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…
1. The IGC is asked to draw up a Treaty (hereinafter called “Reform Treaty”) amending the existing Treaties with a view to enhancing the efficiency and democratic legitimacy of the enlarged Union, as well as the coherence of its external action. The constitutional concept, which consisted in repealing all existing Treaties and replacing them by a single text called “Constitution”, is abandoned. The Reform Treaty will introduce into the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC, as set out below in a detailed fashion.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 15)
So we haven’t a constitution any more. We had it for about two years, 18 countries ratified it, but French and Dutch people during the referenda refused it and so now we have gone a step back. I am a little sorry about this, I liked the constitution, even if it was a little too soft on my opinion, I would have liked more a stronger federal one… but at least it was a good starting point. The Reform Treaty is not a good starting point, is just the less worse step back…
2. The Reform Treaty will contain two substantive clauses amending respectively the Treaty on the European Union (TEU) and the Treaty establishing the European Community. (TEC). The TEU will keep its present name and the TEC will be called Treaty on the Functioning of the Union, the Union having a single legal personality. The word “Community” will throughout be replaced by the word “Union”; it will be stated that the two Treaties constitute the Treaties on which the Union is founded and that the Union replaces and succeeds the Community. Further clauses will contain the usual provisions on ratification and entry into force as well as transitional arrangements. Technical amendments to the Euratom Treaty and to the existing Protocols, as agreed in the 2004 IGC, will be done via Protocols attached to the Reform Treaty.
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 15)
At least least the Union will have a single legal personality, I never liked schizophrenia and multiple personalities…
3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice
(The Presidency Conclusions of the European Council - 21/22 June 2007, p. 16)
Well, the Reform Treaty will not state explicitly the primacy of the EU law, but what about the EU Court of Justice already stated it many years ago, so this is European Common law, isn’t it? And an other question, they Treaty will not call them laws, but who will break them will be judged and punished in some way? If the answer is yes, you can call them as you like, i.e. Miky Mouses, they will still remain laws…
I was forgetting the flag, it will be out of the Treaty… but it will remain on my fridge… and I will still continue to listen to The Ode to Joy