Themes-10: Breaking EU Rules

A précis of previous posts on this theme

Breaking rules-1The EU often expounds, for our benefit, its principles and rules. We are expected to believe that the EU adopts practices that are consistent with its own principles and rules; it doesn’t. Such things are for others to follow and, when it feels it is necessary the EU ignores them. The linked posts below illustrate examples of the disconnection between EU principle and EU practice.

In February 2018 the European Commission (EC) appointed Martin Selmayr to the post of Secretary-General. It did this in its own way – to get its own way without the inconvenience of consulting anyone, let alone putting the post up for open competition.

Even committed supporters of the EU, including EUObserver which reported on the unprincipled process of appointment, noticed and commented on the failure of the Commission to observe its own principles. In the post we quote critical comments from some well-established EU personnel.

The European Parliament (EP) unanimously voted to launch a probe into the appointment. However, the EP does not have the power to overrule the appointment.

We also commented on the ‘elevation’ of the previous EC President, Manuel Barroso, to a strategic lobbying post with Goldman Sachs Inc. The EU Ombudsman, Emily O’Reilly, asked the EU’s ethics committee to review the appointment. An EC spokesman stated that the Commission had no intention to review the rules or to refer Barroso’s appointment to the ethics committee, which would have been a reasonable response from an organisation that was serious about its own rules and declared procedures.

Revealing Appointment (25/03/2018)

Subsidiarity-1A central tenet of the Treaty on European Union is ‘subsidiarity’. This is spelled out in Article 5 of the Treaty, as follows, “Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States”.

This principle conflicts with the underlying ideology of the EU, which requires authority to be centralised and not subject to the whims of the people. In EU practice powers move only in one direction, ‘upwards’ as they see it, from member states to the putative federal government.

The EU’s Brexit negotiating guidelines insisted that the UK should abide by the EU Treaties although the EU has no intention of doing so themselves, when it suits them to behave otherwise. The EU is constructed deliberately so that powers (‘competences’) extracted from member states, or passed upwards by them, are irreversible (what goes up is not allowed to come down). We wonder why this sort of divergence is not noticed by those keen to remain in the EU.

Achieving high and common standards for economic growth and the protection and security of citizens is best left to individual nations, which could collaborate under a community organisation free of both ideology and over-weight bureaucracy; preservation would be assured by effectiveness. The EU is clearly not such an organisation.

We concluded that when the EU decides, national authorities need not trouble their smaller heads. We already have a supra-national government – except they are careful to avoid pointing that out explicitly.

Subsidiarity and Competence (29/08/2018)

We followed our previous post (above) with a review of comments made within the EU about the process through which Martin Selmayr was appointed as Secretary-General of the European Commission.

NepotismAn explanation for the short-cut process was that Selmayr had organised Jean-Claude Juncker’s successful campaign for President of the European Commission, became J-C’s chief of staff, was promoted to a new post of Deputy Secretary-General just before the S-G retired and was then, very quickly, shunted up to take over that post. A version of nepotism.

The European Parliament said that Selmayr’s promotion “could be viewed as a coup-like action which stretched and possibly even overstretched the limits of the law.” The EU Ombudsman challenged the Commission’s claim that established recruitment processes had been followed and that Selmayr’s appointment was made in full compliance with all legal rules. She is reported to have concluded that, “All of this risked jeopardising the hard-won record of high EU administrative standards and consequently, the public trust”.

We concluded that although the European Commission is charged with maintaining high standards, and frequently declares that it does so, it’s disregard of its own procedures risks weakening its authority. We have noted before the contempt that the Commission displays for its citizens and even for its own “values”, as represented by laws, regulations, procedures and treaties.

Revealing Appointment-2 (25/09/2018)

TransparencyTransparency is another treaty principle of the EU that is frequently ignored in practice. We illustrated practice overriding principle in two posts which look into discussions concerning the generous expenses given, as a matter of course, to members of the European Parliament (MEP: see below for the second post).

The EUObserver, usually a fan of the EU, requested access to documents that recorded internal discussions on MEPs expenses. These discussion followed a majority vote in the European Parliament (EP) in favour of reforming the expenses regime. The Bureau, in charge of internal EP procedures, decided on minimal reforms and rejected a proposal that MEPs should keep receipts.

The application for access to minutes of meetings and related documents was rejected on the grounds that members of working groups would be discouraged from speaking freely if they thought their opinions would be open to scrutiny by the public. The Bureau said that public interest did not outweigh the need to protect the EP’s internal decision-making processes.

In other words, while transparency is a fundamental principle of the EU, secrecy overrides it when it decides that this is necessary. EUObserver appealed and took their case to court.

Expensives (25/09/2018)

In March 2017 the European Commission (EC) set up a Task Force on Subsidiarity, Proportionality and ‘Doing Less More Efficiently’.

Task Force-1We reviewed the report and its conclusions in the first of these posts and we concluded that the EU does not believe in subsidiarity in any sense that citizens and voters would recognise as returning sovereignty to their nations. The report concluded that there is EU value added in all existing areas of activity and they did not, therefore, identify any Treaty competences or policy areas that should be re-delegated, in whole or in part, to the Member States.

In the second of these two posts we reviewed the recommendations made in the report of the Task Force’s study of subsidiarity and related matters. It is clear from reading the report that its authors operate at a high legislative level in the EU and had heard some criticism of the EU’s heavy-handedness but had failed to understand the criticism. In their minds – and experience – government is to be imposed from the top, where the vision and motivation exist, because at ground level elected representatives are too busy trying to satisfy the immediate concerns of voters, who might otherwise kick them out. That is no way to complete a grand mission.

More is Less: Subsidiarity-1 & 2 (26/10/2018)

ECJEUObserver pressed its appeal in court (see above) but the European Court of Justice (ECJ) ruled against them. They then took their case to the EU Ombudsman, Emily O’Reilly, who concluded that “Parliament’s refusal to grant public access to the documents in this case constitutes maladministration”. She wrote that, “the public should have an insight into how the administrative decision was made in this case and which options were proposed and discussed…” because it is “of importance for public trust in the responsible use of public funds by their elected representatives”. She concluded that there was “an overriding public interest in disclosure of those documents”.

However, conclusions of the Ombudsman carry no legal weight, so the matter rests, in secrecy.

Expensives-2 (05/05/2019)

Decision-makingEUObserver applied for access to documents in another case, and received the same treatment. After an EU Commissioner met senior anti-Brexiteers journalists asked for access to documents relating to this meeting; the EU Commission released a heavily redacted email. They referred to the EU’s own regulation on transparency, which states that, “In principle, all documents of the institutions should be accessible to the public.” but includes a get-out clause, which can be useful when the EU does not want to reveal the contents of its discussions, “However, certain public and private interests should be protected by way of exceptions. … Access to a document…shall be refused if disclosure of the document would seriously undermine the institution’s decision-making process, unless there is an overriding public interest in disclosure”

As in the case of MEPs’ expenses, the EU made the judgement that the possible harm to its decision-making processes overrode any public interest in disclosure, thus negating its own principle and disobeying its own regulation.

We interpret this as another example of the fundamental ‘Monnet method’ (see Themes-9 and Tsk! Tusk reviewed there).

Secrets & Obfuscations (03/05/2019)

Secrecy-2From these, and other, examples we conclude that the EU is working, surreptitiously but so far successfully, towards their ultimate goal while avoiding risking public understanding of the goal and progress towards it, exactly in line with Monnet’s recommendation.


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