Why at the December 2010 European Council did the leaders of 27 Member States promise to embrace their worst nightmare -- make a treaty change? It is specifically for the euro. After a decade of controversy and demonstrations over the Lisbon and Constitutional Treaty process, why rekindle a row? The meeting on the euro crisis was behind closed doors, so those most concerned, the euro users, were kept in the dark. An earlier treaty change to please Parliament was done in a secret Intergovernmental Conference. That was small beer -- to spend extra money and give some extra salaries to extra MEPs.
This one is the biggy. It involves the alleged means to create monetary stability by plastering the ever-increasing money wall with what passes for paper or electronic currency. It is to act as a dam against nasty market speculators who see that some national books are not yet kept straight. (Note that those who kept their books straight, like Slovenia, Slovakia, the Netherlands, Germany and Luxembourg, etc are not under threat. Malta, a tiny southern economy, has the confidence of investors.)
Any treaty change is dangerous for a political group or cartel. It is much more so if it lacks popular support and has acted in defiance of popularly expressed will of the people in referendums. But contrary to the last amendment this has to be visible. The government leaders therefore made it as short as possible hoping that:
- (a) it would not be noticed too much,
- (b) it would pass easily through the ratification process in 27 national parliaments
- (c) it would not cause rioting in the streets,
- (d) it would not provoke a court case that would declare that a public referendum was necessary in an off-shore island or elsewhere.
The European government leaders hope to get the following amendment to Article 136 of the Lisbon Treaty:
- '3. The Member States whose currency is the euro may establish a stability mechanism to be activated if indispensable to safeguard the stability of the euro area as a whole. The granting of any required financial assistance under the mechanism will be made subject to strict conditionality."
So why did the 27 government leaders change their mind? Instead of maintaining their previous chorus of 'No more Treaty changes, please!', all of a sudden they all say 'We all want a treaty change' and we want it NOW!' The amendment has also to get the European Parliament's approval -- and the EP previously set their mind against any treaty changes. Now they hope for an EP agreement before the Spring 2011. Are they two independent bodies who have coincidently arrived at the same conclusion? And what of the Commission? Is it independent too but also changed its tune to whistle in harmony?
(One thing all three bodies have in common is that all members are part of a tiny minority -- the two per cent of Europeans who are card-carrying members of political parties. There is not an independent person in sight. The second thing is that all the problems relate to political parties and their abuse of power.)
Why did the leaders not continue their well-trodden path by doing package deals in the secrecy of the closed-door European Council? Why subject this amendment to open parliamentary debate and dangers of failure?
The answer is simple: LAW.
The initiative to change the treaty comes from one country. That country eventually persuaded everyone else. That country is Germany. The person who did the talking was Angela Merkel, the Chancellor.
Why? And how was she so persuasive?
Germany is faced with a law case that challenges the legality of the outcomes of the politicians' secret sessions. If the case were unfounded, no one would worry. But we have 27 worried people who fear it might succeed. It might undermine the whole pile of secret package deals in the past. That could cause major chaos, as all the measures would unravel and there would be endless legal action. Frau Merkel made it clear that what they have been getting away with so far cannot last forever.
Many politicians think they are the last word and their deals are beyond the power of anyone to disrupt them. Their number even includes heads of State who have influence on all departments of State. No one is higher than we government leaders, some may think: 'We control the levers of power.'
They are wrong. The law, both the invisible supranational law and written law of the land and the EU, are always higher than any individual, corporation or abusive State. History has proved it.
In this case it is the law of the land that is now being applied. The postwar German Constitution was written by Germans who had experienced three wars in their lifetimes. Wars were fomented by reckless leaders and secret cabals. Konrad Adenauer, then a 72-year old pensioner, former mayor of Cologne, was chairman of the Constitutional committee. The next year, 1949, he became the first Chancellor of postwar German Federal Republic. He stayed as Chancellor for more than a decade assuring both a European transition and respect for the democratic rule of law in the post-Nazi generation. Germany was not immediately strong enough morally to openly oppose the anti-democratic abuses of de Gaulle in European politics.
Sixty years ago, before de Gaulle's seizure of power, Adenauer however co-signed on 18 April 1951 with other Founding Fathers such as Schuman the great Charter of the Community assuring the citizens right to choose. Walter Hallstein, a German law professor, president of the European Commission, together with his European colleagues resisted the most serious antidemocratic intrigues against Community law and attempted Gaullist sabotage.
German constitutionalists provided powers so that any citizen could complain to the Constitutional Court if they thought government leaders were abusing their powers. This type of recourse is open to other citizens in democratic States, but few have applied them against the monetary scandals. The German constitution made sure that the issue was clear as crystal.
That is precisely what happened in Germany. Even though a citizen taking on the State is no small matter, the Constitutional Court spoke out clearly. It provided a long judgement on the inadequacies of the politicians' deals at the Maastricht Treaty.
Now a further case is pending. Leading the 50 complainants is Professor Markus Kerber, a Constitutional lawyer. Another complainant is the grandson of Konrad Adenauer. The complaint questions the actions of politicians in supplying billions of funds in bail-outs when these are strictly forbidden in the Lisbon and earlier treaties.
Before the European Council met, Chancellor Merkel first had a private talk with the French President at Deauville. Why? President Sarkozy's predecessor, Charles de Gaulle, was often the initiator of the murky, secret package deals that brought European funds to assuage his voters. Thus were created the massive meat mountains, wine lakes, milk meres and cheese bergs.
We do not know what was said exactly to President Sarkozy at the Deauville rencontre, and later to the other 25 government leaders at the European Council. That remains a secret.
One guess is 'The game is up.' Without the respect of law the Community system cannot continue. Even the new intergovernmental distortions introduced into the European Union by the Lisbon Treaty will collapse unless the deals are supported by law.
However the treaty amendment is only the start of the process. It is questionable whether this proposed amendment, by politicians, for politicians to cover up a political scandal, will work. Nor can it act retroactively as a cover up of past corrupt practice. The legal case in Germany is not the end of the matter. There are 26 other national Courts that are open to such cases. There are also a couple of European Courts too.