Banned! Buried! Forbidden! Europe's Bill of Rights

EU Commission's Censorship from Jean Monnet to von der Leyen

David Heilbron Price Jul 13 2022

Banned!

Seventy years have past since Jean Monnet chaired the first meeting of the European Commission in Luxembourg. It was then called the High Authority. It is the central innovation of the European Community of Coal and Steel. It brought peace to Europe for the first time in more than two millennia.

How? It provided the democratic and just means to adjudicate between coal and steel cartels, the national and multinational entities (greater than States) that incited Europe to seemingly endless wars. The High Authority was acclaimed as Europe’s Honest Broker.

Was it honest under Jean Monnet? No, not really. Today’s troubles stem from Monnet’s mistakes.

The first major act of the High Authority was to assemble a bureaucracy and make available the Treaty of Paris to the officials. This was the international agreement that defined their work, their relations with other institutions and their goals.

The officials were all given a bound copy of the Treaty with a black cover.

But Horror of horrors! It lacked one essential document in the Treaty.

Guess what Monnet left out?

Clue: Monnet was concerned about the autonomy of the Community and wanted to run the High Authority unhindered. To make his position clear, he wrote to the Council of Europe Secretary General just days after taking office.

On 1 August 1952, he wrote to Schuman’s former colleague, Jacques-Camille Paris, then Secretary General of the Council of Europe. Acting under Foreign Minister Schuman, he had negotiated the creation of the Council of Europe as a Director for Europe at the French Foreign Ministry.

Monnet wrote (on notepaper of the Planning Agency, not the High Authority!):

‘The role and nature of the Council of Europe are, as you are aware, wholly different from the European Community.’

This was one of the first shots in what became the battle between the two Schuman institutions. It set the two organisations on different paths when they should have been working together.

Robert Schuman had made this clear when in August 1950, just after he had launched the Schuman Plan for the European Community, he presented to the Council of Europe the outline of the Community institutions and how they would work together to reinforce Human Rights in Europe.

The first three Community treaties (Coal and Steel, Euratom, EEC) were all discussed in the Council of Europe. Monnet’s ill-judged action gave later politicians the unfounded belief that they could create treaties totally independently of human rights considerations.

They could override rejections in national parliaments. They could ignore referendums that rejected their drafts. They could install these fraudulent treaties lacking public support as if they were authentically democratic.

The least the public should expect is that Community treaties have full public support. It should be democratic. That is not the case for the like of the Lisbon/ Constitutional Treaties. They are imposed on the public against obvious pubic rejection. Brexit was the consequence of this Democratic Deficit.

Charlie McCreevy was European Commissioner 2004 to 2010.

How did this happen? Was the first treaty defining the institutions defective or was Jean Monnet as president of the High Authority responsible for the problem?

The missing Treaty

The Treaty of Paris contains eight documents besides the text describing how the institutions of the Community work together in the European Coal and Steel Treaty.

The Treaty of Paris is composed of:

1.       Text of the European Coal and Steel Community treaty, ECSCT ,

2.       The Charter of the Community or Déclaration commune,

3-5.       Three protocols on

• privileges of officials,

• the Court of Justice, and

• the Council of Europe,

6-7.       French and German governmental letters on the Saar,

8 .      Convention dealing with initial and transitory measures.

Guess which Monnet (who was used to getting his own way) omitted from his little black book!

Was it the Protocol on the Council of Europe?

This would have been an impossible task. There were three protocols of equal weight legally. One gave the legal immunities of the officials as far as diplomatic privileges were concerned. A second defined the Court in the European Community system and how it should work. This shows the importance of protocols: the Court is defined by one of them. Thus to leave out the third protocol would be seen as contrary to justice and common legality. What Monnet did was to reduce its importance.

The Protocol’s aim was stated as to ‘establish ties as close as possible’ with the Council of Europe. ‘It was emasculated by the doggedness and obstinacy of Jean Monnet,’ said Paul Levy, the Director of Press and Information at the Council. But the essential survived, but often only in theory.

The Protocol described its relationship the Community as being one of a human rights guardian. It included, at first, shared membership of the two parliamentary Assemblies. Before they were elected, national parliaments delegated the Assembly members, Article 1. Thus if both had common personalities it was easy for them to raise human rights and transparency questions that might arise in the European Community in the Council of Europe. Action could be taken in the Court of Human Rights in Strasbourg.

The Protocol specified:

• The High Authority and the Community Assembly should send their annual reports on their activities to the respective bodies in the Council of Europe, Articles 2 and 3.

• The High Authority should inform the Council of Europe about the outcomes of recommendations it had given to the Community, (Article 4).

• Joint work together was envisaged in Article 6.

Monnet could and did minimise these stipulations in practice.

What could not be avoided was the document equivalent to a Bill of Rights, written legally in the form of a diplomatic treaty. He tried to eliminate it by leaving it out completely.

The Community’s Bill of Rights

The Charter of the Community providing the public and all participants of the institutions to appeal to Courts of law about corruption, lack of transparency and fairness. Two courts were available for this: the European Court of the Community and the Court of Human Rights at the Council of Europe (for a further, higher appeal).

This was the document left out completely of the printed copies.

Why was the Charter so important for the public and too much for Monnet’s tastes? It provided a guarantee that the institutions like the European Parliament should be open like a national democratic parliament, and the Consultative Committees should elected and open and yes! the Council of Ministers should also be open too.

In other words, politicians and representatives to the institutions should be held responsible to their electors, a record should be kept of their proceedings and the public could choose whether they would ‘kick out the rascals’ who behaved in a dishonest and autocratic fashion. That does not happen in autocracies of the extreme Right and Left.

The European institutions would therefore distinguish themselves from the People’s Democracies of Soviet controlled eastern Europe. Or as we would say nowadays from North Korea where the government ruled by edicts of a one-party State.

What the Charter says

The Charter makes clear that the Community is only open to democratic States who accept the Convention of Human Rights and Fundamental Freedoms. It describes how unity can be expanded in Europe through the Community system, not by creating a federal Super-State but by creating further Communities as the needs arise. They do not attack the basic sovereignty of the States but in fact add to their sovereign powers.

It restricts entry into the European Community to countries that are able to prove they have and retain fundamental freedoms like: freedom of speech — to criticise government — and freedom of assembly — to create their own parties and opposition movements able to criticise centralised one party States. They have freedom to own property, to create businesses etc.

Importantly they recognise the new constitutional form that is inherent in the Community system. It is neither an international organisation like a confederation such as NATO or the OECD, nor a federation like the USA or Canada. The Member States retain their own sovereignty. But the remarkable innovation is that these sovereign States agree by free assent to designate one institution, in this case the High Authority or European Commission, to have supranational or federal powers. As Schuman wrote the Community system lies midway between a centrally controlled federal system (or Super-State) and a confederal system where the State is unrestricted.

The Charter states:

In signing the treaty founding the European Community for Coal and Steel Community, a community of 160 million Europeans, the contracting parties give proof of their determination to call into life the first supranational institution, and consequently create the true foundation for an organized Europe.

The Community system has the means to bind the States in a way to organise key sectors (like coal and steel) or the nuclear industry in the case of Euratom, so that the common goal of eliminating intra-State war is achieved.

Thus a new hope for a peaceful future is created that encourages peace-enhancing collaboration and commerce across the entirety of the Community territory. Common laws and a means to justice in case of disputes cement the process.

Even before the work was set in motion, the virtues of the idea that inspired it had already aroused  in our countries and beyond its borders an extraordinary surge of hope and confidence.

Membership open to all as far as Russia

Schuman was asked about Russia when he made his Proposal on 9 May 1950 that all European countries (defined by membership of the Council of Europe) could become members of the European Community.

Could Russia become a member?

Schuman’s answer surprised many. ‘Yes of course!’

If Russia signed up to the above freedoms of expression and assembly then it would be welcome. That, incidentally would have made the monopoly power of the Communist party impossible. But it put Russia’s choice in stark relief. Did Russia want peace or want the monopoly of Communist control and ideological imperialism?

The European Coal and Steel Community could easily have been expanded to include Russia’s coal, gas and petroleum to the advantage of all.

Buried!

The Treaty Charter found no liking with Jean Monnet. It presented quite a different world view from his idea of creating a USA-style market in what would be a federal State of Europe.

It is questionable whether Monnet ever really understood the significance of the constitutional innovation that Schuman had initiated. The Community idea was like nothing that had ever occurred in history. The Community had just one federal element. It was neither a federation nor a confederation. It had democratic controls far more potentially powerful than any other previous constitutional arrangement of freemen.

Schuman was a constitutional lawyer of great international renown. He was educated in Luxembourg, Germany and France. He earned his doctorate in law at Strasbourg university. He called this third approach ‘a supranational Community.’ ‘Supranational’ is a term directly associated with his new constitutional idea. To help people comprehend the magnitude of political power and astounding novelty of this idea in constitutional history Schuman wrote a book about it, analysed it in legal terms, gave innumerable speeches and wrote many articles.

What did Monnet write? Little or nothing is in his archives. He made out to journalists that he was behind the idea of Community. This is a gross exaggeration. The drafts were written by Paul Reuter, Schuman’s jurisconsult in conjunction with Schuman and his Cabinet director, Bernard Clappier, a top grade financial expert who later became head of the Bank of France. Monnet was self-taught and had never gone to university.

Admittedly these drafts were written and discussed in Monnet’s offices. Why? Because the Foreign Ministry was full of Gaullists and nationalists, violently opposed to any concession to Germany or any other foreigner.

It is clear Monnet was never at the origin of the idea of a supranational Community. In his Memoires, he writes:

The High Authority was qualified as ‘supranational’ in the fourth draft {of the Schuman Declaration}. But I did not fancy the term and never fancied it. … Reuter made his contribution in this creative phase.’ p352.

Monnet later struck out the term supranational in a later draft. Reuter was a trusted legal aid for Schuman, a man of his confidence, who helped Schuman prevent officials at the ministry sabotaging his plans for European reconciliation.

Monnet later often told colleagues that he was wrong to agree to an authority above governments — thus he failed to understand what brought thousands of years of war! So Monnet learned little from Schuman.

Monnet had worked with Charles de Gaulle during the war. He owed his postwar position in government as the chief bureaucrat of the Planning Agency to de Gaulle. And de Gaulle was firmly against anything that opposed his idea of a nation-State of Napoleon or Charlemagne.

This may be another main factor why Monnet acted as he did and buried the Charter Treaty.

Forbidden!

Three Communities were created that set Europe on a new path for peace and prosperity. The last two, the Euratom treaty and the Economic Community were hurriedly signed in Rome in 1957.

The reason for haste was that Charles de Gaulle was about to seize power. Europeans knew that these treaties would not be signed by France once he was in control.

A decade of Gaullist power followed. De Gaulle tried to destroy the Communities and block any progress towards unity. He wanted to dominate a ‘Europe of the fatherlands’ by force of his power. His ministers boycotted the institutions for six months hoping it would break them. The Community turned out to be stronger than an autocrat in one Member State.

The Charter was not only buried deep in the archives of the French Foreign Ministry but the ideas of democratic and human rights control was sidelined and forbidden as de Gaulle fired up a war in Algeria to gain power and then attempted to douse the flames top establish his autocracy.

When de Gaulle was forced to retire following riots and insurrection, European politicians were left with a Community system without its vital Bill of Rights.

Some of these politicians were ministers under de Gaulle. They had lived through a decade of autocratic decision-making, closed door meetings without the public having a look-in on their own rights.

Politicians too often prefer to make decisions without public supervision. It makes their work easier and allows a moderate amount of corruption.

Then this became a major problem. Gaullist France used the Community as a private piggy bank. The Community’s Common Agricultural Policy got out of hand with more than 70 percent of the Community spent on subsidising farmers and paying for farm surpluses in storage.

Democrats forbid public supervision?

In April last year I wrote to Commission President Ursula von der Leyen asking that the Charter be published on the EU website and in the Official Journal as a founding document of the Community. Not having received a reply, I made a complaint to the European Ombudsman.

I still do not have an official reply from the President’s office, a year and a quarter later.

I also asked Commission, Parliament and Council representatives who launched the Conference on the Future of Europe to publish the document to aid discussion on democracy in Europe. They readily agreed.

The Conference on the Future of Europe is now past history. The Charter has still not been published in spite of reminders of the pledge to publish.

• Has the legal service of the Commission put the Charter under a censoring interdict so it cannot be published on its website?

• Is it too afraid of the legal implications of the Charter Treaty? If not why do Europeans not have their Bill of Rights published with other founding documents in the Official Journal?

• Does this censorship prove that the Commission is now a confirmed autocracy?

• Once the Charter is well known and published by historians and newspapers again, and seen on television and the internet, will the autocracy collapse of its monstrous hypocrisy?