The treaties drawn up by the European Union are an attempt to design a collaborative ‘Europe’ (as they call their union) to compete with major powers, politically and commercially. This, the second of our posts on the EU Treaties, asks how reality compares with treaty-based theory.
We examine the Treaty answers to the following questions:
Who or what are the persons and institutions of the EU and what authority do they have? (For example: the European Commission, the European Council, the Council, the European Parliament.) How are they chosen? How do they decide things – unanimity or majority? How clearly is all this defined in the Treaties?
We draw from the two Treaty documents, the:-
CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION (TEU)
Article 13: 1. The Union’s institutions shall be: the European Parliament, the European Council, the Council, the European Commission (hereinafter referred to as ‘the Commission’), the Court of Justice of the European Union, the European Central Bank, the Court of Auditors.
(For information; see definitions of some Union institutions below)
Article 14: 1. 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 only the European Commission can propose and make laws and budgets, the expression “exercise legislative and budgetary functions” actually means that the Parliament can argue about laws and budgets and, in the extreme, veto them, but the Article suggests that something more substantial is being stated.
The European Parliament doesn’t govern anything because it can neither introduce legislation nor dismiss the executive, the EU Commission. The EU Parliament resembles in some ways the form of a democratic legislature but has nothing of the substance; it is a hollow chamber for debates on motions, mainly of little consequence and frequently by-passed.
The EU claims that the European Parliament “has evolved from a consultative assembly to a co-legislator.” They have managed to convince uncritical commentators and voters that they mean what they say. The EU is not willing to give serious consideration to the view that it is not a democratic form of governance. Its founding ideology requires the EU to remain undemocratic.
Article 15: 1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
Article 15: 2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
The first statement is grand but ill-defined and vague; how does the European Council (EC, see next Article for the Council) “provide…the necessary impetus” and what does it mean to “define the general political directions”? In particular, how many “directions” do they expect it to take? This is sufficiently vague to let them define their remit as they will (other than exercising “legislative functions”).
The European Council is not to be confused with the Council. Members of the former change according to who happens to be each member-country’s leader at any time; the latter varies according to which minister is selected as most appropriate to the issues to be addressed at a particular meeting—foreign policy, finance, etc.
Article 15: 4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
This rather reduces the grandness in practice; it is not to be expected that heads of state will readily be able to reach a consensus; if they cannot they will not be able to make a decision. This enables the European Commission to reinforce its own power.
An example where EC consensus might not be reached is the admission of a new member state. For example, were Scotland to break from the United Kingdom and apply to join the EU, the European Council member for Spain might veto the application out of fear of encouraging Catalan independence.
An example where consensus was reached by the EC was on the €750 billion recovery plan following the covid-19 pandemic. This was hard-won but, while nominally agreed, the sum proposed by the Commission steals from other important spending plans, imposes conditions that give donors power over receivers’ internal policies, increases receivers’ sovereign debts and spreads the grant component thinly over a long period; each is of doubtful consistency with the Treaties. The headline doesn’t truly reflect the substance.
Article 16: 1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
Article 16: 2. The Council shall consist of a representative of each Member State at ministerial level, who commit the government of the Member State in question and cast its vote.
We commented above (Article 14.1) on the Parliament exercising “legislative and budgetary functions”. The Council is included in this lack of legislative exercise. Point 2 confirms the lack of substance of the European Council, as the ministerial representatives on the Council “commit” their governments, without the need to consult their heads of state. Of course this is unrealistic in practice and so represents another gap between theory (legal treaties) and practice (a minister who goes against the head of state will quickly be dismissed).
From Jean-Claude Juncker’s State of the Union presentation in September 2017:
“When it comes to important single market questions, I want decisions in the Council to be taken more often and more easily by qualified majority…. We do not need to change the Treaties for this. There are so-called “passerelle clauses” in the current Treaties which allow us to move from unanimity to qualified majority voting in certain areas – if all Heads of State or Government agree to do so.”
Article 16: 3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
In theory a qualified majority can be achieved more easily than unanimity, except that heads of state are senior to other minsters and can therefore command their votes, leaving the Council as powerless, in practice, as the European Council; the Commission is the government in practice if not in the treaties.
In practice the EC is not quite powerless; it can frustrate the Commission, either by failing to agree amongst itself or by agreeing to oppose the Commission, in which case it would surely force a change. As usual, this means that the Treaties don’t reflect the realities of political power.
Article 16: 4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
Given the previous comment, this precise definition it surely redundant. But it looks good in a treaty.
Unanimity was originally imposed by the EU treaties because leaders were confident of reaching unanimous decisions when it mattered and because it was necessary to persuade smaller or weaker states that joining the Union was safe, that they would not be trampled on by larger members. However, in due course reality intervened and they found that unanimous decisions were too difficult to achieve.
Article 16: 8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
The Council can talk about and even vote on prospective legislation, though it has no power to propose it.
Under the Treaties the EC may have no power to propose but we can be sure that it proposes all the time in practice. So, again the Treaties are a front; the Commission is the only government and whilst agreement or confusion and conflict (or lack of consensus) reigns in the EC, it exercises power in practice. There is more subtlety in the practical relationship than the Treaty states.
Article 17: 1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties…
So the Commission will do quite a lot; in practice it is the putative government of the Union. (For “shall” see Treaties-8.) The word “promote” is often used but is not defined in the Treaties or in the EU’s Style Guide, so we will take it at its everyday meaning, which seems rather weak in a legal document of this nature. It promises little but that is probably true to its nature; the EU will not commit itself to action where it would be better to avoid the risk of being challenged for failing to achieve what they promise (our critique does this often – see Treaties-3 for particular examples). However, they take this risk when they use “ensure”, which they also do too often. For example, Article 13: “The Union shall…ensure the consistency, effectiveness and continuity of its policies and actions”, which we comment on in Treaties-2.
If all citizens had the chance to vote on whether to throw out the current Commission it’s pretty likely they would, just as they regularly do with their own national governments when they mess up. But that could derail the project from its predetermined path so such a vote is not allowed, by deliberate design.
Article 17: 2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
The Treaties rarely if ever “provide otherwise”. “Other acts” are not explained but the inclusion of this sentence leaves the EU with plenty of wriggle room, which it uses to promote its general interest. Article 14:1 (above) has “…as laid down in the Treaties”, and Article 17: 2 lays it down clearly.
The first priority for the Commission is ‘unity’ among the member states; this may be more easily achieved if the term is not too clearly understood. The second is trust; the Commission needs the EU’s citizens to trust that it knows what it is doing in the push for integration and is achieving its aims. This too requires the definition of ‘union’ to leave plenty of wriggle-room, and to allow deniability.
Clearly “legislative…functions” (Article 14 above) do not include proposing or implementing laws, so there is a contradiction between Articles 14 and 17. In practice Article 17 clarifies and overrides Article 14.
Article 17: 3. …The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 18(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity…
The treaties don’t define “general competence” or say how they test this; Commissioners appear to be appointed for their political experience and, perhaps, their uncritical enthusiasm for the project. These would make more sense for the EU’s mission than “general competence”, whatever that might mean. The second paragraph tells us what they mean by “independent”, although it is confused by the reference to Article 18(2), which reads, in full, as follows:
Article 18: 2. The High Representative shall conduct the Union’s common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.
Does “without prejudice to Article 18(2)” imply that Commissioners may (or shall) take instruction from the High Representative (HR)? Or, as implied later, does “conduct” mean that the HR will act under instruction from the Commission? And why must the HR be a man?
The Commission’s legislative proposals are often slow to be adopted by the European Council and Parliament and, in particular, by member states. This is where difficulties and delays come in. It is understandable in the light of scepticism that the Commission wants to show progress. But it has to tread carefully, because announcing success where there is only a theoretical achievement, can cause disillusion among citizens.
Article 17: 7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
“Taking into account” is another expression in frequent use – in the Treaties if not so much evident in practice (see Treaties-8 for our comment on this). We are not aware that the Treaties have been modified to allow the Spitzenkandidat process to be used, as it was for a while before 2019 when an alternative candidate was imposed on the European Parliament (EP), which didn’t quite vote to reject her.
Elections to the EP have never been a democratic process; the Spitzenkandidat from the largest group usually gets the job (except in 2019 when the MEP’s choice was overruled, though they had to vote as the Commission wished anyway). The undemocratic nature of this process is acknowledged by some in the EU but many follow, sheep-like, EU propaganda, the purpose of which is to dull our senses into accepting being governed by an unaccountable, un-dismissable outfit. EP elections are not a democratic exercise in any true sense of that term.
Article 17: 8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 234 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body…
The first sentence is usefully vague and ill-defined. In practice being responsible to its Parliament is not something for which the Commission is renowned. The Commission has never resigned as a result of a vote in the Parliament.
Between November 2014 and September 2016 EU Commission members conducted 88 ‘Citizens’ Dialogues in 27 EU countries (none were held in the UK). The number and location of these dialogues was reported in the State of the Union 2016 address given by the Commission President, Jean-Claude Juncker to the European Parliament. However, there is no mention of the content of these dialogues or any conclusions the Commission has drawn from them. For the EU, the existence of such events is sufficient demonstration of its democratic legitimacy.
Article 22: 1. On the basis of the principles and objectives set out in Article 21, the European Council shall identify the strategic interests and objectives of the Union.
We comment on Article 21 in Treaties-2. These Articles do not do much to clarify or refine the vagueness of Article 15 (above). “Strategic interests and objectives” can be identified only through the treaties and we’ve already seen how far reality can be from treaty theory.
The EU doesn’t question its own rules and standards, it simply ignores them when it suits (see Themes-10: Breaking EU Rules). The gap between what the EU professes and what is does is huge and unbridgeable because its leaders are determined to hold to their true strategic agenda while professing a radically different one.
Article 28: 1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
Guess who will decide where “the international situation requires” the EU to act?
Consider Kosovo, Libya, Crimea; when the international situation required action the Council didn’t agree to act. This is the case more generally; when it really matters they seem unable to agree among themselves so the EU, in practice as distinct from treaty theory, is thwarted by its complex structure. In another example that distinguishes practice from theory, as regards international aid the UK has done more on its own initiative than would have been possible through the Council.
Article 28: 2. Decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity.
This sounds impressive, until we remember that the European Council “shall not exercise legislative functions” (Article 15, above) and that the Council has only the power to disrupt, in practice.
We have seen above (Article 16) what “as laid down in the Treaties” means in practice. Law-making dominates the activities of the EU institutions and the power to initiate them lies with the non-elected Commission. This is already evident in the volume of unnecessary legislation to which member states and their peoples have to conform in order to participate in Union projects.
Article 31: 1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
This specifically and legally excludes the “adoption of legislative acts” from the “exercise [of] legislative functions”, which we have already seen less specifically with regard to the European Parliament. And we have also seen that the two councils will not be able to make and implement “decisions” in practice, unless they are responses to proposals from the Commission.
One probable reason that the EU treaties are so much longer than the US equivalent is that the EU ‘government’ needs to make clear that it and its governance shall brook no interference from ‘the people’.
Article 31: 2….If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken.
So even if a decision could be reached it can easily be thwarted; a democratic member state can ensure that all traces of democracy in the EU will be eliminated.
The EU rescue package for the national economies worst hit by coronavirus is a top-level agreement between Council members based on a Commission proposal. The EU Parliament, at the next level down, has no direct vote or veto but wants to make its presence count.
And from the:-
CONSOLIDATED VERSION OF
THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)
Article 20: 1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. …
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
It is difficult to imagine how any citizen could “enjoy…the conditions and limits defined by the Treaties” in practice, as opposed to treaty theory. And we doubt that citizens are happy to “be subject to the duties”.
Transparency is a treaty principle of the EU that is frequently ignored in practice; secrecy overrides transparency when the EU decides that this is necessary. We already have a supra-national government—except they are careful to avoid pointing that out explicitly. The EU has no concern, other than in its propaganda, for the public or their interests.
Article 182: 1. A multiannual framework programme, setting out all the activities of the Union, shall be adopted by the European Parliament and the Council
Note “shall be adopted”; this is a legally enforceable instruction. Presumably the EP may debate it but then must adopt it (see Treaties-8 for clarification of EU use of ‘shall’ and ‘may’). Likewise:
4. The Council, acting in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, shall adopt the specific programmes.
Article 183: For the implementation of the multiannual framework programme the Union shall:…
The expression “the Union shall” could be – but won’t be – replaced by ‘the European Commission shall’, which means the same but doesn’t look so good. In Articles 184-190 the Union (i.e. the Commission) gives itself permission for various things and instructs its institutions to do other things.
The top person, the President of the European Commission (the only part of the EU with the power to make laws), is nowadays chosen for his or her obscurity – the lowest common denominator, or least unacceptable. Recent presidents include: Jacques Santer (ex-PM of Luxembourg), José Manuel Barroso (ex-PM of Portugal), Jean-Claude Junker (another ex-PM of Luxembourg), and now Ursula von der Leyen (ex-Defence Minister of Germany).