Continua la mia esplorazione del territorio leghista avviata ieri. Il documento di riferimento della corrispondenza di oggi è la delibera del Parlamento del Nord del 2 Marzo 2008 sul federalismo. Il documento è suddiviso in quattro “capitoli”, che riprenderò a mia volta per organizzare l’analisi.
La prima parte del documento parte da alcuni dati di fatto, o almeno da quelli che vengono presentati come dati di fatto. Vediamoli in dettaglio.
[Il Parlamento del Nord prende atto] che il processo di disgregazione e di dissoluzione dello Stato nazionale, come aveva preconizzato il professor Gianfranco Miglio, procede a ritmi sempre più rapidi ed è ormai giunto al capolinea, per effetto dell’erosione della propria prerogativa esclusiva — la sovranità — dal basso, vale a dire a causa delle crescenti istanze di autonomia delle politiche regionali, e dall’alto, vale a dire a causa della progressiva ingerenza delle politiche dell’Unione europea nell’ambito delle sfere di competenza delle singole statualità
Sfortunatamente non conosco l’opera del prof.Miglio e non so dire se lo Stato nazionale di cui si parla sia solo lo Stato (nazionale) italiano o lo Stato nazionale in genere. Vediamo perciò entrambi i casi.
Lo Stato italiano è giunto al capolinea
? Personalmente non ho simpatia per il nazionalismo ma nemmeno per lo storicismo2, cioè per il destino calato nella storia__a dire il vero sono profondamente critico verso l’idea di destino in ogni sua variante. Sinceramente non so se lo Stato nazionale italiano sia davvero finito, e soprattutto non so se questo sia inevitabile__a meno che non si agisca concretamente per farlo finire. Di sicuro non sta bene e in gran parte del territorio è assente o è presente in maniera così perversa da rendere un servizio più ai malavitosi e ai profittatori che ai cittadini onesti, e in questo senso concordo con quanto asserisce il Parlamento del Nord che, sul piano interno, lo Stato ha abdicato alla propria sovranità in molte realtà regionali e in plurime circostanze (le così dette — e ormai quotidianamente all’ordine del giorno — ‘emergenze’: rifiuti, immigrazione ecc.)
. Una cosa però la si potrebbe obiettare: uno Stato nazionale davvero forte in Italia non è mai propriamente esistito, non per lo meno come può essere esistito in Francia e Regno Unito. Quindi più che finito sembrerebbe non essere mai davvero iniziato.
Ribadisco comunque che non credo all’esistenza delle nazioni e non ritengo ci sia alcuna ragione valida per mantenere in piedi a tutti i costi gli Stati nazionali solo perché nazionali. Uno Stato è comunque qualcosa di dinamico che può trasformarsi nel tempo sulla base delle trasformazioni della società e la volontà dei suoi cittadini. Se è necessario uno Stato può a mio avviso essere diviso in più Stati o aggregato ad altri, dipende dai suoi cittadini, dalla loro volontà a dal loro interesse. Per tale ragione non alzerò un dito per difendere il totem dell’unità nazionale, ma, attenzione, nemmeno per difendere una supposta “nazione padana”. Facciamo gli Stati con la ragione, non con le nazioni.
Ma dall’Italia allarghiamo un attimo lo sguardo per comprendere il resto d’Europa. In Europa gli Stati nazionali sono in crisi? Credo proprio di si. Si pensi alle recenti vicende in Belgio, alle tensioni interne alla Germania per via degli squilibri tra ovest ed est, alla Spagna con le rivendicazioni dei baschi e dei catalani, al Regno Unito che, nonostante finalmente abbia potuto avviare le demilitarizzazione dell’Irlanda del Nord, comunque deve avere a che fare con le spinte indipendentiste scozzesi, e, seppur in tono minore, alla Francia con gli indipendentisti corsi. Ed è interessante notare come in quasi tutti i casi3 ciò sia collegato ad uno squilibrio economico di tipo territoriale, per cui regioni più ricche versano cospicui tributi a quelle più povere.
Ma che ruolo ha l’Unione Europea in tutto questo? Il documento leghista asserisce che l’euroregionalizzazione […] oggi costituisce un dato di fatto e alimenta l’affermazione delle identità culturali territoriali
, che regioni ed Unione trovano ormai ampi margini di dialogo politico senza la mediazione dello Stato centrale
nazionale, con l’Unione orientata ad accordare progressivi margini di autonomia alle unità regionali interne ai singoli Stati
.
Ora non sono certo che l’orientamento attuale dell’Unione Europea sia proprio questo, per lo meno non in maniera così radicale come potrebbe apparire dal documento citato. Di certo alla base dell’Unione Europea, nel pensiero dei suoi fondatori, c’era una profonda critica del nazionalismo. Penso ad esempio al Manifesto di Ventotene di Altiero Spinelli. E sicuramente cercare di favorire ogni forma di cooperazione cross-border fa parte di una politica Europea volta ad abbattere confini e recinti nazionali. Tuttavia rimane il fatto che la politica europea si fa in Commissione e in Parlamento, ma anche e non marginalmente in Consiglio, dove siedono i rappresentati dei governi nazionali, con tutti i limiti di ciò e di un’Europa federale per ora incompiuta.
E nel resto del mondo? Anche a questo livello ci sono elementi di tensione centro-periferia, penso alla Cina (vedi Tibet, Uigur, Mongolia Interna, Taiwan, Hong Kong), alla Russia (vedi Cecenia), ma sembra che ciò avvenga soprattutto negli Stati più rigidi dove non c’è democrazia e soprattutto non c’è una struttura federale. Non mi pare per esempio che esista un problema di dissoluzione statuale negli Stati Uniti, in Brasile o, con qualche precisazione, in India4, per citare solo gli Stati più grandi in cui è più facile si manifestino squilibri territoriali__effettivamente ho citato tutti Stati federali…
Ma torniamo all’Italia, l’ultima presa d’atto del documento leghista è la seguente.
a partire dai primi anni Novanta — dallo studio della Fondazione Agnelli del 1992 e dall’elaborazione del progetto politico federale proposto dal professor Gianfranco Miglio — è sotto gli occhi di tutti la suddivisione del Paese in tre grandi unità regionali, omogenee e assai affini dal punto di vista economico, sociale e culturale, come recentemente riconosciuto, per esempio, dall’Osservatorio del Nord-Ovest (non certo tacciabile di ‘simpatie’ leghiste)
Purtroppo non ho sufficienti conoscenze socio-economiche per poter affrontare compiutamente questo tema (come molti altri…). Di certo mi piacerebbe se ne parlasse di più. Questo è un punto fondamentale per l’intero ragionamento. Intuitivamente concordo che esistano tali differenze, e non solo intuitivamente soprattutto dopo avere scoperto che nell’indagine OCSE - Pisa l’Italia ha un punteggio inferiore alla media dei paesi industrializzati quando i dati sono aggregati, ma se li scomponiamo scopriamo che le scuole dell’Italia del nord sono perfettamente nella media. Ma non bastano uno o due studi per supportare o confutare questo argomento, esso è l’architrave portante dell’intera richiesta di riforme successive e dovrebbe essere a mio avviso il primo argomento di un autentico, approfondito, serio, dibattito nazionale…
Date tutte le premesse la prima conclusione che il documento in analisi trae è l’auspicio per una definitiva archiviazione del decentramento — per la verità piuttosto blando e, comunque, insoddisfacente — che ha caratterizzato e scandito la vita istituzionale del Paese nell’ultimo decennio, in favore di un autentico federalismo
E qui emerge uno degli elementi secondo me centrali della Lega: la radicalità (ancor prima che il radicamento). Pur essendo un movimento che si colloca nello schieramento di centro-destra, che dovrebbe essere quello “conservatore”, la Lega auspica riforme radicali. Certo per alcuni sono contro-riforme che riporterebbero l’Italia indietro agli anni bui precedenti l’unificazione, ma non è così per chi ha scritto il documento in analisi che vede una riforma federale radicale come un elemento di modernità, qualcosa in perfetto accordo con i tempi.
Lo strumento per realizzare la riforma radicale, quasi una sovversione dell’ordinamento statuale vigente (e infatti si parla di grimaldello per far ‘saltare’ il sistema centralista
) è il Senato federale con senatori eletti dalle varie regioni in proporzione agli abitanti. Si noti che qui si parla ancora delle regioni come le conosciamo noi oggi e il modello di riferimento è il Budesrat tedesco.
Parallelamente poi si chiede la soppressione delle prefetture. Certo, a questo punto una richiesta coerente… anche se si potrebbe obiettare che togliere al Ministero dell’Interno proprio uno dei suoi canali di presenza territoriale, proprio quella di cui si lamenta l’assenza, forse non è un’ottima idea… ma ripeto nella visione leghista è coerente, soprattutto coerente con quanto segue.
la suddivisione del territorio della Repubblica italiana in tre Euroregioni, che rappresentano la più funzionale articolazione territoriale sulla quale fondare il nuovo Stato federale. Le prerogative e le funzioni di ogni Consiglio euroregionale e di ogni Governo euroregionale, nei loro rapporti con il Governo federale della Repubblica e con l’Ue, sono demandate alla necessaria e radicale riforma costituzionale — che si configura, dunque, come un vero e proprio patto federale — connessa a questo progetto; riforma che dovrà ispirarsi al riconoscimento e all’istituzionalizzazione della ‘diversità’ economica, sociale e culturale, alle quali lo Stato federale garantirà adeguata tutela ed espressione, delle euroregioni, a esse accordando una sovranità esclusiva, vale a dire la libertà, intesa come autonomia e autogoverno, in termini di potere legislativo, amministrativo, giudiziario. Le tre euroregioni, così federate, saranno rappresentate dal Senato federale.
Quindi parliamo di tre formazioni territoriali, che avranno esclusiva sovranità legislativa, esecutiva e giudiziaria, cui lo Stato federale deve garantire il riconoscimento della diversità, economica, sociale e culturale. Inoltre si afferma che tale organizzazione è la più funzionale sulla quale fondare il nuovo Stato, non più nazionale ma federale, appunto.
Siamo quindi alle tre Italie: l’Italia del Nord, l’Italia Centrale e l’Italia del Sud. Ma esistono davvero queste tre Italie? La loro organizzazione in Stati quasi indipendenti è davvero la più funzionale? Se queste tre Italie avranno davvero totale sovranità in campo legislativo, amministrativo e giudiziario, che farà lo Stato federale? Quali poteri, compiti, quale giurisdizione gli sarà affidata delle sue componenti? Per ora lascio gli interrogativi aperti e mi fermo qui.
1 Il testo originario diceva Individua
, sotto inteso il Parlamento del Nord come soggetto. Ma “individuazione” non rendeva bene l’idea di ciò che secondo me era centrale nei paragrafi seguenti.
2 Per una critica approfondita si legga Karl Popper, The Poverty of Historicism (1957).
3 Meno cioè la Corsica e la Scozia, anche se in questo secondo caso comunque non si tratta solo di storia o di ritorno al passato in quanto nel piatto stanno anche i proventi ricavati dall’estrazione del petrolio.
4 Penso al problema del Kashmir, ma in questo caso non si tratta di un vero movimento indipendentista quanto piuttosto di un pezzo di territorio che vorrebbe staccarsi da uno Stato per confluire in un altro.
| one cell needs: | being able to read signals from the outside environment | diffusing signals inside its own body causing a reaction which hopefully will bring to a better adaptation to the environment | - |
| many cells need: | being able to read signals from the outside environment (both inside or outside the organism) | diffusing signals inside their own body causing it to react | exchanging signals with other cells causing them to react |
The old Article 7 from the the consolidated version of the Treaty on European Union:
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the assent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of principles mentioned in Article 6(1), and address appropriate recommendations to that State. Before making such a determination, the Council shall hear the Member State in question and, acting in accordance with the same procedure, may call on independent persons to submit within a reasonable time limit a report on the situation in the Member State in question. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The Council, meeting in the composition of the Heads of State or Government and acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the assent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of principles mentioned in Article 6(1), after inviting the government of the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. For the purposes of this Article, the Council shall act without taking into account the vote of the representative of the government of the Member State in question. Abstentions by members present in person or represented shall not prevent the adoption of decisions referred to in paragraph 2. A qualified majority shall be defined as the same proportion of the weighted votes of the members of the Council concerned as laid down in Article 205(2) of the Treaty establishing the European Community. This paragraph shall also apply in the event of voting rights being suspended pursuant to paragraph 3.
6. For the purposes of paragraphs 1 and 2, the European Parliament shall act by a two-thirds majority of the votes cast, representing a majority of its Members.
The article 7 changes (in italic) on the base of the Draft version of the Reform Treaty:
Article 7 - Suspension of certain rights resulting from Union membership
1. On a reasoned proposal by one third of the Member States, by the European Parliament or by the Commission, the Council, acting by a majority of four fifths of its members after obtaining the consent of the European Parliament, may determine that there is a clear risk of a serious breach by a Member State of the values referred to in Article [I-2]. Before making such a determination, the Council shall hear the Member State in question and may address recommendations to it, acting in accordance with the same procedure. The Council shall regularly verify that the grounds on which such a determination was made continue to apply.
2. The European Council, acting by unanimity on a proposal by one third of the Member States or by the Commission and after obtaining the consent of the European Parliament, may determine the existence of a serious and persistent breach by a Member State of the values referred to in Article [I-2], after inviting the Member State in question to submit its observations.
3. Where a determination under paragraph 2 has been made, the Council, acting by a qualified majority, may decide to suspend certain of the rights deriving from the application of this Treaty to the Member State in question, including the voting rights of the representative of the government of that Member State in the Council. In doing so, the Council shall take into account the possible consequences of such a suspension on the rights and obligations of natural and legal persons. The obligations of the Member State in question under this Treaty shall in any case continue to be binding on that State.
4. The Council, acting by a qualified majority, may decide subsequently to vary or revoke measures taken under paragraph 3 in response to changes in the situation which led to their being imposed.
5. The voting arrangements applying to the European Parliament, the European Council and the Council for the purposes of this Article are laid down in Article [309] of the Treaty on the Functioning of the Union.
This article seems to be very strong, at least on paper. In theory if any Member State seriously violated EU’s values (human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities, and also pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men), then it could temporarily loose some rights deriving from the EU membership while maintaining all the obligations.
The article seems not having been changed too much. The major change is that the violation is no more related to the basic rights as described in the Article 6 but to the values described in the new Article 2. This could have two opposite effects: it can weak the procedure because of the genericness of Union’s values, or it can make it easier to be invoked just because the same vagueness, indeed a wider range of degrees of action can fit the label of violation of the EU’s values.
We have seen here that the new treaty aims to define clearly how the relations between the Union and the Member States have to be, and we have already seen the first formulation of the principle of conferral.
Now let’s see how old articles 4, 5 and 6 will be replaced by the new articles 5 and 6.
Article 4
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission.
The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.
Article 5
The European Parliament, the Council, the Commission, the Court of Justice and the Court of Auditors shall exercise their powers under the conditions and for the purposes provided for, on the one hand, by the provisions of the Treaties establishing the European Communities and of the subsequent Treaties and Acts modifying and supplementing them and, on the other hand, by the other provisions of this Treaty.
Article 6
1. The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.
2. The Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law.
3. The Union shall respect the national identities of its Member States.
4. The Union shall provide itself with the means necessary to attain its objectives and carry through its policies.
The Article 4 is renumbered 5 and replaced by the following one, the Article 5 is completely repealed and the 6 is changed as you can read.
Article 5 - Fundamental principles relating to competences
1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
2. Under the principle of conferral, the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein. Competences not conferred upon the Union in the Treaties remain with the Member States.
3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments shall ensure compliance with that principle in accordance with the procedure set out in that Protocol.4. 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.
The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality.Article 6 - Fundamental rights
1. The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of 7 December 2000, as adapted on [… 2007], which shall have the same legal value as the Treaties.
The provisions of the Charter shall not extend in any way the competences of the Union as defined in the Treaties.
The rights, freedoms and principles in the Charter shall be interpreted in accordance with the general provisions in Title VII of the Charter governing its interpretation and application and with due regard to the explanations referred to in the Charter, that set out the sources of those provisions.2. The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. Such accession shall not affect the Union’s competences as defined in the Treaties.
3. Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.
The new Article 5 goes further in delineating how the principle of conferral will work. To the principle of conferral is explicitly stated also the principle of subsidiarity and that of proportionality. I think that these three principle can be considered as a development of the concept expressed in the already cited US Tenth Amendment.
Note that the old Article 4, now 5, has been completely changed and the old Article 5 that was similar in some sense to tha old 4 has been completely repealed. Anyway this is not a real major change, because what was written in the old articles 4 and 5 will be restated later in the Reform Treaty.
About the Article 6, I think the new version is very much more focused on rights than the old one__this is possible because other topics as relations between EU and its Member States has already been deeply in the new articles discussed before. A major enhancement is the introduction of Charter of Fundamental Rights that will be kept out from the Treaty, but it will have nevertheless legal value. Here you can read it.
The old Article 3:
The Union shall be served by a single institutional framework which shall ensure the consistency and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.
The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
The old Article 3 is renumbered 4 and replaced with this:
Article 4 - Relations between the Union and the Member States
1. In accordance with Article [I-11], competences not conferred upon the Union in the Treaties remain with the Member States.
2. The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.
3. 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.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union’s tasks and refrain from any measure which could jeopardise the attainment of the Union’s objectives.
The point one of this new article is a formulation of the principle of conferral. The principal of conferral in my view is an other point that makes a federal Union to be distinguishable from a unitary State with very strong regional autonomies. In the second case every power not explicitly given to the regional institutions by the unitary constitution will belong to the central institutions. Federal Unions instead are based on the principle of conferral: every power not explicitly given to the central institutions will belong to the regional ones. The principle of conferral “always underpinned the European Union“, even if only now it has been stated explicitly, and in my view resembles very much the Tenth Amendment to the United States Constitution.
The whole Article 4 anyway aims to remark the reciprocal “rights&duties” between European Union and Member States. Again this is quite normal in any federal Union, in which some powers are explicitly conferred to central institutions and all other powers belong to the regional institutions. So even if on a mere abstract level there is no difference among EU and a federal Union, of course there is a big concrete difference: national security is “the sole responsibility of each Member State”, that has to be added to the repealing of the common defence as an objective of the Union (see here).
So the legal framework of the European Union seems to me to be clearly a federal one:
However even if the general structure of power division is that of a federal Union, if we look at the way how power is actually divided we find a huge difference among the European Union and for example the United States: the Member States of the EU didn’t conferred to it the military power, so it seems there will no room for a common defence (at least at this point of the treaty, but we will see that things are a little different).
Anyway, as my last remark I want to notice that “national security remains the sole responsibility of each Member State” is a little ambiguous statement if we look at it in order to answer this question: if a group of Member States will decide to create a common army the European Union shall block them? I mean, the assertion that national security is just a matter of the States can be read also as forbidding a sub-set of the Member States of clustering together on this point?
The answer to this last question will come later in the treaty.
I am going to continue here my survey of the draft version of the Reform Treaty that I started there.
Well, this is the Article one of the consolidated version of the Treaty on European Union:
Article 1
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
The Union shall be founded on the European Communities, supplemented by the policies and forms of cooperation established by this Treaty. Its task shall be to organise, in a manner demonstrating consistency and solidarity, relations between the Member States and between their peoples.
This will be the new version (italic indicates changes):
Article 1 - Establishment of the Union
By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN UNION, hereinafter called ‘the Union’ on which the Member States confer competences to attain objectives they have in common.
This Treaty marks a new stage in the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as openly as possible and as closely as possible to the citizen.
The Union shall be founded on the present Treaty and on the Treaty on the Functioning of the European Union. It shall replace and succeed the European Community.
The first adding is that of the title of the article. Titled articles seem to be a convention for the new version of the treaty, all the articles of the old treaty will be changed in this way.
The second adding brings makes clearer the federal concept that the Union exists because it Members want it to exist not the opposite. This is a key point in understanding the difference between a central State with strong regional autonomies and a federal State or Union. In the first case it is the central State that decide if which regions should exist and then it will share or delegate some powers to them and the regions will not be allowed to get more power than that. In a federal State or Union it happens quite the reverse: the constituent States decide to make a Union to exist, after having decided this they find an agreement about which powers they want to confer to this Union and the Union will not be allowed to take get more power than that.
The old Article 2 will be renumbered Article 3 and a completely new Article 2 will be inserted, so this was the old Article 2:
The Union shall set itself the following objectives:
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty,
— to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17,
— to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union,
— to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime,
— to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community.The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community.
And this will be the new version with the completely new Article 2 and the reformed Article 3:
Article 2 - The Union’s values
The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.
Article 3 - The Union’s objectives
1. The Union’s aim is to promote peace, its values and the well-being of its peoples.
2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment.
It shall promote scientific and technological advance.
It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child.
It shall promote economic, social and territorial cohesion, and solidarity among Member States.
It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced.4. The Union shall establish an economic and monetary union whose currency is the euro.
5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter.
6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties.
So the new Article 2 is about the basic values and I have not too much to say about them, apart that I endorse them… Coming to the Article 2, things become a little more complicated. Let’s compare each point of the new Article 3 with its old corresponding paragraph using a table:
| 1. The Union’s aim is to promote peace, its values and the well-being of its peoples. | - |
| - | — to strengthen the protection of the rights and interests of the nationals of its Member States through the introduction of a citizenship of the Union |
| 2. The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime. | — to maintain and develop the Union as an area of freedom, security and justice, in which the free movement of persons is assured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime |
| 3. The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance. It shall combat social exclusion and discrimination, and shall promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. It shall promote economic, social and territorial cohesion, and solidarity among Member States. It shall respect its rich cultural and linguistic diversity, and shall ensure that Europe’s cultural heritage is safeguarded and enhanced. 4. The Union shall establish an economic and monetary union whose currency is the euro. |
— to promote economic and social progress and a high level of employment and to achieve balanced and sustainable development, in particular through the creation of an area without internal frontiers, through the strengthening of economic and social cohesion and through the establishment of economic and monetary union, ultimately including a single currency in accordance with the provisions of this Treaty |
| 5. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens. It shall contribute to peace, security, the sustainable development of the Earth, solidarity and mutual respect among peoples, free and fair trade, eradication of poverty and the protection of human rights, in particular the rights of the child, as well as to the strict observance and the development of international law, including respect for the principles of the United Nations Charter. | — to assert its identity on the international scene, in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence, in accordance with the provisions of Article 17 |
| 6. The Union shall pursue its objectives by appropriate means commensurate with the competences which are conferred upon it in the Treaties. | — to maintain in full the acquis communautaire and build on it with a view to considering to what extent the policies and forms of cooperation introduced by this Treaty may need to be revised with the aim of ensuring the effectiveness of the mechanisms and the institutions of the Community. The objectives of the Union shall be achieved as provided in this Treaty and in accordance with the conditions and the timetable set out therein while respecting the principle of subsidiarity as defined in Article 5 of the Treaty establishing the European Community. |
So firstly we notice that peace appeared. Even if this documents are full of rhetoric I prefer to have peace written among objectives to not have it.
Then we notice that citizenship is no more an objective, but from the point two it becomes suddenly clear that it no more an objective because it is taken as something already acquired and it is better to concentrate to what the Union aims to offer to its citizens.
At point 3 we have a more detailed description of what more or less was already present in the old version, but the new version anyway seems to me much better.
At point 5 we find a major change (maybe the only real major change here). The “common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence” is no more an objective. This is an interesting point. We can see this change as a tentative to put definitely aside common foreign policy and defence. However the articles we will see while going on with our analysis will show us this is not the case. Anyway this absence is worth of being noticed, especially if we compare it with the explicit presence of the single market and currency that were objectives in the past while now they are much more a kind of “data”.
Today I will start to focus on the proposed draft version of the Reform Treaty. The Reform Treaty is aimed to amend the present treaties about the EU and the European Community, so it is quite difficult to understand this new treaty without comparing it with the present version of the treaties it amends. Besides, this is not the first European treaty amending a previous one (see here for a quick history) and amendments has been stratifying during the decades, so in order to have a clear idea on what is the present situation we usually have to read the consolidated version of the treaties in force at present. So what I am going to do is comparing this consolidated version with what will result after the new amending by the Reform Treaty.
The sources of my notes will be the The Treaty on European Union and the Treaty establishing the European Community as in force from 1 February 2003 (Nice consolidated versions) and The Draft Treaty amending the Treaty on European Union and the Treaty establishing the European Community
Well, let’s start with the Preamble.
This is the present version:HIS MAJESTY THE KING OF THE BELGIANS, HER MAJESTY THE QUEEN OF DENMARK, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE HELLENIC REPUBLIC, HIS MAJESTY THE KING OF SPAIN, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF IRELAND, THE PRESIDENT OF THE ITALIAN REPUBLIC, HIS ROYAL HIGHNESS THE GRAND DUKE OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS, THE PRESIDENT OF THE PORTUGUESE REPUBLIC, HER MAJESTY THE QUEEN OF THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND,
RESOLVED to mark a new stage in the process of European integration undertaken with the establishment of the European Communities,
RECALLING the historic importance of the ending of the division of the European continent and the need to create firm bases for the construction of the future Europe,
CONFIRMING their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law,
CONFIRMING their attachment to fundamental social rights as defined 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,
DESIRING to deepen the solidarity between their peoples while respecting their history, their culture and their traditions,
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 achieve the strengthening and the convergence of their economies and to establish an economic and monetary union including, in accordance with the provisions of this Treaty, a single and stable currency,
DETERMINED to promote economic and social progress for their peoples, taking into account the principle of sustainable development and within the context of the accomplishment of the internal market and of reinforced cohesion and environmental protection, and to implement policies ensuring that advances in economic integration are accompanied by parallel progress in other fields,
RESOLVED to establish a citizenship common to nationals of their countries,
RESOLVED to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 17, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world,
RESOLVED to facilitate the free movement of persons, while ensuring the safety and security of their peoples, by establishing an area of freedom, security and justice, in accordance with the provisions of this Treaty,
RESOLVED to continue the process of creating an ever closer union among the peoples of Europe, in which decisions are taken as closely as possible to the citizen in accordance with the principle of subsidiarity,
IN VIEW of further steps to be taken in order to advance European integration,
HAVE DECIDED to establish a European Union and to this end have designated as their Plenipotentiaries: (List of plenipotentiaries not reproduced)
WHO, having exchanged their full powers, found in good and due form, have agreed as follows.
To this it will be added this piece of inspiration:
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,
Of course the beginning list of heads of State (note how many Queens and Kings!) will also change due to the fact that now there are many new countries which have joined us in 2004.
Focusing on the piece of preamble that will be added, we can see that it is what remains of the famous preamble of the proposed Constitution. The Roman Church strongly opposed it because here the text talk only of a vague “religious inheritance” and not of strong “Christian roots”. I will not go deeper in this debate, I just state that in my opinion the formulation of the present text is good enough.
However, I want to end this post focusing on an already consolidated part of this preamble:
RESOLVED to establish a citizenship common to nationals of their countries,
RESOLVED to implement a common foreign and security policy including the progressive framing of a common defence policy, which might lead to a common defence in accordance with the provisions of Article 17, thereby reinforcing the European identity and its independence in order to promote peace, security and progress in Europe and in the world,
This is a clue of the federalist soul of the EU. Many people, also European federalists, think that EU is not a federal State. I have a different opinion, but even if I admitted that the Union is not a federal one yet, I would ask those people to admit at least that EU has a clear federal direction and that this direction is already established in the treaties.
12. The institutional changes agreed in the 2004 IGC will be integrated partly into the TEU and partly into the Treaty on the Functioning of the Union. The new Title III will give an overview of the institutional system and will set out the following institutional modifications to the existing system, i.e. the Articles on the Union’s institutions, the European Parliament (new composition), the European Council (transformation into an institution4 and creation of the office of President), the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it), the European Commission (new composition and strengthening of the role of its President), the Union Minister for Foreign Affairs (creation of the new office, its title being changed to High Representative of the Union for Foreign Affairs and Security policy) and the Court of Justice of the European Union.(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 18)
About points 1, 3 and 5 I am not interested here. About point 2 I have to say that it will be very good. I would have liked much more a five-year presidency than this 2-year-and-a-half one. However it is still better than 6 months, and I guess that it will become a common practice to renew the President a second time so that we will have a de facto 5-year presidency.
And what about the High Representative? They didn’t call it Minister for Foreign Affairs. Names. Sometimes our politicians seem to be as ancient Chinese ones… they were convinced that if you change the name then you change the substance of thing, especially in the social relation field. Well you can call it as you like, i.e. The Great Granny, and it will not change anything! What matter in politics, and they perfectly know, is which kind of powers you give to an office. So let’s go to check a little these powers.
They say in the Annex 1 […] In particular, national security remains the sole responsibility of each Member State.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 25). So it seems no common army.
However few lines later they say 1. 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 […]
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 26). So it seems we will have a common army.
So we have a contradiction. It is clear here that there are two trends in the EU, someone want a common foreign policy and a common army, someone not. This contradiction emerges here, but the federalist soul emerges in these words: Union’s competence […] shall cover […] all questions relating to the Union’s security.
So this means that if the security threaded is the Union’s one the Union will be competent not the Member States, and this means federal union, not just common market!
I like this point but eurosceptics don’t so let’s read that whole paragraph in order to see how they replied: 1. 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. The common foreign and security policy is subject to specific procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor the compliance with Article [III-308] and to review the legality of certain decisions as provided for by Article [III-376, second subparagraph].
I think point 5 is a little redundant, but the aim of this redundancy is to link it to point 4 in order to be sure the Court will not have power on the matter. Why this? Because in a past sentence the Court established that the right of the Union overcome that of Member States. There is an underground red line that links many pieces of this Reform Treaty and it is the aim to confine that sentence of the Court in a juridical limbo following this idea “the right of the Union overcome that of the Member States only where the Treaties allows it”. I find it quite ridiculous. The Court sentence was aimed to create certainty in the right through out the Union, stating where the right of a State and that of the Union were conflicting each other, that of the Union was the prevailing one. This didn’t mean the Union legislating about everything. The Court has also to guaranty that the treaties are not betrayed! What does it mean that the Court has no jurisdiction but this and that is defined by the treaties? If there are different interpretations of the treaties who will decide? I think here lays the real problem of this Reform Treaty, they created a hole in the legislation, and I guess they know it.
11. This new Title II will contain the provisions agreed in the 2004 IGC on democratic equality, representative democracy, participatory democracy and the citizens’ initiative. Concerning national parliaments, their role will be further enhanced compared to the provisions agreed in the 2004 IGC (see Annex 1, Title II):
• The period given to national parliaments to examine draft legislative texts and to give a reasoned opinion on subsidiarity will be extended from 6 to 8 weeks (the Protocols on national Parliaments and on subsidiarity and proportionality will be modified accordingly).
• There will be a reinforced control mechanism of subsidiarity in the sense that if a draft legislative act is contested by a simple majority of the votes allocated to national parliaments, the Commission will re-examine the draft act, which it may decide to maintain, amend or withdraw. If it chooses to maintain the draft, the Commission will have, in a reasoned opinion, to justify why it considers that the draft complies with the principle of subsidiarity. This reasoned opinion, as well as the reasoned opinions of the national parliaments, will have to be transmitted to the EU legislator, for consideration in the legislative procedure. This will trigger a specific procedure:
- before concluding first reading under the ordinary legislative procedure, the legislator (Council and Parliament) shall consider the compatibility of the legislative proposal with the principle of subsidiarity, taking particular account of the reasons expressed and shared by the majority of national parliaments as well as the reasoned opinion of theCommission;
- If, by a majority of 55% of the members of the Council or a majority of the votes cast in the European Parliament, the legislator is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration. (the Protocol on subsidiarity and proportionality will be modified accordingly). A new general Article will reflect the role of the national parliaments.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 17)
Well this paragraph has been interpreted as able to give more power to national parliaments. I only partially agree on this point. At the end of the paragraph number 11 it is mentioned a new general Article, this is the text:
National parliaments shall contribute actively to the good functioning of the Union:
a) through being informed by the institutions of the Union and having draft European legislative acts forwarded to them in accordance with the Protocol on the role of national parliaments in the European Union;
b) by seeing to it that the principle of subsidiarity is respected in accordance with the procedures provided for in the Protocol on the application of the principles of subsidiarity and proportionality;
c) by taking part, within the framework of the area of freedom, security and justice, in the evaluation mechanisms for the implementation of the Union policies in that area, in accordance with Article [III-260],
and through being involved in the political monitoring of Europol and the evaluation of Eurojust’s activities in accordance with Articles [III-276 and III-273];
d) by taking part in the revision procedures of the Treaties, in accordance with Article [IV-443 and IV-444]:
e) by being notified of applications for accession to the Union, in accordance with Article [49];
f) by taking part in the inter-parliamentary cooperation between national parliaments and with the European Parliament, in accordance with the Protocol on the role of national parliaments in the European Union.
Of course they have much power of controlling EU action, i.e. Europol and Eurojust, but it seems to me that the substance doesn’t change very much, I mean they will have no power of veto if they dislike some policy. Let’s try to put the whole mater in a simple scheme.
The Commission proposes a law (I know they won’t be called laws… but actually they are legally binding, so they are de facto laws), the Council and The European Parliament can approve it or not. This is the way things work on the EU level.
Now what happens if a national Parliament doesn’t like that law? Can it stop it? Not directly, but It can say: “This law violate the principle of subsidiarity, this means that EU are taking action on a field that is competence of the Member States, for this or that reason”.
So the law goes back to the Commission, which said: “This is not the case, ruling this field is our competence because of this or that reason”.
So now we have the reasons of the Commission on one side and that of a national Parliament on the other… who will take the final decision? The Council and the European Parliament, so to institutions of the EU, so at the end the power stays upon the Union…
For me this is more then ok… but I don’t know if eurosceptics will like it so much… I guess not…
Anyway none of us common citizens can be sure about this new Article, there are to much protocols citied, so it becomes quite impossible to know how actually things are.
8. Title I of the existing TEU [= the Treay on European Union, alias the Maastricht Treaty], containing inter alia Articles on the Union’s values and objectives, on relations between the Union and the Member States, and on the suspension of rights of Member States, will be amended in line with the innovations agreed in the 2004 IGC (see Annex 1, Title I).
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 16)
This is quite interesting, I will come back to the Annex 1 in a future post.
9. The Article on fundamental rights will contain a cross reference to the Charter on fundamental rights , as agreed in the 2004 IGC, giving it legally binding value and setting out the scope of its application.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 17)
The Charter on fundamental rights has been sent to all European citizens directly at home some years ago (at least this happened in Italy… I hope the same was for other EU Countries). I read it and I found it quite agreeable even if I think I would have to read it again if I wanted to remember all its details. Anyway that Charter is important because it will give a strong base to European citizenship. At present European citizenship is based upon some basic rights (such as the right of moving freely from one EU Country to an other), but the Charter will deeply extend these rights. Great Britain didn’t want the Charter to be in the new Treaty but many other countries want it. They reached the compromise to put it out of the Treaty but saying in the Treaty that it is legally binding.
It is interesting to notice that in the consolidated version of the TEU there is already a reference to a sort of Charter of rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 (TEU, Title 1, Article 6)
10. In the Article on fundamental principles concerning competences it will be specified that the Union shall act only within the limits of competences conferred upon it by the Member States in the Treaties.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 17)
I don’t know what eurosceptics think about this paragraph, but I think it’s ok. All Federal States stand upon the powers given them by their member States… this is subsidiarity baby, a founding principle of every Federation… so…