Ever closer union requires harmonised laws and common law enforcement, among other requirements for uniformity. The language is firm, if not always precise (e.g. “account shall be taken”). Many laws are imposed on Member States while lightly disguised as beneficent recommendations.
CONSOLIDATED VERSION OF
THE TREATY ON THE FUNCTIONING OF THE EUROPEAN UNION (TFEU)
Article 45: 1. Freedom of movement for workers shall be secured within the Union.
Not for public service workers but for others—by law.
The ideology underpinning the ‘Union’ in EU is all-pervasive. Instead of considering what would fit each nation’s culture the ideology forces the EU to impose uniformity, which no one other than EU demagogues and supporters would tolerate.
Article 67: 1. The Union shall constitute an area of freedom, security and justice with respect for fundamental rights and the different legal systems and traditions of the Member States.
Article 67: 2. It shall ensure the absence of internal border controls for persons and shall frame a common policy on asylum, immigration and external border control, based on solidarity between Member States, which is fair towards third-country nationals.
It is difficult to see how the “area of freedom” could be made compatible with the “different legal systems and traditions”. The EU is having problems enforcing this “shall”. And achieving “solidarity…which is fair…” is even more difficult given the “different legal systems and traditions”. The “shall” didn’t survive the immigration crisis very well.
We see this in the case of migrant policies, which the EU is attempting to impose uniformly, to the disgruntled resistance of Eastern European nations.
Article 74: The Council shall adopt measures to ensure administrative cooperation between the relevant departments of the Member States in the areas covered by this Title, as well as between those departments and the Commission.
Ensuring “administrative cooperation” sounds reasonable but in practice drives towards uniformity rather than mere cooperation.
The notion that sovereignty is shared in the EU is particularly deceitful, as sovereignty is extracted, passed upwards and never, ever returned. This is like ‘sharing’ your marbles with the school bully. Defining something in legislation sounds like a nice way to say, ‘you will obey’, disguising the intent to eliminate diversity.
Article 77: 1. The Union shall develop a policy with a view to:
(a) ensuring the absence of any controls on persons, whatever their nationality, when crossing internal borders;
This is the Schengen Agreement, which held until the panic reaction to the covid-19 pandemic showed up all too clearly just how difficult it is to put these cumbersome treaties into reliable practice.
Article 77: 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures concerning:
(b) the checks to which persons crossing external borders are subject;
(c) the conditions under which nationals of third countries shall have the freedom to travel within the Union for a short period;
The immigration crisis after 2015 showed up the weakness of the European Parliament (EP) and the Council, which failed to get uniform measures agreed, let alone adopted in practice.
The explanation for the EU’s self-imposed problem is the ideology of uniformity that underlies the term ‘Union’. Achieving high and common standards is best left to individual nations, which could collaborate under a community free of both ideology and over-weight bureaucracy. The EU is clearly not that organisation.
Article 80: The policies of the Union set out in this Chapter and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States.
Greece in particular might question the “fair sharing” of the burden of migration. The “principle of solidarity” is mentioned several times in the Treaties but does not operate in practice when the chips are down.
Article 81: 1. The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation include the adoption of measures for the approximation of the laws and regulations of the Member States.
The expressions “judicial cooperation” and “mutual recognition” are light cover for the true aim of achieving uniformity across the EU. (See Treaties-8 for the meaning of “approximation of laws”, which confirms our judgement.)
The European Public Prosecutor’s Office will act in the interest of the EU…If the Office takes up an investigation, national authorities will not exercise their competences for the same criminal activity.
Vertical separation is built into the EU’s treaties but is consistently ignored as it clearly conflicts with the drive towards a complete and dominant Union.
Article 86: 1. In order to combat crimes affecting the financial interests of the Union, the Council, by means of regulations adopted in accordance with a special legislative procedure, may establish a European Public Prosecutor’s Office from Eurojust. The Council shall act unanimously after obtaining the consent of the European Parliament…
The EPPO was duly established with some member states, including the UK, opting out; so much for “act unanimously”, though presumably the Council did obtain the ‘consent’ of the Parliament. (See Treaties-8 for the meaning of “special legislative procedure”.)
Article 86: 2. The European Public Prosecutor’s Office…shall exercise the functions of prosecutor in the competent courts of the Member States in relation to such offences.
This seems to contradict the claim above that “national authorities will not exercise their competences for the same criminal activity”; unless it implies that no such courts will be regarded as competent.
This may be the most important area in which the EU ignores its own rules – and demonstrates its obsession with federalism. They have ensured that fewer and fewer areas remain in which the EU does not have exclusive competence; competences (which means powers to act), once passed up from the member states, are never returned; there are probably more to go up.
Article 91: 1. …taking into account the distinctive features of transport, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure…, lay down:
(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;
The “ordinary legislative procedure” consists in the joint adoption by the European Parliament and the Council of a regulation, directive or decision in general on a proposal from the Commission (see the full definition in Treaties-8 (3)). The Article says “lay down” to indicate that it will regulate everything towards uniformity.
Article 91: 2. When the measures referred to in paragraph 1 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.
This phrase “account shall be taken” (see Treaties-8 (2) for variants of this phrase) is non-specific and non-committal. We should not expect that any independent views will be taken into account.
Can we trust any treaty the EU signs when the language it uses means just what the EU says it means? The Political Declaration agreed between the UK and the EU foresees “an ambitious, broad, deep and flexible partnership across trade and economic cooperation with a comprehensive and balanced free trade agreement at its core”. Can we rely on such language as we attempt to negotiate a trade deal?
Article 95: 1. In the case of transport within the Union, discrimination which takes the form of carriers charging different rates and imposing different conditions for the carriage of the same goods over the same transport links on grounds of the country of origin or of destination of the goods in question shall be prohibited.
Transport is an issue of contention in the negotiations on the future relationship; British trucks operating to different rules might be banned.
Article 91: 4. The Commission shall, acting on its own initiative or on application by a Member State, investigate any cases of discrimination falling within paragraph 1 and, after consulting any Member State concerned, shall take the necessary decisions within the framework of the rules laid down in accordance with the provisions of paragraph 3.
Who will decide who will “take the necessary decisions”? The Commission itself of course.
For example, “To continue to build a common European defence … In June the European Commission proposed a European defence fund and permanent structured cooperation.” (M. Barnier 11/2017)
These are from a list of eight examples of “what needs to change in Brussels”. Oddly these are not truly changes, except in the sense that what is needed is more of the same. Common defence is relatively new but reinforces the plan for ever closer union. He uses the word ‘reform’ in only one of his bullet points and that is to “reform and to correct certain Directives”; he doesn’t say which, let alone why and what might be changed. But he has taken care to leave an impression, in impressionable minds, that he is in favour of reform. He shows clearly that as long as we remain in the EU our goals will be overridden. “These projects, among others, show that Europe is able to adapt, to reform itself, to move forward as a whole continent where nations have voluntarily chosen to share their destiny and certain policies.”
Article 106: 1. In the case of public undertakings and undertakings to which Member States grant special or exclusive rights, Member States shall neither enact nor maintain in force any measure contrary to the rules contained in the Treaties…
Put more straightforwardly, we have here a law that tells Member States to obey the rules.
Article 107: 1. Save as otherwise provided in the Treaties, any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market.
And this just elaborates it, unnecessarily because the EU will decide what “distorts or threatens to distort competition”.
Article 108: 1. The Commission shall, in cooperation with Member States, keep under constant review all systems of aid existing in those States. It shall propose to the latter any appropriate measures required by the progressive development or by the functioning of the internal market.
Or, ‘we have our eyes on you and you will obey whatever the Commission proposes’.
Article 108: 2…. On application by a Member State, the Council may, acting unanimously, decide that aid which that State is granting or intends to grant shall be considered to be compatible with the internal market, in derogation from the provisions of Article 107 or from the regulations provided for in Article 109, if such a decision is justified by exceptional circumstances.
A familiar get-out clause. In principle it makes sense to allow circumstances rather than absolutes to guide practice but this makes the rule vulnerable to pressure from powerful members and lobbies.
Article 109: The Council, on a proposal from the Commission and after consulting the European Parliament, may make any appropriate regulations for the application of Articles 107 and 108…
This exemplifies the hierarchy, and the lack of real power in the EP, which should be ‘consulted’ but may not interfere.
The EU is based on an unshakable belief that Europe’s nation states cannot govern themselves because they are dependent on electorates, who can replace their governments. The only directly elected body in the EU is its Parliament but only the Commission is able to introduce legislation, Parliament’s role is just to scrutinise it. The Parliament can suggest amendments but the Commission can ignore them. Much legislation is enacted without the scrutiny of Parliament.
Article 113: The Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, adopt provisions for the harmonisation of legislation concerning turnover taxes, excise duties and other forms of indirect taxation to the extent that such harmonisation is necessary to ensure the establishment and the functioning of the internal market and to avoid distortion of competition.
At the root of this Article is “the harmonisation of legislation”, which appears in other Articles too, particularly ones referring to the approximation of laws (see Treaties-8, Part 3, for an explanation of “special legislative procedure” and “approximation of laws”). Of course the functioning of the internal market will be specified by the Commission, with the support if necessary of the CJEU; likewise the definition of “distortion of competition” and its application to particular cases.
The ideology is well exhibited in the following, taken from the Five Presidents Report: “…the convergence process towards more resilient economic structures…should become more binding. This would be achieved by agreeing on a set of common high-level standards that would be defined in EU legislation, as sovereignty over policies of common concern would be shared and strong decision-making…would be established. In some areas, this will need to involve further harmonisation”.
Article 114: 1. The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, adopt the measures for the approximation of the provisions laid down by law, regulation or administrative action in Member States which have as their object the establishment and functioning of the internal market.
The EU’s only major success has been convincing lots of people that it has been a success. Its moderate successes could all have been achieved by existing institutions, particularly the Council of Europe, a more promising body that has been completely overshadowed by the glamorous (and expensive) Union. It’s achievements did not need a government, parliament and huge civil service.
Article 115: Without prejudice to Article 114, the Council shall, acting unanimously in accordance with a special legislative procedure and after consulting the European Parliament and the Economic and Social Committee, issue directives for the approximation of such laws, regulations or administrative provisions of the Member States as directly affect the establishment or functioning of the internal market.
This one supplements and reinforces Article 114, covering any loophole with a special legislative procedure and getting down to specifics with “issue directives”, contrasting with adopting measures. “Without prejudice” presumably means that if there is any apparent conflict then Article 114 takes precedence.
If the shoe won’t fit, don’t wear it – walk away. That’s good advice from a podiatrist and an appropriate analogy for an economist or lawyer. The EU has never been a comfortable fit for the UK economy or legal system.
Article 145: Member States and the Union shall…work towards developing a coordinated strategy for employment and particularly for promoting a skilled, trained and adaptable workforce and labour markets responsive to economic change with a view to achieving the objectives defined in Article 3 of the Treaty on European Union.
We note that they shall “work towards” with a view to “promoting”. Since such things make little sense if applied to the Union, this must be another—lightly disguised—instruction for the Member States to obey, as part of the ambition to unify the Union under a “coordinated strategy”. Since ‘they’ haven’t achieved a high or uniform level of employment we may regard the strategy as unsuccessful; except perhaps that they are still only working towards it. A “strategy…for promoting” will be easy to defend because it means so little.
If uniformity had any purpose beyond promoting central governance then that purpose would surely be to enable and support sound labour markets and welfare systems (among others). But there is no reason to believe that the European Union could achieve these. And there are many reasons to believe that it cannot do so. Evidence from EU experience is among such reasons.
Article 151: The Union and the Member States, having in mind fundamental social rights such as those set out in the European Social Charter signed at Turin on 18 October 1961 and in the 1989 Community Charter of the Fundamental Social Rights of Workers, shall have as their objectives the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.
To this end the Union and the Member States shall implement measures which take account of the diverse forms of national practices, in particular in the field of contractual relations, and the need to maintain the competitiveness of the Union economy.
This sounds pleasant but it commits the EU to nothing at all. The “objectives” are more nice-to-haves, but the real objective is “harmonisation” again. In this case “take account of” really means get rid of the “diverse forms of national practices”. They believe that such a development will follow not only from the functioning of the internal market, which will favour the harmonisation of social systems, but also from the procedures provided for in the Treaties and from the “approximation” of provisions laid down by law, regulation or administrative action.
In the eurozone the Union is attempting to force uniformity on economic cultures as diverse as Germany’s and Greece’s. EU propaganda asserts that ‘Europe’ needs the uniformity that it demands in order to achieve clout in the world, in competition with the USA and China in particular. The contrast with the USA is interesting. It shows that a stable union does not require such colourless uniformity; in the USA the states decide the details that don’t require federal oversight and this has worked since its foundation. The separation of powers extends ‘downwards’ as well as horizontally.
Article 152: The Union recognises and promotes the role of the social partners at its level, taking into account the diversity of national systems. It shall facilitate dialogue between the social partners, respecting their autonomy.
“The Union recognises…” perhaps, but how do they “promote”? The rest is just waffle.
Article 153: 1. With a view to achieving the objectives of Article 151, the Union shall support and complement the activities of the Member States in the following fields:
(e) the information and consultation of workers;
This one example is from a list (a-k) of nice-to-haves with nothing to say what “support and complement” means in practice, presumably because the EU doesn’t want to commit itself to actual achievements.
Article 153: 2. To this end, the European Parliament and the Council:
(a) may adopt measures designed to encourage cooperation between Member States…
The “measures” include: “means to improve knowledge, “exchange information”, “evaluate experiences”, which may “encourage cooperation” only if “may adopt” becomes ‘will adopt’.
Article 153: 3. [A Council decision] shall ensure that…management and labour have introduced the necessary measures by agreement, the Member State concerned being required to take any necessary measure…to guarantee the results imposed by that directive or that decision.
This doesn’t tell anyone how a decision by the Council “shall ensure” anything that requires cooperation between member states; nevertheless the member state is “required…to guarantee the results imposed”.
The day before Europe Day (9 May 2020) Dacian Ciolos, a Member of the European Parliament (MEP) and ex-PM of Romania, wrote an article containing much that—unwittingly—illustrates the difficulty that EU supporters have in trying to explain in simple terms why they are enthusiastic about their project.
He sees a need to “have the courage and vision to build a Europe that has the capacity to protect”, by which he means “…anticipating new threats and acting as a power” He doesn’t say what he means by “threats” or “power”.
Article 154: 1. The Commission shall have the task of promoting the consultation of management and labour at Union level and shall take any relevant measure to facilitate their dialogue by ensuring balanced support for the parties.
Article 154: 2. To this end, before submitting proposals in the social policy field, the Commission shall consult management and labour on the possible direction of Union action.
This entitles the Commission to intervene directly in a Member State, below government level. The EU’s remit runs deep.
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.
Article 167: 4. The Union shall take cultural aspects into account in its action under other provisions of the Treaties, in particular in order to respect and to promote the diversity of its cultures.
This is convoluted and probably allows the Commission to decide in favour of whatever suits them, or suits those with enough power and influence. It assumes that there is such a thing as “the common cultural heritage” across the member states and more widely. 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.
The variation in childbirth leave policies is wide and, we can assume, derives from the wide variety of cultural norms that member states’ different histories have produced throughout Europe (see Union, Unity & Uniformity for more details of childbirth leave policies.)
Article 168: 1. A high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities.
Union action, which shall complement national policies, shall be directed towards improving public health, preventing physical and mental illness and diseases, and obviating sources of danger to physical and mental health.
More weasel words, committing them to nothing: “ensured in the definition”, “directed towards…preventing…and…obviating…”.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.” (Lewis Carroll, ‘Alice Through the Looking Glass’)
This EU Won't Work 