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.

Europe needs great Europeans ─ like Vaclav Havel

Europe has commemorated the fall of totalitarian Communism and the Berlin Wall, honoured the fallen on Remembrance Sunday and remembered the end of hostilities on Armistice Day (Remembrance Day).

When will they ever learn, asked Pete Seeger.

Luckily, Europe has learned, through the continuing process of European integration and through the reunification of much of our continent by the means of the European Union.

The Lisbon Treaty, which enters into force on 1 December 2009, is a further step towards our slow and winding journey towards a closer union, although neither effective nor democratic enough to serve us optimally as yet.



Yesterday, Vaclav Havel, one of the great Europeans, one of the great humans, of our times, spoke in the European Parliament.



Read the press release of the European Parliament on Vaclav Havel’s speech. Even better, use the links on the page and take the time to watch the video recording of Havel’s vision on Europe’s future, or listen to the audio document.

We need not accept Havel’s views in their details, but we have every reason to acknowledge his greatness, and we should comprehend the need for shared sovereignty and for strengthening European values and solidarity, for the sake of ourselves and our children.

“Europe is the homeland of our homelands.”



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).

EU Treaty of Lisbon: New members

The intergovernmental conference (IGC 2007) was mandated to do the following (IGC 2007 Mandate, Council document 11218/07, point 16):

“In Article 49, on conditions of eligibility and the procedure for accession to the Union, the reference to the principles will be replaced by a reference to the Union’s values and the addition of a commitment to promoting such values, an obligation to notify the European Parliament and national parliaments of an application for accession to the Union and a reference to take into account the conditions of eligibility agreed upon by the European Council (see Annex 1, Title VI).”

Annex 1 to the Mandate is called Amendments to the EU Treaty, and under Title VI – Final provisions, point 9), it clarified:

“In Article 49, first subparagraph, insertion of a new last sentence, the second subparagraph remaining unchanged:

Article 49
Conditions of eligibility and procedure for accession to the Union

Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.”

***

Not much room for creativity there, but we check what the IGC 2007 agreed on (OJ 17.12.2007 C 306/39), in addition to its reader-unfriendly proclivity:

57) The first paragraph of Article 49 shall be amended as follows:

(a) in the first sentence, the words ‘which respects the principles set out in Article 6(1) may
apply’ shall be replaced by ‘which respects the values referred to in Article 1a and is
committed to promoting them may apply’;

(b) in the second sentence, the words ‘It shall address its application to the Council, which
shall act unanimously’ shall be replaced by ‘The European Parliament and national
Parliaments shall be notified of this application. The applicant State shall address its
application to the Council, which shall act unanimously’; the word ‘assent’ shall be
replaced by ‘consent’ and the words ‘an absolute majority’ shall be replaced by ‘a majority’;

(c) the following sentence shall be added at the end of the paragraph: ‘The conditions of
eligibility agreed upon by the European Council shall be taken into account.’.

***

The amended and consolidated Article 49 TEU has to be constructed, starting from the current Article 49 (latest consolidated version of the Treaty on European Union and the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/34 and 35):

Article 49

Any European State which respects the principles set out in Article 6(1) may apply to become
a member of the Union. It shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the assent of the European Parliament, which shall act by an absolute majority of its component members.

The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

***

Having inserted the IGC’s amendments we end up with the following consolidated Lisbon Treaty version of Article 49 TEU:

Article 49

Any European State which respects the values referred to in Article 1a and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is founded,
which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.

***

The pedantically inclined may have noticed a slight change of terminology compared to the IGC 2007 Mandate (and the present Article 49): EP ‘consent’ has replaced ‘assent’ and a ‘majority’ has taken the place of an ‘absolute majority’.

Otherwise the Heads of State or Government seem to have been true to their word, from start to finish.

***

What did the European Convention have to say on membership in the draft Treaty establishing a Constitution for Europe?

We go to Article I-57, under Title IX Union membership (OJ 18.7.2003 C 169/21):

Article 57
Conditions of eligibility and procedure for accession to
the Union

1. The Union shall be open to all European States which respect the values referred to in Article 2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council of Ministers. The European Parliament and the Member States' national Parliaments shall be notified of this application. The Council of Ministers shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

***

In the Treaty establishing a Constitution for Europe the member state governments signed up to the following Article I-58, under Title IX Union membership (OJ 16.12.2004 C 310/38):

Article I-58
Conditions of eligibility and procedure for accession to the Union

1. The Union shall be open to all European States which respect the values referred to in Article I-2, and are committed to promoting them together.

2. Any European State which wishes to become a member of the Union shall address its application to the Council. The European Parliament and national Parliaments shall be notified of this application. The Council shall act unanimously after consulting the Commission and after obtaining the consent of the European Parliament, which shall act by a majority of its component members. The conditions and arrangements for admission shall be the subject of an agreement between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting State, in accordance with its respective constitutional requirements.

***

Strictly speaking, Article 49 of the current Treaty on European Union (TEU) only offers any European State which respects the EU’s principles the right to apply for membership. We have to assume that even minute changes of the wording have significance in areas as politically charged as the membership criteria.

The Convention made two changes:

First, it proposed that the EU ‘shall be open to all European States’. This is extremely close to a right of accession, given that the criteria for membership are fulfilled.

Second, the Convention raised the bar for accession.

The existing principles set out in Article 6(1) TEU are: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

The ‘values’ might be construed to have a more profound meaning than the ‘principles’, and the Convention added a few aspects in its Article I-2 The Union's values: The Union is founded on the values of respect for human dignity, liberty, democracy, equality, the rule of law and respect for human rights. These values are common to the Member States in a society of pluralism, tolerance, justice, solidarity and non-discrimination.

Human dignity and equality in the first sentence, as well as pluralism, tolerance, justice, solidarity and non-discrimination in the second sentence widened the scope of the values and consequently the criteria for membership.

The second innovation was to require active promotion of the Union’s values together with the other member states.

***

Going from the draft Constitutional Treaty to the Constitution we see that the IGC 2004 added about the European Parliament ‘which shall act by a majority of its component members’. The rest of the differences are technical.

***

In part, the IGC 2007 went back to square one. Values and (active) promotion are retained, but there is no right to accede, only to apply for membership. The values referred to have expanded to take into account the rights of persons belonging to minorities (and the present connotations of ‘liberty’ may have led to the adoption of ‘freedom’).

In addition, the Reform Treaty brings the conditions of eligibility agreed upon by the European Council into the Treaty.

At the present time, these conditions of eligibility are the ones known as the Copenhagen criteria, adopted by the European Council 21-22 June 1993. According to the Conclusions of the Presidency (SN 180/1/93 REV 1):

“Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union.

The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and the candidate countries.”

***

To broach a topical issue: The expansion of membership criteria is not going to make Turkey’s or the other applicant states’ quest any easier, since many difficult questions like human dignity, equality and minority rights have entered the picture in the shape of values to be promoted, as well as the binding nature of the Copenhagen criteria.

On the other hand, the definition ‘European State’ has not changed one iota from the existing TEU, via the Convention and the Constitution to the Lisbon Treaty.

It would be absurd to contend that Turkey is geographically less European now than when it was accepted as an applicant country.

***

An innovation retained from the Convention is the mandatory notification of the European Parliament and national parliaments of an application. In principle, the national parliaments have been officially seized of the matter only at the end of the process, when the accession Treaty has come up for ratification.


Ralf Grahn

EU Treaty of Lisbon: breach of values with sanctions

The values of the European Union, as amended by the Treaty of Lisbon (in the Treaty on European Union, TEU) are:

Article 1a

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.

***

These values should guide every action by the EU, both internal and external. Countries applying for EU membership have to show that they fulfil the criteria.

The values of the Union apply to the present member states, too. Backsliding on, e.g. democracy, the rule of law or human rights is not allowed. Already a clear risk of a serious breach may be determined, and the procedure may lead to recommendations being issued to the member state.

If a serious and persistent breach is determined, this may lead to sanctions against the culprit. These include suspension of voting rights of the member state in question, but this state is still bound by its membership obligations.

From a citizen’s point of view, the procedures and sanctions mentioned in both the present and the amended Article 7 strengthen democratic and legal rights.

***

The changes between the existing TEU Article 7, Article I-59 of the Treaty establishing a Constitution for Europe and the TEU Article 7, as amended by the Treaty of Lisbon, are of minor importance.

The wording is altered to a degree, e.g. the values referred to are found in Article 1a (presently Article 6), the European Parliament gives its consent (not assent), the European Commission replaces the Commission, and the European Council replaces the Council, meeting in the composition of the Heads of State or Government. The more technical voting arrangements (amended paragraph 5) are moved to Article 309 of the Treaty on the Functioning of the European Union.

***

The drafting technique used in Article 7, despite the relative simplicity of the amendments, is a convincing example of extreme reader-unfriendliness, with horizontal amendments and minor changes being listed separately from the text of the Article. Not even the paragraphs amended are written in full.

Try yourself to write down the exact contents of this one Article, and multiply the efforts needed by all the teachers and students and other interested citizens all over Europe trying to construct the exact wording of Article 7 (and many more like it), and you understand why centrally compiled, consolidated versions of the Treaty of Lisbon in all the official languages are absolute necessities.

Why has no one stepped forward to claim responsibility for these choices?

Why has no one offered reasons for these choices?

Failing that, the IGC 2007 drafting and the Council’s refusal to publish consolidated versions of the TEU and the TFEU can hardly be seen as inspired by other than an evil genius.

The citizens of the European Union have simply been told to wait for consolidated versions until the ratification processes are over and the Treaty of Lisbon has entered into force.


***

The Treaty on European Union (latest consolidated version OJ 29.12.2006, C 321 E/1) is amended by the Treaty of Lisbon (OJ 17.12.2007, C 306/1), with Article 7 amended and consolidated to read as follows:

Article 7

1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the European Commission, the Council, acting by a majority of four fifths of its members, after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article 1a. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure.

The Council shall regularly verify that the grounds on which such a determination was made continue to apply.

2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the European Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article 1a, after inviting the Member State in question to submit its observations.

3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of the Treaties to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons.

The obligations of the Member State in question under the Treaties shall in any case continue to be binding on that State.

4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.

5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article 309 of the Treaty on the Functioning of the European Union.

***

My next look at the Treaty of Lisbon is going to concern the Union’s neighbourhood policy.


Ralf Grahn

Treaty of Lisbon values

In the final version of the EU Treaty of Lisbon, the values of the European Union have been inserted in Article 1a (CIG 14/07).

The wording is the same as in the Treaty establishing a Constitution for Europe, Article I-2.

At present, the values are mentioned in the Treaty on European Union, Article 6.1: The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.

The values are fundamental, not only to the European Union, but said to be common to the Member States.

The values offer a guide for assessing every action of the European Union, both external and internal. They act as guidelines for enlargement, since new Member States have to fulfil these criteria.

Sanctions may be applied to Member States in breach of the Union’s values (new Article 7).

***

The consolidated Treaty on European Union, as amended by the Treaty of Lisbon (CIG 14/07), Title I, General Provisions:

Article 1a

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.

***

The next posting is going to present the Union’s aims (Article 2).


Ralf Grahn

EU no Leviathan

“To dismantle that bloated, anti-democratic monstrosity in Brussels, I hope. To save the Europeans from themselves, yet again. They never learn.”

Some agitated minds seem to be ill at ease with the Treaty of Lisbon and the European Union in general, but the reasons given are not always very illuminating.

Is there something fundamentally wrong with the EU’s founding values: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities?

According to the new version of the Treaty on European Union (Article 2), 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.

What do they find obnoxious about the aims of the Union (Article 3), such as freedom, security and justice, free movement of persons, the internal market, combating social exclusion and discrimination, promoting social justice and equality between women and men?

Do they know that competences not conferred upon the Union in the Treaties remain with the Member States (Article 4), that the limits of Union competences are governed by the principle of conferral and that the use of Union competences is governed by the principles of subsidiarity and proportionality (Article 5)?

Are they aware of the fact that the Reform Treaty is mainly about improving the inner working (procedures) of the European Union, not about the attribution of new powers?

What about the unelected officials as lawmakers?

The Lisbon Treaty (Article 8a) states that the functioning of the Union shall be founded on representative democracy. Citizens are directly represented at Union level in the European Parliament. Member States are represented in the European Council by their Heads of State or Government and in the Council by their governments, themselves democratically accountable either to their national Parliaments, or to their citizens.

Perhaps the culprit is here: The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. The President of the Commission is proposed by the European Council and elected by the European Parliament. The Council, by common accord with the President-elect, shall adopt the list of persons to be members of the Commission, which shall be subject as a body to a vote of consent by the European Parliament (Article 9d).

Should the civil servants of the Commission, the judges of the Court of Justice of the European Union and officials other Union institutions be elected by popular vote? Are civil servants and judges elected by the citizens in, for instance, Britain?

The Commission does not make laws, it makes proposals. Laws are enacted by the Council, in many cases jointly with the European Parliament.

Areas of intergovernmental co-operation are less transparent than the questions where the European Parliament exercises legislative and budgetary functions. Shouldn’t those who long for openness and democratic accountability demand extended powers for the European Parliament, in short a democratic Union?

A number of European local governments employ more than 30,000 public servants. Are these cities bloated monstrosities, too? There are some 490 million EU citizens, and the relative size of the Union’s budget is one twentieth part of the federal budget of the United States of America.

By May 2004 governments and parliaments in 27 democratic European countries had applied and been accepted as members of the European Union. Surely, they must have seen some benefits. Surely, looking back at Europe’s history, they had learned something.

The European Union is no Leviathan. How should one evaluate a school system and media, which fail to give people basic civic knowledge?


Ralf Grahn