European farce

[legion]

The european constitution is being signed. I bet you 10 to 1 that about every european civilian has no clue to what the f*ck they are signing. And yes it is done under dutch chairmanship. Remember how the bibe predicted the rising of the anti christ in a place least expected........ i think i know where to look



We have before us a draft bill of a “European Constitution”, the result of the so called “European Convention for a European Constitution”, under the chairmanship of the former French president Giscard d’Estaing, in the text dated July 18th, 2003. As the EU stands for great decisions at the moment, there is some urgency among this “Constitution”. Most important is the EU’s eastern enlargement by ten new members. But also there are other things, such as the improvement of safety policy within the EU, internally through co-operation of justice and police, externally in the field of international safety and defence. And – last but not least – proposals for the improvement of decision making, for which, it must be said, the attention for the democratic element is wanting.



Democracy: big words ...



Who is to tell me what democratic process has contributed to this “Constitution”. I do not see it. A convention has gathered with representatives of the different member countries and this convention has contrived this proposal. He result is now under review in the European Council and will after amendment be presented to the national Parliaments. Under pressure for fast agreement, because time is running in view of the approaching entry of new member states. It would have been logical to have the draft bill first discussed in the European Parliament, before the Council makes the text definitive. Nothing of this is mentioned in the press. What is reported is, that the sessions are followed by some representatives of the European Parliament. But on the internet nothing can be found about activities of the European Parliament in this field.



Decision making in the Council



The most important decisions of the EU are still made in the Council, without much of influence of the Parliament. It of course is natural and logical that the Council has great weight in decision making, because the Council has the care of the interests of the member states. With some exaggeration one can say that the Council represents what is dividing Europe. The Parliament, in the contrary, represents what Europe has in common. For that reason is clear and understandable, that the viewpoints in the Parliament may deviate from those in the Council. An equilibrated “Constitution” should make room for both sides. Disappointing is that neither in the present discussion on the “Constitution”, nor in the proposals for improvement of decision making in general the adequate weight is given to the Parliament which is urgently needed for a decision making that serves the common interests of Europe.



What is dividing the Council



There is not too much publicity about what the Council is doing. But what is leaking to the outside world does not stem to great admiration. Important subjects of discussion are:

1. voting rights in the council: the bigger countries get more weight than the small ones. The smaller countries do not like this.

2. every country wants his own representative in the Commission, while the proposal is not to have the number of Commissioners swell to 25.

3. some countries do not want to have the presidency of the council in one hand for 2½ years, as proposed.

4. most countries do not want to bleed financially because of the enlargement.



Conclusion: power and money are the usual stakes in the Council, whereas Europe merits more. Countervailing power is needed in order to give room to other interests. The “Constitution” gives no guarantees for such countervailing and does not show us the road to better decision making. In different words, the “Constitution” gives no solution for the quarrelling in the Council, while it seems evident that the Parliament can be useful as an arbiter in those cases that the Council cannot reach an agreement and to take initiatives where this is in the interest of Europe in its entireness.



A want of information, but haste



Irrespective whether this “Constitution”is good or not, whether it will be amended or not, it is to be accepted. Pressure is built up. The first billboards are already visible. With a large portrait of Giscard d’Estaing and the words: “The Constitution Of This Man Will Save Europe!”, or words of the same meaning. Haste and urgency because one started too late. And this without a clarity about what this “Constitution” actually comprises. More about that below.



Codification of existing treaties

The draft “constitution” comprises more than laying down the structure of state and government with the main fundamental citizen’s rights, which is the normal meaning of the concept “constitution”. The draft comprises a complete codification of the content of the existing treaties upon which the EU is based or other treaties with guarantees for civil and social rights, neatly arranged, plus the new things we referred to above. The document (including annexes) counts about 73000 words (in the Dutch text) or 167 pages on A4 format of 450 words. A bulky document indeed.



Codification unnecessary and harmful



It remains unclear for me why to combine the improvement of decision making and the codification of the existing treaties in one stroke. On the contrary, it seems completely unnecessary. And one runs the risk that existing agreements will be opened again for discussion or that the new written “Constitution” will be used as a peg to draw the attention to all kinds of desiderata. It is also that every different wording of the same may lead to a different interpretation with consequential uncertainty. Codification of law is typically a Cartesian approach, the idea dated from the French domination and has since spread over the European continent. Britons and Americans have done without for ages. As said one runs the risk of complications by striving at codification. It is inevitable that the unsuspecting citizen in judging such a voluminous document is not fully aware if and where new wishes or interpretations are smuggled into the text. This is harmful, but to what extent damage is likely is nonetheless hard to say. It is recommendable to dispose of the codification in part 3 and as far as new clauses or regulations are needed to settle these separately.

Duplication of other charters

Part 2 of the “constitution contains a brand new charter of fundamental rights. As such it forms a duplication of fundamental and social rights that already are laid down within the United Nations, the Council of Europe, the International Labour Organisation and in the own Social Charter of the EU. It will be sufficient to make reference to these charters or treaties as is made in the preamble and to dispose of the rest of part 2.

More tasks for the Court in Luxemburg

Apart from that it is not at all necessary to repeat in this constitution those fundamental rights as has been already laid down in other charters the most realistic consequence of repeating these rights in the constitution might be that it becomes unavoidable to have the Court of the European Communities deciding in last resort on these rights such as these are laid down in the constitution. The Court in Luxemburg has not been made for this and certainly is not waiting for such extra work. The risks involved is overcharging the Court, while no reason exists not trusting this task to the existing bodies assigned to do this work, such as the European Court for Human Rights in Strasbourg.

The nonsense of a Referendum

The governments of a number of member countries are considering the option of consulting the people’s agreement by plebiscite or referendum. There is also a lobby who pleads for such a referendum. I honestly think this is an ill conceived plan. Not that I am against plebiscites as a matter of principle. But a voluminous document such as this one is to my opinion not suited for the purpose. This apart from the reason that too few have knowledge of the document’s existence and contents. Publicity was too scarce and the press did not put it in the light. And the publicity there was has been limited to the EU’s decision making and the “Minister of Foreign Affairs”. Criticism related to the contents of the proposals were scarcely heard, with the result that the man in the street has to make up his own mature judgement unaided and this, of course, will not happen or only scarcely so.



The definition of Europe is wanting



The draft constitution says that the EU shall be open for all European states who are agreeable to the “values” of the EU and try to promote these values together. These values are explicitly defined in the draft as “respect for human dignity , liberty, democracy, equality, the rule of law and respect for human rights”. To the disappointment of a great number of citizens no reference is made to a “Judeo-Christian” tradition. To my opinion this is a sensible choice, because it serves the purpose to open up the EU to all European countries, irrespective the extent of affinity to this Judeo-Christian tradition, and a reference to this tradition does not. For the relationship with Turkey this is an important point.

Which countries belong to Europe?



Nowhere is being specified, however, which countries are supposed to belong to this Europe. The concept of “Europe” can be purely geographic, it can also embrace all countries, which share the European identity and culture. In the latter case countries like Australia and New Zealand come into the picture, or Argentina and Israel, when the latter country has solved the its problems with the Palestinians. For the time being I suppose that all these countries are not meant to belong to the concept of European states.

The pure geographic interpretation also leads to questions. The southern and eastern boundaries of that part of the world that usually is called Europe are formed by the Mediterranean Sea, the Bosporus, the Black Sea, the Caucasus and the Ural. Within these boundaries lie countries like Moldavia, the Ukraine, Belarus, Georgia, Armenia, Azerbaijan, countries that are not regularly mentioned. For Russia and Turkey the question rises whether countries of which any part lies in Europe should be considered European states. The draft does not answer this question. Actually does the draft constitution confront the citizen with a blank cheque on this sensitive item as part of a package deal just now Turkey is knocking at the door. I think this is not acceptable.

Voting rights in the Council



Another point that sometimes leads to misunderstanding, regards the voting rules in the Council of Ministers, the decision making organ where the governments have the say in the matter. Decision making is today mostly upon unanimity. The proposition is, that from now most decisions are taken by qualified majority, where the votes of the larger countries have more weight than those of the smaller countries. As such this is not unreasonable, but with the smaller countries lives the fear to be easily overruled. This fear has lead to the result that the biggest countries – Germany, France, the UK, Spain, Italy and Poland – although they can make the absolute majority, cannot make the qualified majority. The qualified majority always asks for some support of smaller countries. Some hope remains!



Still unanimity in some cases



In order to reassure those, who are of opinion that decision making in the council should go by unanimity, there always remains subject matter upon which cannot be decided by majority. To this matter belongs social policy for a great part (especially social security) and fiscal policy of member states, as mentioned explicitly in the proposals. My personal opinion is, that an opportunity is foregone to reach a common approach along majority decisions in the Council for the problematic consequences of different, sometimes conflicting systems in member states, that are becoming more and more annoying in an increasingly open internal market.

The harmonisation issue



Since the start of European integration – see the Treaty of Rome 1957 – the courage failed to take in hand the as such logical and natural harmonisation in these fields, although the parties to the treaty were convinced of a need to harmonise in the future in view of the likeliness of distortion of competition. They found consolation in the illusion that possible distortions could always be repaired my changes in exchange rates. Of course this succeeded only for a part, because exchange rate policies always tried to keep the pegs between currencies as stable as was feasible. This illusion has now been blown up also formally within the Eurozone. What happens is, that the Court in Luxemburg and the market decide on future events in these fields and that the politicians have put themselves out of the game. Examples are: that national institutions of social security cannot prevent any more that insured persons make use of the supply of provisions and operations in other member states; that discriminatory fiscal regulations with effect across internal frontiers are nullified by the Court (compare the recent Bosal case). The “Constitution” by keeping the immunities upright in these fields” is neglectful of a really important problem.



A EU-minister for safety



Some comments are in place also on the subjects of safety and defence, as well as justice and police. The EU has been set-up from the beginning as an economic club of countries. There was no other intention than economic co-operation. This was true for the ECSC as well as the EEC. Euratom was a case apart, we do not hear too much of it any more. There has been a plan for a European Defence Community, but this plan was turned down in 1955 in the French Assemblee Nationale. The idea is now that the EU takes up the thread again. Emphasise is given to the – non existing - unity of policy vis à vis the outside world by charging a so called Minister of Foreign Affairs with the care of safety and defence policy. As such a find, on the one side lucky, on the other side problematic in view of the present Iraqi controversy, but more in general because of the risk that the EU is going to step into all kinds of things that are not good in the world. It should be noted, however, that the name of “Minister of Foreign Affairs” is not a very lucky choice. His work field embraces only external safety and defence, not the consular representation, nor the commercial policy. If I understand it correctly both latter fields of interest remain with the Commission. I think it would be better to name it as it is.

What about home affairs?



Now the question if it would not be also in place to bring the organisation of the co-operation in the fields of justice and police under a separate responsible person, either a “Minister of Home Affairs” or the same “Minister of Foreign Affairs”. The latter solution could be preferable if we would share the opinion that internal and external safety are becoming more and more interrelated. More attention could be given to the co-ordination of immigration and refugee policy also if this field should be arranged under such a minister.



The presidency



The “Constitution” , it could not be different, gives also proposals to change the “presidency” and the composition of the Commission. Up to now the presidency rotates among the member states, who in turn have the chair for half a year. This method has among other things the drawback that continuity is not assured, which impairs action. The draft proposes a chairman for 2½ years to be chosen in the Council and without a national mandate.

Equal access to the presidency ?



Such an arrangement for the presidency appears reasonable, but smaller countries are afraid that this procedure is to the advantage of the big countries and express their wish of equal access to the presidency, as it is in the present system. Personally I do not think this a sensible move. For how often we do see that important key functions – chairman or general secretary – are held by representatives of smaller countries, just because this serves the balance between the larger countries?

The European Commission



Regarding the composition of the European Commission the proposition is that the Commission shall have a president, a minister of foreign affairs and thirteen members. In the case of fifteen countries every country could have its representative in the Commission, in the case of 25 countries this does not work any more. The solution now is found in the nomination of extraordinary commissioners, who may take the floor, but have no voting right. A difficult point.



The Council keeps its supreme power



The European Commission is accountable to the European Parliament, the Council has not such an accountability. On the one side this means that the European Council of Ministers keeps its supreme power, on the other side that the deplorable “cleavage” between citizen and “Brussels” is not bridged.

Democracy is wanting



Regarding this “cleavage” it is clear that the press is practically only EU-alert when there again is a scandal, such as on the moment the case with Eurostat. The atmosphere is not very animated in “Brussels”. Although it is the intention to bring more “transparency” in the activities of the EU – an improvement is that the Council will discuss matters of legislation in public – it remains questionable whether the cleavage will be bridged as long as the most important decisions are concocted by Council and Commission “in house”. Would not procedures become more democratic and by that means more interesting when the Commission would be a political Commission, composed by representatives of the political parties in the parliament by a chairman-designate appointed by the Council? The chairman-designate could with his team ask the investiture in the Parliament. Such a procedure could make EU policies more interesting and the cleavage could be closed.

A league of states for particular purposes



Of course there are many more things to say about this “Constitution”. The EU engages many policy areas, also where she has no specific competence, such as general education, social exclusion, development aid and technical assistance to countries in transition. The “Constitution” is not very explicit about these activities, some are mentioned, others not at all. We have to accept that the EU was started as an economic club and that the competences are oriented to that purpose. International safety is now added as an additional area. What shall follow is still hidden in the lap of the gods. What has happened since the creation of ECSC in 1952 and CEE in 1957 passes all belief. Europe is no more the Europe of fifty years ago. The rivalry between the big countries of Europe at the beginning of the 20th century has been transformed into close co-operation. Europe has changed enormously for the better. The perspective today is that the EU will remain a league of states, with activities on a limited number of areas. The principle of solidarity ensures that local policy remains with the member countries end that no centralised approach is strived at. The more embracing federal state, which meddles with all kinds of things, the dream of quite a few, is still far away. Fortunately!



The “Constitution” claims priority



The “Constitution” has been moulded in the form of an international treaty that should replace the existing treaties. According to the rule of international treaties do the clauses in this constitution have priority over national law, including national constitutions. This priority is again emphasised by a clause in the constitution itself. Seen the abundant matter this constitution engages on, and that reaches far beyond what is needed for the limited mandate of the EU, it will only possible for the best lawyers to fathom the consequences of this package deal for his own country. However these consequences are precisely the consequences to which the unsuspecting citizen has to say yes or no in a referendum.



An unsatisfactory proposal



The Convention comes in this constitution with a number of new things – for which understanding – without bothering about the afore mentioned unsolved fundamental problems and also without creating the instruments by means of which these problems can be dealt with. I refer here again to the hardly democratic stile of decision making, that is fully dominated by the Council with the Commission in the part of paladin, where the Parliament may join in to clap. The draft constitution does not give a solution for this. The proposed transparency for legislation is not sufficient. The Convention drops a stitch here. Talks are already underway with Turkey, but this constitution gives no clarity whether Turkey nelongs to the territory of Europe. What is the citizen going to think of this? The problem of harmonisation of social and fiscal policy is not taken up either. On the contrary, the existing immunities are de facto maintained through the condition of unanimity. The Convention missed an opportunity here as well, for which Convention gets a bad note. Nor are concrete proposals found about the also urgent harmonisation of civil law. Again a bad note. Conclusion: the Convention gets a thick fail mark. Alas.



Conclusion



1. A restructuring of the procedure of decision making is needed and urgent. But the proposals confirm the supremacy of the Council’s power and the servitude of the Commission, while the Parliament is bound to talk to the benches. There is no sharing of power by a transformation of the Commission into a political institution, in such a way that the Parliament is enabled to better fulfil its democratic function and the cleavage between citizen and governance is bridged.

2. It is for this absolutely unnecessary to rewrite existing treaties. Part 3, that contains the rewriting can be disposed of. New things should be taken up separately.



3. The charter of fundamental rights is for a great deal a duplication of existing charters. Part 2 that contains this duplication can be disposed of. Important new things should be taken up separately.

4. It remains unclear which countries may have the opportunity to join in the future.


5. It is hardly possible to predict the consequences of the priority over national law given to the many clauses in this constitution.

6. Europe is not served by a “Constitution” in this form. It stirs up too much and some of the most important issues stay out of reach.