This is a republication of our original posting of June of this year, which started as an analysis of the European Council "mandate", produced at the June European Council in Brussels.It is, at this stage, very much "work in progress" to which we are continually adding, with a view to producing a comprehensive document. When complete, we intend eventually to publish it as a .pdf file on this blog, to enable easy downloading as a reference document.
Introduction
On 21/22 June - spilling over into the early hours of the 23rd - the heads of states of governments of the European Union member states, accompanied by their foreign affairs ministers, attended a meeting of the European Council in Brussels, chaired by the German presidency.
Although widely trailed by the media and others as a "summit", it was no more such than a meeting of the British Cabinet. The European Council is a quasi-institution of the European Union, charged by Article 4 of the Treaty of the European Union with providing the Union with "the necessary impetus for its development" and with defining "the general political guidelines thereof". In effect, the European Council is the unofficial Cabinet of the government of the European Union.
Neither was the meeting convened to agree a treaty, much less sign up to one. Its precise purpose was to consider (and agree) a proposal by the German presidency for a draft "mandate" to instruct a subsequent Inter-governmental Conference (IGC) on the content of a treaty, ostensibly to replace the failed EU constitutional treaty.
In the event, the European Council did agree this "mandate" which ran to 16 pages (not two as some media reports would have it), including detailed footnotes. It was published on 23 June as Annex 1 to the The presidency conclusions. Although it had no legal authority to do so, the European Council then directed the IGC to "carry out its work in accordance with the mandate", declaring that, "the present mandate will provide the exclusive basis and framework for the work of the IGC".
Thus did the European Council hope that the mandate it has adopted would become the template for the treaty to be negotiated by the IGC. As of 5 October, it had been incorporated in a "provisional" draft treaty - the second version to have been produced, ready for the IGC of 18-19 October. Then, in the early hours of the 19 October, the IGC summit in Lisbon approved this draft with certain modifications.
This is our analysis of the documents so far produced.
1. Overview
Starting with the "mandate", the central feature of the document was to instruct the removal of any reference to a constitution in the new treaty. The new treaty produced from it has since been called as a "Reform Treaty", amending rather than replacing the existing treaties, the Treaty on the European Union (TEU) and the Treaty establishing the European Community (TEC). The title "reform", however, is unofficial, without legal status. The official title is the "Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community". In short, the document will be called the "Lisbon Treaty", to be signed on 13 December.
In producing the mandate and then the two draft treaties, the "innovations" from the EU constitution were removed - leaving the orginal treaties. The bulk of these so-called "innovations" (with some additions) were then written up separately as "amendments" to form the basis of the new treaty. When they are added to the existing treaties, the resultant consolidated treaty will be the constitution in all but name, with a few cosmetic changes and omissions.
As to the resultant treaties, it is propsed that the TEU will keep its present name and the TEC will be called Treaty on the Functioning of the Union. The word "Community" will throughout be replaced by the word "Union"; it will be stated that the two Treaties constitute the Treaties on which the Union is founded and that the Union replaces and succeeds the Community.
One of the cosmetic changes is that the terminology for EU laws, introduced by the constitution, such as "law" and "framework law" will be abandoned. The existing "regulations", "directives" and "decisions" nomanclature will be retained. Again, this is a cosmetic change - there is no practical significance to it.
However, the change of nomanclature has been sufficient for the government to assert that the constitution has been abandoned. This was demonstrated by a question posed by William Hague, the shadow foreign secretary, who challenged Miliband on the comments of Giscard d'Estaing.
He had declared, of the European Council's "mandate" that: "This text is, in fact, a re-run of a great part of the substance of the constitutional treaty", adding, "the public is being led to adopt, without knowing it, the proposals that we dare not present to them directly."
In was in the answer, however, that the government's strategy becomes apparent, in holding the line against such assertions, maintaining that the "mandate" is not a re-run of the constitution. Miliband refused to be drawn on the Giscard statements, but instead referred directly to the first clause of the "mandate", which "clearly states":
The constitutional concept, which consisted in repealing all existing treaties and replacing them by a single text called "Constitution", is abandoned —"Not reformed," said Miliband, "not amended, but abandoned. The constitutional treaty has been abandoned. That is not just my view, nor is it just the view of our Prime Minister - it is the view of the 27 Heads of Government who signed the document."
The exchange continued but it need not trouble us, as we have the bones of the argument. It is developed by sleight of hand and relies on the substitution of one word with another. To see how it works, we have to note how Miliband refers, in the first instance, to the "constitutional concept", calling in aid the "mandate" as his authority.
Now, this "concept" was an innovation in producing treaties. All previous affairs had taken the form of amendments to the original Treaty of Rome. It was these amendments, and only these, the formed the basis of each subsequent treaty, until the constitutional treaty. Then, it was decided to absorb all the treaties and the proposed amendments into one consolidated text, which was to form the new treaty. That was the "constitutional concept", as indeed the "mandate" indicates.
The trouble with that was people - many for the first time - were able to see the full text and take on board how many powers had been ceded to the EU. Not a few of the complaints over the text actually related to powers handed over in previous treaties. Thus, the "colleagues" decided to abandon this "concept" and revert to producing another amending treaty, only this time they would call it a "reform treaty".
There we have the slight of hand. Miliband takes the phrase, "constitutional concept" and changes one word, to produce "constitutional treaty". In one fell swoop, the "treaty" has been abandoned. Except that it has not.
Interestingly a similar tactic has been tried before – by Tony Blair, when he reported on the European Council. Then, he offered the first clause of the "mandate" without even embellishing it, relying on his showmanship and emphasis to slide the point past the House.
2. The symbolic issues
The crucial cosmetic omissions will be the removal of "state-like symbols" from the new treaty, such as the EU flag, the anthem or the motto "Strength in Diversity". These are entirely cosmetic. The EU will continue to display its flag, it will continue to play it anthem at every opportunity and parade its "motto".
Even then, the new draft is not to be entirely without symbolism. Added to the the recitals will be the text of the first ricital of the the failed constitution, to be inserted as a second recital into the Preamble. That is as follows:
Drawing inspiration from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy and the rule of law,There will be no new Article on primacy of Union law, on the lines that which appeared in the failed constitution. This, though, is largely an academic distinction, as the IGC had been told to agree the following Declaration:
The Conference recalls that, in accordance with well settled case-law of the EU Court of Justice, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case-law." In addition, the opinion of the Legal Service of the Council (doc. 580/07) will be annexed to the Final Act of the Conference.In effect, primacy will continue as before – but there will be no reference to it in the treaties.
3. Institutional changes
All the institutional changes found in the failed EU constitution have been lifted and placed in the new treaty. They have been integrated partly into the TEU and partly into the Treaty on the Functioning of the Union.
There is a new Title III, which gives an overview of the institutional system and will set outs the following institutional modifications to the existing system. This is to be found in the new Article 9:
The president is to be elected by EU leaders for a two-and-a-half-year term will replace the current system in which EU leaders rotate into the president's post every six months.the Articles on the Union's institutions, the European Parliament (new composition) the European Council (transformation into an institution) creation of the office of President introduction of the double majority voting system new composition of the European Commission strengthening of the role of its President the Union Minister for Foreign Affairs
The original proposal of for a "double majority" voting system allows for qualified majority voting to be carried with 55 percent of member states representing 65 percent of the EU's population.
As a concession to the Poles, introduction will be delayed until 2014, when it will be gradually phased in over three years.
The European Council
Much of the focus on the changes proposed has been on headline issues such as the appointment of a full-time president and a "high representative" to act as an EU foreign minister. Perforce, less attention has been given to other changes in this "institutional changes" section.
These, Blair would have us believe, are simply changes of rules to make the European Union "effective". More specifically, he told us:
This deal gives us a chance to move on, it gives us a chance to concentrate on the issues to do with the economy, organised crime, terrorism, immigration, defence, climate change, the environment, energy, the problems that really concern citizens in Europe. And this is why it was important to get out of this bind into which we had got with the constitutional treaty, to go back to making simple changes in our rules that allow us to operate more effectively now we are in an enlarged European Union, but most of all allow us to work effectively for the betterment of people inside the European Union.In the manner of the joke about the Lone Ranger and his sidekick Tonto, however, the key to understanding what is going on is to ask, "who's this 'us' paleface?"
To answer this, in paragraph 12 of the mandate we find the dense but superficially anodyne statement that:
The institutional changes agreed in the 2004 IGC will be integrated partly into the TEU and partly into the Treaty on the Functioning of the Union. The new Title III will give an overview of the institutional system and will set out the following institutional modifications to the existing system, i.e. the Articles on the Union's institutions …The reference to the "2004 IGC" is of course the code for the EU constitution and the important modification here is to the "Articles on the Union's institutions".
To find these, we have to go to Article I-19 of the constitution, where we see the definition of the "institutional framework" and a statement of its aims. These are expressed in terms of the "Union" telling the institutions that their aims are to: "promote its values; advance its objectives; serve its interests, those of its citizens and those of Member States; and ensure the consistency, effectiveness and continuity of its policies and actions".
Now, the crucial point here is that the first three of these objectives are entirely new. And, of these, the third is especially important. It is to: "serve its interests, those of its citizens and those of Member States".
However, this is but a curtain raiser to another short insert in paragraph 12, which states (by way of one of the institutional changes): "the European Council (transformation into an institution…)".
This is of huge significance. Originally set up in 1972 by Jean Monnet, the European Council was presented, during its first meeting under president Pompidou as a "fireside chat" between the heads of states and governments of the then nine members of the EEC.
Indeed, the first meeting was in fact held in Pompidou's private salon, with members lounging in armchairs and even sitting by the fire, but Monnet had far greater ambitions for it. He styled it as nothing less than a "provisional government" of Europe, its task being to steer Europe though the "transition from national to collective sovereignty" (Memoirs, p. 503).
However, as is the way with the incremental development of the European Union, the European Council enjoyed a half-life outside the treaties, acquiring the appellation "summit", and reported almost universally as such by the media, growing from its origins as an informal "fireside chat" to the full-blown monster that it is today.
But, while it remained, in treaty terms, an informal body, it was formally recognised in the Nice Treaty (Article 4) which first defined its role as to "provide the Union with the necessary impetus for its development" and to "define the general political guidelines thereof".
Thus, while it was seen as a meeting of heads of states and governments (now assisted by foreign affairs ministers), the inference being that they were representing their respective nations, the European Council was being drawn into the treaty maw. Although not yet a fully-fledged institution, it role was being more clearly defined as a representative body of the European Union.
Now, with this proposed change, the European Council is being defined fully as an institution. Furthermore, its aims have been set out, which it shares with the Commission, the EU Parliament and the European Court of Justice. It now will have developed into Monnet's "provisional government", acting, to all intents and purposes, as the formal "cabinet" of Europe.
The problem, of course, is that the members are still made up from the heads of state and governments of the member states. But, rather than representing their respective nations, they now act as a corporate body – an institution – the aims of which are, in respect of the Union, to: "promote its values; advance its objectives; serve its interests, those of its citizens and those of Member States; and ensure the consistency, effectiveness and continuity of its policies and actions".
Crucially, the requirement to serve the interest of the Union comes first, the "citizens" come second and the Member States come third. The order is neither accidental nor without significance. The European Council has to put the Union first. Tony Blair's "us" is the European Union.
Serving the EU is, de facto, what the European Council already does, but this is now to become de jure. That such an important change is tucked into a paragraph of an obscure document which few will read – and fewer will understand – is another of those dangerous and deliberate obfuscations, designed to defeat easy analysis.
It also represents a very significant transfer of power from member states, our leaders having been hijacked and impressed into the service of the Union – all the more dangerous because, as far as the media and the general public is concerned, they are part of an invisible institution, one that will, to them, remain a "summit".
4. Qualified Majority Voting
This is to be extended to 40 new areas - mainly in matters related to the police and the judiciary. The UK has negotiated an opt-out from criminal matters and police co-operation. The national veto will be maintained in the fields of foreign affairs, defence, fiscal matters, and social security and culture.
5. The foreign minister
The constitution's envisaged post of "foreign minister" has been dropped in favour of a High Representative of the Union for Foreign Affairs and Security Policy. He or she will also become vice-president of the union, "double hatted" as a representative of both the Council and the Commission.
There is a codicil to this appointment, with a declaration (which has no legal effect) that the post will not affect "the responsibilities of the member states, as they currently exist, for the formulation and conduct of their foreign policy or their national representation in third countries and international organisations".
This is the BBC "take".
6. The Commission
From 2014, the Commission, will be reduced to 18 members, selected on a system of rotation. As now, commissioners will to serve five-year terms.
7. Legal personality
Lifted straight from the failed EU constitution, the European Union is to be given the status of a legal person. There will also be a declaration that: "the fact that the European Union has a legal personality will not in any way authorise the Union to legislate or to act beyond the competences conferred upon it by the member states in the treaties."
However, according to Anthony Coughlan, Secretary of the Dublin-based National Platform for EU Research, politically, the most important thing the proposed new Treaty. It sets up a legally a new EU in the constitutional form of a supranational European Federation and makes us all real citizens of that State, owing obedience to its laws and loyalty to its authority, in contrast to our notional or honorary EU "citizenship" at present.
The legal personality gives the EU its own corporate existence for the first time, separate from and superior to its Member States, just as the USA is legally separate from and superior to states like California, Kansas and New York, or Federal Germany is superior to Bavaria, Saxony etc. Politically and legally, this is the core element of an EU Constitution, which the Intergovernmental Conference is now being established to draw up.
Up to now the European Union has not had a legal personality or corporate existence in its own right. Only the European Community, which makes supranational EC laws, possesses that. Properly speaking therefore, there is thus no such thing as "EU" (European Union) law - only "EC" (European Community) law.
At present the name "European Union", which derives from the 1992 "Maastricht Treaty on European Union", is a descriptive term for the various forms of cooperation amongst the 27 EU Member States. These forms of cooperation cover the area of supranational law constituted by the European Community on the one hand, where the European Commission proposes all the laws, and on the other hand cooperation in the "intergovernmental" areas of foreign and home affairs, where Member States have up to now retained their sovereignty and the European Commission has no legislative role.
That is why the 1992 Maastricht Treaty is called the "Treaty ON European Union" rather than "OF" Union. The proposed revised constitutional treaty which the Intergovernmental Conference will now draw up would be in effect the "Treaty OF European Union".
8. The Charter of Fundamental Rights
Britain has been allowed to opt out of a charter of human rights and the charter will not become part of the treaty. This is to be added to the treaty by way of a new protocol, which will undoubtedly become a lawyer's paradise. The text is as follows:
The High Contracting PartiesThe version of the Charter as agreed in the failed constitution will be re-enacted by the three Institutions and will be published in the Official Journal of the European Union.
Whereas in Article [xx] of the Treaty on European Union, the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights;
Whereas the Charter is to be applied in strict accordance with the provisions of the aforementioned Article [xx] and Title VII of the Charter itself;
Whereas the aforementioned Article [xx] requires the Charter to be applied and interpreted by the courts of the United Kingdom strictly in accordance with the Explanations referred to in that Article;
Whereas the Charter contains both rights and principles;
Whereas the Charter contains both provisions which are civil and political in character and those which are economic and social in character;
Whereas the Charter reaffirms the rights, freedoms and principles recognised in the Union and makes those rights more visible, but does not create new rights or principles;
Recalling the United Kingdom's obligations under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
Noting the wish of the United Kingdom to clarify certain aspects of the application of the Charter;
Desirous therefore of clarifying the application of the Charter in relation to the laws and administrative action of the United Kingdom and of its justiciability within the United Kingdom;
Reaffirming that references in this Protocol to the operation of specific provisions of the Charter are strictly without prejudice to the operation of other provisions of the Charter;
Reaffirming that this Protocol is without prejudice to the application of the Charter to other Member States;
Reaffirming that this Protocol is without prejudice to other obligations of the United Kingdom under the Treaty on European Union, the Treaty on the Functioning of the European Union, and Union law generally;
Have agreed upon the following provisions which shall be annexed to the Treaty on European Union:
Article 1
1. The Charter does not extend the ability of the Court of Justice, or any court or tribunal of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing in [Title IV] of the Charter creates justiciable rights applicable to the United Kingdom except in so far as the United Kingdom has provided for such rights in its national law.
Article 2
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply in the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of the United Kingdom.
Again, however, this is largely an academic distinction. The mandate states: "The Article on fundamental rights will contain a cross reference to the Charter on Fundamental Rights, as agreed in the 2004 IGC, giving it legally binding value and setting out the scope of its application."
Effectively, therefore, the charter will become part of the Treaty and will, therefore, apply in its entirety to EU law which, in turn, will apply to the UK. Progressively, therefore, more and more elements of the charter will apply to the UK.
This may be the most important part of the Reform Treaty as it will have a retrospective effect on all EU law. Essentially it introduces both a "Bill of Rights" plus the power of judicial review, i.e., the power to invalidate laws that do not comply with the charter to the ECJ. It thus gives the ECJ the power similar to that of the American Supreme Court, acquired since the 14th Amendment was broadly interpreted, i.e., truly supreme power.
9. Provisions on "democratic" principles
Other lifts from the failed constitution are those which the “mandate” calls provisions on democratic equality, representative democracy, participatory democracy and the citizens' initiative. Concerning national parliaments, the “mandate” declared that their role will be further enhanced.
• The period given to national parliaments to examine draft legislative texts and to give a reasoned opinion on subsidiarity will be extended from 6 to 8 weeks (the Protocols on national Parliaments and on subsidiarity and proportionality will be modified accordingly).
• There will be a reinforced control mechanism of subsidiarity in the sense that if a draft legislative act is contested by a simple majority of the votes allocated to national parliaments, the Commission will re-examine the draft act, which it may decide to maintain, amend or withdraw. If it chooses to maintain the draft, the Commission will have, in a reasoned opinion, to justify why it considers that the draft complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national parliaments, will have to be transmitted to the EU legislator, for consideration in the legislative procedure. This will trigger a specific procedure:
- before concluding first reading under the ordinary legislative procedure, the legislator (Council and Parliament) shall consider the compatibility of the legislative proposal with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national parliaments as well as the reasoned opinion of the Commission;
- If, by a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration. (the Protocol on subsidiarity and proportionality will be modified accordingly).
A new general Article will reflect the role of the national parliaments.
This was highlighted by commission president Barroso in a speech at the National Forum on Europe in Dublin, kick-starting his "Plan D of dialogue and democracy”. Then, he argued that the constitution went a long way to resolving the democratic deficit, because:
It gives the European Parliament a much greater role in decision-making, allowing it to amend and approve almost all new legislation. It throws open the doors of the Council when it is acting as a legislator, making it easier for citizens and national parliaments to monitor government positions. In fact, participatory democracy acquires a new status, with an entire title of the Constitution (Title VI) devoted to "The Democratic Life of the Union".
…the Constitution reconnects Europe with both citizens and national parliaments. It gives citizens the right to invite the Commission to introduce proposals on appropriate issues, if they can gather one million signatures in a significant number of Member States. And it gives national parliaments important new powers to enforce subsidiarity. They will be given early warning of all new legislative proposals from the Commission and the possibility to send them back for a rethink.
Now we see exactly the intention to re-introduce exactly the same provisions and, not doubt, exactly the same claims will be made for them.
Deconstructing these claims, we find again the use of that word "reconnect". This is part of the self-deception – delusion, even – of the élites , whereby the project was in the past somehow in tune with the "needs of the citizen" but has lost its way and must now be brought back on track. The lie is, of course, that the EU has ever "connected". It has always been an élite project and, therefore, any suggestion of a "reconnection" is a fraud.
10. A reference has been included to EU solidarity in the event of an energy supply problem.
11. A reference to the qualification criteria for new EU members was added (the Copenhagen criteria). The conditions for entry, therefore, will become part of the Treaty.
12. Treaty revision procedures
Currently, treaty revision is accommodated by means of a single article, Article 48, which deals with the convening of an IGC (precisely the mechanism being currently used to amend the treaties). The existing Article 48 will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union.
However, the "mandate" also extracts two particularly contentious provisions from the failed constitution, known as the "simplified revision procedure" (Articles 444 & 445).
The first of the simplified procedures provides for the Council to remove unanimous voting (the veto) from any provision in Part III of the (which accounts for the bulk of the policies), and to substitute qualified majority voting, without the inconvenience of convening an IGC. National parliaments, however, are given the power to block any such change - effectively a form of ratification - so the net effect of this is to sidelines the IGC.
The second of the procedures alllows for the revisions of text, within Part III, "on internal policies and actions of the Union", again without the inconvenience of convening an IGC.
These two provisions represent a significant increase in the power of the Union.
13. Voluntary withdrawal
There will be an article on voluntary withdrawal of a member state from the union.
14. Common Defence Policy
On page 26, in the eighth numbered paragraph under the anodyne heading: "Amendments to the EU Treaty Annex 1", this little gem:
8) In Article 11, insertion of a paragraph 1 reading as follows (the current text of paragraph 1 being deleted):This is followed by a longer piece of text, which is reviewed below, but this is the crucial piece.
1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.
Now, in what might be evidence of hurried drafting, this raises a slight problem as the new paragraph of Article 11 actually replicates (in part) Article 17 of the Treaty, which reads, in full:
1. The common foreign and security policy shall include all questions relating to the security of the Union, including the progressive framing of a common defence policy which might lead to a common defence, should the European Council so decide. It shall in that case recommend to Member States the adoption of such a decision in accordance with their respective constitutional requirements.Presumably (although this is not stated), this paragraph will be deleted – the two passages can hardly stand in the same treaty.
What needs to be noted is the substantive difference, which is the deletion of this phrasing:
…should the European Council so decide. It shall in that case recommend to Member States the adoption of such a decision in accordance with their respective constitutional requirements.This is replaced by a longer passage (broken into two paragraphs for ease of reading):
The common foreign and security policy is subject to specific procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded.We are back to the "devil in the detail". In the first passage, in the existing treaties, we see that the decision rests at the discretion of the European Council. But all it can do it make a recommendation to the member states, which can chose to adopt such a decision "in accordance with their respective constitutional requirements." In the UK, this would require, at the very least, the approval of Parliament.
The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties.
What is happening, therefore, is that the decision process on the "progressive framing of a common defence policy" is being re-framed, taking it away from the member states. Instead, it becomes the sole province of "the European Council and the Council", cutting out national parliaments and any reference to "respective constitutional requirements".
For sure, the decisions as EU level are still unanimous, but the fact is that, having been national decisions, they now become European Union decisions. Is this a small, technical point? Or does this represent a significant transfer of power from the member states to the European Union?
I suspect those who choose to see merely small textual changes of little significance will continue to do so, but any rational assessment of what is going is suggests that this is another small but significant step towards a Common Defence Policy.
This is the game the EU has been playing ever since Maastricht, when the policy was first introduced. Every treaty since, we have seen small, subtle adjustments in wording, every change tightening the screw slightly, bringing the "colleagues" slightly closer to their goal.
This change, this time, comes under the guise of a "Reform Treaty" instead of an "EU Constitution". The name might change, but the objective remains the same.
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