While there is much more that could be said about the remaining Articles, Protocols and Annexes, we pick out just some more general bits; much detail is missed out but nothing that alters what we have written so far—you can always read the original text to bridge the gaps.
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. We can see that this is what we get.
Article 170: 1. …the Union shall contribute to the establishment and development of trans-European networks…
2. …action by the Union shall aim at promoting the interconnection and interoperability of national networks…
More well-used cop-out phrases include: “the Union shall contribute to…” and “the Union shall aim at promoting…”. The second of these does not even ‘promote’, just aims at promoting.
Article 171: doesn’t contribute much to explain how the Union will “achieve the objectives” when it “shall establish a series of guidelines…”, “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”.
The current EU/EMU projects are justified by the belief that economic, political and social development can only be achieved from the top down. The assumptions on which this belief is based include the (unstated) view that the nations of Europe cannot compete successfully in the world other than through a federal government in which self-selected (and unelected) bureaucrats rule on behalf of Europe’s citizens.
Article 173: 2. The Member States shall consult each other in liaison with the Commission and, where necessary, shall coordinate their action.
Who do we think will decide where it is necessary? However, the “European Parliament shall be kept fully informed.” This is another frequently found phrase, which confirms what we have said about the status of the Parliament.
Article 174: In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions.
How will it do this and what has it achieved over the last several decades? Article 175 provides the obvious answer: “Member States shall conduct their economic policies and shall coordinate them in such a way as, in addition, to attain the objectives set out in Article 174.” Another question is whether they will level development up or down, or find some middle level (which means both up and down)?
Article 310: 4. With a view to maintaining budgetary discipline, the Union shall not adopt any act which is likely to have appreciable implications for the budget without providing an assurance that the expenditure arising from such an act is capable of being financed within the limit of the Union’s own resources and in compliance with the multiannual financial framework.
Is the Recovery Fund consistent with this Article? We doubt it. Has it broken an international treaty in fact?
Article 312: 2. The Council, acting in accordance with a special legislative procedure, shall adopt a regulation laying down the multiannual financial framework. The Council shall act unanimously after obtaining the consent of the European Parliament, which shall be given by a majority of its component members.
The Parliament has to approve the budget but may choose not to this year, unless it just feels that it should make some contrary noises before agreeing.
Article 312: 5. 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.
This is extraordinary waffle for a legal document; they state that it is legal to do whatever it takes, which means to do whatever they like.
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.
We note that 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.
Article 319: 1. The European Parliament, acting on a recommendation from the Council, shall give a discharge to the Commission in respect of the implementation of the budget.
Article 319: 3. The Commission shall take all appropriate steps to act on the observations in the decisions giving discharge and on other observations by the European Parliament relating to the execution of expenditure, as well as on comments accompanying the recommendations on discharge adopted by the Council.
Once again, “take all appropriate steps to act” is not the same as an obligation to act; it is another ‘get-out’ clause. Who will decide what steps are appropriate and have been taken? The Commission of course. The EP will not be given that responsibility. The EP will merely be listened to on the budget? Repeating things in similar language (see our comment to Article 172 above) make the treaties longer but hardly clearer, in fact it probably increases the scope for ‘interpretation’.
Article 335: In each of the Member States, the Union shall enjoy the most extensive legal capacity accorded to legal persons under their laws; it may, in particular, acquire or dispose of movable and immovable property and may be a party to legal proceedings. To this end, the Union shall be represented by the Commission. However, the Union shall be represented by each of the institutions, by virtue of their administrative autonomy, in matters relating to their respective operation.
This confirms what we knew already, that the EU will do as it pleases in and to any member state. And “under their laws” is truly cynical when the member states are obliged to adopt the entire acquis communautaire, which takes primacy under the Treaties (see Declaration 17 below), and everything is under the jurisdiction of the CJEU.
Article 352: 1. If action by the Union should prove necessary, within the framework of the policies defined in the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers, the Council, acting unanimously on a proposal from the Commission and after obtaining the consent of the European Parliament, shall adopt the appropriate measures…
So should anything have been left to chance it will be swept up by this ‘catch-all’ Article. The objectives are not set out clearly at a single point anywhere in Treaties so that readers can clearly see where citizens stand. Objectives are scattered through this verbose morass so that the EU can hide their devious intentions (some objectives can be found in TEU Article 21, and see our comments in Treaties-2).
The EU was inspired by a worthy ambition but then chose the wrong target and an unworthy method of achieving it. It has since achieved nothing of great importance and nothing at all that could not have been accomplished by better methods. Meanwhile it has inflicted great and unnecessary damage to many of its citizens and undermined proven, superior models – democracy and balanced collaboration for example. Some nations, groups and individuals have gained but at the expense of others.
PROTOCOLS (37 provisions annexed to the TEU and the TFEU)
PROTOCOL (No 1) ON THE ROLE OF NATIONAL PARLIAMENTS IN THE EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
RECALLING that the way in which national Parliaments scrutinise their governments in relation to the activities of the Union is a matter for the particular constitutional organisation and practice of each Member State,
DESIRING to encourage greater involvement of national Parliaments in the activities of the European Union and to enhance their ability to express their views on draft legislative acts of the Union as well as on other matters which may be of particular interest to them,
HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union, to the Treaty on the Functioning of the European Union and to the Treaty establishing the European Atomic Energy Community:
Article 2: Draft legislative acts sent to the European Parliament and to the Council shall be forwarded to national Parliaments.
For the purposes of this Protocol, “draft legislative acts” shall mean proposals from the Commission, initiatives from a group of Member States, initiatives from the European Parliament, requests from the Court of Justice, recommendations from the European Central Bank and requests from the European Investment Bank, for the adoption of a legislative act.
A strong start dissolved by “shall be forwarded to”, which puts national parliaments in their proper place.
PROTOCOL (No 2) ON THE APPLICATION OF THE PRINCIPLES OF SUBSIDIARITY AND PROPORTIONALITY (see Treaties-6).
PROTOCOL (No 3) ON THE STATUTE OF THE COURT OF JUSTICE OF THE EUROPEAN UNION
Article 19: The Member States and the institutions of the Union shall be represented before the Court of Justice by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer.
The States, other than the Member States, which are parties to the Agreement on the European Economic Area and also the EFTA Surveillance Authority referred to in that Agreement shall be represented in same manner.
So the remit of the CJEU runs wider than the EU; we can be sure that, if it is allowed to, its jurisdiction will cover the UK after the Transition Period, as it does during it.
Article 22: The appeal shall be accompanied by a certified copy of the decision of the Arbitration Committee which is contested.
If the Court rejects the appeal, the decision of the Arbitration Committee shall become final.
If the Court annuls the decision of the Arbitration Committee, the matter may be re-opened, where appropriate, on the initiative of one of the parties in the case, before the Arbitration Committee. The latter shall conform to any decisions on points of law given by the Court.
Of course “points of law” derive from the Treaties and subsidiary regulations, decisions, etc. This Protocol has in total 64 Articles, drawn up in fine detail by lawyers for lawyers, plus a further 13 Articles in an Annex on the European Union Civil Service Tribunal.
The ‘principle of subsidiarity’ is frequently mentioned but it is a pretence. It can be shown that the EU does not believe in subsidiarity in any sense that citizens and voters would recognise as returning any control to their nations. The principle conflicts with the underlying ideology of the EU, which requires authority to be centralised and not subject to the whims of the people. Obviously the Union knows best.
PROTOCOL (No 4) ON THE STATUTE OF THE EUROPEAN SYSTEM OF CENTRAL BANKS AND OF THE EUROPEAN CENTRAL BANK
THE HIGH CONTRACTING PARTIES…
HAVE AGREED upon the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:
Article 14. 1: In accordance with Article 131 of the Treaty on the Functioning of the European Union, each Member State shall ensure that its national legislation, including the statutes of its national central bank, is compatible with these Treaties and this Statute.
Article 14. 3: The national central banks are an integral part of the ESCB and shall act in accordance with the guidelines and instructions of the ECB.
So national central banks are subject to instructions from the European Central Bank (ECB) as we knew already (see Treaties-7). This Protocol has 50 Articles in all.
PROTOCOL (No 10) ON PERMANENT STRUCTURED COOPERATION ESTABLISHED BY ARTICLE 42 OF THE TREATY ON EUROPEAN UNION
This Protocol expands the material outlined in Treaties-5.
PROTOCOL (No 12) ON THE EXCESSIVE DEFICIT PROCEDURE
PROTOCOL (No 13) ON THE CONVERGENCE CRITERIA
These Protocols refer to the material outlined in Treaties-7.
PROTOCOL (No 15) ON CERTAIN PROVISIONS RELATING TO THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND
RECOGNISING that the United Kingdom shall not be obliged or committed to adopt the euro without a separate decision to do so by its government and parliament,
The United Kingdom shall also have no right to participate in the appointment of the President, the Vice-President and the other members of the Executive Board of the ECB…
8. Article 141(1) of the Treaty on the Functioning of the European Union and Articles 43 to 47 of the Statute shall have effect, whether or not there is any Member State with a derogation, subject to the following amendments:
(c) The Bank of England shall pay up its subscription to the capital of the ECB as a contribution to its operational costs on the same basis as national central banks of Member States with a derogation.
Another example of taxation without representation.
PROTOCOL (No 21) ON THE POSITION OF THE UNITED KINGDOM AND IRELAND IN RESPECT OF THE AREA OF FREEDOM, SECURITY AND JUSTICE
Many Articles follow in this Protocol, the main purpose of which seems to be to confirm pre-existing border arrangements between the UK and Ireland. More recently it has been used to ‘weaponise’ the Belfast Agreement.
PROTOCOL (No 28) ON ECONOMIC, SOCIAL AND TERRITORIAL COHESION
RECALLING that Article 3 of the Treaty on European Union includes the objective of promoting economic, social and territorial cohesion and solidarity between Member States
RECALLING that the provisions of Part Three, Title XVIII, on economic, social and territorial cohesion as a whole provide the legal basis for consolidating and further developing the Union’s action in the field of economic, social and territorial cohesion…
REAFFIRM that the promotion of economic, social and territorial cohesion is vital to the full development and enduring success of the Union,
So “promoting” ever closer union is given a legal basis by the Treaties primarily because it is “vital”; non sequiturs forming a circle (see Answers).
“Europe’s nations should be guided towards the superstate without their people understanding what is happening. This can be accomplished by successive steps, each disguised as having an economic purpose, but which will eventually and irreversibly lead to federation.” (attributed to Jean Monnet)
DECLARATIONS CONCERNING PROVISIONS OF THE TREATIES (65)
Annexed to the final act of the Intergovernmental conference which adopted the Treaty of Lisbon (signed on 13/12/2007)
7. Declaration on Article 16(4) of the Treaty on European Union and Article 238(2) of the Treaty on the Functioning of the European Union:
Whereas: (2) It is recalled that it is the practice of the Council to devote every effort to strengthening the democratic legitimacy of decisions taken by a qualified majority,
We don’t recall that the Council has ever bothered with the “democratic legitimacy” of its decisions.
In case you think that we have exaggerated the convoluted and complex use of language in the Treaties, try this:
9. Declaration on Article 16(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
The Conference declares that the Council should begin preparing the decision establishing the procedures for implementing the decision on the exercise of the Presidency of the Council as soon as the Treaty of Lisbon is signed…
The United Kingdom shall also have no right to participate in the appointment of the President, the Vice-President and the other members of the Executive Board of the ECB…
A draft decision from the European Council, on which the Council should make a decision, fills the rest of the page.
11. Declaration on Article 17(6) and (7) of the Treaty on European Union
The Conference considers that, in accordance with the provisions of the Treaties, the European Parliament and the European Council are jointly responsible for the smooth running of the process leading to the election of the President of the European Commission.
In 2019 it was not so smooth—see Article 17(7) in Treaties-1—when a candidate other than the Parliament’s preference was imposed on them.
16. Declaration on Article 55(2) of the Treaty on European Union
The Conference considers that the possibility of producing translations of the Treaties in the languages mentioned in Article 55(2) contributes to fulfilling the objective of respecting the Union’s rich cultural and linguistic diversity…
See Treaties-0 for our views on the EU’s respect for diversity, which this Declaration compounds by linking diversity to the “possibility” of translating the Treaties.
On the surface the EU might appear an enlightened project, and many supporters choose not to look beneath the surface at what unification means in practice. The EU’s attempt to unify and pacify a fractious Europe can only succeed through suffocation and that is what is happening. Federation in practice means uniformity, perhaps because that would make ‘Europe’ easier to govern.
17. Declaration concerning primacy
The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by the said case law.
This 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.”
18. Declaration in relation to the delimitation of competences
The Conference underlines that, in accordance with the system of division of competences between the Union and the Member States as provided for in the Treaty on European Union and the Treaty on the Functioning of the European Union, competences not conferred upon the Union in the Treaties remain with the Member States.
When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence.
And this makes it clear that “shared” does not have its every-day meaning in English, as Member States can only exercise such competences with the special permission of the Union, which is rarely granted (see Treaties-6 and Treaties-4, Article 4 of the TFEU).
30. Declaration on Article 126 of the Treaty on the Functioning of the European Union
The Conference confirms that a rule-based system is the best guarantee for commitments to be enforced and for all Member States to be treated equally.
Within this framework, the Conference also reaffirms its commitment to the goals of the Lisbon Strategy: job creation, structural reforms, and social cohesion.
The Member States will take all necessary measures to raise the growth potential of their economies. Improved economic policy coordination could support this objective.
If those are the goals what are the achievements since the Treaties were signed? Too little coordination and even less growth, despite the “potential” (see, for example, Economy, Common Currency & Eurozone).
The EU provides an “economy that works for people”, which means they are “working for social fairness and prosperity. The EU’s unique social market economy allows economies to grow and to reduce poverty and inequality.”
31. Declaration on Article 156 of the Treaty on the Functioning of the European Union
The Conference confirms that the policies described in Article 156 fall essentially within the competence of the Member States. Measures to provide encouragement and promote coordination to be taken at Union level in accordance with this Article shall be of a complementary nature. They shall serve to strengthen cooperation between Member States and not to harmonise national systems.
This Declaration is without prejudice to the provisions of the Treaties conferring competence on the Union, including in social matters.
The first paragraph sounds good, until the second one puts it in perspective, with the Union deciding what prejudices the competence of the Union (see Treaties-3).