Beyond Brexit: UK Constitution upturned; Europe in a Human Rights Revolution

Review of Vernon Bogdanor: Beyond Brexit

Vernon Bogdanor excels in his analysis of the UK Constitution. He draws incisive conclusions about the major changes of the Constitution that have arisen from more than four decades of membership to the European Communities. He traces the change of model from UK’s unwritten constitution where Parliament ruled to the slow but sure movement where European “officials” in the Commission apparently pre-empt all.

As he wrote, and it is more apparent after he wrote, the Referendum, as an instrument of governance, has become the predominant factor in Britain’s Constitution.

The Referendum represents the most important challenge not only to UK because of Brexit, but because, by the disrespect of the referendum by Brussels as the primary instrument of democracy, Europe is entering a prolonged crisis which will overturn decades-long corrupt policy by politicians.

Early constitutions

Historically Britain did have a written constitution briefly under Oliver Cromwell. Before that, before the Anglo-Saxons arrived, and indeed the Romans, ancient Britons were governed by wise principles called the State Triads, the basis for our present Common Law. One of these defines the three governance principles:

• firstly, a referendum of all the people,
• secondly a parliament of 300, and
• thirdly a court where jurors or elders vote under its protection and privileges.

These ‘Laws of Wales’ were confirmed in the Magna Carta 1215.

The Referendum is now coming back to first place. It has changed how Britons think about their Constitution.

European Communities

Bogdanor does not dig so far back into history. But he is clear and detailed on the recent developments. He is right to draw attention to the fact that the original institution was the European Coal and Steel Community 1951 and not the “Common Market” 1957. His analysis of the supremacy of European law and the British lack of understanding of it is well worth a read.

The Continentals, however, have also failed to warn of the drift and resist the negative changes for all European citizens: the Democratic Deficit.

This is not something inherent in the Community system. In fact it was conceived as the most democratic system ever.

The two areas where his analysis is weak are the nature of European Democracy (as originally conceived and why it is ‘chloroformed’ under France’s autocratic president Charles de Gaulle) and the major change in the British constitution now that the Referendum is main instrument that outclasses even parliamentary decision-making. A more subtle and perhaps more important point is how to stop politicians cheating when a referendum is declared. This can be done when referendums do not have an adequate legal framework, for example, where the framework itself violates human rights.

Democracy is based on Human Rights

After the bloodiest of world wars and threatened by Soviet expansionism, the democrats who agreed on the Community idea, obviously wanted a democracy that would help west European democracies help themselves. They wanted to build together a better, freer world. The first step was the creation of a minimum standard for a country to be considered democratic. This was formulated in the Convention of Human Rights and Fundamental Freedoms of the guardian organisation, the Council of Europe.

This body and this entrance ticket may be considered the Bill of Rights and its guarantor for the future safety of Europeans and their States.

All subsequent treaties such as the European Communities had to be examined for human rights adherence and agreed by this body. And so they were. 

https://www.youtube.com/watch?v=3tcJKfuMYCk

Democratic blockage

What happened? Western Europe experienced an economic miracle for three decades that were unprecedented in its previous history. But in the 1980s it ran out of steam. Europe’s democratic engine is based on a ratchet system: it can go forward but not back. But for a while it can be blocked from advancing.

Europe gained its first Single Markets in 1953. De Gaulle stopped the advancement to what had initially been agreed: a transparent, open Council of Ministers and elections to European bodies. After de Gaulle’s departure in 1969 was when the reform to the high standards of Schuman democracy should have been made.

Alas, politicians, Continental and British, Irish and Scandinavian, preferred the neo-Gaullist system. European elections to the Parliament should be based on a single statute and one election, not 28 national elections that are easily manipulated. The closed-door Councils of Ministers remained. Politicians could thus abrogate to themselves excessive powers without public supervision.

The inevitable crisis

Today we are entering Crisisland: Brexit comes after barely surviving Greece’s Grexit and the continuing euro crisis.

Is the original democratic vision broken? Democracy needs the rule of law to sustain it. Law needs democratic glue to make it viable long-term.

Robert Schuman, the French Statesman who originated the Community method, created a new system to provide a partial (step-by-step) democracy in sectors to link and pacify ancient States and peoples, continually at war amongst themselves.

As Bogdanor says in his Gresham Lectures, Schuman initiated a ‘scientific experiment’ in democracy (speech at Strasbourg, May 1949). Schuman also said that democracy cannot be improvised. Progress is not automatic, nor, because of human nature, always in the right direction.

The Cause

This is where Bogdanor could have applied more of his analytical skills. After the war, the Community experiment was based on solid principles of good governance. The first document signed by the founding States in 1951 was buried by Gaullists in French archives. It was not republished again for fifty years. It is what Schuman called the Charter of the Community.

It is simpler than Magna Carta. It has one key right, the right of people to freely choose their destiny. True democracy contrasted with the Soviet system where the people could only vote for the Party and party dictatorship of the proletariat.

Democracy goes hand in hand with the first institution of modern Europe. That was not the EU or the Community but the Council of Europe, formed in Strasbourg in 1949. Its Rules of Membership – the Convention of Human Rights and Fundamental Freedoms – defined European values, Magna Carta rights on a broad European scale.

States and free populations that recognise these values of a free society are those that can call themselves European with freedom of thought, assembly, the press, presumed innocence in Court, and so on.

The Convention of Human Rights and Fundamental Freedoms now defines Europe more than geography.

Where did Europe and UK go wrong?

All the early treaties, 1951-57, were discussed at length in the Assembly of the Council of Europe to ensure they complied with human rights.

By the time UK joined NONE of the later ones were.

1950 European Coal and Steel Community, ECSC,

1953 European Defence Community, EDC

1953 European Political Community, EPC

1957 European Atomic Energy Community, Euratom,

1957 European Economic Community, EEC: Spaak Report.

The Community was considered a guardian of fundamental rights because it was within the Council of Europe system. For example, Article 3 of the EDC specifies the fundamental rights of the individual and rights of States.

1957-69 De Gaulle seizes power in France, stops elections.

1973 UK joined 3 Communities, ECSC, EEC (Common Market) and Euratom. But no elections to European Parliament and Consultative Committees took place.

1986 Mrs Thatcher agreed to reinforcing the Single Market in the Single European Act (SEA). But the politicians added more institutions. They were unpopular and few citizens agreed to them. This constitution-changing operation was mounted against British, Danish and Greek objections, only one referendum (in Ireland). Only nine of the 12 Member States signed the SEA initially in February 1986.

The politicians, meeting in the still closed-door Council of Ministers, created these new institutions for internal and external affairs and a hierarchical control by a European Council of heads of Government, after the pattern of de Gaulle’s system.

Constitutional change requires affirmation in referendums. In the UK, where some saw to where such constitutional change without popular authorisation could lead, a Referendum Party was formed with the aim of correcting government policy to the innovations without popular legitimacy.

The first cheat was to call the SEA a revision and not a treaty. The second cheat was not to have it analysed for Human Rights abuse by the Council of Europe. By this time the Council of Europe, side-lined by de Gaulle in 1957, was not allowed to interfere in the process or to pronounce on the diminishing human rights of these political operations. 

Human Rights by Force

The Community system had no institution called the European Council of Heads of State and Government. There was good reason. All European politics should be conducted in the Council of Europe and in Community bodies in open session.

The ‘Summit’ was an invention of Charles de Gaulle. He was the only Head of State allowed.

It provides fertile soil for an oligarchic control of European affairs without public supervision. In the Community system it was not even an institution, never mind a body with legal personality.

In the European Council, Heads of government could now meet in secret. Heads of government could decide what to do for their own advantage. They also had national majorities to pass them or force them through their parliaments. Later Treaties (Maastricht, Amsterdam, Nice, Constitutional and Lisbon) were forced through parliaments in rapid succession.

Once they leaders were agreed it was easy. All government parties with their parliamentary majorities did not have to take minority or popular voices into account. Some treaties were passed in spite of referendums blackballing them. Human rights? Forget it!

No Human Rights ‘interference’ was allowed from the Council of Europe. A substitute for proper Human Rights was penned, called the Charter of Fundamental Rights. Another fraud as it confused ideology with natural law rights.

It was forced through parliaments, in spite of its having been rejected in several referendums!!

Some Human Rights!

Impact of Human Rights

So what would happen if real Human Rights were restored and enforced in the Strasbourg Court? Sections of the present treaties would be resiled. What is the most significant section today?

The Lisbon Treaty was rejected by three States—France and the Netherlands when it was called the Constitutional treaty, and once by Ireland when it was called the Lisbon treaty.

Given a chance, UK voters would have rejected it with a large majority according to all observers. They were not given a chance. Politicians in UK and several other countries withdrew their already announced referendums.

The Lisbon Treaty does not pass the Council of Europe test. Nor does it pass the referendum test of popular support for a constitutional change.

What would happen if the Lisbon Treaty were no longer valid?

Well, for a start, there would be no Article 50. And no valid referendum of 23 June 2016. The people would have a choice of treaty. It is clear that across Europe, Lisbon treaty was unacceptable because referendums were banned. The only State, Ireland, that voted on it, voted against it. And then, under financial duress, Brussels politicians told the Irish to vote again!

A written Constitution for the UK?

Bogdanor concludes that UK is heading for a written Constitution. Scotland, Northern Ireland and Wales have such documents. These have been granted by the central Parliament in Westminster after referendums.

UK still has European Human Rights law that overrides even parliamentary Acts. So Westminster needs constitutional certainty.

Not so fast.

Much must be clarified first, primarily the voice of the people. This is the fundament of fundamentals. Neglected too long, the referendum is the most powerful, legitimising constitutional institution (with two others acting as helpers, parliament and the courts). Parliament is no longer seen as the main constitutional body that nothing can bind. The Supreme Court judgement in the Miller prorogation case shows that Government in Parliament is subject to judicial review and its decisions can be reversed and declared null and void.

(T)he Order in Council which, being founded on unlawful advice, was likewise unlawful, null and of no effect and should be quashed. This led to the actual prorogation, which was as if the Commissioners had walked into Parliament with a blank piece of paper. It too was unlawful, null and of no effect. 

Back to Constitutional Basics

Democracies are States or entities of the people ruled by the people for the people. Not closed-door oligarchies.

While no one doubts the legitimacy of the 1975 European Community referendum with its decisive result, the same cannot be said for David Cameron’s 23 June 2016 Article 50 referendum.

Why? The legal framework is missing. The May government said it was basing its exit letter on Article 50 of the Lisbon Treaty. The 1975 vote did not base itself on a treaty but the free vote of the people.

The legality of the Lisbon Treaty is quite dubious. It is a palpable fraud. Both Labour and Conservatives promised a referendum on the Lisbon Treaty. None came.

In reality referendums in France and the Netherlands had already rejected its articles. Later, six States, including the UK, were refused the possibility of a referendum. Why were they refused? Because the politicians knew and said at the time that these populations would reject the treaty!

Instead, in UK the treaty was passed off as agreed — without a referendum. But not only without one. It was passed off in direct opposition to the people. It was rejected in referendums in Ireland and in France and the Netherlands when it was called the Constitutional Treaty.

This sleight of hand must be rectified at first for future generations. A constitutional arrangement based on a fraud will not stand.

The people must agree to the Lisbon Treaty before it can be used. Only then can a problem free Article 50 be used as a basis for a referendum decision in Parliament.

The UK is in the midst of a constitutional revolution, comparable to the union of the United Kingdom. Now it is on the scale of the Continent of Europe (excluding only such States as Iceland, Norway and Switzerland etc who do not wish to join).

The Convention of Human Rights of Strasbourg supplies the baseline. The 1951 Great Charter of the Community defines the right of peoples to choose.

In the 21st Century the people in a referendum must agree every constitutional treaty.

An honest Europe cannot be built when politicians are allowed to fool the people in constitutional arrangements made in secret and without public assent.

David Heilbron Price

Eurdemocracy

25/XII/19

Britexit3 : What the UK must do BEFORE its referendum to leave the EU

FIRST Build Supranational Counter-Instruments!  (Part three of series)

What would be the nature of the instruments that would be needed for the negotiations? Here are some of the issues needing action BEFORE the UK Government sends its letter of withdrawal. The strategy requires implementation as soon as possible, even before the referendum.

If not the institutions may make implementation more and more difficult for serious negotiations. The eventual goal must be borne in mind.  The negotiation has to provide honest and fair solutions.

A bitter barter deal won’t cut it. It will be subject to endless renegotiations like the British rebate and the common fishing policy. Iceland has always maintained that sustainable fish stocks were the rock of its policy.

Not the EU. Secret political deals in Council ignored scientific assessments. Fish stocks were wiped out. Britain needs sustainability or it could be decimated by secret attacks at the Council of Ministers like the fish stocks. 

How can UK negotiate with Brussels when the institutions are not impartial? Take the Commission as an example. It has to act for 27 Member States plus the UK at the same time. Which side will it Commission favour since one member will leave and 27 will stay? How can it be impartial? Can the UK trust it? 

The Commission should provide an impartial overview of UK’s needs within Europe’s needs and interests. It doesn’t. How then can it be impartial when later it represents interests of States who are trying to displace UK and assert its supremacy?

In a recent outburst against the British Conservative group, President Jose Manuel Barroso said that unless they conformed to his idea of pro-European policy, the UK Independence Party (UKIP) would become the ‘first force’ in British politics for Europe.

Mr Cameron retorted the Commission is not respecting the UK’s government party and lecturing it. The strategy must counter the negative proclivity of the Commission thinking that it alone is right. It must do it before and not try to change the highly political Commission during negotiations.

Then there is the Council.  Britain has Europe’s strongest banking and financial sector – which many would like to see moved to the Continent. How can British multinationals be assured that they have fair and open access to the European Single Market without being coshed again?

The Council takes its instructions from the European Council of heads of governments. So what lessons are to be learned their about impartiality? After the 28 June 2013 summit, P.M. Cameron denounced as ‘unacceptable and ‘frustrating’ the one a.m. ambush on the UK rebate issue, supposedly finalized in February. “I just think this is no way for an organisation to conduct itself.” he added. 

The atmosphere could become far worse. The UK should not forget the de Gaulle’s NON. He refused Britain’s entry. Not once, but twice. He caused havoc to international negotiation. He did not discuss it in the Council of Ministers. Or his own Cabinet! Nor by formal letter or in an international conference but at a press conference! He ran the Community like it was his own backyard to exploit for agriculture and bribing politicians and voters.

Then there is the European Parliament. De Gaulle considered it a cipher. Today has gained powers with major financial powers of codecision from the Lisbon Treaty. This could wreck a carefully sculpted negotiation made with the Council. Anyone watching the debates in the EP can scarcely believe that it will take the negotiation lying down and with a benign smile. The Council’s Legal Service concluded that the Financial Transfer Tax was not legal. This did not seem to deter MEPs.

One political group declared in a press release:

Appealing to governments to stick to proposals for the introduction of a financial transaction tax (FTT), despite 'cynical' legal manoeuvring, Portuguese MEP Marisa Matias said the EU has a clear choice:
"Either we rescue politics and our society from financial markets or we can start to say goodbye to a common European project." 

The Court is another hidden danger. An appeal to a Court that favoured integrationist and ratchet federalism could years later strip off key decisions of the negotiation result. All hard, detailed work would be in vain if, years later, the Court reversed key aspects.

The EU has hardly improved democratically since de Gaulle’s day. The fruit of de Gaulle’s corrupt anti-democracy was the misdirection of Community funds into Wine Lakes, Meat Mountains, and Cheese Bergs. Millions of Europeans’ money were wasted on local politicians’ pet infrastructure projects of bridges and autoroutes that went nowhere. 

The entire budget system which takes taxpayers’ money and spends it as the political Politburo decides lacks transparency and control by taxpayers. Today we have airports that have no passengers and other much more expensive wastes of taxpayers’ money.

Even worse the politicians’ ill-founded Euro project (intended by many southern States to get Community funding for governmental mismanagement) costs around seven times the entire EU budget by its European Stability Mechanism ESM, European Finance and Stability Facility, EFSF and other dubious operations of the Fiscal Compact. It is often said that ‘EU is not prepared to make changes.’

It has continuously lost public trust as it has changed from the original idea of a democratic Community of equal partners, equal governments, equal enterprises, unions, consumers and equal individuals. Today it run by party political machines, who are lobbyists for who knows whom. It is a political club run in secret by a politburo in the closed-door European Council and the EuroGroup.
It chooses the Parliament president in secret.
It makes Foreign Policy in secret.
It names the European Central Bank president in secret.
It appoints the Commission president in secret from among its own, ignoring 98 percent of the European population.

But the UK has real Membership leverage to bring reform BEFORE the Exit Letter. How?  The second key aspect of the negotiation is the pre-reform of institutions to make them really democratic.  Only when the basic conditions are settled for a democratic discussion, should the UK government think about sending its official letter about leaving the EU.

Euro10: The Commission to skivvy for an above-the-law, non-EU, 'tax haven' company?

Grave defects in THREE current treaties and agreements will affect your money and Democratic structures across Europe — for the worse. The European Council is trying to force through unethical and undemocratic treaty proposals. It aims to create the European Finance and Stability Facility/Mechanism (EFSF), the European Stability Mechanism (ESM), and the Fiscal Compact (TSCG). They will radically change your life and all Europeans. It is giving short shrift to democratic debate either in national parliaments, the European Parliament and trying to stifle public debate.

It took ten years to force through the irresponsible Lisbon/Constitutional Treaty against the expressed will of the people, asserted in referendums and public opinion. Now it is trying to do the same in one year with three treaties that are not even properly subject to the European institutions — and the European Court of Justice. Each treaty pushed through against public opinion and court battles produces ever decreasing political legitimacy and plummeting public trust.

It is highly dangerous. Why? Because the treaties abandon common values of Democracy of Member States. They subvert supranational principles about how to create a sound money in a Community composed of many and varied economies of 27 States, each with their own history.

ONLY a Community system with proper elections and independent institutions can safeguard a Community currency. Wishful thinking of politicians telling each other not to be too greedy and corrupt will not work. It will end in a deeper crisis.

Will politicians succeed in destroying sound money by their shenanigans behind closed doors? Will the Commission be turned into a toothless secretariat? Should politicians ‘task‘ it for their own dubious purposes? Or should it be INDEPENDENT?

Would you agree that government ministers,

• some of whom have been accused or shown to be guilty of fiddling the books,
• fraudulently breaking European law,
• undermining the currency,
• being involved in political corruption,
• or knowingly colluding with those who do so in secrecy

should HAVE LEGAL IMMUNITY FROM COURT ACTION? Should all their staff be:
“immune from legal proceedings with respect to acts performed by them in their official capacity and shall enjoy inviolability in respect of their official papers and documents. ”
Politicians have created a fraudulent EURO that ignores the Community democratic rules. Their aim was to hide national fraud behind a European cloak — without democratic control or proper elections.  If they were again involved multibillion euro fiddles, why should they be above all Courts of Law? Does anyone have a guarantee that politicians will always be moral and never make any mistake? Democratic control and the Law are there because politicians can be immoral and often make mistakes.

Do you think the public should have a say before this legal immunity of the political class is applied? Should the legal framework be decided by those who have previously been found guilty of wasting billions of taxpayers’ money? Should LAW be INDEPENDENT of Government, especially those who control the budget?

The concept of a supranational and democratic Community demands that the Commission must be independent and composed of universally accepted fair-minded individuals. Their task is to PROPOSE to politicians measures that will be to the benefit of all Europeans. When politicians and government ministers want the Commission to be their secretariat acting at their dictates, the idea of Community is turned upside down. It is hegemonic rule by a Council Politburo. In the past the Commissions were almost entirely non-political. The European Commission was created so that politicians could not turn Europe into a zone of corruption and warfare. Corrupting the Commission and making all members colluding fellow politicians is to place the fox in charge of the chicken-house and all the EU budget too.

What do YOUR lawyers, paid for from your taxes, the Council’s own  lawyers, say about these bizarre and extraordinary proposals?

The Council refused my request to see the Legal Opinion of their Legal Service on the following non-Community innovations: the EFSF (European Finance and Stability Facility), the ESM (European Stability Mechanism) and the Fiscal Compact (the Treaty on Stability, Coordination and Governance in the Economic and Monetary Union), TSCG and similar matters. I appealed, reminding the Council that it was both URGENT and of major financial importance, and needed for democratic debate.

After the longest delay possible according to the Freedom of Information Regulation 1049/2001, the Council again refused. I therefore introduced a complaint to the European Ombudsman (0862 /2012).  The Council again refused to supply documents paid for by the tax-payer and vital for a democratic debate on what exactly is happening on the Euro crisis. The so-called rescue mechanisms cost multiple times the annual budget of the EU. The crises involve politician-generated frauds and Treaty-busting overspends. Now the politicians expect the public to have politician-generated solutions, legally secure as a sieve. They will waste oodles of money for generations to come.
The following is my reply to the Ombudsman, awaiting his decision.

Council’s Refusal to supply Legal Opinions on the EFSF, ESM and Fiscal Compact.
Please refer to my earlier correspondence with the Council.
The Council has chosen only to reply about the Fiscal Compact, the Treaty on Stability, Coordination and Governance in the EMU.

My reply is in three parts:
(A) The lack of sensitivity and sense of proportion of the Council/European Council to democracy in monetary matters, given its huge financial and democratic importance;
(B) Legal position – the refusal to show a Legal Opinion is in violation to the treaty articles and European court judgements. The Council position is untenable and hypocritical because parts of the legal Opinion have already been published by some Parliaments. Publication is normal and required in any civilized democracy. Legal opinions must be published for democratic debate.
(C) I also ask the Ombudsman to investigate if other Legal Opinions exist for the ESFS Agreement and ESM treaty, by hiding them in other contexts. The ESM treaty for example gives legal immunity from Court action to the staff of the ESM and tax-free status for staff. This is a highly controversial matter given the number of governmental frauds exposed during the euro crises. The ESFS Agreement results in a private company in Luxembourg, ‘tasking’ the European Commission, a tax-paid, EU civil service in the public sector, ‘to perform certain duties and functions as contemplated by the terms of the Agreement’ (Preamble 3). Is the Commission a public or a private body?  The Agreement is contracted according to English law and may be dealt with by Luxembourg Courts, although the position of the Commission to act or complain remains dubious as it is considered a skivvy of the Company and only Member States are mentioned in legal action (Art 16). Has the Commission become the private secretariat of a Luxembourg company?

A. Importance of the issue.
1. Practically unlimited amounts of money is involved. Public liability to irresponsible politicians’ action is at stake. A group of countries but not the whole Community of 27 Member States is proposing to implement monetary innovations that represent a budget of FIVE or more times the entire EU budget without proper discussion or control through the EFSF and ESM with dubious control through the Fiscal Compact. The proposed solution lacks adequate democratic supervision. It involves ministers setting themselves up in a private company in a location that many of them previously denounced as a tax haven and subject to utmost secrecy about banking transactions.

Süddeutsche Zeitung, 31 July 2012
France and Italy favour giving the ESM “virtually unlimited firepower” via ECB liquiditySüddeutsche reports that a number of eurozone member states, including France and Italy, as well as leading members of the ECB Governing Council, favour granting the eurozone’s permanent bailout fund, the ESM, a banking licence – which would give the fund “virtually unlimited firepower” beyond its projected 700 billion euro via an open credit line at the ECB. Handelsblatt cites the ECB’s former Chief Economist Jürgen Stark as saying that “an ESM with a banking licence would be a clear violation of European law.”
http://www.sueddeutsche.de/wirtschaft/schuldenkrise-in-europa-eu-staaten-wollen-euro-schutzschirm-ohne-limit-1.1426870

2. Anti-democratic procedures and obscurity adopted by governmental leaders. The subject was discussed at what was a mixed meeting of EU heads of Government and States plus a Eurozone meeting of these leaders (which does not have legal status in the treaties.)
In this case it is not clear who is in charge. Is it the European Council, the Council of Ministers or a grouping of government ministers of the Eurozone? The latter, the ‘Eurogroup’ is an informal group according to the treaties. It is not a decision-making body.
3. Legal obscurity. Only the full Council is regarded as an institutional body for legal decision-making. Thus any decisions taken by the Eurogroup are legally dubious.
4. The euro is in crisis, we have been told, for the last several years. Now politicians say it is urgent and the new arrangements must be done rush, rush, rush. All this while the legal status is highly dubious. This tactic is unworthy of democracies and more common of tin-pot dictatorships trying to fool the public.
5. The European institutions and European national governments have a responsibility to act fairly, lay their cards on the table and take the public into their confidence as the leaders are supposed to be representatives of the public. Legal Opinions are owned by the taxpayers.
6. The EU leadership is presently in a critical low of public confidence, mainly because of lack of accountability of the EU budget, lack of proper accounting procedures where the EU budget has failed to be signed off.  TRUST in the EU leadership has fallen to the lowest level EVER, 31%. http://ec.europa.eu/public_opinion/archives/eb/eb77/eb77_first_en.pdf
The European Union and Communities and intergovernmental conferences have institutions that are there for democratic discussion once information is supplied. The draft treaties have to be discussed for safeguards in national parliaments and other democratic fora before ratification.
7. The politicians – whether of the Council or the Eurogroup – have shown great reluctance to present relevant information to the public. I asked Council press officers on 30 January for the Legal Opinions. They did not have them to give me. Instead I was forced to ask via the website, which is more suited to historical archives than news journalism.
8. The response of the council is mechanistical lacking any sort of sense of urgency, proportion or public responsibility. It involves obfuscation and denial rather than democratic accountability, given the enormous sums of money and political implications involved.
9. Political leaders refuse to open a debate on this multi-billion matter. MEP Francis Wurtz said recently ‘It is not because votes in the Council are supposed to be public, or that debates in Parliament are obviously public, that democracy is safe. Everything possible is being done, not through negligence but as part of a strategic design, to avoid feeding understandable information to the man in the street and to avoid a debate on public ideas, in other words genuine grass-roots democracy. You just have to look around you! Speaking on TF1 on 9 September, François Hollande discussed the crisis and the budget, but he did not say a word about the treaty.’

B. Legal position

a. Turco Case. European Court of Justice 1049/01 PRESS RELEASE No 43/08 , dated 1 July 2008
Judgment of the Court of Justice in Joined Cases C-39/05 and C-52/05 Sweden and Turco v Council and Others
THE COURT AUTHORISES, IN PRINCIPLE, ACCESS TO LEGAL ADVICE GIVEN TO THE COUNCIL ON LEGISLATIVE QUESTIONS
The transparency of the legislative process and the strengthening of the democratic rights of European citizens are capable of constituting an overriding public interest which justifies the disclosure of legal advice.
Mr Maurizio Turco said later: Democracy and the Rule of Law are based on publicity of the laws and of the decision-making process, hereby including all acts (proposals, amendments, discussions, votes, legal opinions, reports, etc) that are examined and contribute to the determination of a decision having effects on citizens. The EU, as well as Italy, has to guarantee these fundamental principles that allow for citizens to get closer to institutions and to participate in public life, following the principle that it is necessary to have the possibility “to know in order to deliberate“.

b. In’t Veld Case. European Court of Justice Sophie in’t Veld vs the Council
It was the General Court’s judgement in Case T-529/09 to annul the Council’s October 2009 decision insofar as it refuses access to the undisclosed parts of the requested document (11897/09) other than those that concern the specific content of the envisaged agreement or the negotiating directives and considers overall that both the Liberal MEP and the Council were “partially unsuccessful” in their endeavour. The parties will have to settle between themselves what can be disclosed.
Ms in’t Veld – who earlier this year drafted a report for the parliament’s civil liberties committee calling on MEPs to reject the EU/US agreement on the data transfer of flight passengers – described the ruling as “a step forward for transparency in Europe” which establishes a precedent that “negotiations on international agreements are not automatically exempt from EU transparency rules.”
Other ECJ judgement reinforce this requirement for the Council to share Legal Opinions. Publishing opinions is not only a treaty obligation, it is an obligation for democratic debate (TFEU #288) and elsewhere already cited in my correspondence with the Council.

c. Part of the Legal Opinion has already been published!
It is ridiculous and hypocritical to refuse access to any part of the Legal Opinion of the Fiscal Compact (TSCG). I have not been able to check what has been published in all 27 Member States but the following relates to the UK. The UK House of Parliament Library (UKHPL) Research Paper 12/14 of 27 March 2012 prints a number of extracts.
“Council Legal Service Opinion
On 26 January 2012 the Council Legal Service issued an Opinion on the compatibility with EU law of draft Article 8 and related preamble recitals, based on the fourth treaty draft. The Legal Service answered four questions:
1. Can the procedure foreseen be described as a dispute settlement mechanism between Member States?
A Member State considering that another Member State had not complied with mutually accepted treaty obligations “is enough to be regarded as a genuine dispute between them” if one takes action against the other. The initiators are Member States, not the Commission, and the Member States could be in breach of their obligations under international law if Court not seized. “There is no convincing reason not to regard Article 8 as a clause that aims at settling disputes between Contracting Parties, which are Member States of the European Union”.
UKHPL research paper adds
N.B. Paul Craig disagreed with the Legal Service view that the Commission was not directly involved in bringing an action before the Court. A negative report from the Commission would trigger a mandatory obligation on one/more Contracting Parties to bring the recalcitrant state to the Court: “The reality is therefore that the Commission is still ‘bringing’ the action”.
2. Can the clause be regarded as a “special agreement”?
Member States can establish in advance “a mechanism that may be made use of, in predetermined conditions, if a dispute happens” but only if the “speciality” criterion is fulfilled. Article 8 fulfils this criterion because it refers specifically to violation of Article 3(2). The Court is limited to reviewing the transposition only of the balanced budget rule, to be accomplished according to a defined legal framework and precise timetable. Therefore, Article 8 conforms to Article 273 TFEU because it “merely anticipates possible incidents of which the nature, the limits and the time of occurrence are known with a relatively high degree of precision at the time of its conclusion”.
3. Do the issues to be brought to the Court relate to the subject matter of the Treaties?
The provisions Contracting Parties adopt must give legal effect to rules that apply within the framework of the “revised Stability and Growth Pact” (Council Reg. 1466/97, as amended by Reg. 1175/2011). This is in line with implementing EU policies, e.g. to strengthen EMU and “conceptually and practically inseparable” from EMU as established by the EU Treaties. “Therefore, although as such the control of the adequacy of national measures transposing rules established outside the Union is not an EU law issue, the assessments required would necessarily involve consideration of problems of EU law and must for this reason be regarded as ‘related to the subject matter of the Treaties’”.
4. Does the Court have jurisdiction to impose “sanctions” on Member States following an agreement between them to have recourse to Article 273 TFEU?
Article 273 TFEU does not exclude the capacity of the Court to impose penalties, but the capacity must be explicit in the dispute settlement clause as it cannot be presumed, as must the procedures, since they differ from Article 260 TFEU. Imposing financial penalties does not alter the nature of the Court’s responsibilities because Article 260 TFEU empowers it to impose sanctions. Article 8(2) therefore does not introduce “an element alien to its existing practice”. Although the violations here are not of EU law, they are closely related to EU law (see note 3 above). Also, it is the Member State(s), not the Commission, which asks the Court to impose penalties, which “does not significantly affect the conditions in which the case will be treated by the Court nor the exercise of its powers”. Article 8 “broadly anticipates the framework that will apply to the norm” when the substance of the new treaty is incorporated into EU law within five years of entry into force, “while being entirely compatible with the legal basis of Article 273 TFEU” before that time.
The Research Paper adds the following:
Craig did not think the Legal Service opinion was the end of the story, as the questions of principle and legality remained unanswered:
The issue of principle presented above nonetheless remains relevant, even if the consent to the use of the EU institutions by non-signatories to an agreement such as the SCG was unequivocal and even if there was no external pressure. This is because the issue of principle in paragraphs 1-6 above is not dependent on whether particular Member States at particular times are willing to allow it to be circumvented.
For Craig the proposition that institutional powers granted under the EU Treaties or EU law could simply be “cut and pasted” into a different, non-EU treaty was “not legally or politically tenable” and “The fact that an EU institution has power pursuant to the Lisbon Treaty or EU legislation to do certain things, cannot per se legitimate use of an analogous power pursuant to a different Treaty”.

The UKHPL research paper adds:
Arrangements for legal procedures under Article 8 TSCG
At the signing ceremony on 2 March, signatories agreed an annex to be attached to the minutes of the signing ceremony on the arrangements for bringing a matter to the Court of Justice under Article 8(1) TSCG. The Annex clarifies that an application to the Court will be made by the Trio of Presidencies as set out in Annex I to Council Decision 2009/908/EU of 1 December 2009 (assuming there are no criteria which would exclude any of these three States, in which case the applicants will be the former Trio of Presidencies), in close cooperation with all Contracting Parties. Technical and logistical support and costs will be provided by the Contracting Parties linked to the case in question. Sub-section 6 provides that, on the basis of the Commission’s assessment that a State Party has failed to comply with the Court’s judgment, “the Contracting Parties bound by Articles 3 and 8 of the Treaty state their intention to make full use of the procedure established by Article 8(2) to bring the case before the Court of Justice, building upon the arrangements agreed for the implementation of Article 8(1) of the Treaty”.”

My Conclusions

1. I initially asked for Legal Opinions on the ESFS Agreement between Euro Member States and EFSF Société Anonyme of Luxembourg, the ESM treaty and the Fiscal Compact. I am surprised that the Council says that it has found only ONE Legal Opinion related to the Fiscal Compact and nothing for the EFSF, the ESM treaties. This contradicts what I was told. I would ask the Ombudsman to investigate the matter to see if the Council or some of the Member States, acting separately from the Council as an institution, have indeed asked any Legal Services of any description to provide Legal Opinions and are hiding these by a form of words. For example the ESFS is not a fully Community or EU framework. Yet it takes the Commission (EU civil service) as its servant, says that English law applies and that Luxembourg Courts may be used for disputes (Art 16). The issues are serious. The ESM treaty gives complete legal immunity to its staff in their actions (articles 32,35) and is able to set its own tax rates (arts 5, 35). This is more than disturbing given the nature of the Euro crises. Government frauds, statistical fixing and other matters, which would be prosecuted as crimes in private companies, have been uncovered.  Government action must be under control of democratic supervision and the law.
2. The Fiscal Compact involves a great deal of taxpayers’ money and its use, and should involve multiple democratic controls. For this reason any Legal Opinion must be made public. So should any other legal opinion relating to pseudo-European bodies or companies.
3. The Fiscal Compact Legal Opinion has at least in part been published by the UK House of Parliament Library and may have been published in part or in full by other democratic institutions. The refusal of the Council to publish it is contrary to ECJ judgements and normal democratic practice. Furthermore instead of publishing the document/s right away it has used the prolongations to refuse in the most uncooperative, undemocratic way possible.
4. The information requested is urgent and necessary as it is apparent that the governments refused to follow the Community-based guidelines to create a Single Currency given in the Werner Report. They have sought to use European institutions to hide fiscal and monetary irresponsibility in their own governmental systems as is apparent from the crises in Greece, Spain, Portugal, Italy, Ireland, France and also Germany etc. The timely production of this information is necessary for a wider debate on the future of the Euro.

Avalanche4 : the fate of the Euro, the political cartel and corrupt practice are thrown in the balance -- of Law!

Will the Euro survive? Will the European Union require stronger financial guarantees to make sure that there is not a knock-on collapse of the economies of eurozone countries? The targets of the financial market are euphemistically described as weak economies. Rather more than that is the core of the problem. Too often corruption is involved, from bending the rules, 'innovative interpretations,' bent statistics to outright crime, bribery and major fraud. The euro crisis has merely thrown this into high relief.

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.

However, 'short' does not mean unimportant. Obviously it is vital. It concerns money. Big money. The previous guarantee fund amounted to the equivalent of a nice round figure of a trillion dollars. That amounts to a couple of thousand dollars for every man, woman and child in the European Union. Handy cash. Once the public grasps the importance of issue, all sorts of questions will arise.

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."

(For those who are curious, 136 paragraphs 1 and 2 deal with strengthening national budgetary discipline and Community surveillance, not weakening it. Whether countries are big or small, rich or poor, east or west, north or south, maritime or inland, industrial, agricultural or touristical, as long as they keep their books straight, they pose no threat to the eurozone; they uphold it.)

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.

Budget3 Who will take the Council to Court for plotting to pinch public money and bringing European democracy into disrepute?

Can the Council and the European Council be taken to Court for illegal action on the budget? The question was raised following my last commentary. Billions of public money are involved in a time of austerity and financial crises.

The European Council, the Council of Ministers and the Parliament could all be potential offenders and taken to Court. Why? because they are raising taxes and attempting to increase taxes in secret. Further they are considering how to decide on the use of the tax money in secret. They do not only refuse to tell the public what is going on but they physically exclude the public and the press from meetings. This procedure is illegal. Right of entry or observation is involved. Legal action could be taken at this starting point.

Politically the exclusion is also neo-Gaullist. It is completely against the democratic principles of the supranational Community system where every cent could be accounted for -- democratically.

A good prima facie case can be made for bringing a case for illegal action. Firstly, to exclude the public and press from the Conciliation Committee is illegal. This clearly falls foul of Article 15.2. All official institutional consideration of even draft legislation MUST MEET IN PUBLIC. The Conciliation Committee agenda describes exactly the offending action: to consider financial draft legislation. Considering draft legislation is its purpose and that exactly falls under article 15.2. The Treaty paragraph says that an institutional consideration of draft legislation by Council or Parliament must be open. It was closed. It is illegal to exclude the press and the public. The press and any member of the public has the perfect right to complain to the Court.

The European Council was also considering draft financial legislation. They claim that are not covered by 15.2. That is dubious. They are definitely covered by the article 15 as a whole. The previous line, 15.1 demands they should reform their past habits and adopt an open format. They 'shall conduct their work as openly as possible.'

But there is much more to take into account. The Treaty section starts with Title Two called 'Provisions having general application'. The first article, Article 7 demands consistency between policies and actions. Thus the institutions should have consistent rules on open sessions and open formats.

As to the European Council's 'consideration of draft legislation', there is no doubt. We have also definite proof in the handout signed by the 12 government leaders that the budget increase should be held to 2.9 percent. They had a long discussion, that is, a consideration of draft financial legislation. They got deeply into details. We have the evidence of the financial discussions initiated by the President of the Parliament and the long discussion with him as further proof. He told the press afterwards he had never had such a long and detailed discussion with the European Council before. He told the press some of the details. This meeting should have been completely public as I have argued for many years based on Schuman's statements and principles.

Thus far more than 'General principles' mentioned by Mr Barroso is involved. In this case whatever the 'general principles' were, they were the same as a consideration of draft financial legislation. Even if they were only 'general principles' it is even more important that the session be open. What if the 'general principles' included how we can bilk money from the public without them knowing about it? What if we later found out that all the discussants were Mafiosi or were subject to inter-State blackmail? Should not the public know what the 'general principles' are and how they are arrived at? General principles mean the initial consideration of draft financial legislation. So the European Council's case of innocence is well-cooked if not burnt to a frazzle.

Outside the raw discussion of euros and cents, the European Council also discussed matters of mega-fraud. This involves the sum of more than 500 billion euros for a rescue operation. It sparked a lot of criticism. Are the government leaders solving the problem or compounding it? Are they partners in crime? Is there a question of collusion in crime? That is not only my question but one lying before the German Constitutional Court. The topic came up because one Member State (at least) fraudulently changed national statistics. Secondly, the State then misspent public money. Thirdly, when the chickens came home to roost, other States helped out that fraudulent State. Why did the other Member States bail out this fraud and possibly those of other Member States who did the same thing. Was it legal? The German Constitutional Court is considering aspects of the matter at the moment.

That is the reason why Treaty changes are necessary -- because the bailout may well be illegal as it is based on supporting and committing fraud in support of other fraud. Some governments feel that stronger measures against fraud should be written in a Treaty. No one denies Treaty changes were also discussed. As a general principle, should not the public know about this? Why should the fact be secret? The public has another reason for insisting on openness, a procedural one. That is to expose political fraud when governments do the opposite to public referendum results and put in place an unpopular, undemocratic treaty (such as the Lisbon/Constitutional Treaty).

Let us confine ourselves to the financial question of next year's budget. It makes no sense to have lower 'technical' financial committees open (even if they were) and the 'top people's Council,' who dictate the 'general principles', closed. That is like blaming bureaucrats and not the politicians who demand certain things are done. Or blaming soldiers and not the generals who order them to commit atrocities. The 'lower' Conciliation Committee was in fact attended by the Prime Minister of Belgium, the Parliament President, and the Budget Commissioner. Not exactly lower. That meeting of the Conciliation Committee should be open without doubt. And therefore so should the European Council on which the Belgian Prime Minister sits, and the President of Parliament comes to discuss exactly the same matter with the other 26 government leaders.

The moral argument is also important. There is case law. The public has a right to know everything about the raising of taxes and the use of its money. Representatives of the public should not close the doors on the public at any whim. This is especially the case when they are dividing up public money and deciding how much they should tax the public. It is not their pocket money.

The European Court has upheld the legal necessity of proper consultation before all legislation. Without proper consultation previously legislation was thrown out and voided. One important ruling was in the Isoglucose case in the 1970s. On the basis of this Parliament insisted that direct elections should take place. They were in the Treaties but had been refused for decades. European Parliament's members were nominations of governments in national parliaments. Nominations were the Gaullist way to keep democracy down.

The case was won by Pierre-Henri Teitgen arguing the case in favour of the power of a democratic Parliament and its prerogatives. Pierre-Henri Teitgen was a close friend of Robert Schuman in whose government he was a key minister. He was an eminent lawyer. He was later judge in the European Court of Human Rights, an institution that he was instrumental in creating. The Court said full procedural consultation was necessary before legislation could be declared valid.

Consultation with the public in the budget discussions was denied by physically closing doors. An official had a list of those who were allowed to enter. All others were refused. The treaty says it must be OPEN TO THE PUBLIC. This exclusion of the public at 2.30 pm on 27 October 2010 was an illegal act. Any other repetition at a Conciliation Committee is also illegal.

Anyone interested in how their taxes are being collected and spent should attend what the Treaty says is a meeting that must be held IN PUBLIC. The public is therefore welcome to come in great numbers to try to attend the next Conciliation Committee meetings. The dates are the 4, 8 and 11 November.

For details journalists should contact the Parliament:

Sara AHNBORG
Telephone number : (+32) 2 28 34018 (BXL)
Mobile number : (+32) 498 98 13 36
E-mail address : budg-press@europarl.europa.eu

Ron KORVER
Telephone number : (+32) 2 28 44659 (BXL)
Mobile number : (+32) 498 98 35 88
E-mail address : budg-press@europarl.europa.eu
The public should contact their MEPs or the Commission or the Council of Ministers.

The public is more than a partner in the legislation. It is the owner of the money and the boss of the people inside and running the institutions, such as European Council, Council of Ministers, Parliament and the Consultative Committees. It is therefore like the servants plotting how much they will take from the master's purse and deciding how they will spend it. The closing of the doors is an act equivalent to piracy, taking other people's money by a plot and physically excluding them from the plotting process of the theft.

That is the significance of the explicit articles of the Lisbon Treaty. What is common sense about the public's money is now written in Treaty law.

It is no small matter. Improper raising of taxes is the cause of centuries of parliamentary struggles, wars and regicide. It led eventually to much of modern governmental law and legitimacy. It is fully a question on the correct functioning of a democracy, where all decisions, according to Schuman's definition, have to serve the people and be agreed by the people. This issue with the 2011 budget is an open and shut case.

The question only remains: Who will take up the case?