Euro12: European Council defies Ombudsman over rigging of EU's Fiscal Pact

The European Ombudsman has strongly condemned the European Council for unscrupulously rigging the Irish referendum and parliamentary votes around the EU on the Fiscal Compact that controls the European economy. By withholding crucial documents, the European Council has deceived both the public and parliaments in Member States who passed the Pact as law. The Fiscal Compact is in reality an undemocratic Con-Trick. It violates basic principles of national and European democracy and law.

• How can parliaments judge whether the Pact is fair, if the European Council hides the facts?
• How can a referendum decide, if the European Council rigs the evidence?
• How can the public interrogate their parliamentary representatives if the flawed legal basis for taxation and expenditure is locked away in the Council’s safe?
• Can European institutions such as the Community’s civil service be exploited as a skivvy for the politicians’ own non-Community Pact?
• The euro violates rules for a Community monetary system. Dishonest book-keeping and fraud reduced the Euro’s real value by 75 percent. Politicians refused to follow the Founding Fathers’ supranational economic and monetary principles.

The Pact makes Council the supervisor of fraud! After the Ombudsman condemned the European Council’s maladministration, the same document was requested AGAIN. The European Council again defied the Ombudsman. It refused to provide the document. A further appeal was made to the Ombudsman, Emily O’Reilly, that the European Council should respect her judgements and basic democratic principles.  The Ombudsman metaphorically threw up her hands. She confessed that the Ombudsman could do nothing to make the European Council follow the rules except the European Court of Justice.

She replied to me on 26 August 2014 that

‘I believe that a new inquiry into the Council’s recent refusal of disclosure would be repetitive, since there is no new element that would distinguish the new case of the one which I already inquired into. Moreover, the follow-up mentioned above (where the European Council again reiterated its own position) shows that the Council has no intention to change its position in this regard. It follows that a new inquiry into the same matters would, in all likelihood, lead to a new critical remark, which would neither be helpful to you, nor would trigger any positive follow-up from the Council.’

What is this crucial document? The European Council produced an analysis on the Pact’s flaws in terms of EU law. For European citizens it covered whether within the Pact they could take the Council and Commission to Court for abuse and criminality associated with it. That is a fundamental democratic right of all citizens. This key analysis is vital for understanding the basis on which the European Council is attempting to control the lives of 500 million citizens and multiple trillions of euros.

The document analyzing the insecure legal basis of the Fiscal Pact was circulated secretively to some EU delegations. It was never rendered public, in spite of national parliamentary debates and a referendum. Yet it is crucial for Europeans to protect the nascent European democracy that has been so abused by the European Council fraud in the past.

In this Pact the European Council gave itself unprecedented powers over national budgets and imposed controls and reviews on government spending. The measures were forced through national Parliaments. Some national leaders refused to sign up to the Fiscal Pact. Thus the Pact cannot be regarded as EU or Community law. At best it is an international agreement masquerading as European law. Obfuscation.

The Fiscal Pact measures are so radical and further distort the Community method for European democracy that referendums in all Member States should have been mandatory. Only one country, however, was able to force a referendum about this measure. That was Ireland. Its constitution requires such matters with major democratic consequences be subject to a vote. Other Member States railroaded the measure through their parliamentary system. A bare majority sufficed. There was minimal or no public debate about it. In Cyprus, which was hit by a euro banking disaster that shook the rickety foundations of the euro, it was passed simply by governmental Decree thus bypassing parliament.

The European Council’s imposition of the Fiscal Compact bypassed all the usual democratic control of the European system such as the European Parliament, the Economic and Social Committee and proper public debate. The European Council has consistently blocked the legally required elections for these bodies. In this case they just ignored them.

Are the Pact’s measures legal? Have Europeans lost their democratic rights? The Court has yet to pronounce.

Robert Schuman, the initiator of the European Community, defined democracy by the goals the European peoples define for themselves, not politicians. He said that all measures must be ‘in the service of Europeans and acting in agreement with the European peoples.‘ In this Pact, the people were left out of the loop in one of the most important measures in recent European history.

A key issue of this Pact is whether Europeans will be able to take legal action against politicians’ abuse or criminality spawned by these ‘closed door’ measures. Were the people consulted? No. Did they call for it? No. Did they agree? Hardly.

The European Council is acting to prevent democratic control of its new powers. Specifically it has thumbed its nose at the Ombudsman in refusing to release documents of primary interest. It did the same to the citizen who pay their salaries and the cost of the legal document in question.

Who are these people who are refusing democratic control over taxpayers money?

The Fiscal Compact was brought in because of corruption of politicians who not only overspent their countries’ budget, but used national budgets in voter bribes to sections of the public while giving ‘tax breaks’ to party supporters. Then they cooked the books. The national statistics were bent, twisted and contorted to cover the fraudulent activity.

If this had happened in a commercial company the perpetrators would now be in prison.

But they are politicians. Now they have a Pact that puts them in the judge’s seat.

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.

Euro11: Ombudsman condemns European Council cover-up on legality of euro's Fiscal Compact

Maladministration on a grand scale! Who controls multi-billion funds that dwarf the EU’s annual budget by three or four times? Who ultimately controls the multi-trillion stranglehold that the Brussels institutions have on the budgets of national governments in the EU?  Who controls the Bank? Why are such mega projects excluded from Court action for fraud and crimes that the euro crises have already exposed across the whole euro zone?

If you thought some fiddling by MEPs or even small States like Greece, Portugal, Cyprus or Ireland was of concern, take a stiff coffee before reading on.

The European Ombudsman, Emily O’Reilly, has condemned the European Council and its secretariat in the Council of Ministers of maladministration for a cover-up and refusal to provide promptly legal information for public discussion on the  Fiscal Compact Treaty controlling Europe’s multi-trillion euro economy. The documents, essential for a proper democratic debate and consultation were requested two years ago in January 2012.

In spite of the Ombudsman’s ruling, the documents in question have still not been provided.

The Fiscal Compact is an international treaty and has not been signed by two Member States. Both the Czech Republic and the United Kingdom refused. Its relationship to the EU justice system is therefore questionable. For the European Court to act all Member States must have the measures agreed by democratic vote in a European treaty of all Member States. Then all the European institutions have their right to discuss and amend the treaty. The Council, Parliament, Consultative Committees all elected by democratic vote have to have their imput and rights on individual decisions and measures undertaken. The Commission should have clear independence. It should not be treated like a skivvy or slave of the Council of Ministers. It is not their Secretariat! Then the European Court of the EU can make its judgements when their is a complaint from any citizen, organization or State.

Signatories of an international treaty conversely, for example, NATO or the Council of Europe, cannot ask the European Union’s Court of Justice in Luxembourg to make judgements for them.

So what is the status of the Fiscal Compact?

It spends nearly half of its many pages with a Preamble with many indents or tear-jerking appeals of its Europeanness: Conscious of this, Desiring that, Recalling this that and the other of European goals and even institutions. The truth is it is not a part of the European Union or the Community. It is a separate international treaty, fixed up by some politicians in a fix. They have used all the lawyers’ skills and deceits to give a facade that it is part of the European legal system, as best they can. But they can’t. There are two members missing and only treaties inside the Community system embracing all members are EU legal treaties.

How can outraged European citizens or duped Member States appeal if other States do not comply with the Compact’s strictures? What can anyone do if some politicians treat the other States as financial patsies? That is just what the monetary crises in Greece, Spain, Portugal, Italy and Ireland and others are all about. The public’s conclusion is obvious. Some politicians are not honest, nor do they act honestly with the people’s money. Money deranges their judgement. They treat it as a slush fund to dole out to people they hope will vote for them. If they can’t get away with it at home or run out of money they tap into the prosperous countries that keep their books in order and have a surplus.

The full title of the Fiscal Compact is Treaty on Stability, Coordination and Governance in the Economic and Monetary Union. It tries to add additional bandages on the badly conceived and crisis-ridden Euro project.

The euro was made by politicians for politicians, hoping they would get away on a European scale with overspending and hidden financing they had all been doing since the 1970s. Then surprise, surprise, the public found out that the politicians cooked the books, not only in Greece but practically everywhere. In a commercial company that sort of duplicity and malpractice would have been considered criminal. But politicians say it is normal for them. They are only dealing with public money!

No wonder that the politicians’ main scam, the Euro, has experienced only 7 or 8 years of stability and convergent national bond interest rates.  That is a blink of an eye in the lifetime of a solid, stable currency. Why did interest rates explode again? It does not have solid monetary or democratic foundations.

The euro’s worth has fallen to a quarter or  fifth of what its value should be worth against stable stores of value. Its conception and management by the secretive EuroGroup, which is not an institution of the EU, flies in the face of any real Community democracy. A Community currency requires Community democratic control.

The other bandages that the Council politicians concocted in the privacy of their meetings, the European Stability Mechanism and the European Finance and Stability Facility with half a trillion euro and its Mechanism that leverages a few more billion from the EU budget. This created a company in Luxembourg to draw billions of loans and liabilities from international financial markets. Who is this money for? Why, the same States that are already seen as betraying the public’s trust in cooking the statistics and overspending their budgets. In other words the taxpayers will have to pay for any mismanagement in these operations too.

And what do we find in these treaties? Surprise, suprise! We find an assurance by the same politicians that anyone involved in these multi-billion operations, when seen to be obviously guilty of malpractice, is offered total legal immunity from prosecution!

Not only that no document will be available for public scrutiny. No document will be able to be controlled and judged by any court of law whatsoever! This is what the relevant article of the ESM says about its staff and their paper trail:

“ARTICLE 35
Immunities of persons
1. In the interest of the ESM, the Chairperson of the Board of Governors, Governors, alternate Governors, Directors, alternate Directors, as well as the Managing Director and other staff members shall 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. ”

Who are the governors? Why, the politicians! That is a paradise for crooks and crooked practice. It is an invitation to mega crisis.

The Background with my last commentary on this case can be found at Euro10.
The Ombudsman’s judgement on the Fiscal Compact cover-up can be found at
http://www.ombudsman.europa.eu/en/cases/decision.faces/en/53191/html.bookmark

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.

Budget12: Fiscal Union? No thanks! Open Letter on Openness to President van Rompuy and Parliament President Buzek

Some government leaders and commentators are advocating what they call a FEDERAL fiscal authority to tax everyone and spread this money to governments. Some call this a supranational authority. It is not. It involves reinforcing secretive, cartel-style politics.

But would a FEDERAL fiscal union and a new "authority" help at all? It would tax more money from the public to help those who are already convicted by the facts and public opinion to be

• untrustworthy,
• crooked,
• distorters of statistics,
• in collusion with each other in fraud,
• liable to criminal prosecution under the treaties.

Nearly all governments have shamelessly violated the treaties such as the Stability and Growth Pact to control budget overspending and inflation. (In a Community system overspending and inflation involves stealing from Member State partners as well as deceiving national citizens.)

A fiscal union without openness or proper democracy is a fraudulent fiscal compact or a cartel compact.

In the face of a European Court judgement a few years ago, they shamelessly thumbed their noses at it and said it was up to them to decide whether they -- France and Germany in this case -- would be punished for this violation or not.

The European Central Bank has shamelessly violated specific articles of the treaties -- and done the exact OPPOSITE of what it was supposed to do, because an unelected, technocratic President of the ECB decided -- without asking the public -- that it was necessary to deal with the long-term fraud committed by politicians over decades.

Will a 'normal' FEDERAL-style fiscal union stop fraud among European politicians involved in tax and statistics scams? No. The guardians are the politicians themselves! The Commission has been shorn of all independence. It is a politicians' club.

Will it open up the present secrets of what they discuss behind closed doors? No.

Will it stop the international cartel of political parties acting in their own interests? Hardly, it will only encourage it.

ALL THE LEVERS OF POWER WOULD REMAIN IN THE HANDS OF THE PEOPLE WHO HAVE PROVED THEIR UNRELIABILITY IN THE PAST! -- THE POLITICAL CARTEL OF MAJOR PARTIES, COLLUDING TO THE DETRIMENT OF THE CITIZEN! No checks and balances but reinforced cartel-power!

Supranational means international democracy. Robert Schuman defined supranationalism in terms of democracy and openness -- which is precisely what the Council and the European Council or the EuroGroup are NOT practicing. They want more secrecy now to hide the past and present scandals and political collusion.

What is proposed has nothing of democracy or light about it. If they wanted a supranational institution, it would be dead easy. A complementary supranational institution already exists that would instill HONESTY supervised by taxpayers. But it is in cold storage -- thanks to the Council.

A supranational Community system is a democracy of democracies. We have 27 member democracies at present. WHY should the governance system of European Union be typified by the hyper-secretive EuroGroup or the European Council whose main characteristic is that they do not let the public know what they are discussing, let voters listen to what is said, let companies, associations, trade unions hear what their reasonings are or how the so-called democrats propose to tax and spend the citizens' money?

In the case of the EuroGroup it is not even an official institution of the Community or the EU and it is the EuroGroup that is now ruling the roost. Its chairman says he has to lie for Europe. So the citizens cannot trust even his information about when it will meet. It makes secret treaties, sets up a shady company in Luxembourg that employs government ministers and tries to lever money as if they were a bunch of Wall Street derivative crooks. They lack the expertise. They are already far from the 1.4 Trillion that was boasted about after they set up this ramshackle operation. (That is more than TEN times the annual budget of the EU!)

They lack open confidence of saying whom they are acting for (their parties or their nationals in Europe?) and even their identity (democrats, ministers or perhaps pseudo-bankers, or even conspirators against the too powerful markets?). The dog's tail of the parties is wagging and shaking the nations. The Euro Zone Heads of Government now meet in an huddle or conference that is in NO WAY DEFINED OR REGULATED BY TREATIES. They are not sure whether to call themselves a European Summit, the European Council (which they are not! They exclude the ten non-Euro Member States) or a Council of Ministers (which they are NOT, even though they fraudulently use its letterhead paper to say they are all honest!)

How can Europe get honest finances again? Supranational democracy requires that the Consultative Committees -- the bodies for democratic associations in Europe like the Economic and Social Committee, the Committee of Regions and the equivalent body in Euratom -- be elected based on (1) a reference list of relevant European associations (2) elections within the list of those properly registered associations for a smaller number of seats in the appropriate bodies. (This was part of the Founding Fathers' grand design for Europe and is still active in the body for NGOs in the Council of Europe but has been blocked by Council in the Communities.) The elected body would establish the rules for defining what is a democratic association and what is to be excluded as an unrepresentative lobby.

The Consultative Committee of the European Coal and Steel Community -- even though not properly elected on a European basis because European associations did not yet exist -- was able to control the finances and the budget of the pioneer Community and make sure that housing for miners etc paid out of the European tax did not involve corrupt practice and that the European tax of the Community was properly collected from all firms in the Community. Europe had a real European tax until 2002 -- but this was stopped by the politicians when they decided not to renew the Coal and Steel Community Treaty for another fifty years.

At the start of the first Community politicians delayed the implementation of the changes to make the Consultative Committee a truly European body. They preferred to choose the members themselves which was the interim agreement. Then de Gaulle tried to move the European government system of the Communities to French control inside the Council with its closed doors. De Gaulle is long gone but his undemocratic deformations remain. Can they be reversed? Yes. They will be when we have Europeans with moral courage and honesty. The process of justice and democracy is ineluctable.

We, the citizens, are still waiting for the present Consultative Committees to produce plans for THEIR European elections. Don't hold your breath. The European Parliament took decades to fulfill the minimum electoral requirements in the treaties and still has not once had a proper Europe-wide election under a single electoral statute as required by treaty law.

Such Consultative Committees -- if active -- would have prevented the decades of corrupt and fraudulent practice among Member States, the bad construction of the euro and the present mortgaging of the future planned behind the closed doors of the European Council and the EuroGroup. (See the budget series on http://democracy.blogactiv.eu and the commentaries at http://www.schuman.info/news.htm )

The Consultative Committees should have specialized subcommittees on monetary affairs, representing various types of associations of taxpayers. These would be open and would eliminate much of the comitology -- which is neither open nor democratically approved.

Meanwhile both Parliament and the European Council make sure that Budget matters are dealt with the doors closed to the public.

What is to be done? I wrote to both presidents asking for justification, morally and legally, for what is clearly UNdemocratic practice. The following is the latest correspondence.

5 December 2011

Mr Herman Van Rompuy
President, European Council

Dear President van Rompuy,
A year ago I sent a letter asking for the legal and moral justification that the European Council closed the doors on meetings on the taxation of European citizens and budget expenditure matters. This is in opposition to the articles of the Lisbon Treaty. The treaty says clearly that all such matters, especially those dealing with the earliest consideration of legislation, should be dealt with openly. Morally, all Member States adhere to the principle that there can be no taxation without fair and open representation, which is then the basis for public awareness and public consultation. Consultation is impossible if the consideration of such vital financial matters is presented cut and dried by politicians, without public access to the debate so they can employ the means in the treaties to influence the decisions, to ensure control and provide adequate inspection of the results through properly elected Consultative Committees.

The public is showing increasing distrust of politicians and so are markets. This lack of open responsibility has now resulted in proposals for trillion euro operations mortgaging the future of the next generations. Even before the European Council was designated an institution in the Constitutional and Lisbon Treaties, it had the moral obligation to have open meetings. It did not. That was the reason that a decade ago the principles of openness were written into the treaties. Half a century ago Robert Schuman said that "the Councils, the Committees and the other organs {of Europe} should be placed under the control of public opinion."

Secret political 'deals' of the past are now paralyzing Europe. Why is the principle of openness and democracy still not being respected? European finances are not the property of politicians.

I am therefore sending this reminder, as I believe the public has a right to know the legal and moral opinion why the European Council deems it can close the doors while attempting to extract tax money and design its plans for spending public money.

Many thanks for your help in this matter.

Yours etc

A reminder letter was sent to President Buzek of the European Parliament with this complaint introduced to the European Ombudsman for non-response.

The Parliament has not replied to my letters. They deal with my exclusion, press exclusion and exclusion of the public to matters of primary importance to all, namely, holding secret, closed door meetings on taxation of European citizens and use of the budget.

I was excluded from meetings as noted in the correspondence. President Buzek's earlier argument made for exclusion is not logical or consistent. The Parliament excludes journalists and the public whether or not the Council is involved.

The Parliament says it upholds the principle of open meetings. As for the Council setting the rules in prima facie violation of the treaties, there is a simple way to resolve any potential 'bullying' of the Parliament by the Council. That is to get a ruling by the Court of Justice on such articles as Article 15 TFEU and general principles of taxation and open representation.

For decades the institutions involved which are supposed to be independent and sovereign have refused to do so, being submissive to Council. The public which is the most important partner in the taxation debate should under no circumstances be excluded from discussions among politicians who have their own agenda and interests that are not identical with their electors (the voters are a minority of the electors who increasingly refuse to vote) or the public in general. All the institutions were created for the citizens, not for the political parties who are now (often contrary to the treaties) firmly ensconced in all the institutions, save the Court.