What About the Treaties?

The EU has drawn together all the relevant bits and pieces that have emerged over the years to define its legal authority into a single document. Because the few citizens who were given a choice rejected the idea of a Constitution, a long-winded fudge, called “Consolidated Versions of the Treaty on European Union and the Treaty on the Functioning of the European Unionhad to be arranged with an appropriately complex title and even more convoluted content.

The ‘Belgian waffle’ is a confection, world class for its texture and flavour—so too is the Lisbon Treaty; both recipes originated in Brussels but only the first would we happily swallow. The second is thickened with affirming, confirming, desiring, drawing and recognising. It is also determined and has resolved to achieve things that haven’t happened. The Cambridge English Dictionary defines the idiom ‘waffle’ as “to talk or write a lot without giving any useful information or any clear answers“, an apt description of the Treaty, as we shall see.

Very few can quote anything from the EU’s proto-constitution though they have probably heard the phrase “ever closer union” which underpins everything else.

There are many examples of ‘thou shall’ and ‘thou shall not’ in the collected works of the EU’s law-makers but also many instances of “take account of” (and its variants) that provide scope for creative interpretation by judges, frequently furthering the immutable, irreversible rule of Ever Closer Union.

Much that the treaties contain is designed to persuade us that the project is benign and to cover the stealthy manner by which it is being pursued, in the absence of popular approval.

The treaties can be downloaded at [1]. We reviewed them in a series of posts [2]. Quotations from the treaties are in red.

Preamble

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,…

CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law,…

DESIRING to enhance further the democratic and efficient functioning of the institutions so as to enable them better to carry out, within a single institutional framework, the tasks entrusted to them,…

RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,…

AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,…

RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,…

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,…

DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,…

If we pause for just a moment to think, we will acknowledge that ‘Europe’ has never had a set of universal values, but the EU disguises this with the claim that these values were developed from a ‘European inheritance’. The ambiguity is deliberate and designed to persuade, which it will do only if we don’t think carefully.

The language, “confirming”, is chosen to give the impression that such principles have existed in the environment and have been selected by the Union as the foundation for the project. Both impressions are false. The treaties and EU practices raise legitimate doubts about the EU’s attachment to such principles.

The EU “institutions” existed prior to the treaties, the true purpose of which is to establish the legal basis for doing as they please, under the veil of “the tasks entrusted to them”. By such vague and convoluted language the Treaties become a europhile lawyers’ paradise, and discourage most citizens from reading them.

The list of those who “RESOLVED” does not include a representative from the UK, although the list at the top of the TEU includes the Queen, as Head of State, presumably under the direction of the government of the day.

The rate of improvement for several decades has been rather modest, probably because the EU gets more and more encrusted with growth-destroying regulation.

What obstacles did they have in mind and what have they achieved? They have not achieved what they claim and cannot “guarantee” that they will.

What “concerted action” has been taken and with what effect? What evidence shows how the “essential objective” has been (or is being) achieved?

RECOGNISING” and “ANXIOUS” are soft targets. The ideology is evident in these: “strengthen the unity”, “ensure their harmonious development” and “reducing the differences”, which give the game away.

Where is the “harmonious development” they are “ANXIOUS to strengthen”? Less-favoured regions (such as Greece and Southern Italy) remain unfavoured; favoured regions, including Germany, have done well, mostly by their own efforts rather than the EU’s.

DETERMINED” indicates the crucial ambition, and correctly describes the underlying value.

Other constitutions also state their ambitions in high-minded rhetoric that may not always be realised but compare this unmemorable ‘waffle’ with “We hold these truths to be self-evident, that all men are created equal.” Who could or would quote a word of the above waffle, or hold the EU to account for it?*

After the general sentiments and ambitions come the implementation details. From

EU Treaties-1: Background & Membership

Democracy and Development

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.

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 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.

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.

Since only the European Commission can propose and make laws and budgets, the expression “exercise legislative and budgetary functions” actually means that the Parliament may argue about laws and budgets and, in the extreme, veto them; but the Article, with “exercise” suggests that something more substantial is being stated.

The first statement is grand but ill-defined and vague; how does the European Council “provide…the necessary impetus” and what does it mean to “define the general political directions”? The treaties don’t define this. In particular, how many “directions” do they expect it to take? This is sufficiently vague to let them define their remit as they will, including exercising “legislative functions”, however they choose to define those.

Point 2 confirms the lack of substance of the European Council, as, according to this Article, 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).

Decision-making and the Law

From ex-Commission President 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.”

In theory qualified majority support 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 theory in the Treaties.

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.

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.

So the Commission will do quite a lot; in practice it is the would-be government of the Union. 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.

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”.

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.

Finances and the Budget

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,

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:…

Note “shall be adopted”; this is a legally enforceable instruction. Presumably the Parliament may debate it but then must adopt it (see EU Treaties-8 for clarification of EU use of ‘shall’ and ‘may’). Likewise 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 for PR purposes. In Articles 184-190 the Union (i.e. the Commission) gives itself permission for various things and instructs its institutions to do other things.

*US Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness – that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.

[1] https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=OJ:C:2007:306:FULL&from=EN

[2] See Treaties: Examined in Detail and EU Treaties-0: Introduction


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