncharitable regarding British tabloids, large parts of the political establishment and the UK educational system, which have utterly failed to frame the UK discussion on ”Europe” in constructive and forward-looking terms? My criticism in UK and the fall of the ”EU dictatorship” (12 January 2011) seems mild in comparison to fellow euroblogger @Nosemonkey who tweeted about the ”barking mad #EUbill reading/debate”.


Westminster bubble

Generally ”Europe” is treated as an alien, hostile and threatening empire (EUSSR), rather than as the team the United Kingdom is playing on (and should be playing for).

I invite you to be your own judge. Read the record of the 11 January debate on the European Union Bill in the Westminster Parliament.

How do you, as an EU citizen, perceive that the House of Commons debate on parliamentary sovereignty (or Crown in Parliament), especially the Tory rebellion led by Bill Cash targeting the independence of courts (the rule of law), addresses our real concerns about values, security and prosperity in a world increasingly shaped by rising powers (BRICs)?


Bleak House ahead

The Gulf Stream Blues blog noted that the Tory rebellion was defeated, but the government's European Union Bill is heading for adoption, and Bleak House lies ahead: UK throws a spanner in EU integration (12 January 2011):

In the end, if the British vote 'no' on something the rest of the EU is ready to approve, the only logical next step would be for the British to have an 'in or out' referendum on its own membership. One can't quite predict how that will go, but I suspect it would be a 'yes' because deep down the British know they need the EU. But they can't stay in it if they're going to drag it down by rejecting every attempt at treaty change.

So there you have it, quite a bleak future for the UK's relationship with the EU. And there's little chance of this bill being overturned by a later government.

For Europeans, being dragged down by the United Kingdom is not the brightest of prospects.


Sterile sovereignty

In my view, framing the debate about the European Union in terms of (parliamentary) sovereignty is sterile. The rights and interest of citizens are primary, which a House self-obsessed with its own sovereignty does little to serve.

Yesterday, the Federal Union blog made a similar observation, in: Where sovereignty lies (12 January 2011). What matters, are the rights of citizens, not the rights of MPs. The rights of citizens need to be strengthened:

For a number of reasons, most of them good ones, the principle that what parliament says, goes, is no longer unbending. International treaty obligations, including notably those of the European Union, plus many other home-grown concerns, combine to restrict what parliament may do. Purists of the old school, as exemplified by Bill Cash, may dislike what has happened, but it is nevertheless the case. Even leaving the EU would not restore parliamentary powers to their former glory. What matters, though, are the rights of citizens, not the rights of MPs – do not confuse the two – and those rights are being strengthened.

Pace of learning

In the political culture of the United Kingdom the concept and meaning of national citizenship have yet to take root.

Sixty years after the establishment of the Council of Europe (CoE) and the conclusion of the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the protection of citizens' rights through the rule of law seems alien to considerable parts of the British political establishement.

In addition, the rulings by the European Court of Human Rights ECtHR are often confused with decisions by the European Union, itself no spring chicken, with roots going back to the 1957 (EEC) Treaty of Rome.

If you do not believe me about the constant confusion and misinformation, see Talking about the EU: The European Court of Human Rights is NOT an EU institution (11 January 2011).


Ignore, deny or accept

Ignoring, denying and accepting all seem to be alternatives equally presentable, even if we discuss a matter of fact.

Little wonder that the Federal Trust is going to host a conference 20 January 2011 on these great unknowns: Citizenship and the Lisbon Treaty – can the British ever be European citizens?


Dual citizenship

Despite the excruciatingly slow pace of learning, legally the case is clear. Citizenship of the European Union was introduced by the Treaty on European Union (TEU), also known as the Maastricht Treaty, which was signed in 1992 and entered into force in 1993.

Today, this dual citizenship – national and EU – is enshrined in Title II on provisions on democratic principles of the Treaty on European Union (OJEU 30.3.2010 C 83/20):

TITLE II
PROVISIONS ON DEMOCRATIC PRINCIPLES

Article 9 TEU

In all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies. Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

Concrete provisions on and benefits of the bonus EU citizenship are found in Part Two of the Treaty on the Functioning of the European Union (TFEU), Non-discrimination and citizenship of the Union (Articles 18 to 25).

Through the treaties and secondary legislation EU citizenship confers some, but not full, political rights on the citizens. The European Union is still ”owned” by the member states, instead of vested in its citizens.

The member states even hold the keys to who becomes an EU citizen, since it follows automatically from national citizenship, without effective brakes on mass naturalisation by an individual government: National and EU citizenship: What if? (30 November 2010). .

As we saw, EU citizenship is less than twenty years old, almost nothing compared to the age of the Council of Europe, the ECHR, the Treaty of Rome (EEC) and other landmarks of European integration still freely ignored or misunderstood by large sections of British media and nationals.


Ignorance or denial?

Should we rejoice that denial is better than ignorance, because the denier at least is aware of the existence of his or her citizenship of the European Union?

In addition, the protest comes without cost. If you tell the world that you reject your EU citizenship, you still retain your status and the benefits.

The effective, non-gratuitous way to get rid of EU citizenship is to become a national of a state which is neither an EU member, nor a potential member. This leaves plenty of exotic options among the 192 member states of the United Nations.


Mass exodus?

The Tory rebellion having failed, European Union Bill of the UK government is on the road to the statute book, and the campaigns to get Britain out of the EU seem to be going nowhere (even if UK secession might be a blessing for the rest of the union).

Why don't the tabloids, Bill Cash, Daniel Hannan and others act in the spirit of the Pilgrim Fathers to flee oppression by the EUSSR dictatorship and head for a new start in a more promising land?

Afghanistan? Belarus? Burma? Cuba? North Korea? Iran? Libya? Pakistan? Saudi Arabia? Zimbabwe?

The choice is almost endless for those who cherish their age-old English liberties enough to flee the evil European Union. (See Freedom in the World, Freedom House ratings of more than a hundred countries in 2010.)

Do I see lines forming in front of the Consulates, crowds crying Exodus, English political notables packing their bags and media campaigning in overdrive to spur people to take liberty into their own hands?


Update 13 January 2011: The European Citizen has written a blog post on the trials and tribulations of the UK Parliament to come to terms with sovereignty in the context of the debate on the European Union Bill.


Update 2, 14 January 2011: Nosemonkey has returned to the EU and UK sovereignty in a long, but interesting blog post.


Update 3, 14 January 2011: Eva en Europa writes (in Spanish) about the British drift away from the rest of Europe manifested by the European Union Bill debate.


Update 4, 14 January 2011: The House of Commons debate on the European Union Bill does not convince Caroline Bradley of Blenderlaw about the merits of parliamentary sovereignty.


Update 5, January 2011: Charles Reed on the Ethics and Foreign Policy blog wonders if the European Union Bill introduces referendums for the wrong type of questions.



Ralf Grahn



P.S. The Parliament magazine focuses on the directly elected European Parliament, which co-legislates on more of the important issues concerning EU businesses and citizens than before the Lisbon Treaty. Lobbyists have spotted the influence of the EP. Should EU citizens too?

UK and the fall of the ”EU dictatorship”

”Gov(ernmen)t sees off revolt by Tory eurosceptics”, if we believe the AFP, but readers of Mail Online are happy to be served ”Tory eurosceptics win battle over UK 'sovereignty clause' ”.

In UK discourse about the EU even the most basic of facts are contested, if we assume that the reporting concerns the same Parliament and the same European Union (Bill).

Those who are able to stomach it can delve deeper into parliamentary debate on Europe, UK style.


EuroGoblin

Ahead of the parliamentary debate in the United Kingdom, EuroGoblin was more interested in the coming vote than in the crusade from the Daily Express: We Are the Knights Who Say … No! (10 January 2011).

In my view it would be wrong to ignore the astounding argumentation concerning the ”EU dictatorship” by the self-proclaimed ”world's greatest newspaper” The Daily Express, presented on 23 pages in order to ”Get Britain out of the EU” (8 January 2011).

That a newspaper can thrive on such writing anywhere in the free world beggars belief, not only with regard to editorial standards, but the quality of large parts of the political establishment and the educational system of the nation.


BRICs rising and Europe sinking

I wrote a comment on the EuroGoblin blog, where I tried to explain why the European Union needs less retrograde thinking and a whole lot more of energy in a world increasingly shaped by the BRICs. Even if the United Kingdom is an extreme example of toxic discourse, the rest of Europe is well on its way to oblivion:

I am actually less insouciant than you [EuroGoblin], because the debate in the United Kingdom is characterised by varying degrees of backwardness, even more than in Europe generally.

In the real world various Asian countries have already surpassed the EU member states in educational achievements (Pisa), China is about to pass Europe in research and development within a decade, the world’s industrial output is increasingly produced in Asia, the Chinese armed forces are strenghtened at a rapid pace, the US and European governments are in hock to China, and as consumers we spend more than we earn on Chinese goods.

There seem to be only token efforts to put the European Union back on the world map and on the road to economic prosperity.

Discussing various scenarios of backward mobility (as in the UK) gives me the impression of criminal neglect from our beloved leaders.

Energy and democracy

In my view, the citizens of the European Union need an energetic and effective union in the crucial matters of security and prosperity, but this union has to be based on its citizens, meaning full EU level democracy and political accountability.

A Britain erring between the Scylla of still more sterile sovereignty or the Charybdis of EU withdrawal is certainly not the leadership model Europeans need for the high seas of the 21st century. The best we can hope for from the United Kingdom is to do as little damage as possible.

But where are the leaders the rest of us EU citizens need?



Ralf Grahn



P.S. Oh, US is US, and EU is EU, and never the twain shall meet? Forgive me, Kipling, but it will be interesting to see what my new acquaintance The Worden Report makes of his comparison of federalism in the United States and the European Union in the end. In my humble opinion, Europe has substantially more than a healthy dose of Anti-Federalist (News)Papers for the challenges of the 21st century, especially in the English language.

Should we save ‘sovereignty’ or the Europeans?

On the blog Se former à la communication européenne, Michael Malherbe opined that the Roma crisis has mobilised pro and anti-Europeans more than it has improved understanding of the European Union, in: Quels sont les effets d’opinion de la crise européenne autour des Roms ?

Lessons for the European Union are the aim of the “Romagate” series of blog posts, but Malherbe’s lack of optimism tells us that the mission is far from accomplished.



On his Coulisses de Bruxelles blog, Jean Quatremer points to one example of anti-European activism masked as pro-Europeanism, an article written by the French former foreign minister Hubert Védrine. What Védrine wants is an intergovernmental Europe, which daily proves its lack of effectiveness, says Quatremer, in: Le coming out souverainiste d’Hubert Védrine.

Luckily, some citizens are concerned enough to act, when they see the leadership vacuum among the heads of state or government, and the constant failures in the intergovernmental areas.



Jean-Pierre Bobichon recalls Viviane Reding’s defence of fundamental rights in the EU. The writer deplores that the conclusions of the European Council 16 September 2010 do not contain a single line about the treatment of European minorities in Europe. Why not draft a charter of rights and obligations for these populations, building on the EU Charter of Fundamental Rights? Practical action is needed as well, in: Roms: l’Europe fait entendre sa voix.





The movement Sauvons l’Europe, which wants to save the European Union from descending into ineffective intergovernmentalism, has noted the likeminded Spinelli Group, established to promote the European general interest and a citizens’ Europe: Naissance du Groupe Spinelli.



Already 949 persons have signed the pro-European Spinelli Group manifesto, which states:

Only with European solutions and a renewed European spirit will we be able to tackle the worldwide challenges.

The movement Sauvons l’Europe meets today, 22 September 2010, to discuss 52 pro-European and progressive proposals. They are in the form of short sentences, and they have been sorted under three major headlines:

1. For a prosperous Europe
2. For a social Europe
3. For a European civil society


The merits of the individual proposals are open to discussion, but as a whole they remind us of a fundamental question:

Is it meaningful to try to save the ‘sovereignty’ of each European state, or better to promote the best outcomes for European citizens?




Ralf Grahn


P.S. Comments relevant to the topic discussed in each Grahnlaw blog post are most welcome. However, the number of spam comments has skyrocketed. This is the sad reason for comment moderation, so it may take a while before your valued comment appears.

It is easier to understand a language than to use it correctly. As Eurobloggers we could and should promote interaction among Europeans across borders and between linguistic communities. Grahnlaw has adopted a multilingual comment policy:

I do my best to read comments in Danish, Dutch, English, Finnish, French, German, Italian, Norwegian, Portuguese, Spanish or Swedish, even if the Grahnlaw blog and my possible replies are in English.



The Day of Multilingual Blogging 26 September 2010 is drawing closer. It is arranged by the European Commission Representation in the UK and joined by the multilingual blog aggregator Bloggingportal.eu, as well as individual European bloggers.

“Romagate” teaching from Pierre Lellouche (Updated)

On the French government website, the interior minister Brice Hortefeux, immigration and integration minister Eric Besson and EU minister Pierre Lellouche jointly reported on 30 August 2010 that 128 illicit camps had already been ‘evacuated’ since 28 July, out of the 300 targeted for three months.



On Slate.fr Thomas Legrand assesses the 30 August appearance of Hortefeux as a betrayal of republican values.



The five point programme against the Roma and Travellers (and headlined as such) had been announced by Hortefeux, following a meeting with president Nicolas Sarkozy 28 July 2010: Gens du voyage et Roms : cinq mesures pour lutter contre les camps et les comportements illégaux.



Our “Romagate” learning experience continues to profit from statements made by French government representatives. Pierre Lellouche, Secretary of State for European Affairs, colloquially minister for Europe, is an indispensable acquaintance in this respect.



According to the news agency AFP, Lellouche lashed out at the threat of an infringement process because of the wording of an administrative letter:

"On est en train de dresser le procès européen de la France pour la façon dont une circulaire est rédigée".

It may be true that the leaked memorandum specifically targeting Roma combined with the French ministers’ assurances to the contrary in discussions with the commissioners Reding and Malmström was an important triggering factor for the Commission.

However, the French government’s whole plan seems to have been targeted at Roma and Travellers, and the ministers have been keen to exploit all gains in terms of public relations, so despite the ministers’ total ignorance of the missive, the directive seems to have worked according to plan.



Lellouche on Europe

According to AFP and for the benefit of his fellow-citizens, Lellouche also shed some light on the relationship between his country and the European Union:

"La France est un grand pays souverain. On n'est pas à l'école. Nous appliquons notre loi", a-t-il martelé en réponse à des questions sur les réactions européennes. "Je n'ai pas l'intention d'être traité, au nom de la France, comme un petit garçon", a-t-il ajouté.

Il a aussi contesté que la Commission européenne soit la gardienne des traités européens, ce qui est pourtant l'une de ses missions. "Le gardien des traités c'est le peuple français", a-t-il dit.

The European Union shall respect the equality of the member states (Article 4 TEU), so the putative greatness or actual population figure for France is irrelevant in this context.

France has voluntarily pooled parts of its sovereignty with the other EU member states, which means that they have gained rights and assumed responsibilities under the Treaties. These questions are determined by EU law, so sovereignty is the wrong argument here.

EU law is – within the powers conferred to the EU – French law, but there is no separate French law applicable (at will?).

Having lied and having been caught, Lellouche resents being exposed for what he is. He invented the apt schoolboy parable.

The European Commission is the “guardian of the Treaties”. According to Article 17 TEU the Commission shall ensure the application of the Treaties and oversee the application of EU law, under the control of the Court of Justice of the European Union.

It is astounding that Lellouche is still minister for Europe after alleging that the French people is the guardian of the Treaties. (He may have intended it only for situations regarding France directly, but with his formula European integration would return to its state before 1951; no mean erasure in so few words.)



On Slate.fr Jean-Sébastien Lefebvre offers Europe minister Lellouche a basic EU law course, after the minister’s attacks on the Commission and commissioner Viviane Reding.



Mieux connaître vos droits en Europe sent minister Pierre Lellouche a quick remedial course on European law, starting with the principle of non-discrimination, part of the genetic code since the 1957 Treaty of Rome.



Eckart D Stratenschulte, on The European Circle (in German), spoke about dangerous nonsense (Gefährlicher Unsinn), when he referred to Lellouche’s statement that the guardian of the Treaties is not the Commission, but the French people. Professor Stratenschulte put it succinctly:

Die Abschiebung der Roma ist ein Verstoß gegen europäisches Recht. Dieser Satz ist jedoch seine Abschaffung.

In other words, the expulsion of Roma is an infringement of European law. This sentence means abolishing it.

How can we hope that the citizens ever understand the European Union, if the ignorance of the French political elite is anything to go by?


Update 20 September 2010: On his Coulisses de Bruxelles blog, Jean Quatremer has just published a French perspective on the arguments of Pierre Lellouche.




Ralf Grahn

EU aim: Quality and sustainability of public finances

Despite the Brussels jargon, the ten ‘Europe 2020 integrated guidelines’ should make Europeans sit up and take notice. These policy aims concern the bread and butter issues for this decade. Success or failure decides our jobs, pensions, living standards and quality of public services; in short: prosperity.

On 17 June 2010 at the European Council meeting, the heads of state or government are going to add their remarks to the proposed objectives ahead of final adoption.



The blog post Adopting EU broad economic policy guidelines (BEPGs) looked at the procedure and context, and the entry EU’s proposed BEPGs (broad economic policy guidelines) presented an overview of the BEPGs and their relationship with the guidelines for employment policies. Together they form the ‘Europe 2020 integrated guidelines’.



Public finances



The first guideline in the Ecofin Council’s report to the European Council (document 10262/10) is:

Ensuring the quality and the sustainability of public finances

The financial crisis and the economic downturn put severe strain on public finances, now seen in the form of the European sovereign debt crisis and the rude awakening in the eurozone.

Almost all EU member states now accumulate debt at an unsustainable pace, and many of the economies are burdened with heavy levels of government debt.

Among the most developed in the world, several EU members have been forced to call in the International Monetary Fund, and the IMF has undertaken to stand ready for the collective defence of the euro area.

During the last weeks and days, a number of member state governments have slammed on the brakes and hastily announced major budget cuts for the coming years, in some cases even with immediate effect.

Strikes, protests, social unrest and hardship are on the menu, not only in the so called PIIGS (Portugal, Ireland, Italy, Greece and Spain), but in most EU member states, not forgetting the difficulties in the new members in Central Europe.

Panicky reactions take the citizens by surprise and cause anger, but somehow the governments should be able to return to more sustainable and predictable policies.

The Ecofin proposal sketches a virtuous path towards better economic governance (page 8):

As part of comprehensive ‘exit strategies’ for the economic crisis, Member States should carry out ambitious reform programmes to ensure macroeconomic stability and the sustainability of public finance, improve competitiveness, and reduce macroeconomic imbalances and enhance labour market performance. Temporary measures introduced in response to the crisis should be withdrawn in a coordinated manner as appropriate when the recovery is secure. The withdrawal of the fiscal stimulus should be implemented and coordinated within the framework of the Stability and Growth Pact.

Quality and sustainability of public finances

Here is how the representatives of the member states see the common challenges and needed actions (page 12 to 13):

Guideline 1: Ensuring the quality and the sustainability of public finances


Member States should vigorously implement budgetary consolidation strategies under the Stability and Growth Pact (SGP) and in particular recommendations addressed to Member States under the excessive deficit procedure, and/or in memoranda of understanding, in the case of balance-of-payments support. In particular Member States should achieve consolidation in line with Council recommendations and meet their medium-term objectives in line with the SGP. Without prejudice to the legal framework of the SGP, this implies for most Member States achieving a consolidation well beyond the benchmark of 0.5 % of gross domestic product (GDP) per year in structural terms until debt ratios are on a solid declining path. Fiscal consolidation should start in 2011 at the latest, earlier in some Member States where economic circumstances make this appropriate, provided that the Commission forecasts continue to indicate that the recovery is strengthening and becoming self-sustaining.

In designing and implementing budgetary consolidation strategies should focus on expenditure restraint and prioritise growth-enhancing expenditure items within for example areas such as education, skills and employability, research and development (R&D) and innovation and investment in networks with positive impacts on productivity, where appropriate for example high-speed internet, energy and transport interconnections and infrastructure. Where taxes may have to rise, this should, where possible, be done in conjunction with measures to make tax systems more employment, environment and growth-friendly for example by shifting the tax burden towards environmentally harmful activities. Tax and benefits systems should provide better incentives to make work pay.

Furthermore, Member States should strengthen national budgetary frameworks, enhance the quality of public expenditure and improve the sustainability of public finances, pursuing in particular determined debt reduction, reform of age-related public expenditure, such as pensions and health spending, and policies contributing to raising employment and effective retirement ages to ensure that age-related public expenditure and social well-fare systems are financially sustainable.

Budget efficiency and quality of public finances are also important at the EU level.

Credibility?

Is it going to be different this time?

When reading the economic and employment guidelines for the decade ahead, we are confronted with the missed targets of the Lisbon reform agenda for growth and jobs, regulatory and supervisory failures regarding reckless financial operators and weak coordination of economic policies between member state governments, despite the Stability and Growth Pact.

The intentions and programmes have not been bad, but coordination, open or otherwise, between ‘sovereign’ member states can hardly be seen as a success story.

Since the Lisbon Treaty mainly leaves these policy areas and powers unchanged, credibility remains a big question.

It is not the sole prerogative of the United Kingdom to reframe questions of needed powers at the right level in sterile terms of ‘sovereignty’: the assured power for all to hang separately.

Vestigia terrent, said the fox.




Ralf Grahn

Intergovernmental EU: Freely cooperating, sovereign nation states

When I wrote the 10 November 2009 blog post EU top nominations: Edifying spectacle, I did not know how soon and how emphatically this picture of “freely cooperating, sovereign nation states” would be confirmed, by Sweden’s prime minister Fredrik Reinfeldt, the (s)election procedures and Charlemagne’s notebook.



Swedish prime minister Fredrik Reinfeldt, who heads the current EU Council presidency, talked about the difficult balancing act:

“We must of course consider the whole Union in this, and look for a balance of candidates based on many different aspects: male or female, from a large or small Member State, in the east or the west, the north or the south".

Reinfeldt emphasised that it is important to have an open dialogue among the heads of state and government about which individuals the EU wants to see in the three posts, but he also stressed that this type of negotiation must not take place via the media.

“It is my job to take responsibility for the process and show respect for the candidates' possible current duties. I have learnt from experience to be careful about speculating on the names being discussed", said Fredrik Reinfeldt (11 November 2009).

***

Openness between heads of government

Speaking about an open dialogue, Reinfeldt limits it to the charmed circle of heads of state and government.

At national level, these leading politicians are criticised, sometimes unfairly. They often have to take abuse of the worst kind, but the (s)election procedure of the European Council offers the opposite.

Our leaders, with their preferences and aspirations, are treated as tender sucklings, unable to meet the light of day. Their sensitivities are paramount. The citizens of the European Union are like the devotees crowding in Saint Peter’s Square, waiting for a puff of white smoke.

***

Charlemagne’s notebook



Charlemagne’s notebook shows the guts to stand up for the intergovernmental and diplomatic paradigms, in the blog post The EU top jobs race should be secretive and elitist (12 November 2009).

This is the logical position to take, if you want a union of freely cooperating nation states and national leaders. Opacity, not to say total black-out, is the price to pay, so be happy to pay it, if intergovernmentalism is your persuasion. Don’t whimper!

If you want openness and real EU level democracy, you have to look beyond the Lisbon Treaty.

Quod erat demonstrandum.




Ralf Grahn



P.S. The Euroblogs aggregated on multilingual Bloggingportal.eu expose the real EUSSR. Read and comment! You can also propose an interesting blog post or a whole new blog (click Contribute).

More on: Why Europe?

Let the specialists explore vote-weighting, fish quotas, phytosanitary regulations and the like. What people in general need are a few home truths about why the European Union is necessary and why we actually need ‘more Europe’ in some crucial respects, while renouncing regulation overload at the European level.

***

In the United States, more than 200 years ago, the main purposes of that Union were succinctly put by Alexander Hamilton in the Federalist, number XXIII:

“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.

The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”

***

There are two fundamental needs: security and prosperity.

The fundamental challenges remain the same, but in today’s globalising world they are even more real and demanding, while the European nation-states are ever less able to deliver on their own.

Sovereignty is an empty shell, if it means that we reject ‘outside interference’, but are unable to offer working solutions.

The European countries have started to come to grips with this dilemma, by joining forces selectively and often timidly.

***

There are two fundamental challenges:

1. We need modes for more effective European action.

2. Europeans need to understand why.

Our political leaders have invested little in explaining the necessities to their electors. A few cursory remarks and an occasional speech is not enough to shape a needed new vision of the world for whole populations.

The basic challenges need constant repetition. Where mass media do little to educate people – preferring scandal, entertainment or even their own disruptive political agendas – the politicians’ task becomes not only demanding, but almost impossible.

But the political leaders have to make the effort, because enlightening the bewildered populations is a necessary condition for effective action.

One more thing: Blaming politicians is not enough. Our common European heritage tells us that we have the freedom and the responsibility to educate ourselves.

Democracy is, in essence, our responsibility to bear the consequences of our collective wrong choices. But with better choices life can be worth living.


Ralf Grahn

EU Treaty of Lisbon: Better out?

Is the European Union a prison of “We, the People” like the United States of America, where President Abraham Lincoln abolished slavery and secession without express authorisation by the Constitution? Or is the EU a prison of peoples like the former Soviet Union, where both secession and dissent were smothered until the empire imploded?

What if a member state of the European Union wanted to withdraw, and made a democratic decision to stake its future outside the EU?

There is no express provision for the final opt-out in the present Treaties, and they have been concluded for an unlimited period.

International treaties can, of course, be changed by mutual agreement. But failing common accord, could a “Better outside” decision be enforced unilaterally by a member state?

Some campaigners contend, from an internal point of view, that a sovereign nation (at least theirs) can do what it pleases and that a decision by Parliament would suffice (presumably without notification, negotiation or respect for treaty obligations).

Others have studied the matter more closely, taking into account the international community, and have read the law of treaties to find a reasoned response to this vexing question.

***

Let us take a look at what the Vienna Convention on the Law of Treaties, concluded 23 May 1969 and entered into force 27 January 1980, has to say about the existing state of international law (de lege lata), especially the doctrine ‘clausula rebus sic stantibus’ (things thus standing). As I understand it, a treaty may be revoked only under strict conditions: There has to be a fundamental change of circumstances, which constituted an essential basis of the consent, and this change causes a radical transformation of the obligations.


Article 62
Fundamental change of circumstances

1. A fundamental change of circumstances which has occurred with regard to those existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be invoked as a ground for terminating or withdrawing from the treaty unless:

(a) the existence of those circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and

(b) the effect of the change is radically to transform the extent of obligations still to be performed under the treaty.

2. A fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty:

(a) if the treaty establishes a boundary; or

(b) if the fundamental change is the result of a breach by the party invoking it either of an obligation under the treaty or of any other international obligation owed to any other party to the treaty.

3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the change as a ground for suspending the operation of the treaty.

***

There will in particular be … an Article on voluntary withdrawal from the Union, said the mandate for the intergovernmental conference (IGC 2007 Mandate, Council document 11218/07, point 16).

***

The IGC 2007 proceeded to fulfil its promise, by inserting the following Article 49a into the Treaty on European Union (TEU) in the Treaty of Lisbon (OJ 17.12.2007 C 306/39 and 40):

58) The following new Article 49 A shall be inserted:

‘Article 49 A

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 188 N(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

A qualified majority shall be defined in accordance with Article 205(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.’.

***

The current TEU is concluded for and unlimited period, Article 51, and so is the Treaty establishing the European Community, Article 312 (latest consolidated version of TEU and TEC in OJ 29.12.2006 C 321 E). There is no provision on leaving the European Union or the European Community (and there has been no concrete need for one, except for the Danish territory Greenland).

***

For the source of inspiration we go to the Convention and its draft Treaty on establishing a Constitution for Europe, Article I-59 (OJ 18.7.2003 C 169/22).

Article 59
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the European Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention; the European Council shall examine that notification. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be concluded on behalf of the Union by the Council of Ministers, acting by a qualified majority, after obtaining the consent of the European Parliament.

The representative of the withdrawing Member State shall not participate in Council of Ministers or European Council discussions or decisions concerning it.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, decides to extend this period.

4. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 57.

***

The IGC 2004 agreed on the following text, which became Article I-60 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/40):

Article I-60
Voluntary withdrawal from the Union

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article III-325(3). It shall be concluded by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Constitution shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in European decisions concerning it.

A qualified majority shall be defined as at least 72 % of the members of the Council, representing the participating Member States, comprising at least 65 % of the population of these States.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article I-58.

***

We can see that between the draft Constitution and the Constitutional Treaty there is a slight reordering of the text and the qualified majority was defined in the Constitution, but there is no substantial difference between the texts.

The differences between the Constitution and the Lisbon Treaty are only technical.

***

Let us take a look at the negotiation procedure referred to in Article 188n(3) of the Treaty on the Functioning of the European Union (TFEU) in the Reform Treaty (OJ 17,12,2007 C 306/96), under Title V International agreements:

Article 188n(3) TFEU

3. The Commission, or the High Representative of the Union for Foreign Affairs and Security Policy where the agreement envisaged relates exclusively or principally to the common foreign and security policy, shall submit recommendations to the Council, which shall adopt a decision authorising the opening of negotiations and, depending on the subject of the agreement envisaged, nominating the Union negotiator or the head of the Union's negotiating team.

***

A few comments by your glossator:

The European Union is founded on principles such as democracy and the rule of law, as well as respect for the competences of the member states and their constitutional systems.

It would, in my view, be inconceivable for the European Union to disregard a democratic decision by a member state to secede. In the context of the EU democratic legitimacy constitutes a basic requirement for accession, and a subsequent clearly expressed withdrawal of consent would entail a fundamental change of circumstances (even if it depended on the party itself).

Thus, legally the essence of the Lisbon Treaty Article 49a TEU on voluntary withdrawal from the EU is redundant, since it adds nothing of substance to the existing state of the law.

The Treaty of Lisbon is, in effect, only a codification of law as it stands.

Outside the strictly legal sphere, the provision clarifies matters making it easy to point at the new Article 49a TEU, where the right to withdraw from the EU voluntarily is expressly stated. At least the more level-headed critics will have to admit that there is no Babylonian captivity within the European Union.

Then, one can ask how much the procedural provisions actually achieve.

Notification of the intention is such a basic requirement as to be almost self-evident in international relations.

In practice, the relations between the seceding member state and the EU are so manifold as to require negotiations. The European Council provides guidelines, the Council makes decisions and a team conducts the negotiations. These would resemble ‘reverse engineering’ of an accession process, where potentially the whole ‘acquis communautaire’ would have to be de-negotiated, Chapter by Chapter.

It is hard to believe that the government of a seceding state would approach these negotiations without a clear own idea of how it wanted to shape its future relations with the EU, even if the basic decision to withdraw were the accidental result of a referendum.

Anyway, the negotiated withdrawal is just an option. Failing negotiations the membership would end two years after the notification (if no extension were to be agreed).

I have seen someone rail against the exclusion of the seceding state from the EU decision making on withdrawal (but I cannot recall the exact posting). I must admit that I find it hard to understand how a voluntary secessionist could form part of both teams, its own with the purpose to transform itself into an outsider and the EU team negotiating the future relations with that state as an element of shaping the Union’s relations with the outside world. Here too, one could think of secession as reverse engineering of accession, with each party on its side of the table.

Should the seceded state come to regret its ‘divorce’, it would have to conclude the same prenuptials and nuptials as other accession states. Since the Lisbon Treaty does not offer a right to accede, only to apply, there would be no guarantee of success, just as in the divorce case.


Ralf Grahn