Constitution, democracy and rule of law: Hungary is more than a diversion for Europe

Despite prime minister Viktor Orban spoiling for a fight against critics of his government agenda, the blog of the Hungarian presidency of the EU Council understandably wants to calm down the heated debate diverting attention from the ”big issues” the EU is facing.

I really want the European Union to create the means to overcome the pressing economic challenges, but the problems in Hungary sap the very foundations of the European construction work, the health of the constitutional order, the democratic system and the rule of law.

My 19 January 2011 blog post mentioned the background picture by Jeremy Druker and published by the International Relations and Security Network (ISN) of not only the repressive Hungarian media law, but other controversial legislation on its way:

Hungary's Media Law – Tip of the Iceberg (18 January 2011).

Druker's quote of professor and OSCE observer Miklos Haratszi revealed problems well beyond the scope of one legislative act:

Still, whatever the outrage in the West, few see that the media package is just the tip of the iceberg of Orban's very far-reaching illiberal, counter-revolution.

Messages from some European leaders seem to fall on deaf ears: PM Viktor Orban wants to fight against free media in Hungary (20 January 2011).


Verfassungsblog

Max Steinbeis on Verfassungsblog now draws attention to the seriousness of the situation in Hungary: Verfassungs-Barbarei in Budapest (20 January 2011).

Steinbeis refers to a discussion arranged by the Law and Society Institute Berlin (LSI Berlin), at the Humboldt University: The Hungarian Constitutional Crisis and European Constitutional Standards. To this, he adds his own reflections, which deserve attentive reading in every capital of the European Union, and more.

These are no mere diversions. Fundamental issues are at stake, not only for Hungary, but for Europe.



Ralf Grahn



P.S. Writing for (y)EU is the interesting and inspiring blog of the web team of the European Parliament.

P.S. 2: In addition to my blogs in English, Finnish and Swedish, you can follow me on Facebook and on Twitter @RalfGrahn.

Are EU founding values effective? (Hungarian media law)

In the Social Europe Journal, Gabor Gyori explained that the tribulations of democracy in Hungary could not be framed in the terms of dictatorship or its opposite. There were many other problems besides the new media law. For the sake of Hungary and the whole EU, the union must start taking democracy and the rule of law as seriously as economic issues: For Hungary, the Issue is not Dictatorship but the Quality of Democracy (10 January 2011).

The 47 member states of the pan-European Council of Europe have committed themselves to the European values enshrined in many treaties, most notably the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

There are at least three lines of defence. First, the member states are supposed to live up to their promises voluntarily. Second, the CoE officials and intergovernmental bodies try to deal with emerging problems politically. Third, ultimately the European Court of Human Rights (ECtHR) rules on applications ”after all domestic remedies have been exhausted”, so it is a slow and laborious road, but the member states have undertaken to abide by the final judgment of the Court. Abidance is monitored by the CoE.

As I tried to explain yesterday, there are pan-European values, common to all CoE members, not Western European, Central European or Eastern European values and norms designed to give people in Central or Eastern Europe less protection than their more fortunate counterparts in the older CoE members in the West: European values and Hungarian media law: ECHR (10 January 2011).


European Union values

The European Union (EU) is a tight and deep political union, as opposed to the intergovernmental Council of Europe, so it would be natural to expect the EU to be better equipped to deal with deviant behaviour against the freedoms and rights of its citizens.

In addition, the Lisbon Treaty was marketed as an improvement for citizens in many respects: more democratic, fundamental rights, citizens' initiative etc.


EU founding values

Let us look at the bright side of life. In my view, the founding values of the European Union are admirable (OJEU 30.3.2010 C 83/17):

Article 2 TEU

The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.

(You can notice the inclusion among the founding values of ”the rights of persons belonging to minorities”, treasured by a Hungary solicitous about 3.5 million ethnic Hungarians outside its borders.)


Outsiders

As long as states remain candidates for EU accession, they have to convince all the member states that they respect these founding values and that they are committed to promoting them (Article 49 TEU).


Insiders

Once inside, a member state is less at risk legally, because the hurdles against sanctions are still quite high. According to Article 7 TEU, the Council needs to determine by a four fifths majority that there is a ”clear risk of a serious breach” of the founding values by a member state.

The process can be initiated by a third of the member states, by the European Parliament or by the European Commission. The procedure can lead to recommendations.

Real legal sanctions are possible only when a unanimous European Council determines a ”serious and persistent breach” by a member state.

Legally, we have a blunt weapon, not especially well adapted to minor but important infringements by member states' governments.

Politically, already serious discussion about the commencement of proceedings is an embarrassment for a wayward government, despite the slender risk of condemnation.

However, it requires a degree of moral courage from the institutional players involved to get even a principled discussion going.



Ralf Grahn



P.S. The Daniel Mason writes The Endless Track, a British Euroblog refreshingly interested in actual EU policies and the place of South Yorkshire within the European Union. You can follow @danmason21 on Twitter when he hopefully returns with new tweets.

EU Council configurations and basic public information

Only the General Affairs Council (GAC) and the Foreign Affairs Council (FAC) are directly mentioned in the Lisbon Treaty (Article 16(6) TEU). The list of the other Council configurations is adopted by the European Council, by a qualified majority (Article 236 TFEU).


Missing information

The web pages of the European Council and the Council of the European Union are unhelpful with regard to such basic public information as their respective Rules of Procedure and the decision on the other Council configurations, even if the names of the existing configurations are displayed on the Council’s website.

In my view, as a matter of transparency, public authorities should always hold the applicable rules readily available, at least if they believe in the rule of law.

It is hardly an excuse that the Commission is no better in this regard. The European Parliament’s Rules of Procedure are regularly updated and available on the EP web pages.



List of Council configurations

The list of Council configurations should be adopted by the European Council. However, the list was provisionally established by the GAC (reasons given), when the Lisbon Treaty entered into force:



DECISION OF THE COUNCIL (GENERAL AFFAIRS) 2009/878/EU of 1 December 2009 establishing the list of Council configurations in addition to those referred to in the second and third subparagraphs of Article 16(6) of the Treaty on European Union; published OJEU 2.12.2009 L 315/46.


LIST OF COUNCIL CONFIGURATIONS

1. General affairs

2. Foreign affairs

3. Economic and financial affairs

4. Justice and home affairs

5. Employment, social policy, health and consumer affairs

6. Competitiveness (internal market, industry and research)

7. Transport, telecommunications and energy

8. Agriculture and fisheries

9. Environment

10. Education, youth and culture



Council’s Rules of Procedure

According to the decision, the list was inserted in the Council’s Rules of Procedure, so these offer an alternative place to look for, and perhaps easier to remember:



COUNCIL DECISION 2009/937/EU of 1 December 2009 adopting the Council's Rules of Procedure; link to the consolidated version of [1 December 2009].

The list of Council configurations is set out in Annex I (page 16).




Ralf Grahn

Sweden and eurozone: Optional treaty compliance?

Sweden is a unique case among the member state economies in the European Union: competitive and social and with healthy public finances.



According to Wikipedia eight states are obliged to join the eurozone once they fulfil the strict entry criteria, but this does not include Sweden, “which has a de facto opt out”.

The Wikipedia article Eurozone explains this interpretation in the following way:

Sweden gained a de facto opt-out by using a legal loophole. It is required to join the eurozone as soon as it fulfills the convergence criteria, which includes being part of ERM II for two years, while joining ERM II is voluntary. Sweden has so far decided not to join ERM II.

We can all agree that Sweden is factually outside the euro area, but the European Central Bank (ECB) takes a different view on the admissibility.



The European Central Bank’s Convergence Report May 2010 (273 pages) states in the country summary (page 53):

Sweden is a Member State with a derogation and must therefore comply with all adaptation requirements under Article 131 of the Treaty. Furthermore, the ECB notes that, pursuant to the Treaty, Sweden has been under the obligation to adopt national legislation with a view to integration into the Eurosystem since 1 June 1998. As yet no legislative action has been taken by the Swedish authorities to remedy the incompatibilities described in this and previous reports.

When we read the European Commission’s Convergence Report 2010 (Brussels, 12.5.2010 COM(2010) 238 final;30 pages), we notice that legislation in Sweden is not fully compatible with Articles 130 and 131 TFEU.

Sweden does not fulfil the criterion on price stability, nor the exchange rate criterion (pages 28 to 29).

In the light of its assessment on legal compatibility and on the fulfilment of the convergence criteria, the Commission considers that Sweden does not fulfil the conditions for the adoption of the euro.

Rule of law?


The Swedish government position seems to be that possible treaty compliance is subject to the outcome of a referendum in an unforeseeable future.

Normally, if a member state has failed to fulfil an obligation under the treaties, the Commission delivers a reasoned opinion. In case of non-compliance, the Commission or a member state may bring the matter before the Court of Justice of the European Union (Articles 258 and 259 TFEU).

Sweden has been in breach since 1998, but no Court proceedings seem to be imminent.

Are we to conclude that treaty compliance is optional in the European Union, at least de facto?

The rule of law is mentioned as one of the founding values of the European Union (Article 2 TEU), but would it be more to the point to call it a floundering value?




Ralf Grahn

Eurozone crisis: Roundup of preparatory documents on Eur-Lex

In Eurozone crisis: Roundup of official information (OJEU), 19 May 2010, we searched for the eurozone rescue decisions published in the Official Journal of the European Union (OJEU) by today.

Only the €60 billion European financial stabilisation mechanism and two supporting decisions by the European Central Bank had been published in OJEU, leaving question marks with regard to openness (transparency), closeness, democracy and the rule of law.

Do we fare any better if we look for the proposals where they should be, on Eur-Lex under preparatory acts?

Here are the proposals and preparatory documents we hope to find in full, or at least properly documented: the €110 billion (including IMF) support package for Greece, Greek austerity and reform measures, the €60 billion European financial stabilisation mechanism, the €440 billion Special Purpose Vehicle, additional IMF participation, national commitments, fiscal and economic reform promises from Spain and Portugal, measures towards greater fiscal prudence, proposals for stricter economic governance and additional ECB decisions.



Eur-Lex roundup



How is this roller coaster month of May reflected by preparatory documents on Eur-Lex?


COM documents


No relevant COM documents were found.



SEC documents


Among SEC documents we find the following, published in 21 languages (but not in English), so I arbitrarily chose to link to the French version:



Recommandation en vue d'une DÉCISION DU CONSEIL adressée à la Grèce en vue de renforcer et d'approfondir la surveillance budgétaire et mettant la Grèce en demeure de prendre des mesures pour procéder à la réduction du déficit jugée nécessaire pour remédier à la situation de déficit excessif ; Bruxelles, le 4.5.2010 ; SEC(2010) 560 final (12 pages)



The proposed Council Decision, based on Article 126(9) TFEU and Article 136 TFEU, sets out revised measures for eurozone member Greece to take for deficit reduction, because the economic growth prospects have worsened and the chances to deficit reduction targets have deteriorated. The attainment date is postponed by two years, to 2014, but the requirements for Greek measures to restore credibility are tightened. The proposal details a real austerity package.



Convergence report


A number of documents relevant to the larger picture of budgetary discipline have been published. The following covers progress towards euro introduction:






Commission staff working document (Brussels, 12.5.2010; SEC(2010) 598 final; 197 pages) accompanying the Commission’s Convergence Report 2010; COM(2010) 238 final [the latter not posted among COM documents on Eur-Lex]


The periodic Convergence Report is based on Article 140(1) TFEU, and it concerns the progress made by member states with a derogation towards achieving economic and monetary union (EMU).


Denmark and the United Kingdom have opted out and 16 EU member states have introduced the euro currency, so the 2010 convergence assessment covers Bulgaria, the Czech Republic, Estonia, Latvia, Lithuania, Hungary, Poland, Romania and Sweden.



Budget discipline


Part of the same larger framework, but regarding individual member states are a number of Commission reports:



Luxembourg Report prepared in accordance with Article 126(3) of the Treaty; Brussels, 12.5.2010; SEC(2010) 588 final (9 pages)


The Commission deals with the application of the Stability and Growth Pact in the current crisis situation, the first step in the excessive deficit procedure with regard to Luxembourg, when the government deficit exceeds the reference value of 3 per cent.

***




Cyprus Report prepared in accordance with Article 126(3) of the Treaty; Brussels, 12.5.2010; SEC(2010) 590 final






Denmark Report prepared in accordance with Article 126(3) of the Treaty; Brussels, 12.5.2010;
SEC(2010) 585 final






Finland Report prepared in accordance with Article 126(3) of the Treaty; Brussels, 12.5.2010;
SEC(2010) 589 final







Bulgaria Report prepared in accordance with Article 126(3) of the Treaty; Brussels, 12.5.2010;
SEC(2010) 587 final




Recommendation for a COUNCIL OPINION on the updated stability programme of Cyprus, 2009-2013; Brussels, 12.5.2010; SEC(2010) 595 final



Summing up

No COM documents directly relevant to the eurozone rescue were posted on Eur-Lex under preparatory documents.

The only SEC document published on Eur-Lex under preparatory documents, which was directly linked to the salvage operation was the proposal for Greek budgetary measures.

The publishing efforts have been unsystematic and people who want to access documents are in for a search from dispersed sources.

The staff working paper accompanying the Convergence Report 2010 (itself absent) and the reports on individual countries form part of the larger task of restoring fiscal probity and budget discipline in the European Union.

How about transparency, closeness, democracy and the rule of law?




Ralf Grahn

My Europe Week: 61st anniversary of the Council of Europe

Call it low key …


One line in The Week in Brief is what I found on the Council of Europe website by the time of writing:

5/05, Strasbourg - 61st anniversary of the Council of Europe

The latest Grahnlaw entries with remarks on the Council of Europe were the Trivium and Quadrivium blog posts yesterday.



Still, I think that the important and patient work of the 47 member Council of Europe is worth more attention and discussion by the CoE itself, in Europe in general and the Euroblog community in particular, especially during My Europe Week.

The rule of law, human rights and fundamental freedoms are universal values, but they have made their home in Europe.




Ralf Grahn

My Europe Week: Trivium of European integration: Council of Europe at 61

In the 5th century the seven liberal arts were set as the basis for the new school curriculum. First came Grammar, Logic and Rhetoric (later known as the Trivium). (Source: Keith Sidwell: Reading Medieval Latin; Cambridge University Press)



Council of Europe

The Council of Europe was established on 5 May 1949 by Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom.



According to the Statute of the Council of Europe, every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms (Article 3).

Each member must collaborate sincerely and effectively in the realisation of the aim of the Council:

Article 1

a. The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.
b. This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.
c. Participation in the Council of Europe shall not affect the collaboration of its members in the work of the United Nations and of other international organisations or unions to which they are parties.
d. Matters relating to national defence do not fall within the scope of the Council of Europe.

The United Kingdom and the Nordic countries fended off attempts to endow the Council of Europe with supranational powers, so it remained an expression of primary level international cooperation, an intergovernmental organisation.

The Committee of Ministers makes the decisions, regarding all important matters by unanimity.

The Consultative Assembly, nowadays called the Parliamentary Assembly, is allowed to discuss matters and to make recommendations to the Committee of Ministers. The members of the Parliamentary Assembly are elected indirectly, by the national parliaments among their members.



In the area of human rights, the Council of Europe has become a pioneer internationally. The groundbreaking 1950 Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) has been developed further by amending protocols, and especially the establishment in 1959 of the European Court of Human Rights (ECtHR), now issuing binding judgments, has offered Europeans an important and evolving instrument for the protection of the rule of law.

The CoE has widened into a pan-European organisation, with 47 members hosting about 800 million people. Some of the members were admitted on fairly optimistic assumptions about future progress. The ECtHR has become the victim of deep-rooted structural human rights problems in a number of CoE member states, leading to a huge backlog of cases.


A great number of treaties have been concluded within the European Council.

There are reasons to take note of the Council of Europe during My Europe Week. Tomorrow, 5 May 2010, the Council of Europe turns 61. It is worthy of our respect and felicitations, but the limits of intergovernmental cooperation have left its academic achievements at primary level.


My European vision is on the lookout for more: Is there a Quadrivium out there?




Ralf Grahn



P.S. I noticed that the website of the European Council had succumbed to multimedia temptations, making it harder to find solid and useable material without being dragged into picture shows.

Puzzling EP action over EU-USA bank data deal?

What is happening between the European Parliament and the Council? I have to admit that I was puzzled, even shocked when I saw that the EP is threatening the EU Council with political blackmail.

EUobserver reports that the European Parliament threatens to derail EU-US bank data deal (18 January 2010). According to the article, EP president Jerzy Buzek has sent a second letter to the Council, demanding more information about the so called interim SWIFT agreement, also known by the acronym TFTP (Terrorist Finance Tracking Program).

The European Parliament wants full access to information related to the interim agreement, and the EP wants its concerns to be fully reflected in the negotiating mandate for the planned long-term agreement after the end of October, writes Valentina Pop for EUobserver.com.


Late November 2009 Grahnlaw wrote about the upcoming decision of the Council of the European Union to approve the so called SWIFT Agreement to hand over European banking data to the United States, and early December we reported on the decision, taken on the last day before the Lisbon Treaty entered into force.

The Decision by the Council of the European Union on the signing of the so called SWIFT or TFTP Agreement was later officially published, which we reported on:



COUNCIL DECISION 2010/16/CFSP/JHA of 30 November 2009 on the signing, on behalf of the European Union, of the Agreement between the European Union and the United States of America on the processing and transfer of Financial Messaging Data from the European Union to the United States for purposes of the Terrorist Finance Tracking Program; Official Journal of the European Union (OJEU) 13.1.2010 L 8/9.


This contained the formal decision on signing, as well as a provision and declaration on provisional application of the Agreement.



The annexed contents of the TFTP / SWIFT Agreement were here.




Parliament v Council

The Council deliberately adopted the TFTP / SWIFT Agreement on the last day before the Lisbon Treaty entered into force and the European Parliament became more fully involved in the conclusion of international agreements. (Cf Article 218 TFEU).

The news report seems to indicate that the EP action stems from the Parliament’s desire to “be immediately and fully informed at all stages of the process” (Article 218(10) TFUE).

Fair enough, the European Parliament wants to be taken into account from day one, even if the issue may seem more like a continuation of the interim solution than a totally new agreement.

The EUobserver article also seems to indicate that the European Parliament is not convinced about the privacy and data protection guarantees for European businesses and citizens in the interim agreement.



On 17 September 2009 the European Parliament had adopted a non-legislative resolution P7_TA(2009)0016 on the envisaged international agreement to make available to the United States Treasury Department financial payment messaging data to prevent and combat terrorism and terrorism financing.

The resolution doubted if a separate agreement was the right way to proceed, given the framework of the EU-US agreement on legal assistance to enter into force on 1 January 2010, and it went on to lay down a number of “minimum” assurances the EP found necessary.

If I understand correctly, the European Parliament is not only showing off, but has procedural and substantive concerns it wants to see addressed.

At first I was a bit shocked when I read about the EP’s threat of political blackmail, but after reading the resolution I think that the Spanish presidency of the Council of the European Union should come up with a constructive and cooperative response today in Strasbourg.

The rule of law, privacy and data protection are fundamental EU values. They are not to be treated lightly, even in the combat against terrorism, the importance of which the European Parliament stressed in its resolution:

Recalls its determination to fight terrorism and its firm belief in the need to strike the right balance between security measures and the protection of civil liberties and fundamental rights, while ensuring the utmost respect for privacy and data protection; reaffirms that necessity and proportionality are key principles without which the fight against terrorism will never be effective.

Ralf Grahn




P.S. On Verfassungsblog (in German) Max Steinbeis writes expertly on German and European issues of constitutional law. Verfassungsblog is a fine example of a specialist blog in the Euroblogosphere, listed together with more than 500 great euroblogs on growing multilingual Bloggingportal.eu, a useful one-stop-shop for fact, opinion and gossip on European affairs, i.a. politics, policies, communication, economics, finance, business, civil society and law.

By the way, euroblogs are an excellent means to brush up your foreign language skills while learning about or debating our common challenges.

New European Commission ─ Official proposal

Even if news travel instantly in the wired world, more or less accurately, we should not discount the importance of official records.

Just as there are national official gazettes (under different names), the European Union works under the rule of law, making laws and decisions based on the powers in the treaties, and publishing the results for the record.

If the media (aided by some crowd-pleasing parochial politicians) managed to present the nomination of the new Commission as a dramatic 27 nation tournament, with winners and losers, the Official Journal of the European Union (OJEU) serves students and other serious observers in another manner.

In general, students should look for primary sources. In addition, one can actually learn a thing or two about the legal framework, which led to the official outcome and will govern the next phases.



New Commission proposed

Let us take the list of proposed Commission members as an example:



COUNCIL DECISION, taken by common accord with the President-elect of the Commission, of 4 December 2009 adopting the list of the other persons whom the Council proposes for appointment as Members of the Commission (2009/903/EU), which was published OJEU 8.12.2009 L 321/51.


The decision has been taken by the Council of the European Union on 4 December 2009, after the Lisbon Treaty entered into force.

We see that the decision has been taken by common accord with the President-elect.

We see the special circumstances of the High Representative/Vice-President.

We are able to read a short history of the process.

The process, including the following steps, is outlined.

The term is until 31 October 2014.

All the names are recorded; not only “national champions”.

The decision refers to the legal base: Article 17(3) and (4) and (7), second subparagraph.



Legal base

The references to the treaty provisions offer us a framework for the decision and the next steps: Treaty on European Union TEU (0JEU 9.5.2008 C 115/25-26):

Article 17 TEU (excerpt)


-----

3. The Commission's term of office shall be five years.

The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.

In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.

4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014, shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.


-----

7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.

The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.

The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.

Conclusion

Just for the record…

The European Union is based on the treaties, now the amending Lisbon Treaty, which entered into force on 1 December 2009.

The treaties are of fundamental importance. All powers, new laws and decisions are based on the treaties, directly or derived from them. The EU is based on the rule of law.

Lacking immediacy and high drama, the official record of the European Union ─ the Official Journal ─ is more than a compilation of materials. The OJEU is an excellent teacher on how the EU functions.

In a world of bus passengers, the Lisbon Treaty is the manual for the drivers and auto mechanics.




Ralf Grahn



P.S. Do you find EUSSR myths fascinating? Are we EU citizens worth a better European Union? Educate yourself! Growing, multilingual Bloggingportal.eu now aggregates 494 euroblogs, representing both national viewpoints and pan-European angles.

You can access all the posts on the Posts page or concentrate on the editors’ choice of articles on the Home page. On most of the blogs you can comment and discuss our common European future. Please, do.

Blogs on EU affairs and European themes, by associations, networks or individuals, can join Bloggingportal.eu. Gain visibility, credibility and readers by proposing a new blog!

Jean-Marie Le Pen

The French quality blog Diner’s Room published a thoughtful post on the PES proposal within the European Parliament to prevent Jean-Marie Le Pen from presiding at the beginning of first EP session after the European elections in June 2009, by amending its Rules of Procedure.

‘Jean-Marie Le Pen et les principes de l'état de droit’ is available here:


http://dinersroom.free.fr/index.php?2009/03/26/1080-jean-marie-le-pen-et-les-principes-de-l-etat-de-droit

According to the EP Rules of Procedure, the oldest member presides until the President has been elected. No other business is conducted until then.

The proposal to change the rule to the detriment of one individual speaks volumes about lousy political judgment and an utter incomprehension of the rule of law, one of the founding principles of the European Union.

Like Gandhi, we have to say to Martin Schulz of the PES group that Western civilization would be a good idea.


Ralf Grahn

Rights and freedoms for Russians

The BBC reports that EU spars with Russia over rights:

http://news.bbc.co.uk/2/hi/europe/7874110.stm

Why put such a negative spin on it?

Surely, human rights and fundamental freedoms as well as the rule of law for Russians must be advancing by bounds and leaps.

European Commission President José Manuel Barroso is promoting these causes in Russia and Prime Minister Vladimir Putin for Russians elsewhere.

With these heavyweights behind them Russians are indeed a chosen people.


Ralf Grahn

EU Charter intro

The Charter of Fundamental Rights of the European Union (2000) brings together, in up-to-date form, the various international and European human rights conventions.

The Charter encompasses freedoms as well as economic and social rights. Its 54 articles form the backbone of individuals’ rights within the European Union, and the Community institutions pay increasing attention to the compatibility of all new legislation with the provisions of the Charter.

The Court of Justice has affirmed that the Charter may be invoked before the Court.

A quick overview of the headings gives an impression of the scope of the Charter:



CHAPTER I DIGNITY

Article 1 Human dignity
Article 2 Right to life
Article 3 Right to the integrity of the person
Article 4 Prohibition of torture and inhuman or degrading treatment or punishment
Article 5 Prohibition of slavery and forced labour



CHAPTER II FREEDOMS

Article 6 Right to liberty and security
Article 7 Respect for private and family life
Article 8 Protection of personal data
Article 9 Right to marry and right to found a family
Article 10 Freedom of thought, conscience and religion
Article 11 Freedom of expression and information
Article 12 Freedom of assembly and of association
Article 13 Freedom of the arts and sciences
Article 14 Right to education
Article 15 Freedom to choose an occupation and right to engage in work
Article 16 Freedom to conduct a business
Article 17 Right to property
Article 18 Right to asylum
Article 19 Protection in the event of removal, expulsion or extradition



CHAPTER III EQUALITY

Article 20 Equality before the law
Article 21 Non-discrimination
Article 22 Cultural, religious and linguistic diversity
Article 23 Equality between men and women
Article 24 The rights of the child
Article 25 The rights of the elderly
Article 26 Integration of persons with disabilities



CHAPTER IV SOLIDARITY

Article 27 Workers’ rights to information and consultation within the undertaking
Article 28 Right of collective bargaining and action
Article 29 Right of access to placement services
Article 30 Protection in the event of unjustified dismissal
Article 31 Fair and just working conditions
Article 32 Prohibition of child labour and protection of young people at work
Article 33 Family and professional life
Article 34 Social security and social assistance
Article 35 Health care
Article 36 Access to services of general economic interest
Article 37 Environmental protection
Article 38 Consumer protection



CHAPTER V CITIZENS’ RIGHTS

Article 39 Right to vote and to stand as a candidate at elections to the European Parliament
Article 40 Right to vote and to stand as a candidate at municipal elections
Article 41 Right to good administration
Article 42 Right of access to documents
Article 43 Ombudsman
Article 44 Right to petition
Article 45 Freedom of movement and of residence
Article 46 Diplomatic and consular protection



CHAPTER VI JUSTICE

Article 47 Right to an effective remedy and to a fair trial
Article 48 Presumption of innocence and right of defence
Article 49 Principles of legality and proportionality of criminal offences and penalties
Article 50 Right not to be tried or punished twice in criminal proceedings for the same criminal offence



CHAPTER VII GENERAL PROVISIONS

Article 51 Scope
Article 52 Scope of guaranteed rights
Article 53 Level of protection
Article 54 Prohibition of abuse of rights


The ones who rant against “Brussels” rarely point out that European integration is based on the rule of law, including protection of human rights and fundamental freedoms.

Often the detractors’ point of view seems to be to banish one set of European Community “red tape” with 27 different national sets of discrimination based on nationality and 27 incompatible sets of bureaucratic obstacles to the fundamental freedoms guaranteed by the treaties.

Is this progressive? Is it wise?


Ralf Grahn

Council of Europe and European Union I

First of all, the Council of Europe and the European Union are two separate organisations.

The Council of Europe was created in 1949 by ten Western European states. The Statute of the Council of Europe excludes matters relating to national defence, but is otherwise broad in scope (Article 1):

The aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress.

This aim shall be pursued through the organs of the Council by discussion of questions of common concern and by agreements and common action in economic, social, cultural, scientific, legal and administrative matters and in the maintenance and further realisation of human rights and fundamental freedoms.

Article 3 of the Statute lists the basic criteria for membership:

Every member of the Council of Europe must accept the principles of the rule of law and the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the aim of the Council as specified in Chapter I.

Democracy, human rights and the rule of law have become the core competencies of the Council of Europe.

The Council of Europe is an inter-governmental organisation, where the decisions are taken by the Committee of Ministers (representatives of governments). The organisation has been able to conclude a large number of Conventions (treaties) between the member states in a wide range of fields covering both human rights and other questions of common interest. The Committee of Ministers, assisted by the Secretary General, the Commissioner for Human Rights and specialist committees, monitors member states’ compliance with these Conventions and issues recommendations. This advisory and monitoring work is pursued in the inter-governmental sphere, largely outside public scrutiny.

Although it fell far short of the aspirations of the European federalists, the Council of Europe was attributed a Consultative Assembly, a deliberative organ with an advisory role. Nowadays known as the Parliamentary Assembly it gives the organisation some stature above strict inter-governmental co-operation. The members of the Assembly are chosen by the national Parliaments. It has been called a para-legislative body.

The most remarkable step outside the inter-governmental sphere has been the evolving Convention for the Protection of Human Rights and Fundamental Freedoms, especially its control mechanism crowned by the supra-national European Court of Human Rights, which exercises judicial control leading to binding judgments.

Today the geographical scope of the Council of Europe is pan-European, encompassing 800 million individuals and 46 member states. The new state of Montenegro has applied for membership. Only Belarus is beyond the pale.

Of these members, 27 are also members of the European Union. In addition, the organisations share values and are active in the same or related fields.

Overlapping, duplication, competition or co-operation? There is, to say the least, cause for clarification leading to complementarity and synergy.

Ralf Grahn

Human rights: universal or particular?

Are the values of democracy, the rule of law and human rights and fundamental freedoms universal? Are they even European?

The Parliamentary Assembly of the Council of Europe noted that “acceptance and realisation of the principles of democracy, the rule of law and human rights and fundamental freedoms are a necessary condition for membership in the Organisation” (Resolution 1547, 18 April 2007).

But the same Assembly sees “a need to reduce the gap between standards on paper and the reality on the ground”.

Terrorism poses interesting questions on the real effectiveness of these values.

The Parliamentary Assembly stated that even the most serious human rights violations, such as enforced disappearances, extrajudicial killings, secret detentions, torture and inhuman treatment, still occur in Europe, and that impunity, even for these most serious human rights violations, has not been eradicated in Europe.

The Parliamentary Assembly, at least, seems to share some fundamental values: “Terrorism is one of the key challenges for Europe’s open societies; it can and must be vanquished without violating the very principles of human rights, the rule of law and tolerance that terrorists are out to destroy.”

The Assembly called upon all member states to “fully respect human rights while fighting terrorism, as already requested by the Assembly on numerous occasions, refuse to expel or extradite any individual to a country where there is a real risk of him or her being subjected to serious human rights violations, regardless of assurances received, as well as to sign and/or ratify at the earliest opportunity the Organisation’s conventions and instruments pertaining to human rights, including those on combating terrorism.”

It is not clear how much government departments or governments in member states have aided and abetted human rights violations, but in spite of less than enthusiastic co-operation from some European governments, there have been efforts within the Council of Europe and the European Union to uncover the truth, and some judicial proceedings have been initiated in member states.

Far from perfect, this state of affairs can be contrasted with the atmosphere of impunity surrounding the so called War on terror.

Have human rights and fundamental freedoms become shared or dividing values for Europe and the USA?

Ralf Grahn

Council of Europe today

With 46 member states the Council of Europe is a Pan-European organisation, which has managed to conclude 200 international treaties, including the amendments.

Perhaps there is some reason to see the emergence of a Pan-European legal area, as suggested by the title of the book “Le droit du Conseil de l’Europe – Vers un espace juridique paneuropéen” by Florence Benoît-Rohmer and Heinrich Klebes (Council of Europe Publishing, 2005); published in English as “Council of Europe law – Towards a European legal area”.

The Council of Europe works intensely with the member states to aid their progress towards democracy, human rights and the rule of law. Some of the new Eastern European members are still way off the values they have professed to share with the rest of Europe.

The conventions and the activities of the Council of Europe are wide-ranging, including:

· human rights
· democracy
· rule of law
· co-operation between local and regional authorities
· social and economic rights
· intercultural dialogue
· migration and integration
· national minorities and minority languages
· gender equality
· rights of the child
· mass media
· health
· animal welfare
· education
· culture
· youth

Most conventions have reporting and monitoring mechanisms, which means that the Council exerts (gentle) pressure on the member states to raise their standards of legal protection.

If this preventive work fails, individuals have a safety net in the Convention for the Protection of Human Rights and Fundamental Freedoms and in the European Court of Human Rights.

Any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the states, can apply to the Court after all domestic remedies have been exhausted (ECHR Art. 34–35)..

The Court’s case-load has increased dramatically, both as a consequence of expansion and of citizens being more prone to demand fair treatment from their governments.

Ralf Grahn

Council of Europe 1949

One of the first realisations of improved relations between the Western European countries after World War II was the Council of Europe. Its Statute was signed in London in May 1949 by ten countries: Belgium, Denmark, France, Ireland, Italy, Luxembourg, the Netherlands, Norway, Sweden and the United Kingdom.

The Council of Europe is an inter-governmental organisation, where the governments co-operate: the Committee of Ministers is the organ which acts on behalf of the Council (Article 13). The Consultative Assembly has had to work hard to be secure in the right to have its members chosen by the national Parliaments and to be accepted under the name of Parliamentary Assembly.

Three Nordic countries were among the signatories in 1949 and Iceland joined the Council of Europe the next year. It took until 1989 for Finland to join, as the last among Western European nations.

The fall of the Berlin Wall led to a rapid expansion of the Council of Europe, which has become Pan-European in character. There are now 46 member states, comprising almost the entire continent.

The general aim of the Council of Europe is to achieve a greater unity between its members for the purpose of safeguarding and realising the ideals and principles which are their common heritage and facilitating their economic and social progress; Statute, Article 1(a).

The Statute, Article 1(b), allows for agreements and common action in economic, social, cultural, scientific, legal and administrative matters, but the Council is known primarily for its achievements “in the maintenance and further realisation of human rights and fundamental freedoms”.

Article 3 lays down the provisions for membership of the Council of Europe:

“Every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms, and collaborate sincerely and effectively in the realisation of the Council as specified in Chapter I.”

Recently the Parliamentary Assembly, in its April 2007 Resolution 1547, elaborated that membership is based on three pillars:

· the enjoyment by all persons within the jurisdiction of its member states of human rights and fundamental freedoms,
· the consolidation of the rule of law and
· the existence of a genuine pluralistic democracy, based on the spiritual and moral values which are the common European heritage.

The Council of Europe has become the guardian of human rights, democracy and respect for the rule of law in Europe.

Among the main control mechanisms of the Council of Europe are:

the European Convention for the Protection of Human Rights and Fundamental Freedoms (including the European Court of Human Rights),

the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment or Punishment,

the revised European Social Charter and

the Framework Convention for the Protection of National Minorities.

The influx of former Communist states from Central and Eastern Europe has put a severe strain on the capacity and standards of the Council of Europe, including the European Court of Human Rights. But at least the improvement of human rights, democracy and respect for the rule of law are firmly on the agenda of the Old Continent as a whole.

Ralf Grahn