Tuesday, June 22, 2004

Well, what about that European Public Prosecutor?

On Monday, June 21, the Prime Minister’s rather boastful and vaguely worded statement about his great achievements during what he erroneously called the European Council (he meant the IGC as my colleague has explained) was repeated in the House of Lords as well.

Despite much of the subsequent discussion being dominated by europhile peers who make a point of rejoicing at whatever is agreed on in EU meetings and whatever is imposed on the parliament and people of Britain, there were one or two telling sallies.

Lord Strathclyde, Leader of the Opposition, correctly talked about the European Council. He challenged the Prime Minister and his representative in the Upper House, Baroness Amos:

"The Prime Minister's Statement says: This treaty makes clear where the EU can and cannot act".

Will the Leader of the House point to the passage in the treaty that says precisely where that is made clear? There is much more. Where is the bonfire of regulation? Where is the halt to the onward march of integration?

The presidency's conclusions signal legislation on financial services, on professional qualifications and social security co-ordination; common action on copyright and patents; initiatives in consumer protection legislation; measures on air quality, maritime law, biodiversity and climate change; urgent work on corporate governance, action on chemicals, directives on services and a strategy on sustainable development. We have even instructed the Commission to draw up plans for a European gender institute—as if the Gender Recognition Bill before our Parliament is not enough. I shall not read on, but that is just the summary of what has been agreed at the weekend.”

Lord Tomlinson, one of the europhile peers, tut-tutted that Lord Strathclyde was going beyond the actual text of the treaty. As we have no final text of the treaty, this is a very easy thing to do. He then went into the usual refrain:

“Does my noble friend further agree that, in order to achieve the fullest possible participation and informed decision-making in a referendum, it is imperative that the Government find an appropriate way to provide factual information to as wide a group of the public as possible so that we can have a proper public debate based on real information about the treaty and its contents rather than the contents that others have imagined?”

His noble friend, Baroness Amos, needless to say, agreed. However, she did not live up to this noble sentiment. When Lord Lamont asked:

"My Lords, can the Leader of the House explain why, prior to last weekend, the Government stated that they were opposed to the concept of the public prosecutor, even if it were to be preceded by a unanimous decision? Such a post was stated to be unacceptable, even with the unanimity qualification. Why have the Government changed their mind?"

Her reply was a little confused:

"My Lords, we saw no reason to create the post. We have ensured that under the treaty a public prosecutor could be created only by unanimity. That means that our consent would be required to create such a post. However, at the moment we see no reason to create such a post."

Why agree to the post if they see no need for it? Experience tells one that whatever finds its way into a treaty and, presumably, the Constitution, will eventually be realized, whether there is an immediate agreement or not. Clearly, the assumption that if the British Government finds something "totally unacceptable", it will ensure that the Constitution will have no references to it, is completely wrong.

To read the full debate click here

Only nine days to go

In nine days’ time the European Commission will cease to exist. The new Commission will be chosen by the new President in consultation with member states, in time for them all to stand before the European Parliament to be approved of in September.

There is one problem, however: with nine days to go, there seems to be no agreement as to who the next President of the Commission is to be. France and Germany want Guy Verhofstadt of Belgium, mainly because that would annoy Britain and many of the new members, who are not behaving with due decorum and, of course, will cause a major headache in the United States.

Not that the Americans are likely to recognize the name, but they will recall that the Prime Minister of Belgium announced very soon after the attacks on the World Trade Centre and the Pentagon that the war against terror had nothing to do with America’s allies. They and their NATO allies will also recall that Verhofstadt has been vociferous in his calls for an autonomous euro-army, outside NATO control. Presumably, Belgium proposes to play a significant part in that army.

The rest of us can simply remember that Verhofstadt’s main political aim, on his own account, was to destroy the main opposition party in the Flemish part of the country, the Vlaams Blok, which has been going from strength to strength in the voters’ estimation.

Britain rather half-heartedly proposed Chris Patten, who was rejected because his French is not up to the required standard and because he is British. That has become quite clear with Chancellor Schröder’s spokesman expressing the view that “non-core” countries should not have a say in who becomes President of the Commission.

One assumes that “non-core” means not being part of the eurozone – there are now thirteen countries in that category – and not being part of Schengen – which is a moveable feast, with countries opting in and out of parts of it. As it happens, this is against the EU rules, as they stand. It also annoys a number of smaller countries, who are growing more and more irate with the high-handed attitude of the Franco-German axis.

There are one or two other contenders, most of whom seem to be Portuguese, which is, presumably, a coincidence. Then there is Bertie Ahern. EU leaders are so grateful for his incredible efforts that produced the agreement last week in Brussels that he seems to command more support than anyone else. There is just one problem: mindful, perhaps, of the way Presidents of the Commission have been chewed up and spat out by the politics of the Union, Mr Ahern insists that he wants none of that “grinning honour”, as Falstaff put it.

A failure to understand

No matter how often pundits, learned or otherwise, proclaim that the European Union is unique, most commentators still insist on seeing it within frames of reference with which they are familiar. Unfortunately, they end up failing completely to understand the nature of the Union and, in so doing, struggle to understand what the "project" is all about.

A case in point is Michael Gove, that supremely important Times columnist, who has gravely instructed us over many years in the ways of things political. But, while no doubt savvy in the ways of Whitehall and Westminster, even he appears to have very little idea of how the EU is constructed, and how it is run.

That much is evident from his column in today’s paper, where he pronounces on the functioning of the "European Council", describing it as "the EU's supreme decision-making body".

Gove's first mistake is to confuse the European Council with the Council of Ministers (abbreviated simply to the "Council" in the constitution), which is an altogether different institution within the EU, with different functions, powers and make-up. When he refers to the said "European Council", he actually means the "Council".

As I had cause to do when I wrote an earlier Blog (also on the European Council), I have to warn the reader that this is no mere semantic difference.

The European Council is the institution comprising the heads of states and governments, whereas the Council is the portmanteau term which describes the various sectoral groups of national ministers which meet periodically to approve legislation proposed by the Commission. The two institutions are as different as chalk and cheese.

But Gove's second, and even bigger mistake is in describing the "European Council" – by which he means the Council – as "the EU's supreme decision-making body".

That it isn't thus is self evident from the simple knowledge that the Council increasingly performs a joint function with the European parliament in approving legislation (the process known as co-decision) and is therefore on a par with the parliament. But it also stems from knowledge that the powers of the Council are limited merely to approving the Commission's legislative proposals see separate Blog.

But perhaps Gove's biggest mistake is a reflection of his own limitations – which are entirely understandable – in that he insists on seeing the EU through the filter of his own experiences, and thereby seeks to impose a neat hierarchical structure on the organisation which simply does not exist.

I am sure that, in his ordered little world, Gove sees a neat pyramidal structure, with the Commission as the bottom, as a sort of quasi-civil service, topped by his "supreme" body, the Council. But it ain't like that at all. What we have in the EU is, in all senses of the word, unique. For once the description is not overblown.

In essence, The EU is an institutionalised conflict between two ideologies and two incompatible structures, each co-existing uneasily within the same organisation, locked in a battle for survival from which only one will emerge victorious.

As to the two ideologies, the core of the EU is "supranationalism", this being the Monnet model of a technocratic, centralised government, embodied in the Commission. The other is "intergovernmentalism", supposedly free co-operation between independent, sovereign nation states, with governments coming together to resolve issues of common concern. Within the EU structure, this is currently embodied in the form of the European Council.

Rather than having a hierarchical relationship, these two bodies are in their own ways rival governments of the EU, although as the Union is currently structured, each have their own domains and fiefdoms, with only a few areas of overlap. Largely, the Commission deals with the "low politics" of technocratic micro-management – such as the administration of the Single Market – while the European Council lays claim to the "high politics" of foreign policy, security and defence.

Where the battle lines are drawn is in the areas of overlap, with the Commission continually seeking to break out of its own domain into "high politics", forever getting slapped down by the European Council, which in turn is seeking to extend its own domain at the expense of the member states.

Therein is the underlying tension which dominates the struggle for a "constitution for Europe". Above all else, it is an old-fashioned power struggle between two rival ideologies, each seeking to carve out territory at the expense of the other, and both at the expense of the nation states. As it stands, both get something out of the constitution and the net losers are the nation states.

But until Mr Gove and his fellow commentators get their heads round the basic structures of the EU, they will not even begin to understand these dynamics. We will be returning to them in future Blogs but, in the meantime, Mr Gove could perhaps benefit from reading The Great Deception.

Mr Straw reassures us ... sort of

Up and down the country people have been calculating when the referendum on the Constitution might take place and how its timing will fit in with a general election and the British Presidency of the European Union, due to start on July 1, 2005. The jig-saw pieces do not fit terribly well, and there have been murmurings that the Government may well decide to hold the referendum as late as possible in order to let some other country vote no first.

That will kill the treaty and Tony Blair will be able to relax. Not so, according to Foreign Secretary Jack Straw. The UK, he tells us, has a solemn obligation to ratify the treaty and that will include holding a referendum, as promised.

This is not an accurate account of what will happen. In fact, the treaty is ratified by the Crown and what Parliament has to pass is an amendment to the European Communities Act. It is that piece of legislation that will go to the people, one assumes, in the form of a referendum. One of the most ferocious arguments will be the wording of the question.

In the meantime Mr Straw, supported by the Italian Foreign Minister, Franco Frattini, yet again poured scorn on the concept of the superstate. How they love that expression. It is not going to be a superstate, we are told endlessly and with a visible smirk of superiority. Well, who cares whether it is super or not? It will be a single state and that is what worries people.

Mr Straw, without the support of Signor Frattini this time, also poured scorn on the Conservative Party, its leader and all those who have supported its policy on the Constitution.

“He doesn’t want to discuss the issues. He doesn’t want to accept that he has been peddling myths and lies about this Constitution. He doesn’t want to accept that what happened was a defeat for the Conservatives’ strategy.

“We are delivering a flexible Europe and yet he is still opposed to this.”

Hmm. What is a flexible Europe, precisely? If Mr Straw is that anxious to have an open and reasonable discussion on the subject he might start by making it clear that he understands the difference between Europe and the European Union.

Furthermore, there has been a singular reluctance on the part of the Government, of which Mr Straw is an important member, to discuss the issues. We have had a great deal of vaporous generalization of “the flexible Europe” kind but little in the way of hard facts.

If Mr Straw does want to discuss the issues, he might start by telling us in how many areas has the Government surrendered the veto. He might then tell us precisely what has been gained in Britain’s interests or, at least, what has been retained.

He might then go on to explain why the European Public Prosecutor, whose existence was “completely unacceptable” to Britain not that long ago, is still securely positioned in the Constitution. And finally, at least for now, Mr Straw might like to explain as part of an open discussion of the issues, how handing over our economic policy to EU competence is in Britain’s interest and how it contributes to a “flexible Europe”.

That will do to be going on with.

Myth of the week

The European Union is democratically controlled

Part I – The Council of Ministers

In answer to the charge that "Europe is undemocratic and that power lies with unelected, faceless bureaucrats," the UK Representation of the European Commission is fond of reminding us that

The most powerful decision-making body, the Council of Ministers, is responsible through its members to parliaments and electorates in every EU country.
Furthermore, it states, "Each country decides how to make its ministers accountable." ref UKREC.

Thus, the Commission effectively argues, because Council members are responsible to their electorates, the European Union is democratically controlled. (It goes on then to describe the role of the European Parliament – we will deal with that in Part II of this piece.)

In order to explode this particular myth – that the Council somehow adds democratic legitimacy to the European Union – we simply need to look at what the Council is, and what it does.

Firstly, the Council itself. In fact there are many "Councils" each dealing with specific policy areas – like environment, transport, fisheries, agriculture, etc. Their members are the sectoral ministers from the member states, each council comprising the same number of ministers as there are member states.

So what do they do?

The answer to that is quite simple – they "legislate". That is, they receive proposals from the unelected Commission, asking them to take powers and/or responsibilities from their member state governments (or to impose obligations on their citizens).

They then turn these proposals into laws, giving the Commission the powers it asks for – often acting by qualified majority voting - thereby depriving their own governments (and/or citizens) of power.

That's it.

From then on, the Commission having been given the power, it keeps it, to exercise as it thinks fit. The Council has no further part to play in the process, unless or until the Commission comes back to ask it to amend or extend those powers (or both).

Does the Council maintain an oversight over how those powers are exercised? No.

Has the Council any power to call the Commission to account over the way it uses its powers? No.

Can the Council remove or modify those powers, if it is unsatisfied with the way the Commission is performing? No.

Does the Council even have the power to ask the Commission for information on its performance? Er… No.

So what is the Council?

In effect, it is a transfer station. On the basis of proposals from the Commission, it handles the process of taking powers from member states, packaging them up and shovelling them into the Commission, for them never to be returned.

Does it ask the electorate in advance - through an election manifesto - what powers it should hand over? No.

And is any record kept of which particular ministers vote for what, so that they can be taken to task by their electorates, if they vote the wrong way? No.

That's democratic?

Monday, June 21, 2004

Worth a read

The Competitive Enterprise Institute (CEI) has posted a facinating article on the Strauss-Kahn report. It is well worth a read click here.

The Brussels Broadcasting Company

BBC News Online has looked at "some of the myths and realities of the constitution", in a Q&A format. As befits the alternative meaning for its initials, it somehow finds that the constitution is not at all threatening.

We have reproduced its somewhat facile Q&A session, and added some comments of our own, in italics. Comments by readers would be welcome.

Will this lead to a United States of Europe like the USA?

No. The EU constitution is a balance between the demands of those who want more integration and those who want to preserve the rights of the nation states. In some areas, the constitution widens the areas of joint action to be decided by majority voting, into immigration and asylum policy for example. But in other areas, member states can still go their own way (in defence and foreign policy and tax, for example).

Not yet. But the EU constitution represents yet another attempt by the integrationalists to extend the power of the EU in fulfilment of their long-term ambition to create a United States of Europe. As with previous treaties, they have not got all they want, but the constitution represents a significant step towards that goal. And, once they have got the constitution “in the bag”, they will be back for more.

The EU will now have a president and a foreign minister in addition to its parliament, supreme court, civil service, flag and anthem. Is it not therefore a state?

No. These institutions are for specifically European Union functions, and some sound grander than they are. The EU in fact already has three "presidents" - of the Council of Ministers, the Commission and the European Parliament. What is new is that the Council Presidency, a post currently held by one member state for six months, will become a permanent position. But the powers of the president will be limited. He or she will not be comparable to the US or French presidents.

If it looks like a duck, quacks like a duck, swims like a duck… it is a duck. Despite this, the current national attributes of the EU do not, in themselves make a state, but they represent the milestones achieved in pursuit of that aim.

Does a Foreign Minister mean a common foreign policy?

Not in the EU. There is already a "high representative" for foreign policy and although the new post will be a bit grander, the foreign minister will be able to speak for the EU only when there is an agreed policy - over the Middle East peace process for example. If there is a disagreement, as over Iraq, he or she will be powerless.

The pursuit of a common foreign policy, binding on all membere states, has always been the "Holy Grail" of the European integrationalists. The appointment of a European Union Foreign Minister brings that goal one step closer.

Does the constitution confirm that this is a Europe of nation states?

No. It confirms that the European Union is a compromise. The nation states have given up some of their rights - over the internal market, foreign trade, agriculture, fisheries and the environment for example. So they are not entirely sovereign, by choice. If they want to be entirely sovereign, they can leave the Union.

It confirms that the integrationalists have not yet achieved their final goal. It is a compromise only in the sense that the member states have not given up quite as many powers as the integrationalists demanded. And, to be pedantic, it is arguable as to whether it is the "nation states" which have given up their powers, or their governments. In the latter event, have the people been given the "choice"?

How much does the constitution change things?

It will lead to more qualified majority voting, but the basic institutions will remain. Opponents say that the constitution will lead to further unnecessary integration and that it opens the way to more; supporters argue that such integration is limited and necessary for the common good.

It increases the power vested in the European Union institutions, and gives nothing back. The basic institutions remain but it absorbs the previously intergovernmental European Council into the maw of the European Union as a fully-fledged institution, defining its roles, procedures and powers, thereby making heads of state and government subordinate in important respects to the Commission and the European Court of Justice.

The constitution says that its law is supreme. Will the EU impose its law?

The procedures by which laws are passed have not fundamentally changed. Laws will still be proposed by the executive body, the Commission, and agreed jointly by member states and the European parliament. EU law is supreme in those areas where it has the right to legislate, but that has always been the case.

But a lot more policy areas have been passed to the Commission – so there will be a lot more laws covering many more fields. Furthermore, progressively, the Commission is moving into the field of enforcement – outwith the constitution. This may be happening slowly, but it is also a fundamental change. And the Commission is not the homely "executive body" in the sense that the BBC would like to convey… It is a fully-fledged government of the EU.

Will the Charter of Fundamental Rights interfere with national laws?

The Charter sets out a list of rights from the right to life to the right to strike. The UK government was worried that it might affect national industrial relations laws and says that it will not do so, but the Charter has yet to be tested in the courts.

The Charter most certainly will be tested in the courts – the ECJ is waiting to get its hands on it, and there are few who doubt the outcome.

This won't be the end of EU arguments, though?

No it won't. There will always be tension between those who want to go further and those who want to hold back. Some supporters of a federal Europe might forge ahead in some new areas like tax harmonisation and social security, as they have done with the single currency, the euro. The show goes on.

This gives the game away… "there will always be tension between those who want to go further and those who want to hold back". The trouble is that the process of integration only goes in one direction. Powers which are ceded by nation states are never returned. Each step towards full integration is followed by another, and another, with no end point in sight. The constitution is simply another step on the way and after that, there will be another, and another. This is why the constitution must be stopped.

Are they listening to themselves? - Part IV

With all the attention on the Brussels document with its amendments to the Constitution (or not) it is easy to forget that other matters were thrashed out last week as well.

There was the question of the low turn-out at the European elections, something of a facer, one would have thought. Not a bit of it:

“The European Council expressed its concern at the low voter turnout in last week's elections to the European Parliament. It recognises the need to strengthen a sense among the citizens of Europe of the importance of the work of the Union and its relevance to their daily lives.

Following a preliminary discussion on this occasion, the European Council intends to return to the subject at its next meeting. In the interim, it welcomes the intention of the Netherlands Presidency to take forward the "Communicating Europe" initiative of the Irish Presidency.”

It’s good to know these people live in the real world. How do we make sure that the “citizens” of the European Union learn to love the Union? By interfering with their lives even more.

As for that “Communicating Europe” initiative that, I must confess, I have not heard of until now, it cannot be deemed to have been a huge success. Naturally, it must be carried forward.

Not a semantic difference

It is no wonder that Mr Blair is having difficulty in understanding why people are getting upset about the concept of loss of sovereignty. In his own mind, he seems already to have ceded it, or failed completely to realise what it is.

The clue is given in the opening to his statement to the Commons at 3.30 this afternoon, when he proudly announced that the European Council had agreed to the new treaty.

Wrong Mr Blair. The European Council, as constituted, is an institution of the European Union, set up to give political guidance and direction to the Union. Its members, therefore, sit as members of the European Union.

In fact, it was the Intergovernmental Conference (IGC) – an assembly of heads of states and governments of supposedly sovereign nations – meeting outside the framework of the European Union, that agreed the treaty.

The difference is more than semantic. The difference is between an institution deciding its own fate, and free sovereign nations deciding theirs. If Mr Blair cannot understand the difference, it is no wonder he sees nothing wrong with foisting this constitution on us.

We will be analysing in depth Mr Blair's statement, and Mr Howard's response, tomorrow, when we have the Hansard record.

Red lines wavering

Yesterday’s Sunday Telegraph did us all a favour by listing those famous and completely unmemorable “red lines” as well as explaining what happened to them. Since all sorts of things have been named as Tony Blair’s “red lines” – are these different from lines in the sand, one wonders – we should all take the opportunity to glance at the original short list.

The first “red line”, which many of us have forgotten and the government has carefully not mentioned for some time, was the creation of a European Public Prosecutor. “Unacceptable” thundered Blair and Straw. Hmmm. Well, apparently, a corpus of EU law with its own prosecuting authority is acceptable. The nascent European police force, mentioned by the Sunday Telegraph leader was set up a little while ago, with all sorts of rights and privileges. [see III-174(2) on page 20 of the Brussels document but also III-174 and 175 in the apparently unaltered text of of the draft Constitution]

Article III-175(2) of the draft text states:

“The European Public Prosecutor’s Office shall be responsible for investigating, prosecuting and bringing to judgement, where appropriate in liaison with Europol, the perpetrators of and accomplices in serious crimes affecting more than one Member State and of offences against the Union’s financial interests, as determined by the European law provided for in paragraph 1. It shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.”

So far as we know that has not been amended, much less deleted from the text. Nor was the position and existence of the European Public Prosecutor discussed at the Summit last week.

The second “red line” was the non-judiciability of the Charter of Fundamental Rights. Though the slightly amended text appears to make various rather vague references to the courts and judicial procedures of the member states, and the need “to give due” regard to the Charter in these courts, the senior judge at the ECJ has said that he would regard that document as legally binding. Experience tells one that judges of ECJ tend to win those tugs-of-war.

What, indeed, could it be, but “legally binding”? If it is not that, then what is it doing in the Constitution?

The third “red line” was foreign and security policy. Though nominally the unanimity has been secured for the framework policies (there has been QMV for individual decisions for some time with a proviso for countries opting out if they felt their national interests were at stake), the relevant text, as quoted by the Sunday Telegraph, is revealing:

“The common foreign and security policy shall cover all aspects of foreign policy and all questions relating to the Union’s security. Member States shall support the common foreign and security policy actively and unreservedly.”

One should recall that the nascent EU force was created for peace-keeping, peace-making, carrying out the Petersberg tasks (another one of those documents nobody can quite remember) and promote the common foreign and security policy.

It is also worth remembering, as the Wall Street Journal Europe pointed out on Thursday, June 17, that no matter what the Constitution says or does not say, the European Defence Agency and the European Foreign Service are going ahead. Had Mr Blair really wanted to defend that “red line”, he might have considered stopping procedures there.

The European Defence Agency, to be operational by the end of the year, is intended to be a common agency for defence capabilities development, research, procurement and armaments. When one adds to that our increasing involvement in the Galileo surveillance system, the EU’s rival to the American GPS, which is available free to end users, the notion of keeping control of our security policy becomes tenuous.

The European Foreign Service has existed, barely noticed, for a number of years. At first, the funding for these offices, some of which were headed by people with ambassadorial ranks, was buried among the various “lines” (though not red ones). Under some pressure the Commission separated the accounts out.

Now the EU corps of diplomats, to be answerable to the EU Foreign Minister, is being created as an official entity. There is no intention to wait for the Constitution to create that particular job. The assumption of its existence is there and his diplomats will descend on all the nicer capitals of the world (there seem to be no plans to open offices in neighbouring Moldova or Belarus), to duplicate or supersede the national embassies.

That leaves “red line” number four, fiscal sovereignty, taxation to you and me. Mr Blair did not preserve that “red line” because it was not on the agenda in Brussels. A number of other member states protested and the issue was quietly dropped as Bertie Ahern was adding up his air miles.

So, the British government is in charge of taxation in Britain? Up to a point. The point being: common rules on VAT, external tariffs, duty free and tax evasion, as well as permissible budget deficits. The individual states in America have more fiscal sovereignty than that.

Furthermore, it is worth remembering, as few journalists have done, that fiscal policy cannot be separated from economic. And what does the Brussels document say on that:

Article I-11 (3)
3. The Member States shall coordinate their economic and employment policies within arrangements as determined by Part III, which the Union shall have competence to provide.

Article I-14 (1)
1. The Member States shall coordinate their economic policies within the Union. To this end, the Council shall adopt measures, in particular broad guidelines for these policies.

As another Prime Minister once said: game, set and match. Unfortunately, British politicians and negotiators do nor seem to do any better than British tennis players. Worse, if anything.

Download available

Courtesy of a Blog reader, Francis Turner, the .pdf format analysis of the Brussels Agreement on the constitutional treaty can now be downloaded directly from this site. To obtain your copy, click here.

Many thanks to Francis Turner. His blog, the maunderings of an Englishman on the Cóte d'Azur can be seen here.

A landmark of sorts

At 9.30 this morning (BST), on the longest day of the year, this blog reached a landmark of sorts. It registered 10,000 hits.

This may not sound a great deal but consider the facts: the blog has been going for eight weeks only and it is run by two people, who, between them try to keep down a number of day jobs as well. We do have some outside contributors, to whom we are very grateful. We hope they will continue to supply us with material and that others will appear.

We are getting no financial support from anywhere, though, as we are contributing a great deal to that discussion on Europe that the europhiles are calling for all the time, perhaps we should apply for some EU funds. (Joke!!!!)

Many of our hits are from new visitors but, equally, there are many returnees and, on average, people stay on the blog for 30 minutes or so. In other words, what we write people want to read.

This can be put down mainly to a widespread desire in this country and elsewhere (we do have readers on the Continent and in the United States) to find out more about what is going on in and around the European Union. And that can be put down to a growing conviction that whatever it is that politicians tell us, it is not the truth.

About half the hits were registered in the last two weeks and that, too, is understandable. Much happened in that time: the European elections with the preceding campaigns across the EU; the results, so painful to our leaders, who are determined to ignore them; the negotiations before the Brussels Summit; the Summit itself and the tortuous, opaque, barely comprehensible document that came out of it.

As we enter the prelimiary skirmishings around the EU Constitution, we predict that many more people will want to read what appears on this blog. News of it has spread by word of mouth and through its electronic equivalent: links and references on other websites and weblogs. We rely on our readers for our advertising.

One more thing: Mr Blair would be very pleased to know that we started the battle between myth and reality some time ago. We have been collecting, analyzing and disproving EU Myths and we intend to go on with that task. As soon as there is a round dozen, we shall send Mr Blair a copy of the collection in either electronic of printed format. We think he might find it useful.

Myths and reality

If prime minister Blair wants to fight the EU referendum on the basis of separating "myths from reality", then he has a personal problem. That problem is quite simple – he, himself does not seem to know the difference between the two. Given this overwhelming handicap, allocating two years for the referendum campaign will not help him.

However, his bigger problem is going to be even more insurmountable. After seven years as prime minister, he has acquired that patina of arrogance that so often infects the holders of this office. He is beginning to treat his electors as if they were stupid.

If I know my fellow man at all well, there is one thing which I believe they will not tolerate. The will accept being kept in the dark – on occasions – they do not particularly object to be neglected, and don’t even mind being insulted, pace "the weakest link".

But what they will not put with is being patronised. That knowing, sneering demeanour that says "I know best" and "You're too stupid to understand so I can feed you any old crap and you'll believe it".

As The Times pointed out today, people can read. A very large number of people are going to read the constitution – or attempt to. There, they are going to find the reality and thus identify the myth-maker that is Tony Blair. Then there will indeed be a "fascinating political battle", as Blair puts it. But he ain't going to win it.

And that is the reality.

It's finished

The analysis of the Brussels summit agreement on the "Treaty Establishing A Constitution for Europe" is finished. The whole sequence starts here.

If you prefer to read the analysis "off-line", or want a "clean" copy, a .pdf version is now available (16 pages). To obtain a copy, either e-mail me at my personal address click here or e-mail us from the "contact us" link on the sidebar (left).

How they see it in Washington

This is what the op-ed in the Washington Times, entitled "Euroskeptics and political reality" has to say on the frantic attempts by the euro-elites to push through the Constitution in the wake of the last, for them catastrophic, election results:

"At 200 pages and counting, the EU constitution is more an exercise in piddling legalities than in promoting the public welfare. While debating constitutional minutiae, European leaders should not ignore the fact that many Europeans simply do not understand how a superstate will benefit them, nor do they care very much. Plowing ahead with fantasies of a continent united while ignoring national sovereignty will not only lead to failure, but will set a terrible precedent for the rest of the international community.

"The United States should not stay too quiet while the process of EU building forges ahead if it appears that smaller nations are in danger of forfeiting their sovereignty. Such silence would undermine U.S. opposition to the International Criminal Court and other post-modern institutions."

Click here to read the whole article.

Sunday, June 20, 2004

Read this and weep

For many years now – since 1992, to be precise – Christopher Booker, with a little help from me and a great deal from his readers, has carved out a niche in British journalism.

Every Sunday, he churns out "red tape" stories in The Sunday Telegraph that infuriate and appal an ever-growing band of devotees, bringing to public attention the practical effects of the torrent of absurd legislation emanating from that alien form of government in Brussels called the European Union.

Despite that fact that many of the stories that Booker publishes are later picked up by other journalists – often without any acknowledgement – the reaction from the bulk of the "chattering classes" is to treat Booker with lofty disdain. "Oh, that's Booker 'banging on' again", they say, as they dissect the far more important "tittle-tattle" that preoccupies the Westminster village.

As we struggle to bring home the realities of what is happening out there, in the real world, this infuriating, patronising "clever-dickery" prompts one to fantasise about ripping the lungs out of these morons and stuffing them down their throats – such is the despair at getting these mindless buffoons to wake up to what is happening.

No more so is this the case than with the latest raft of stories in today’s Booker column, which focus on the impending disaster arising from the total, absolute, complete cock-up the EU and the British government have made of our waste-disposal policy click here.

"Oh, how tedious", one can hear the clever-dicks say. "We have this constitution thingy to write about, and all Booker can do is bang on about rubbish".

But this time, as Booker writes, it is a Government agency that is warning that the nation is about to be plunged into an unprecedented crisis, "a chaos that the Government is powerless to avoid". Theory is about to collude with practice as the consequences of EU meddling become apparent. Those lame-brained drongos in the EU have spent the last few decades dismantling our arrangements for dealing with toxic waste and replacing it with, er… absolutely nothing.

The immediate problem is that, on July 15, to comply with the EC's landfill directive, 99/31, the vast majority of Britain's 218 landfill sites will be closed to "hazardous waste", leaving only five still open. Vast areas of the country will no longer provide any site licensed to take the two million tons of such waste that we currently bury in ordinary landfill sites - anything from television sets to builders' rubble.

As Booker writes, the Environment Agency itself, in the magazine Your Environment, foresees a "nightmare" in the handling of such waste, with "criminals dumping it illegally" in an epidemic of fly-tipping, "lorries crammed full of it clogging the motorways", and even the collapse of the Government's own "brownfield development programme". And this is only a foretaste of the wider crisis that looms as the various elements of the EU's ambitious waste policy begin to impact on each other.

"But it is timely that this should coincide with efforts to agree a constitution to sanctify the EU's new system of government..", Booker notes. Despite the scale of the catastrophe, "it is just a small part of the price we pay for handing over the running of our country to the form of government Mr Blair this weekend seems happy to cement into place". Clever-dicks apart, it is a price that many of us believe is simply not worth paying.

A role for national parliaments

One of the lies already being broadcast about the constitution is that it gives a greater role for national parliaments, thereby increasing the accountability and democracy of the European Union.

The basis of this mendacity is the "Protocol on the application of the principles of subsidiarity and proportionality". This provides that if one third of the parliaments of the member states object to a draft legislative proposal from the Commission, on the grounds that it does not comply with the principle of "subsidiary", then "the draft must be reviewed".

But, following that review, the Commission "may decide to maintain, amend or withdraw the draft". In other words, the national parliaments have no power in this matter. The Commission can carry on as before, ignoring entirely the views of the parliaments.

That, in itself is bad enough, but what has not generally been pointed out is how this affects the stature of national parliaments.

In the broader scheme of things, national parliaments are sovereign over their own nations and territories. As sovereign parliaments, they already have the right to reject any proposals from the Commission, and refuse to enact them into national law.

But this protocol changes that relationship. It denies them the power to reject outright any Commission proposals and casts the parliaments in the role of supplicants. They are allowed to approach the Commission and say "pretty please", will you be ever so kind and reconsider one of your proposed laws?

The Commission is then cast in the dominant role. It is not obliged to withdraw its proposal and the parliaments have no powers to demand that it does so. In other words, within the terms of this protocol, democratically elected parliaments are subordinated to the unelected Commission.

Far from increasing the accountability and democracy of the European Union, therefore, this is a profoundly federalising provision which relegates national parliaments to a junior, subordinate position in the hierarchy of the Union. Parliaments will have exchanged their powers for a mere "role" as beggars and supplicants.

Back to the treadmill

We have posted another Blog in the sequence on Friday’s Brussels agreement on the constitution – this one on "enhanced co-operation" click here. It's amazing what a period spent lying down in a dark room does for the thought processes.

And it appears that we are not the only ones suffering. We’ve had a number of agonised communications from readers who are finding the text very difficult to understand, not a few asking whether they are going mad. If it is any consolation, however, the answer is "no". The sign of madness is if you do understand it.

We will post the remaining analyses of the Brussels agreement today and then get down to the more entertaining work of being rude about politicians.

You couldn't make it up

Annex 17 of CIG84/04, otherwise known as the document agreed on in Brussels on June 18. The new text will be added to the Constitution.

Article IV-10 new (2)

2. This Treaty may also be translated into any other languages as determined by Member States among those which, in accordance with their constitutional order, enjoy official status in all or part of their territory. A certified copy of such translations shall be provided by the Member States concerned to be deposited in the archives of the Council.

Declaration for incorporation in the Final Act re Article IV-10 (2)

The Conference considers that the possibility of producing official translations of the Treaty in the languages mentioned in the second paragraph of Article IV-10 contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity as set forth in paragraph 3 of Article I-3 of the Treaty. In this context, the Conference confirms the attachment of the Union to the cultural diversity of Europe and the special attention it will continue to pay to these and other languages.

The Conference recommends that those Member States wishing to avail themselves of the possibility recognised in Article IV-10(2) communicate to the Council, within six months from the date of the signature of the Treaty, the language or languages into which translations of the Treaty will be made

Saturday, June 19, 2004

I'm losing it...

Will someone please tell me what the *&!%)+" $^&* this means?

"Where a provision of the Constitution which may be applied in the context of enhanced cooperation stipulates that the Council shall act unanimously, the Council, acting unanimously in accordance with the arrangements laid down in Article I-43(3), may decide to act by qualified majority." (Article III-328 (1))

It's not me, honest... nah, it can't be... nah... please, nah...

I'm going to lie down in a dark room. I may be some time.

So much noise, so little substance

Last December the great leaders of the European Union failed to agree on its Constitution. Apparently after almost two years of discussion and negotiation there were insuperable barriers between the various member states.

After six months, many thousands of air miles covered by Bertie Ahern, more rows and negotiations as well as a set of European election results that can best be described as catastrophic for those self-same leaders, we have an agreement. Tony Blair, looking pale and bleary-eyed sounded his usual pompous self when he spoke about it:

"A new Europe has taken shape," the Prime Minister said. "A Europe in which Britain can build alliances and feel at home." What on earth is he talking about?

Describing the Battle of Valmy, fought by the ragamuffin armies of Revolutionary France and the professional troops of Prussia and Austria on September 20, 1792, Goethe said: “ From this place and from this day forth commences a new era in the world's history, and you can all say that you were present at its birth.”

Though the battle itself was more of a skirmish, the comment was accurate enough. The ragamuffin armies stopped the professional troops, effectively lifted the siege of Paris, saved the Revolution, made all its developments possible and, one might say grandiloquently, ushered in the modern world with all its good and bad aspects.

The sorry spectacle of the EU leaders stumbling out, clutching (metaphorically speaking) a verbose, complicated and barely comprehensible document cannot be described in those exhilarating terms. The new Europe looks remarkably like the old European Union with a few extra notches. In what way is Britain going to feel at home in it? For that matter, in what way is any other country going to feel at home in it?

As for alliances, well, anyone who knows any European history (Mr Blair not being among them) can recall all sorts of alliances Britain managed to build in the past.

What exactly has been achieved with all these alarums and excursions? My colleague has been analyzing the newly produced document in some detail and I have no desire to duplicate his heroic efforts. But a few things need to be recalled.

In the first place, even setting aside the fact that nobody outside the euro-elites sees any need for a Constitution, the one presented by Giscard d’Estaing’s Convention last year was a particularly unsatisfactory document. Over 130 pages of it provided for ever greater power going away from the member states and their elected legislatures to the cumbersome, undemocratic, unaccountable European Union institutions.

Far from defining clearly the relationship between the various institutions and the relationship between the state and the citizen, which is what, we presume, the europhiles mean when they talk of “a tidying up exercise”, this Constitution multiplies detailed and intrusive rules for the running of a centralized, corporatist, largely undemocratic, single state. (Let us not get involved in the argument of what is a superstate and whether the EU is going to be one. It is on track to being a state. That is all that matters.)

Far from limiting the powers of the state and its institutions, this Constitution effectively allows the EU to run all our lives according to some blueprint called “the European model”, which appears to have nothing to do with the people of Europe. If they stray from “the European model” they will be forced back into its straitjacket.

“The European model”, thus, takes its place in a long line of oppressive political ideas that appear to be representative of the people they control but are, in fact, abstractions to be imposed on them. Predecessors include “the popular will”, which had little to do with people and in whose name many tens of thousands were executed or murdered; “the masses” or “the working class”, under whose rule or dictatorship workers had a considerably worse life than under exploitative capitalism; and “the people” in whose name many millions were executed and murdered. “The European model” is different in that it is more benign. There will be no executions, no labour camps. But there will be no European democracy or European growth either.

Very little has been changed in that unsatisfactory document. The fact that the constitution becomes the source of the supremacy of European legislation remains; the “passerelle” clause, which will allow the European Council to decide that matters hitherto decided unanimously can be moved over to QMV will, presumably, remain; the matter of shared competence, which means, in effect, residual competence for the member states remains; the Protocol on the role of national parliaments, which makes it clear that these may be able to complain about the fact that some EU legislation breaks the rules of subsidiarity and proportionality but cannot make the Commission do anything about it has not been changed.

One can go on about it indefinitely. Those famous red lines, which nobody can remember have been preserved. The one about taxation does not matter, as the ECJ is just as effective as any Constitution in pushing through tax harmonization.

Legislation on social security can suddenly find itself under health and safety or the single market, thus negating Blair’s achievement. After all, that is what happened with the Working Time Directive.

Immigration is such a mess anyway, it matters little who is nominally in charge of it. As for defence or security, since we have gone along with the common foreign and security policy, signed up to every so-called anti-terrorist measure, whether it is that or not in realit, agreed to the existence of a Foreign Minister for the EU and are about to get enmeshed in the Galileo surveillance system, that red line can at best be described as a dotted one.

In return Blair has finally surrendered economic and employment policy to be full EU competence, effectively agreeing to an imposition of the sclerotic and deeply unsuccessful economic model that is destroying formerly successful countries like Germany and France.

He has effectively agreed to the full workings of Eurojust that will, we must assume, eventually supplant the British system of justice, which, with all its faults and difficulties, has been reasonably successful.

As for those famous institutional changes without which, we are told, the new European Union cannot function, they have become so opaque and complex that nobody but highly paid constitutional lawyer will ever understand them. Something of an irony this, since the original aim of the Convention was to increase transparency in the workings of the European Union and to bridge the gap between the peoples of Europe and “Europe”, a short-hand for both the euro-elite and the European project.

What they seem to have come up with is a more complicated, more detailed, more intrusive system that will increase the democratic deficit and further alienate the people from the government. Perhaps some of the great leaders should think of what actually preceded the Battle Valmy.

The IGC agreement

Below is a sequence of posts, analysing and explaining the IGC agreement. These are being added-to continuously, each issue being addressed in the order in which it appears in the official text. Therefore, new posts will not appear above this blog, but underneath in an ordered sequence.

You can check to see the new posts by looking at the title index (below left).

We start with a link to the full text of the agreement made yesterday in Brussels. To obtain your copy, click here.

See the Blog immediately below for the summary.

A summary of the agreement

"A difficult, dry technocratic document". That, once again is an offering from Tim Franks, the BBC’s Brussels correspondent. No one would disagree with him. The issues dealt with in yesterday’s summit certainly confirm that assessment, underlining the mind-numbing, technocratic nature of the enterprise. Here are the heads:

 The European Commission
 Definition of qualified majority voting
 Draft Decision relating to implementation of Article I-24
 European Parliament seats
 Provisions specific to Member States whose currency is the euro
 Coordination of Economic Policy
 Declaration on the Stability and Growth Pact
 Measures relating to excessive deficits
 Multiannual Financial Framework
 Explanations relating to the Charter of Fundamental Rights
 Provisions specific to Member States whose currency is the euro
 Eurojust
 Enhanced Cooperation
 Economic, Social and Territorial Cohesion
 Transport
 Energy
 Authentic texts and translations
 Protocol on the position of the United Kingdom and Ireland on policies in respect of border controls asylum and immigration, judicial cooperation in civil matters and on police cooperation Declaration by Member States

Those who expect a full-blown constitution document will be disappointed. This is not yet available and it will be some days, or even weeks, before the amendments have been integrated and the text approved.

In this context, it would be helpful if people stopped referring to Blair and the other "EU leaders" as having "signed" the constitution. They haven't for precisely the reason indicated above. The summit merely agreed the final round of amendments.

Signing will be a grand ceremonial affair, scheduled for some time later this year. With the hubris for which they have become famous, the "EU leaders" will probably elect Rome for the location.

In the meantime, our analyses are posted immediately under this Blog, and will be added-to throughout the day. When complete, we will attempt to integrate them into a single document.

The European Commission

Details are set out in Article I-25. This Article starts with a general statement of the role and duties of the Commission – which is not new. However, it is useful to restate it here:

 The Commission shall promote the general interest of the Union and take appropriate initiatives to that end.
 It shall ensure that the Constitution and the measures adopted by the Institutions pursuant thereto are applied.
 It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall implement the budget and manage programmes.
 It shall exercise coordinating, executive and management functions, as laid down in the Constitution.
 With the exception of the common foreign and security policy and other cases provided for in the Constitution, it shall ensure the Union's external representation.
 It shall initiate the Union's annual and multi-annual programming with a view to achieving inter-institutional agreements.

Furthermore, the Commission retains its "right of initiative" so that legislative acts may be adopted only on the basis of a Commission proposal (although there are some exceptions, such as allowing the ECB to make economic proposals).

Before looking at the changes, it is worth stopping here and looking at these roles and duties. By any measure, what is being described here are the duties of a government. This is the definition of a government of the European Union.


The key points are as follows:

The Members of the Commission shall be chosen on the ground of their general competence and European commitment and their independence shall be beyond doubt.
The first Commission appointed under the provisions of the Constitution shall consist of one national of each Member State, including its President and the Union Minister for Foreign Affairs who shall be one of its Vice-Presidents.
After this Commission ends, the next one will have a number of commissioners corresponding to two thirds of the number of Member States.
The commissioners are to be selected from nationals of the Member States on the basis of a system of equal rotation between the Member States.

This system has not yet been established but must apply the following principles:

(a) Member States shall be treated on a strictly equal footing as regards determination of the sequence of, and the time spent by, their nationals as Members of the Commission; consequently, the difference between the total number of terms of office held by nationals of any given pair of Member States may never be more than one;
(b) subject to point (a), each successive Commission shall be so composed as to reflect satisfactorily the demographic and geographical range of all the Member States of the Union.

As before, the commissioners “shall be completely independent”, it should neither seek nor take instructions from any government or other institution, body, office or agency. They shall refrain from any action incompatible with their duties or the performance of their tasks.

The Commission, as a body, is responsible to the European Parliament (note, not the member states).

Under the procedures set out in Article III-243, the European Parliament may vote on a censure motion on the Commission. If such a motion is carried, the Members of the Commission shall resign as a body and the Union Minister for Foreign Affairs shall resign from the Commission.

The President of the European Commission

The selection procedure is set out Article I-26.

At the outset, the constitution aims to inject a political element into the selection process, requiring that the European Council should “take into account” the elections to the European Parliament. This is behind some of the argument at the moment, with the EPP group in the European parliament demanding that the choice of president should reflect the political stance of the dominant group.

However, as we will find with so many things in the constitution, the wording is vague: what does "take into account" actually mean?

Anyhow, the European Council must have "appropriate consultations" with the parliament – whatever that means – but then it makes its choice by qualified majority voting. This means that the UK – or any other country – can be over-ruled and a candidate to which it objects can be imposed. If the constitution comes in, this is the last time that the UK can actually block a candidate,

Once the European Council has made its choice, the final decision is up to the federal European parliament. It must elect the president by "a majority of its members". If the parliament cannot decide, however – i.e., there is no majority – then the candidate is not appointed. The European Council steps in again and, acting by a qualified majority, has one month to propose another candidate, who then has to be elected by the parliament, as before.

As to the rest of the Commission, the Council (it is not clear here whether the constitution is referring to the European Council or the Council of Ministers) then adopts a list of “other persons” “by common accord with the President-elect” – whatever that means. The Commission is then voted in as a body by the parliament, following which the European Council, again by QMV.

As to resignations, a member of the Commission is required to resign if the President so requests. A slightly different procedure is set out for the Union Minister for Foreign Affairs.

Looking at this while article in the round, what the constitution effectively does is reduce substantially the right of any member state government to select and appoint the president of the Commission, and vest the ultimate choice in the parliament which – by and large – shares the Commission’s integrational ambitions. The system now favours, therefore, the appointment of a president dedicated to furthering European integration. In any event, this does not in any way strengthen the powers of the member states.

Qualified Majority Voting

The final agreement is set out in an amended Article I-24. To say that the procedure is mind-bogglingly complex is something of an understatement. The text actually does not make sense but, as far as I can work out, there are two stages:

Firstly, a qualified majority shall be defined as at least 55 percent of the members of the Council.

However, the majority must comprise at least fifteen member states which must collectively comprise at least 65 percent of the population of the Union (which is actually 60 percent of the member states).

Then, the "blocking minority" must include at least four Council members.

Only if all three hurdles are surmounted are the conditions satisfied.

However, just in case you thought you understood it, when the Council is not acting on a proposal from the Commission or from the Union Minister for Foreign Affairs, the qualified majority is 72 percent of the members of the Council, representing Member States comprising at least 65 percent of the population of the Union.

Then, there are separate cases, where only some Council members have the right to vote, such as with enhanced cooperation or Eurozone.

In these cases, the percentages are applicable only to Council members which have the right to vote and to the population of the Member States which they represent. The blocking minority will be "the minimum number capable of constituting a blocking minority through the population criterion plus one".

If anybody understand all this, perhaps they would be kind enough to explain it to me.

European Parliament seats

Article I-19 (2) refers.

The Article sets out that the EU parliament should be composed of "representatives of the Union's citizens" and limits its size to 750 members.

Crucially, it then requires that "representation… shall be degressively proportional", with a minimum threshold of six MEPs per Member State. No Member State can have more than 96 seats.

This means that Malta, with a population of 380,000, and Luxembourg with 440,000 (approx) will each have six MEPs. On the other hand, the North East Region of England, with a population of 2.5 million, gets three. That is democracy, EU style.

Provisions specific to euro members

Here Article III-92 (2) sets out the conditions for new entrants to the euro. Basically, if the Commission proposes that non-members satisfy the conditions for entry, the Council can admit those members as long as a majority of the eurozone members agree, that majority comprising eurozone states with at least three fifths of the population of the eurozone.

Co-ordination of economic policy

Articles I-11 (3) and I-14 (1) refer.

These require, respectively, that the Member States shall co-ordinate their economic and employment policies "within arrangements as determined by Part III", which the Union shall have competence to provide, and that Member States shall co-ordinate their economic policies within the Union.

We then have a situation where the Council shall adopt measures (proposed by the Commission) "in particular broad guidelines for these policies".

These must be taken together with "Part III" and in particular Article III-69 (1) which specifies that the "activities of the Memeber States and the Union" shall include "...the adoption of an economic policy which is based on the close co-ordination of Member States' economic policies... and on the definition of common objectives".

These Articles, therefore, are of immense importance as they give the Commission direct power to interfere in and dictate the economic management of member states. And, because the voting method is not specified, the "default" applies, as per Article I-22 (3), making proposals subject to QMV.

The Treasury – meaning Gordon Brown - was apparently unhappy about conceding the veto on economic policy but seems to have been convinced that the use of the word "co-ordinate" was so vague as to be "harmless".

If that is truly the view, it grossly underestimates the power and persistence of the Commission. As we all know, if you give it an inch, it will take a kilometre. "Co-ordinate" can be interpreted very widely if there is inclination to do so.

Here, the construction of the wording in Art I-14 is interesting: the Council shall adopt measures "in particular broad guidelines…". While it may focus on those "broad guidelines", it should be noted that the wording does not confine the Council to them. By any measure, a major power has been ceded to the EU.

The UK is, in effect, obliged to subsume its general economic management to the EU, and pursue the "common objectives" set by the EU. Given the vital nature of economic management, can it be said that any country which is not able to define its own economic policy is truly independent?

Stability and growth pact

This is a particularly contentious area, with the Netherlands and some other small countries wanting the Commission to take a tough line on defaulters – as against France and Germany (as well as Italy) seem intent on ignoring the pact.

The Dutch wanted the controls toughened, but the Irish presidency have "bottled out" and produced merely a rhetoric-filled "declaration" which concludes:

"The Member States look forward to possible proposals of the Commission as well as further contributions of Member States with regard to strengthening and clarifying the implementation of the Stability and Growth Pact. The Member States will take all necessary measures to raise the growth potential of their economies. Improved economic policy coordination could support this objective. This Declaration does not prejudge the future debate on the Stability and Growth Pact."

In other words, rien.

Excessive deficits

This one relates to the treatment of member states which stack up excessive deficits. Article III-76 (6) refers, which goes through the usual tedium of requiring the Council, "on a proposal from the Commission" and "having considered any observations which the Member State concerned may wish to make", and "after an overall assessment"… (not exactly user-friendy text is it!)

Anyway, once it's got all that out of the way, what it boils down to is that it can decide whether there is an excessive deficit and give the offender a slap on the wrist, telling it to sort it out…

In Community speak, that reads "it must adopt without undue delay", on a recommendation from the Commission, "recommendations addressed to the Member State concerned with a view to bringing that situation to an end within a given period".

The recommendations are not made public and – here is the interesting bit - the offender isn't allowed a vote on the Council, which acts under qualified majority voting, using the three-fifths population rule of the voting members.

What this amounts to is the Council setting itself up as a Kangaroo Court, with the Commission as a prosecutor, and then deciding on the sentence by majority vote. That would be the position Britain could find itself in, should it join the euro, being judged – say – by Greece and Italy – and not being allowed to vote.

Can you imagine the humiliation?

The Multiannual Financial Framework

This is one to watch, not least because when you drop this leaden phrase into a conversation, everyone stops talking and gapes in awe at your erudition… at least, I think that's what they were doing when I tried it. Translated from Community-speak, it does of course mean that you make financial plans spanning more than one year – not a bad idea in principle, although that’s neither here nor there.

The reason to watch this – as set out in Article I-54 – is that it has one of those famous "passarelle" clauses, which enable the European Council to turn a "unanimous" voting requirement into QMV – by a unanimous vote. The significance of this is that it amounts to making treaty changes – or changes which would have required treaty changes, if you catch my drift – without having to have an IGC, signing and that tiresome process of ratification.

Thus, under Article I-54 the Council can lay down a multiannual financial framework, acting unanimously after obtaining the consent of the European Parliament. But, if it feels like it, the European Council "may adopt, by unanimity, a European decision allowing for the Council to act by a qualified majority when setting out the multiannual framework".

The existence of the "passarelle" represents a partial climb-down by the "colleagues" as in an earlier draft the Council could act by QMV, so this is one of the "red lines" that Blair has managed to "protect". For now he has his veto but the colleagues have not gone all the way. They have left the door half open to revisit QMV at another time – when they have a different prime minister, of catch him/her at a moment of weakness.

The trouble with this clause is that our lot keep having to say "no" which puts them on the back foot. But say "yes" once and they’ve got you. You might say this is a "wobbly veto".

Charter of Fundamental Rights

This is one of Blair's "red line" issues, where he did not want the Charter to have direct application in British law. His idea was that the principles should apply only to EU laws.

To protect his "red line", the "colleagues" agreed to insert an amendment to the 5th paragraph of the Preamble of Part II, the whole of which is reproduced below with the crucial amendment in bold.

This Charter reaffirms, with due regard for the powers and tasks of the Union and the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention.
Clear so far?

And just to make this watertight, they have added a new paragraph 7 to Article II-52: "Scope and interpretation of rights and principles". This reads

The explanations drawn up as a way of providing guidance in the interpretation of the Charter of Fundamental Rights shall be given due regard by the courts of the Union and of the Member States.
Then, to nail the lid down, there is the "Declaration for incorporation in the Final Act concerning the explanations relating to the Charter of Fundamental Rights". This reads:

The Conference takes note of the explanations relating to the Charter of Fundamental Rights prepared under the authority of the Praesidium of the Convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention, as set out below.
That’s it folks… Blair’s red line. That’s telling them.

Oh, and by the way, you know that bit about "even closer union" having been removed from the constitution? Actually, it's still there. See the premable to Part II. The first recital reads: "The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values".

Funny thing is I don't ever remember "creating an ever closer union" and I'm not that sure that my values are that common.

More provisions specific to euro members

I really can't get my head round this one. This is an amendment to Article III-88 (1), which reads as follows:

In order to ensure the proper functioning of economic and monetary union, and in accordance with the relevant provisions of the Constitution, the Council shall, in accordance with the relevant procedure from among those referred to in Articles III-71 and III-76, with the exception of the procedure set out in paragraph 13 thereof, adopt measures specific to those Member States whose currency is the euro.
If you can make sense out of this, you need to lie down. No wonder Blair looked ill when he came out of the summit.


This is a seriously nasty one, which permits the creation of a European Union criminal justice organisation – an FBI equivalent. Amazingly, the bulk of the provisions in the draft constitution (Articles III-171 to 174) were agreed before the summit, including the so-called "emergency brake".

This is dealt with in an earlier Blog, click here, the procedure allowing any member of the Council which considers that a "draft European law" would infringe "the fundamental principles of its legal system" to refer the proposal to the European Council.

However, on the basis of "consensus" rather than unanimity, the European Council can send the proposal straight back to the Council, whence it can be approved by QMV. Yet this is supposed to be one of the vetoes that Blair has preserved.

But the only matter before the summit was one addition to Article III-174 (2). This Article permits the making of European laws to "determine Eurojust's structure, operation, field of action and tasks".

The tasks set out in the original version of the constitution were:

the initiation of criminal investigations, as well as proposing the initiation of prosecutions, conducted by competent national authorities, particularly those relating to offences against the financial interests of the Union; and

the strengthening of judicial cooperation, including by resolution of conflicts of jurisdiction and by close cooperation with the European Judicial Network.
To that was added, the "coordination of investigations and prosecutions" which Eurojust is permitted to initiate. This effectively gives Eurojust operational control of both.

But never fear – there is another safeguard, in the form of a "Declaration for incorporation in the Final Act". This reads:

The Conference considers that the European laws referred to in Article III-174(2) should take into account national rules and practices relating to the initiation of criminal investigations.
There you are, when Eurocops are trampling all over the crime scene, you will be comforted to know that the law under which they operate will "take into account national rules and practices".

Take into account? Red line? Pah!

Enhanced co-operation

This is the federalists' revenge – the provision that allows like-minded states to forge ahead with deeper integration, separately from the less enthusiastic states.

Article III-324 states that it is "enhanced cooperation" is open to all Member States and, once certain conditions are satisfied, authorisation to proceed is granted by the Council acting unanimously. While the Council and Commission are required to encourage maximum participation, unlike the Nice and Amsterdam Treaties, there is no minimum number of countries set for a co-operative project.

In the infamous Article III-328 we then have the mind-boggling statement that:

"Where a provision of the Constitution which may be applied in the context of enhanced cooperation stipulates that the Council shall act unanimously, the Council, acting unanimously in accordance with the arrangements laid down in Article I-43(3), may decide to act by qualified majority."

I am "reliably" informed that this means that the "inner core" of participating states can run their affairs under QMV, while others invoke unanimity rules. This may be the case, although that is not exactly what the Article says. Put it down to bad drafting and possibly the surfeit of Guinness consumed by the Irish presidency. Nevertheless, this provision does not apply to decisions having military or defence implications.

The upshot of all this, of course, is that we end up with a "multi-speed" Europe with the Europhile claiming that non-participating states will be "left behind" - as if that was a bad thing. Personally, if I saw a group rushing over a cliff to certain destruction, I would be very glad to be left behind.

Economic, Social and Territorial Cohesion

Article III-116 refers

You might wonder what such an arcane subject is doing in a "Treaty establishing a constitution for Europe" – and well you might. The answer is simple: pork-barrel politics.

The Article, in the way of things EU, starts off with high-flown phrases, stating:

"In order to promote its overall harmonious development, the Union shall develop and pursue its action leading to the strengthening of its economic, social and territorial cohesion. In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions."

And so it goes on, but the clue as to what the fuss was all about that brought it to the summit lies Article III-56 (2) (c) and an amendment to it. The sub-paragraph is reproduced below, with the amendment in bold.

2. The following shall be compatible with the internal market:

"(c) aid granted to the economy of certain areas of the Federal Republic of Germany affected by the division of Germany, insofar as such aid is required in order to compensate for the economic disadvantages caused by that division. Five years after the entry into force of the Treaty establishing a Constitution for Europe, the Council, acting on a proposal from the Commission, may adopt a European decision repealing the present point."

Get it?

With the accession of the former Communist countries, East Germany was looking at a marked reduction in state aid earmarked for reconstruction. Since this is where Schröder gets the electoral support which brought him into power – and keeps him there – the chancellor is dead keen to ensure the money keeps flowing.

Direct support, however, is not permitted under EU law, as "illegal state aid", so Schröder has finagled a provision in the constitution to make it legal. That is an example of the "Alice in Wonderland" world of the EU. When is illegal state aid not illegal? – When Germany stamps it foot.

The French have also got their pound of flesh, getting similar exemptions for their overseas departments, to add to already favoured Spanish islands, while the Germans have also got additional exemptions on transport issues, allowing them to support subsidies in East Germany.

But, clearly, blood has been flowing behind the scenes. Some countries wanted the German concessions struck out, but all they have achieved is a tentative time limit. In five years time, the Council may remove their exemptions. Don't hold your breath.


This a very contentious area of the constitution, which has led to charges that the EU is intent on getting its hands on British North Sea oil – which it probably is.

So contentious has it been that the UK government has been investing a great deal of political capital in neutralising the offending Article (III-157) so much so that the Commission asked for the emasculated remnant to be removed, believing that it could use its Single Market powers to better effect.

Nevertheless, the Article reappeared in the final batch of Irish presidency amendments, the text of which was approved at the Brussels summit unchanged. Actually, there are two relevant Articles, the first is Article I-13, which sets out “Areas of shared competence”, in which “energy” in included.

The substantive Article, though, remains Article III-157, which sets out the objectives of the Union’s energy policy. In establishing an internal market and with regard for the need to preserve and improve the environment, it aims to:

(a) ensure the functioning of the energy market,
(b) ensure security of energy supply in the Union, and
(c) promote energy efficiency and saving and the development of new and renewable forms of energy.

As always, the objectives are to be achieved through “European laws or framework laws” which, in the general order of things, are passed by the Council and European parliament under the co-decision procedure. Since no general method of Council voting is specified, the “default” procedure must therefore apply, which means QMV.

This then is another veto given up by Blair, although there are safeguards. Built into the Article (rather than tagged on as a woolly declaration) is the caveat that “

Such laws or framework laws shall not affect a Member State's right to determine the conditions for exploiting its energy resources, its choice between different energy sources and the general structure of its energy supply…”. And any laws which are “primarily of a fiscal nature” – such as an energy tax - have to be approved unanimously by the Council.

The caveat in the Article is then reinforced by a “woolly declaration” which states that:

“The Conference believes that Article III-157 does not affect the right of the Member States to take the necessary measures to ensure their energy supply under the conditions provided for in Article III-16.” This latter Article refers to steps taken to protect the Single Market in times of war or serious internal or external disturbances.

Generally, the Article is not as bad as it could be, in that it does not overtly permit the EU to take over British oil supplies, but it nevertheless affords it plenty of scope for meddling.

Authentic texts and translations

Article IV-10 new (2) refers

Makes provision for the Treaty to be translated into any other languages as determined by Member States which, "in accordance with their constitutional order, enjoy official status…".

This is a sop to the Irish, who made getting Irish recognised as an official Community language one of their presidency objectives. The "Conference" considers that the possibility of producing official translations of the Treaty in these languages "contributes to fulfilling the objective of respecting the Union's rich cultural and linguistic diversity…".

As Helen Szamuely observed, you couldn’t make it up.

The UK and Irish positions on border controls, asylum and immigration, judicial co-operation in civil matters and on police co-operation

These are set out in a protocol to the constitution, the difference between that and a “declaration” being that a protocol has legal effect.

In Article 1, both countries state that, subject to Article 3, they will

"not take part in the adoption by the Council of proposed measures pursuant to Section 2 or Section 3 of Chapter IV of Title III of Part III of the Constitution or to Article III-161 insofar as that Article relates to the areas covered by those Sections or to Article III-164 or Article III-176(2)a."

Section 2 relates to "policies on border checks, asylum and immigration" and Section 3 to "judicial co-operation on civil matters".

This is followed by Article 2, which states unequivocally that neither Section 1 or 2 shall apply, nor Arts III-161 (regulations on evaluating the implementation of Union policies) and Art III-164 (regulations on administrative co-operation).

This does look like a pretty watertight defence of Blair's "red line", except for one minor detail… Section 1 still applies which, inter alia, requires that member states:

"…shall frame a common policy on asylum, immigration and border control…".

Er… what red line, Mr Blair?


On the final page of the agreement is a “Declaration by member states”.

This is a “Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland”, noting that

"The Treaty establishing the Constitution applies to Gibraltar as a European territory for whose external relations a Member State is responsible. This shall not imply changes in the respective positions of the Member States concerned."

This is self-explanatory – the Spanish are not having Gibraltar… until Straw works out how to give it away.

Friday, June 18, 2004

It's all over - it's done!

So said Tim Franks, the BBC's Brussels correspondent. "They're just having a celebratory drink".

That actually says it all. While we waited for official confirmation of the news, the political elites of Europe are slapping themselves on their respective backs and knocking back the booze - no doubt at the taxpayers' expense.

Eventually, Blair came out to make his official statement, predictably claiming that the constitution was a "success for Britain and a success for Europe".

Dennis Macshane - already on his way to the airport - then refused in a telephone interview - to say how many vetoes had been surrendered. Notably, he avoided calling the treaty a "constitution", describing it as the "new rule book" for a "new Europe". That is the way they're going to play it.

As for Franks, he is only right in one respect - only the negotiations are "all over".

The media and campaigners will have the next go. Then, in due course, the focus will move to the Houses of Parliament - probably in November - when a ratification Bill is flagged up in the Queen's speech.

What is expected is that the Bill will be tied in with, or incorporate a Referendum Bill, giving rise to no doubt impassioned debates. The outcome will be that Parliament will give it approval to the treaty being ratified, subject to a referendum having been concluded.

This will clear the way for the general election - expected in the spring or early summer of 2005 - when the full utility of the referendum will become clear.

As in 1997 with the promise of a euro election, Blair will use it to neutralise the EU issue, allowing him to concentrate on domestic issues.

How far that will succeed is debatable as, technically, the treaty will not have been ratified. It will be open to Howard to campaign on a platform of repealing the ratification Act (technically, an amendment to the European Communities Act 1972), so that the UK can refuse to ratify without resorting to a referendum.

By this means, Howard could effectively turn the general election into an EU referendum - exploiting his party's relative strength on the issue.

If, however, we're back with Labour after the general, the referendum campaign will start for real and, in the fullness of time, the date will be announced. The best bet is that we are looking at the autumn of 2005, although it could be later.

Either way, the battle has effectively started.

Inching closer

As of eight pm, we understand that an agreement on the constitution has been reached but not formally announced. The member states delegations are scrutinising copies in their own languages before final assent is given.

This is a significant difference from the shambles at the Nice IGC when Chirac was reported to have been rushing around collecting up bits of paper from the meeting, only to disappear with them. It was then days before a final version of the treaty was made public.

There has, however, been no agreement on the Commission president. Attempts to decide on the lucky holder of this first class season ticket on the gravy train have been postponed.

Well, there’s a surprise

Seconds after five pm, an excitable Tim Franks, the BBC's Brussels correspondent, told the Radio 4 "PM programme" that it "could even happen while we're on air". Entirely predictably – and as predicted by this Blog – the assembled "EU leaders" are on the brink of deciding that "failure to strike a deal was unthinkable" and agreeing to the constitution.

With Irish foreign minister Dick Roche saying that agreement was "tantalisingly close", we have moved from situation where there were so many disputed areas that any agreement looked impossible, to the point where the stinking corpse has been resurrected and given an injection of life.

In a few days, now, it looks like it will lurch out into the daylight. Then the task of putting it back in its grave, where it rightly belongs, will commence.

Nevertheless, the "EU leaders" have yet to make up their minds on the Commission president, although the BBC is fairly sure that Herr Hofstid has been deep-sixed and the hunt is on for a compromise candidate.

However, since Blair has got enough of what he wanted to be able to claim his "victory", the "balance of dissatisfaction" must be maintained. It looks like Jacques will get the pick of the crop, and will chose deliberately in order to hack off the Brits as much as possible.

Meanwhile, stand by for an announcement…

And now to our "on the spot" reporter

It's terribly exciting I tell you. That nit Junker tried to run me down on Rue de la Loi (or maybe my head was in a book and I didn't notice the lights had changed).

And fortress Europe looks more like, er... a fortress. The APC-type police trucks are everywhere and the light shines beautifully off the barbed-wire as I stroll through the check-point to the pub. Funnily enough the pub was full of bored hacks trying to second guess what on earth was going on.

It seems that they are interviewing each other, Greeks (Greeks, not geeks) interviewing Brits on how they think a Belgian's chances are going, given that the Germans are supporting the Belgian and the Brits a Portugoose.

Me? I bought a drink and giggled.

A bicycle made for an unknown number

Just to show that this blog is not written by a bunch of political wannabes, I intend to boast again about my media appearance.

This morning I took part in a discussion on the Constitution, which was reasonably even-handed: an economist from the LSE telling us that withdrawing from the single market or, even the EU, would be economic suicide and a single taxation system is needed for a single market (one wonders what his students make of him); and a representative of Britain in Europe.

The BiE man thought there was no need for a single taxation system for the single market to function, citing the United States as an example, but tried hard to prove that the eurosceptics must be wrong because they have cried wolf so often and none of it has come true.

I represented the eurosceptic view, pointing out that a great deal of what we warned about has come true and talking about the serious problems with democratic accountability and shift in power that are in the Constitution.

The presenter was reasonably sympathetic to my point of view, proving that the shift in media attitudes is still there.

Among other things I pointed out that the vote last week showed quite clearly that the peoples of Europe, as opposed to the Euro-elite, are calling for a brake on the process of integration. Why, in that case, is there such a rush to pass this Constitution? Why is every slowing down or lightening of the burden seen as a terrible set-back?

Alistair Stewart, the presenter and newscaster, added that he had heard that argument from a number of people who were basically in favour of the EU and further integration. They thought that things were going too fast and going wrong. Re-thinking was called for.

And what did the man from Britain in Europe say? He went on about the need for changing the structures as the EU now consists of 25 members. (Clearly, he has forgotten that the Nice Treaty was pushed through using those very arguments.) Otherwise, he added, it will grind to a halt and none of the benefits will be seen.

The "benefits", one assumes, are a sclerotic economic system, intrusive legislation, protectionism and lack of political accountability.

After the programme I looked at the latest news reports and what did I find? Complete disagreement on every subject under the sun. Whether the argument about taxation between Blair and Chirac is for real, or, as my colleague has suggested, a farce put on by two posturing politicians, there are all sorts of problems there.

The small countries are banding together on the question of voting rights, clearly more interested in protecting their own interests then in making "Europe work", personal rows are breaking up all over the place and there is clearly no agreement on who is going to be the next President of the Commission.

The French and the Germans want Guy Verhofstadt as a "good European", though he is also a man who did as badly as anyone in last week's election [see Something stirs in Belgium]; the right-wing federalist EPP wants Chris Patten but as he is British, though a europhile, he is persona non grata with Jacques and Gerhard, that famous comedy duo; the British are still pushing for the Portuguese Antonio Vitorino.

This bicycle seems to have lost its steering rod. Or, to use another metaphor, so loved by the europhiles, this convoy is sailing in all different directions. In what way is it a convoy?

Where does that leave the rest of us? Well, apparently, the people of Europe are not wanted on the long trip to the utopia of European construction. They are not European enough. They will be informed in due course.