The Treaties establish in legal terms what the EU wishes to achieve. This, briefly, is to set up and run a federal government for Europe, taking control to the centre from the member states of the Union.
In ten detailed posts we have selected and commented on some key Articles that demonstrate the main agenda and, as we see it, cover it with jargon, vague and inconsistent promises, and outright deceptions. In these posts we highlight gaps between the theory of the EU, represented by the two Treaties, and its practices. Our blog (eurout.net) has expanded many of these issues, starting before the UK Referendum in June 2016.
The two treaties we consider are bound together in the Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union. The names are shortened to ‘the TEU’ and ‘the TFEU’. There exists a third treaty, which established the European Atomic Energy Community (‘EAEC’ or ‘EURATOM’) and then there is the Charter of Fundamental Rights of the European Union; we haven’t analysed those latter two.
From the Preamble to the TFEU (see Treaties-0) the EU says it is:
“DETERMINED to lay the foundations of an ever closer union among the peoples of Europe”.
Since the European Coal and Steel Community (‘ECSC’) was set up, by the Treaty of Paris in 1953, this has been the mantra of the Project. The ECSC was first extended to become the European Economic Community (‘EEC’), by the Treaty of Rome in 1957, and then extended further, by the Maastricht Treaty of 1992, into the European Union (‘EU’) as it is known today.
Over this period the EU (as, for convenience, we will call the whole history) developed a complex and detailed set of rules that have extended ever greater control over the lives of some 500 million citizens of Europe and over their representative and elected governments. The treaties as a whole can be considered as a proto-constitution, although when the Lisbon Treaty (the TEU plus the TFEU) was presented as such to French voters in their own referendum they rejected it.
Article 14(1) of the TEU (see Treaties-1) says that the “European Parliament shall, jointly with the Council, exercise legislative and budgetary functions. It shall exercise functions of political control and consultation as laid down in the Treaties.”
Since, “as laid down in the Treaties”, only the European Commission can propose and make laws and budgets, the expression “exercise legislative and budgetary functions” actually means that the Parliament can only argue about laws and budgets, but the Article suggests that something more substantial is being stated. This is confirmed in Article 17(2), which says that, “Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise”.
We cannot find anywhere that “the Treaties provide otherwise” but this phrase leaves the EU with plenty of wriggle room, which it uses to promote its general interest. So Article 14(1) says “…as laid down in the Treaties” and Article 17(2) lays it down clearly.
Article 31(1) says decisions “shall be taken by the European Council and the Council…. The adoption of legislative acts shall be excluded.”
This specifically excludes the “adoption of legislative acts” from the “exercise [of] legislative functions”. The two councils will not be able to make and implement “decisions” in practice, unless these are responses to proposals from the Commission.
The European Parliament is the epitome of undemocratic non-governance: it doesn’t govern anything because it cannot introduce legislation nor dismiss the executive, the EU Commission. The EU Parliament resembles the form of a democratic legislature but has little of the substance; it is a hollow chamber for debates on motions, mainly of little consequence and frequently bypassed.
The Preamble to the TEU (see Treaties-0) says that the signatories to the Treaties, “DRAWING INSPIRATION from the cultural, religious and humanist inheritance of Europe, from which have developed the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law…HAVE DECIDED to establish a European Union”.
However, ‘Europe’ has never had a set of universal values; this is designed to persuade and mislead, which it will do only if we don’t think carefully.
Article 2 says that the “Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights… These values are common to the Member States…”.
The EU is founded on such false assertions.
Article 4(3) sets ‘cooperation’ as the expectation: “Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties”. Despite this instruction it can easily be shown that member states are not treated equally and that they are all too rarely willing to make sacrifices to assist each other.
In its Preamble to the TEU (Treaties-0) the Treaty authors are “CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law…”. Again the language, “confirming”, is chosen to give the impression that such principles have been selected by the Union as the foundation for the project. However, the treaties and EU practices raise legitimate doubts about the EU’s attachment to such principles.
Article 10 (see Treaties-2) says that the “functioning of the Union shall be founded on representative democracy.” And “Every citizen shall have the right to participate in the democratic life of the Union. Decisions shall be taken as openly and as closely as possible to the citizen.”
The first claim is so vague as to defy any attempt to give it meaning. The second commitment is not obeyed in practice. They carefully avoid saying that the Union is a representative democracy. Instead they fudge the deceit with stuff that sounds commendable but doesn’t mean the same (“founded on”).
Democratically elected national parliaments “contribute actively…” by: “being informed”, “seeing to it”, “taking part” and “being notified”. This gives a clear picture of the attitude of the EU to its member states and their citizens, and makes a mockery of their claims in the Preamble and other Articles.
An ideal government is representative in two senses. First, the citizens delegate the day-to-day operations of the state to their representatives, who then form a government. Second, at regular intervals the citizens can dismiss their government if it displeases them, and elect an alternative set of representatives to govern on their behalf.
Uniformity v. diversity
The Preamble to the TFEU (Treaties-0) says that EU leaders are “ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions”.
The ideology is evident in: “strengthen the unity…”, “ensure their harmonious development” and “reducing the differences”.
Article 167(1): “The Union shall contribute to the flowering of the cultures of the Member States, while respecting their national and regional diversity and at the same time bringing the common cultural heritage to the fore”. Yet more propaganda without a commitment to anything of substance (see Treaties-3).
Article 167 assumes that there is such a thing as “the common cultural heritage” across the member states. However, it does not commit the Commission to anything beyond “respecting” and taking “cultural aspects into account”, which allows them to harmonise and unify anything they wish.
Laws & regulations (see Treaties-4)
Article 19(3) of the TEU says, “The Court of Justice of the European Union shall, in accordance with the Treaties…”: This confirms that the purpose of the CJEU is to enforce the EU treaties.
Article 1(1) of the TFEU states that “This Treaty organises the functioning of the Union and determines the areas of, delimitation of, and arrangements for exercising its competences”. Union “competences” increase, seemingly without limit; it has decided that none need be passed back down. There are some “shared competences”, which seem rather vague, reading as if the member states can do what they like but in fact the Union makes sure it has control over everything that matters to them.
Article 5(1) states that “Member States shall coordinate their economic policies within the Union”. For a law this is very open ended and probably meaningless, or at least open to challenge. Ensuring coordination by means of guidelines seems weak but the Union “may take initiatives”, which gives them plenty of room to rule, with or without effective coordination.
Article 9 states that the “Union shall take into account requirements linked to the promotion of a high level of employment…” They certainly haven’t been doing a good job of promoting employment, which will have diminished the results for most of the rest of the list. Adding to this phrase “requirements linked to the promotion…” removes from the Union all legal responsibility for these issues.
Article 216(2): “Agreements concluded by the Union are binding upon the institutions of the Union and on its Member States”. The Withdrawal Agreement with the UK is binding so long as the UK is a member or in the transition period, but the EU wishes to extend this to any future agreement with the UK, and so to keep the UK under the judicial wing of the CJEU.
The TFEU confirms that the role of the CJEU is to ensure that Commission proposals, directives, etc. are adopted and applied, over and above any differences expressed by Member States. In case anyone still believes that the CJEU is concerned with ‘justice’ in any broader sense than as defined in these Treaties, we know that to the EU ‘legality’ means conformity with the Treaties and such conformity can be enforced directly not just through the national governments.
Article 291(1): “Member States shall adopt all measures of national law necessary to implement legally binding Union acts”. That sums it up neatly.
The honourable judges of the Court of Justice of the European Union (CJEU) have shown themselves to be above natural justice and indeed any other law than their own. Union law and its guardian, the CJEU, are the means by which a federal government continues to be stealthily imposed on the citizens of Europe and their democratically elected governments.
Defence (see Treaties-5)
Article 24(1) of the TEU says, “The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence”. While “a common defence” does not currently exist, in the EU’s view, it is the clear intention of the EU to make this happen, despite the weak sounding “might lead to”.
Article 24(3): “The Member States shall support the Union’s…security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.”
“Member States shall”, not ‘may’. This is a legal requirement not an option. They “shall comply”. So “loyalty and mutual solidarity” are to be achieved by fiat, but don’t seem to have been achieved at all. The Lisbon Treaty determines that member states “shall comply with the Union’s action in this area” (our emphasis) so in legal terms they cannot “decide” to cooperate—they have no choice.
Subsidiarity (see Treaties-6)
TEU Preamble: “RESOLVED to continue the process of creating an ever closer union among the peoples of Europe” This is not the only acknowledgement of the main ambition, “ever closer union”. The peoples of Europe have never been asked whether they desire ever closer union; the EU dare not ask the question because they fear they would receive the ‘wrong’ answer.
The TEU states that: “Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties.” While openness may be a condition for good governance the addition of “as openly as possible” dilutes the outcome to that which the EU determines to be possible; there is no external moderation, as there would be in any proper democracy.
The “right of access to documents” is severely limited in EU practice. The EU Ombudsman has called EU action to deny access to documents “maladministration”.
The Preamble to the Protocol on subsidiarity would be more honest if it started with, ‘WISHING to ensure that citizens believe’ “that decisions are taken as closely as possible to the citizens of the Union”.
The report of the Commission’s Task Force on subsidiarity concluded that, “There is EU value added in all existing areas of activity and the Task Force did not, therefore, identify any Treaty competences or policy areas that should be re-delegated definitively, in whole or in part, to the Member States.”
Economics (see Treaties-7)
TEU Preamble: “RESOLVED to achieve the strengthening and the convergence of their economies and to establish an economic and monetary union…” The key word here is “convergence”. The “and” that follows seems to imply that EMU and a single currency will be the means by which convergence is to be achieved. A more plausible explanation, which points up the deceptive writing, is that EMU and a single currency are the means by which “convergence” is to be achieved.
TFEU: “AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples”.
The rate of improvement for several decades has been rather modest, probably because the EU gets more and more encrusted with growth-destroying regulation.
The European Central Bank is the exception among EU institutions; its power has grown massively in the course of the crisis. But as the least accountable of the European institutions, its expanded authority does more to undermine the legitimacy of the European project than to reinforce it.
Some terms used by the EU are unique to them or may be confusing or mysterious for other reasons. In Treaties-8 we offer a few examples, with our explanatory notes: ‘may’ and ‘shall’, ‘taking into account’, ‘legislative procedures’, ‘approximation’ of laws, ‘consensus’ and ‘protocol’.
Miscellaneous (see Treaties-9)
The treaties are laborious but don’t appear to clearly define very much, leaving things open to lawyerly interpretation, because the EU treaties define an entity that is free under the law to do whatever it wants.
Article 171 doesn’t explain how the Union will “achieve the objectives”, “shall implement any measures that may prove necessary…”, and “may support projects of common interest supported by Member States…”. We note that it ‘shall’ do two of these but only ‘may’ support the third. The second one appears to mean ‘we shall do whatever we like if we feel like it’, because they will decide whatever “may prove necessary”.
Throughout the procedure leading to the adoption of the financial framework, the European Parliament, the Council and the Commission shall take any measure necessary to facilitate its adoption.
Article 312(5) is extraordinary for a legal document; it states that it is legal to do whatever it takes, which means to do whatever they like. While “shall take any measure” is strong, “to facilitate” weakens it to the point of meaninglessness, and, as always, “necessary” will be decided by the Commission itself.
17. Declaration concerning primacy. This Declaration confirms what we have claimed (see Treaties-4). The Declaration is followed by the Opinion of the Council Legal Service from which it derives. An after-note rams this home: “It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
“No longer is European law an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses – to the dismay of all.” Lord Denning in 1974.
Overall the language of the Treaties is inflated, even hyperbolic; it is repetitive and long-winded; much is little more than propaganda. Yet it is often vague, sometimes even contradictory. It is both heavy-handed and wide open to interpretation by interested parties, including lawyers, commercial entities and governments.
The unstated purposes of the Treaties, apart from underpinning a proto-government, appear to be:
- to cover every conceivable eventuality;
- to ensure that Member States are legally committed to the underlying ideology and ambitions;
- to be sufficiently loose to give the CJEU flexibility to interpret them as the Commission desires;
- to give a benign impression of the project, to cover the difference between theory and practice;
- to persuade citizens that they should not worry about being governed from an unaccountable centre.