Saturday, June 23, 2007

A big defeat for freedom and democracy

Early this morning the 27 government leaders of the EU reached a compromise on how a new European Treaty should look like. The intention was to revive the "dead" European Constitution by keeping all of its essential changes in a new compromise. This despite the French and Dutch "No" - votes in 2005.

What does this compromise, that will dramatically centralise decision making and threaten freedom and democracy all over the continent, if it would be implemented, entail?

- Some symbolic, non-essential things will be scrapped, as the name "Constitution", the simplification of the legal content, the preamble with all the fuzz whether God is or is not at the origin of European civilisation and also the reference to a European flag and anthem.

- The number of domains where member-states will loose their right to veto legislation remains quasi intact as compared to the Constitution: energy, tourism, space policy and transport are only some of the few domains where the EU will achieve more power, because member-states will loose their veto powers. A centralised migration policy will become possible. Also an EU attorney-general is now feasible, although the UK keeps it veto on justice matters. Veto’s luckily remain intact over foreign policy, defence and the EU budget.

- From 2009 on, there will be a permanent President of the EU and a Minister for Foreign Affairs (although some bureaucratic name will be given to the latter).

- The primacy of EU law has been confirmed.

- The Qualified Majority Voting system (used where member-states don’t have vetoes) will change from 2017 on, as it will then become more easy to make decisions: a majority of 55 per cent of member-states will suffice if this majority represents 65 per cent of the EU’s population.

- The Charter of Fundamental Rights (containing amongst other the “human right” on paid vacation) will become binding for member-states (except for the UK)

- France made sure that a key clause stating that it was an objective of the union to ensure an internal market "where competition is free and undistorted" will be scrapped. Although still legally unclear, some predictions say this could mean the end of the single market, as judges would now have to allow governments to subsidise, regulate and prevent competition.

- One positive change is that national parliaments will get a say in the law making process through an alarm procedure, as the non-elected European Commission will have to drop a proposal if a majority of national parliaments, 55% of member-states and a majority in the European Parliament decides so.

- The EU will obtain a single legal personality, which will make it possible to agree on international treaties, which shapes the EU more and more into a "state".

Important is to know that this summit was not an intergovernmental conference (IGC), but only an ordinary European Council of Heads of State and Government. This has relevance because states are only allowed to agree treaties when this happens in an IGC.

As the tonight agreement makes clear:

"The European Council invites the incoming Presidency to draw up a draft Treaty text in line with the terms of the mandate and to submit this to the IGC as soon as it opens."

Further in the conclusions we find:

“The present mandate will provide the exclusive basis and framework for the work of the IGC that will be convened according to paragraph 10 of the European Council conclusions."

Information thanks to the EU Referendum Blog, which claims that this constitutes a coup d'état. What is certain, is that this statement has no legal value whatsoever. The IGC is separate from the European Council (for example European Commission President José Manuel Barroso will not be present there) and because of that the IGC has not any restriction to totally abort the compromise that has been achieved.

Politically one could argue that it is likely that the IGC will just voluntarly do what the European Council asks, but that is not so sure, as it will be Gordon Brown that will determine the UK position then, and not Tony Blair any more. Brown is definitely more euro-sceptic and torpedoing the whole European Constitution thing could provide him with a lot of political capital. New EU president Portugal wants to have a – real – IGC deal in october , so with Gordon Brown in charge there is a chance that the compromise won’t survive the IGC.

However the biggest hurdle to take for euro-centralists will be avoiding new referendums. The other side of the medal that the content of the European Constitution has been safeguarded is that this makes the claim less credible that a referendum is not needed, in the UK, Netherlands or France. Gordon Brown will have to announce what his position is on the referendum question, at least after an eventual adoption by the IGC of the proposed compromise. Nicolas Sarkozy has already ruled out a referendum, and in the Netherlands the judges of the “Council of State” will have to decide on the question. Also Denmark and Ireland are legally obliged to have referendums if their sovereignty is affected, although they are doubting if they will hold one. Maybe other governments, or newly elected governments, will decide that a referendum will have to be organised, so there is still room for European Democray to stand up and resist.

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