I would like to see European leaders who make me proud.
***
The EU member states consult, they reach a common approach, and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
In my dictionary ‘fair play’ is described as ‘respect for the rules or equal treatment of all concerned’.
It was a serious miscalculation by the intergovernmental conference (the European Council) to decide that no consolidated versions of the Lisbon Treaty are to be published by any EU institution before the amending Treaties are ratified in every member state and have entered into force. It was and is depressing that the other EU institutions acquiesce in this conspiracy of silence, and that individual ministers and MEPs, as well as European political parties are keener to show solidarity to their peers than to the public. (If anybody is in doubt as to the essential correctness of my assertions, I refer to the lightly sanitized postings on my blogs since the middle of October. If push came to shove, I would have to present my documented evidence, if not able to claim journalistic anonymity for my sources.)
Has anybody presented a recorded decision? Has anybody stepped forward to take responsibility, or to present the reasons openly? Not to my knowledge. Having asked around, I have found that most of the people ‘in the know’ prefer not to answer. It seems to be a more convenient option than lying or telling the truth, but it goes against the grain of democratic interplay.
The end result of the intergovernmental conference is that we have an unreadable Reform Treaty, which makes a mockery of open communication and the notion of democratic fair play. The damage caused is deeper and more long-lasting than the inconvenience caused by foaming fanatics claiming that 50 year old treaty provisions are novelties smashing state sovereignty (as in Britain) or social protection (as in France) or whatever.
The lack of a readable text has done nothing to dampen the spirits on the fringes, where conscientious analysis is less than highly regarded and balanced presentation unknown, but it has meant serious inconvenience for those, who would like to base their opinion on facts (without pre-programmed filtering or spin by office holders and institutions).
The citizens who want to know the end result conveniently can go to one of the available consolidated language versions of the Treaty of Lisbon, like the updated TEU and TFEU published in English by the Institute of International and European Affairs (Dublin, Ireland):
http://www.iiea.com
They are of great service to the public.
***
My own quest is a little bit different. I try to wade through the Lisbon Treaty, one Article at a time, taking note of the similarities and differences between the existing Treaties, the draft Constitution, the signed Constitution and the amending Treaties. This I do as objectively as I can. In addition, I offer my personal comments on the (proposed) ‘state of the Union’, from an EU citizen’s point of view.
I imagine that my work could be of assistance to students of European affairs (politcs, law, economics) and to generalist teachers as well as to interested citizens who would want to take a deeper look at the background or consider subjective but independent views untrammelled by inbred hostility or self-congratulatory institutional loyalty.
As long as the EU institutions fail to publish consolidated, readable versions of the Treaty of Lisbon in every official language of the Union, I find it meaningful to decipher the Reform Treaty, as far as I am able, given the practical constraints. And it offers me an opportunity to repeat (ad nauseam) how our leaders have failed to live up to expectations formed by their professed ideals and principles. The mixture of ingredients like fact, irony, sarcasm and humour may vary from time to time, but the theme is constant: Publish or perish. (It goes for all sides.)
I welcome reasoned debate and I prefer real persons who use their own names.
***
I would like to see European leaders who make me proud, and who take care of our common interests, while playing by the rules of fair play.
***
What does the intergovernmental conference (IGC 2007) have in store for us today? We go to the following exercise in public relations by our governments, the Treaty of Lisbon (OJ 17.12.2007 C 306/28-29) amending the Treaty on European Union (TEU).
"35) Article 16 shall be amended as follows:
(a) the words "inform and" shall be deleted, the words "within the Council" shall be replaced by "within the European Council and the Council" and the words "in order to ensure that the Union's influence is exerted as effectively as possible by means of concerted and convergent action" shall be replaced by "in order to determine a common approach";
(b) the following sentences shall be added after the first sentence: "Before undertaking any action on the international scene or entering into any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.";
(c) the following two paragraphs shall be added:
"When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.”
***
Today’s exercise seems fairly straightforward. First, we turn to the existing Treaty on European Union, Article 16 TEU (latest consolidated version OJ 29.12.2006 C 321 E/6):
“Article 16
Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that the Union’s influence is exerted as effectively as possible by means of concerted and convergent action.”
***
Then, starts the fun part: reconstructing the democratic intention of our leaders:
Article 16
Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.
When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.
***
The member states consult, they reach a common approach and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
***
What does this consolidated Article remind us of? We turn to the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/17) Article I-39 Specific provisions for implementing common foreign and security policy, or more exactly Article I-39(5):
“5. Member States shall consult one another within the European Council and the Council of Ministers on any foreign and security policy issue which is of general interest in order to determine a common approach. Before undertaking any action on the international scene or any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council of Ministers. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.”
We then proceed to Article III-202 as proposed by the Convention:
“1. When the Union has defined a common approach within the meaning of Article I-39(5), the Union Minister for Foreign Affairs and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council of Ministers.
2. The diplomatic missions of the Member States and the delegations of the Union shall cooperate in third countries and in international organisations and shall contribute to formulating and implementing a common approach.”
***
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) the first corresponding Article I-40 had a new, slightly altered headline: Specific provisions relating to the common foreign and security policy, and the ‘Council of Ministers’ had become the ‘Council’. Otherwise Article I-40(5) in the signed Treaty was the same as the corresponding provision drafted by the Convention.
Article III-301 of the Constitutional Treaty gave the wording a few touches, but in essence it took over the text proposed by the Convention in its Article III-202.
The Treaty of Lisbon, Article 16 TEU, merges the two corresponding Articles of the draft Constitution and the signed Constitutional Treaty without altering the substance.
***
This was today’s deciphering exercise. Slowly but surely we cover the ground the IGC 2007 would have us see only ‘through a glass, darkly’. (Thank you, Donna Leon.)
Ralf Grahn
Friday 18 January 2008
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Which "50 year old treaty provisions" do you have in mind?
ReplyDeleteHear,hear!
ReplyDeleteDenis, the Rome Treaty (EEC) was what I meant. In the French public climate, the original rules on the (then) common market and customs union, were portrayed by some 'non'-campaigners as inventions in the Constitutional Treaty, which would usher in an era of delocalisations, social dumping and ultra-liberalist policies bringing with them globalisation with all its horrors.
ReplyDeleteYou might remember the Service Directive and the Polish Plumber as then active catchwords in the French referendum debate.
As far as I understand, the four main factors behind the negative result in France were: the impopularity of president Chirac and his government, a traditional anti-EU alliance of nationalist right and socialist and communist left, poor economic performance and general 'malaise', and fears of globalisation etc. mentioned above.
But you specifically referred to
ReplyDelete"...foaming fanatics claiming that 50 year old treaty provisions are novelties smashing state sovereignty (as in Britain)... "
So which 50 year old treaty provisions do you have in mind, regarding the foaming fanatics in Britain?
Denis, sorry that I missed the British part in my first answer. My impression is that part of the UK public has been ill at ease all the way, since GB finally was allowed to join the EEC in 1973, having first applied in 1961.
ReplyDeletePromptly after entering, the UK demanded re-negotiation of its terms.
The original Rome Treaty built on two central building blocks, which until this day seem to cause British politicians and public opinion considerable anguish: 1) the founding principle of 'ever closer union' leading towards a European federation, and 2) the primacy of Community (future Union) law, which is a logical necessity of its legal system, later explicitly stated by the Court of Justice.
I also refer to often heard remarks of the kind that "we were lied to from the beginning".
And, to take a fresh example, the Conservative amendment tabled on Parliamentary sovereignty versus primacy of Community (EU) law, seems to point to wilful obfuscation or a surprising lack of knowledge after 35 years of British membership.
(By the way, if British courts, in legal cases, would not protect the citizens against public authorities, the UK would hardly be a country with 'rule of law'. I am not an expert on UK law, so I have a question: Do you think that Parliament is at liberty to scrap all liberties and judicial safeguards for citizens?)
I wasn't aware that there is an amendment tabled on Parliamentary sovereignty versus primacy of Community (EU) law. There should be, but I don't see it on the Order of Business - only the amendment relating to the need for a referendum.
ReplyDeleteAs you know, there was nothing in the Treaty of Rome about the primacy of EC treaties and laws over national laws, and nor is there anything in the present treaties. It was, and it still remains, nothing more than a legal doctrine invented by the European Court of Justice, and it is a legal doctrine which is fundamentally incompatible with the British doctrine of parliamentary sovereignty.
Denis, I had seen a news item or blog posting on the amendment the same day (I think), so there shouldn't be too much trouble finding it.
ReplyDeletePerhaps I can give you more exact information, shortly.
As to the substance, the European Community (EC, future EU) is firmly based on the rule of law, and Community law represents a 'new' binding legal order.
As I understand it, if the UK Parliament chose to expressly repudiate its EC obligations, this would be fundamentally incompatible with EU membership.
My conclusion: Inside you play by the rules, outside you set your own rules.
The treaties provide no mechanism for the expulsion of a member state.
ReplyDeleteEven if they did, how could expulsion possibly be justified on the basis that the legislature of a member state has rejected a legal doctrine which is merely the invention of the ECJ, and which was not mentioned in any previous treaty which it has ratified?
Somehow the EEC/EC/EU has functioned for half a century, and accumulated vast powers, without this pretension by the ECJ being accepted by all the national courts or endorsed by all the national legislatures.
In fact many of the latter have never been asked about it, because its first appearance in a treaty was as Article I-6 in the Constitutional Treaty, and many of the national legislatures - including the British Parliament - never got to vote on that.
During that half century there have been cases where member states have committed material breaches of EU treaties and laws, and the issue has been fudged to allow them to get away with it, without any sugestion that they should be expelled.
So why is this theoretical principle suddenly so important that it becomes a matter of "in or out"?
Denis, why do you want to implicate your nation (government) in blatant disregard of its duties according to the treaties and the 'acquis'?
ReplyDeleteIf you want to condone immoral behaviour, don't sully the name of your country as a civilised nations; please do it in your own name if you must.
If ethical considerations do not move you, take a look at the principle of loyal cooperation (Article 10 TEC), or actions against a state that has failed to fulfil an obligation under the treaty (Articles 169-171 TEC).
In cases of blatant disregard we would have to look at the law on treaties in general, especially the Vienna Convention.
'Inventions' by courts, also known as legal precedents, should not be unfamiliar to you.
Anyway, try to grasp the fundamental difference between a legal order and wish-list.
You could equally well direct these comments at Lord Justice Laws.
ReplyDeleteIn his 2003 judgement on the "Metric Martyrs" case, he reiterated that in the United Kingdom EU treaties and EU laws do not (and so far cannot) have inherent primacy over laws passed by the British Parliament, as their only authority is that derived from British laws, and moreover if Parliament chose to legislate contrary to EU treaties and laws then British courts would uphold the will of Parliament provided that it had been clearly expressed.
If that created a political problem for the British government vis-a-vis some of the governments of the other EU member states, that would be a problem which the government had itself created by disregarding our constitution, and which they would have to sort out.
Or, you could direct your comments at many other national courts across the EU. To take a fairly recent example, in 2005 the Polish Constitutional Tribunal denied the primacy of EU law over the Polish constititution.
Incidentally, yesterday somebody suggested that the Community claim of supremacy is not only "offensive", but also "illegal under international law" - for what that is worth.
Denis, I understand that you refer to a situation where the UK Parliament expressly legislates in contravention to GB's obligations under the EU Treaties.
ReplyDeleteBritish courts might have to follow the Parliament's line, but the onus of the breach would fall on the UK Government and Parliament.
As you rightly point out, there have been a few hiccups on the way in some member states, but the question of supremacy or primacy of EC (EU) law has been codified politically and legally in the Lisbon Treaty (although less elegantly than one would have wished), being old hat through ECJ precedents.
The EC (EU) is a new type of legal order, not easily understood through outdated notions of national sovereignty or traditonal international law, but luckily comprehension is spreading.
I know that you wish to keep the discussion to the treaty alone and have no desire to become embroiled in a debate on the benefits or disadvantages of the EU project itself (and to your credit you have tried to be as objective as possible with your analysis) but you used the phrase " outdated notions of national sovereignty".
ReplyDeleteThis has become a sort of mantra with europists, and yet I've never heard one of you present a cohesive and convincing case for the abolition of national sovereignty.
Do you have one?
JO
Jo, actually there are two sides to what I write.
ReplyDeleteFirst, I try to compare the different stages of EU treaty reform objectively. Thank you for noticing that.
Second, I comment on the proposed changes subjectively, from the standpoint of an EU citizen.
The nation state forms the backdrop for how notions like sovereignty and democracy have developed, in national legal systems and in traditional international law.
The European Community and the European Union form a new category in international relations, an entity 'sui generis', with elements of traditional intergovernmental cooperation (treaty base) and as a novelty supranational law and decision making as well as judicial protection, a legal order of its own kind.
'Outdated' refers to the fact that traditional analytical tools based on the Westphalian state system are less than apt to shape the needed new consciousness.
I don't think that it is helpful to think of abolition of state sovereignty.
Rather, joint exercise of sovereignty, the pooling of resources in certain areas, can lead to better outcomes for the citizens of the EU concerning our security and prosperity in a globalising world.
Most of my articles (other than plain informative postings) try to assess the strengths and weaknesses of the existing EU and the proposed changes from a citizen's point of view.
In addition to reasons in older posts, the series on the Lisbon Treaty advances from the preamble, values, aims, competences, citicens' rights and democratic principles to the institutional arrangements and the Union's external action (the latter in progress).
Jo, as an attentive reader you will find my reasons for a democratic, effective and solidary Union presented in these articles.
"The European Community and the European Union form a new category in international relations, an entity 'sui generis', with elements of traditional intergovernmental cooperation (treaty base) and as a novelty supranational law and decision making as well as judicial protection, a legal order of its own kind."
ReplyDeleteSo say the lawyers at the EU's Court of Justice - but acting far beyond their brief, exceeding the powers delegated to them by the sovereign member states, and especially by the sovereign peoples of those member states, and thereby attempting to usurp and amalgamate their discrete sovereignties into a single EU sovereignty - over which, as it happens, the lawyers at the EU's Court of Justice would hold sway, as the final arbiters of the EU treaties and laws.
Not so much the "rule of law", then, but in effect anti-democratic "rule by lawyers".
Denis, you are entitled to your opinions.
ReplyDeleteI just try to describe how things are.
Then please do so, by making it clear that the pretended primacy of EU treaties and laws has no basis in "50 year old treaty provisions", or the provisions in any subsequent treaty which has come into force, but is still nothing more than a presumptious claim invented by lawyers at the European Court of Justice, which has been rejected by national courts across the EU, and which until Monday evening had never been the subject of any vote in the British Parliament - which still claims that it retains complete legislative supremacy for the United Kingdom, even if for the time being it chooses not to exercise that supremacy in certain fields.
ReplyDeleteDenis, I still think that my basic posting on the Court of Justice in the EU Treaty of Lisbon holds true.
ReplyDeleteBut I return to the reference to the amendment on parliamentary sovereignty I had seen. I had seen a notice of some kind, and mentioned it as an afterthought, but I did not manage to locate it for you at the time.
Now I think that I have found the item mentioned, in a different setting. Here is the proposed amendment:
Sovereignty of Parliament (European Communities) Bill
Christopher Chope, presented a Bill to provide that Community treaties, Community instruments and Community obligations shall only be binding in legal proceedings in the United Kingdom insofar as they do not conflict with a subsequent, expressly inconsistent enactment of the Parliament of the United Kingdom.