This is my commentary on the consolidated Lisbon treaty, working through it line by line, containing all the amendments to the various treaties (Maastricht, Rome and Amsterdam (which itself was an amendment to the Rome Treaty)).
This is a work in progress - please bear with me as I may have to come back and make amendments as I get deeper into the treaty, where some of the amendments clarify previously covered sections. This, part 1 covers the amendments to Maastricht, including *some* references to the amendments made to Rome that are relevant to the Maastricht amendments.
While considering the entire EU project, in monstrous form now that we are truly locked into it by Lisbon, it is well worth keeping two charts in mind, - hat tip to Tom Paine for alerting me to these, both from Wat Tyler:
i) The graph that matters
ii) The "worst placed in the world" graph.
In particular in ii) look at the performance of Norway! Not only is Norway outside the EU, it also had the foresight to create a Sovereign fund from its Oil and Gas wealth.
As an amusing sidenote - on the - tiny - plus side of all this, with the new 18 members of the European Parliament coming in as a result of Lisbon, one of them is from Sweden's Pirate Party, giving them their second seat. Not that much can be done with 100 seats there, never mind 2.
- It turns out the office of the "High Representative for the Common Foreign and Security Policy" (*not* created with Lisbon as as commonly been reported, but just with expanded powers) is actually substantially more powerful than the position of President of the Council. Maybe that was the game all along - promote Blair for the presidency, fail and get someone in the back door as the High Rep. This post is effectively a very powerful, Euro version of the Foreign Secretary, so I will interchangeably refer to this position as such where I don't have to explicitly identify it as the 'High Representative' (even the damn name sticks in my craw).
- Most of the final power seems to be vested in the council. This puts tremendous strain on the individual heads of state as single points of failure. It also means they will not represent a plurality of views as the Parliament at least has the potential to do so. This also brings to a head the issue of having an unelected leader - e.g. Brown. Some people have said this issue of an unelected head doesn't matter. In the context of the European Council being the only real effective vetoing power in the spaghetti mess that is EU governance it matters a great deal and the personality, capacities and perspectives of that individual person are thus crucial.
- Well worth bearing in mind Vaclav Klaus's comments regarding the distinct lack of an 'official opposition' in the functioning of the EU Parliament before anyone gets too excited about its potential capabilities.
Despite it being the "consolidated version" - I *still* had to use external references for key clarifications. Particularly tricky was the - often out of context - references to roles such as 'president', 'council' etc, of which there are more than one and it isn't always clear which one is meant!
N.B. This represents the *total force* of Lisbon amendments and previous treaties. Many of the provisions are not completely new; most are strengthened.
- Contrary to the "this isn't the constitution" propaganda, this consolidated document states clearly in its opening notes - "The treaty retains most of the content of the proposed EU Constitution which was rejected in the French and Dutch referendums". Sometimes it feels like they really are laughing at us....
As to my suitability for this task? I can beg only the qualification of a Master's degree in Politics and International Relations (with an EU elective) and over recent years regular contact with EU officials research work, plus having been an avid EU watcher for a number of years. In practice none of this should matter though - as the treaty should be intelligible for any educated lay person in any of the member states. It falls far short of such promise however.
This is of course the kind of job we pay our "representatives"(fah!) to do and expect our glorious, our incredible, our LIONs of world journalism in the British mainstream media to do when our Lords, Ladies, Masters and Mistresses let us down. Unfortunately it comes down - again - to concerned citizens.....
Because these notes ended up being far more extensive than I expected, I've decided to highlight the most pressing and outrageous parts with a link to Grumpy Old Twat's 'WTFF!?' link immediately prior to, or after said part. If you see that link, what follows isn't good. At all. However, it does deserve your full attention. And given that this document has already grown to 6000+ words and I'm only a third of the way through, you could save yourself by skimming down to just the sections near those WTFF!!? Links.
- At the bottom of the 'Key to Symbols' table, is mentioned the Passerelle Article (Article 48). This is one part of the constitution that has caused so much stir as it is what enables the "self-modifying" behaviour. This is the piece of the legislation that means there may never need be another treaty, as by vote of the relevant Eurocrats, it can modify itself. As blogger EU referendum put it, this should be called - on account of its incredible power - instead, the "dual carriageway" clause. It states (and in so doing, feels like they're laughing in our faces again) that such changes, using the Dual Carriageway clause currently require unanimity of a vote on the European Council (*not* the same thing as the European Parliament btw - see later), but "It may alter unanimity to voting by qualified majority". If that still sounds kind of representative and democratic to you, wait until you see my comments on what the treaty says on the European Council later.
OK - step by step:
Amendments to Maastricht
(Maastricht being referred to now as "The Treaty on European Union (TEU)").
- The preamble explicitly identifies the highest representative of member states responsible for signing off on this. In case you didn't know already, for the UK, this was the Queen. Bless her complete and utter fucking silence on the dissolution of British sovereignty.
- Typo on the very first page - "esatblishment" - nice one guys!
- Principle of "sustainable development" is now introduced several times into the legal binding of this treaty.
- ALSO inserted (amongst other things): "price stability", "social market economy", "aiming at full employment", "social progress", "social justice", "free and fair trade", "eradication of poverty", "protection of human rights, in particular the rights of the child [Ed: why the hell is this one privileged??]" and "a high level of protection and improvement of the quality of the environment"
Reading those statements, many may not see immediate reason to object. At least some of them seem like laudable goals, right? If you're not already well studied in the behaviour of the political class however, (such as how certain positive human rights can be played off against one another for political advantage), you should consider carefully what abuses can easily be carried out in the name of any of the above, very vague, ideals, which are now enshrined in law. and given a mandate to be made flesh by the Union.
- The Charter of Fundamental Rights is now to be regarded as having the same legal status as the other Treaties (i.e. on a par with the constitution). Which is just great as it means even more legalese to plough through in order to find clauses that can be selectively played off against one another.
- The Council now appears to have the power to "suspend certain of the rights deriving from the application of the treaties to the Member State in question, including the voting rights". Reading this in its entirety, the council can do this on the basis of "breaches" of the values referred to in Article 2 (those values being "respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities". No room for abuse in such a long list of vague concepts that political philosophers have argued about for centuries is there?). The possible consequence of any member state seen to violate these values are that it can have all of its essential, beneficial, rights (including voting) removed by the council, yet still be held to other binding parts. Are we having fun yet!?
- A bit later the treaty asserts that "Decisions shall be taken as openly and as closely as possible to the citizen". How this is to happen isn't spelled out at all. Needless to say it gave me a good belly laugh.
- Three further interesting clauses worth repeating in full here:
(From article 10):
"4. Political parties at European level contribute to forming European political awareness and to expressing the will of citizens of the Union."
(From Article 11):
"1. The institutions shall, by appropriate means, give citizens and representative associations the opportunity to make known and publicly exchange their views in all areas of Union action."
"2. The institutions shall maintain an open, transparent and regular dialogue with representative associations and civil society."
^ More comedy gold it seems. I'm speculating that many people reading this post will already have some interest in politics. Can any of you clearly identify where / how the glorious government of Old Blighty has worked to achieve any of the above? I'm having trouble myself. How much do you even know about your MEP, never mind what other "options" are available for "dialogue"? - What, where, when, why, who?
- Another amusing claim - the Commission is to "ensure that the Union's actions are coherent and transparent". Oh gods. Stop making me laugh so much.
OK here's your first major spanner:
- Want to demand that the Commission makes a change of some kind? No problem. All you need is one million citizens. Not only that, this one million have to be "nationals of a significant number of Member States". A clause so sufficiently fucking vague (no, there is NO further clarification on this - how many member states?), that its easy to slide out of. And that's assuming you can get the herculean task achieved of a million citizens from even two member states to agree on anything.
- Apparently, the number of members of the European Parliament shall not ever exceed 750 (plus one - the president). Also, there is a minimum threshold of six members per Member State. Well that's great news. It means that in future EU expansion, in search of more people to fucking subsidise, it will only ever be able to swallow 125 out of the world's (roughly, depending how you count them), 195 nations. Wow, what a relief! As if it wasn't bad enough having to deal with 646 self-absorbed, greasy pole climbing, troughing, corrupt genetic defectives in the national parliament, I now have to also be concerned about up to another 750 on the continent. And that's not including all the unelected members who hold the real power, but more on that shortly.... They call this being degressively proportional, a name I that seems somehow appropriate.
- Article 14 reminds us about the nature of the European Parliament. This is actually the (yes *the* one and only) democratic element at work here (and before you say 'elected heads of state in the Council', I give you Gordon Brown). The Ministers of the European Parliament (MEPs) "shall be elected for a term of five years by direct universal suffrage in a free and secret ballot". Hold onto your fucking hats, because from here on in it gets worse:
- The European Council (what?! You thought a parliament would be enough?) "shall not exercise legislative functions." Phew. Or not. As the Council "shall define the general political directions and priorities" of the EU. That's still perhaps the most important share of power even without direct legislative capability. They can't specify the exact details of the debate, but they can specify its terms. The main veto power seems to sit with the Council also.
- And how is the Council made up? It consists of "the Heads of State or Government of the Member States". It also has the - brand spanking new - position of president (separate from the president of the European Commission or the president of the Council of Ministers - confused yet?). This was the role Blair was being tipped for. It also involves the other EU Foreign Sec. It should be noted however though that this expanded EU Foreign Secretary role is treated very differently to the Council President role..... (see below).
- The council apparently has to rule by consensus (except when it doesn't - exceptions abound throughout the treaty). Useful eh? As I'm sure the members of any collective decision making at an Anarchist social centre can tell you. Those who all agree with eachother *already* and stick around anyway....
- Now the council president is voted on by the members of the council, requiring a qualified majority and for a term of 2.5 years, renewable once. They are also not allowed to hold a national office, which is why Blair is in the running as he's busy being a worldwide tax dodging tourist...
- Article 15, 6, (d), the president, after the council meetings, is obliged to "present a report to the European Parliament after each of the meetings of the European Council". Will we, the hoi polloi, get to see it? It doesn't specify. Personally I doubt it and UKIP's Lord Pearson doesn't think we'll see it at any stage outside the EU Parliament.
- Next up, in article 16, we have another body, The Council of Ministers. Just to confuse you further (and if you were naughty, and jumped ahead in reading the treaty, you wouldn't have a clue which council, or president was being referred to here, because the context is all relative). To get in on *this* council, you only need to be considered as at "ministerial level" within your national government. This group is supposed to represent "relevant" ministers for the discussion at hand. This means if discussing agriculture, they have the agricultural ministers, security and its the justice and home affairs ministers.
However, it does have permanent members:
And the sidenote clarifies that this does indeed include civil servants. And looking at the current list for the UK, that is exactly what it consists of, for us at least. I didn't have a clue who any of them were, or how I'd make them accountable either. And the primary contact email given is for the FCO (Foreign and Commonwealth Office) (firstname.lastname@example.org). Great.
...here comes major spanner #2:
- Guess what? This bunch of unnacountable civil service hoons from across the empire, sorry, "Union", have legislative powers. Just to put that in context - the heads of state in the Council DO NOT have direct legislative powers (even though they, are, however tenuously, accountable in *some* sense to their electorate). However the relatively faceless, and - not voted for - civil servants in the Council of Ministers DO have direct legislative powers.
And it gets even better. The Council of Ministers can bypass the European Parliament. It is supposed to work "jointly" with the European Parliament, but is not obliged to follow its will. i.e. the undemocratic, permanent group staffed by unelected unaccountable civil servants can ride roughshod over the democratic chamber. There is much usage of terms such as "consult" with regards to the Parliament; the strongest term used is "consent", meaning a qualified majority where the Parliament gets the incredible ability to rubber stamp something. Most of the time it seems the EU Parliament should feel privileged to even see the damn proposals (and thus be "consulted").
The permanent members by the way are known as COREPER. And they are "responsible for preparing the work of the Council" (of ministers). Oh, and by the way, their meetings are private. Ain't democracy great?
- Now, we get to the European Commission.
- *sigh* - yes its yet another powerful group within the EU framework. You remember the Parliament? You know, the guys and gals who vote on stuff and who are, in turn, voted in or out by us? You'd think they would have been the ones to initiate legislation wouldn't you?
- Nope - it is the European Commission who decide on the legislation itself - "Union legislative acts may be adopted only on the basis of a Commission proposal". So the parliament can vote legislation up or down, but they can't decide what it is in the first place, only make amendments and (at best) throw it back to the Commission (the Commission, who's terms of reference and overall direction is determined by the Council).
- So who are the Commissioners? Well they have terms of five years and are selected on the basis of - wait for it "their general competence and European commitment...persons whose independence is beyond doubt." Uhm. "European commitment"? "Independence beyond doubt". Right. Not only that, they are forbidden from taking "instructions from any government or other institution, body, office or entity". In other words, they are there not to represent us, but the dream of Pan Europa.
- The Commission is supposed to, currently, be made up of one national from each member state (plus the positions of President (it isn't clear *which* president) and the EU Foreign Secretary. However, from 2014 this will change. The Commission then only needs to represent two thirds of member states at any one time. This opens the door to a substantial abuse of power because at any one time, one or more nations could be completely unrepresented and yet subject to legislation determined by the other Commissioners. This also obviously makes an individual, or small grouping, of member states even less likelier to make a principled stand.
- The Commission president gets to appoint Lieutenants (sorry, "Vice-presidents"). The president also has the power to compel Commission member to resign - except for the EU Foreign Secretary who cannot be so compelled (in this case, only being sackable from the Commission by the European Council. Goddamn these interlocking relationships are more complex than a teenage emo soap drama). The more I read about this latter position, the more it seems significantly more powerful than the office of President in the European Council. Given the rotating nature of the Commission its quite possible too to create a perpetual chain of mutual masturbation between successive presidents and their appointees. But I don't need to tell anyone who has studied the nature of political expediency that.
- In another complex twist to these relationships, whilst the Parliament gets to vote on the president, it is the council who proposes the candidate in the first place. More rubber stamping from the "democratic" chamber.
- The council and the president then decide the other members of the commission. Therefore the only stage at which any kind of accountability enters the process is when the Parliament gets to vote on a pre-selected candidate. FFS!
- Here's the supposed safety valve: "the European Parliament may vote on a motion on censure of the Commission".
- They've never succeeded in doing this before (AFAIK) - look at what happened last time ("the major political groups in the parliament, including the EPP-ED group (to which British Conservatives are affiliated -- some reluctantly) started ferocious campaigns of pressure and intimidation to get members to withdraw their names"). Oh yeah. There's a system to be confident in.
- They also can't censure individual members, it has to be the whole Commission. That really limits its usefulness as any kind of check or balance.
The Court of Justice
- The Court of Justice itself is supposed to have one judge from each member state.
- The General Court "shall include at least one judge per Member State".
- AGAIN, the selection criterion is: "persons whose independence is beyond doubt." Uh huh. (No mention of "European Commitment" this time though).
Interesting clause in Article 21:
- "foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty." - I really don't see those two goals as compatible.
- "encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade." - Utter hypocrisy. No mention here of the EU's protectionist practices.
Foreign and Security Policy.
This is one of the parts where it gets really serious. And this one is definitely spanner time - worth reading all of the notes I've made for this section:
OK - time for another: WTFF!?
Article 24, paragraph 3 repeated in full:
"The Member States shall support the Union's external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union's action in this area.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council and the High Representative shall ensure compliance with these principles."
Combined with further clauses (see later), this effectively marks the end of both independent operation of British Armed Forces and the Foreign and Commonwealth Office. Moreover, the combined legal bindings mean that both are also to be subject to "the Union's" wishes in future.
To illustrate further:
The treaty formalises the existence of the "European External Action Service" (i.e. the EU Foreign Service). Its particulars, like specific military policy of the Union are not clarified in the treaty, however powers given to the Council to determine both ARE. It specifies (Article 28, paragraph 1) that "Where the international situation requires operational action", member states will be bound by the decisions of the Council in military and foreign affairs.
The only exception to this is in "emergency situation" which require an immediate national response. Even in such cases however, it is a requirement that the Council is informed immediately.
There has to be an opt-out though, right? Sort of.....
The member of the council (head of state) can *abstain* from the vote on a military/foreign policy if they disagree with it. However, all this means is that the objecting member state (or rather, the head of, who - for reasons given above - isn't necessarily representative of that member state anyway)is not committed to the particular action voted on. Moreover, they ARE obliged to recognise the Union itself being committed to this action and are told, explicitly in "...a spirit of mutual solidarity, the Member State concerned shall refrain from any action likedly to conflict with or impede Union action based on that decision and the other Member States shall respect its position."
In other words, an objecting member state is expected to shut up and stay out of the way. The *only* safety valve offered here is the clause that one third of the member states abstaining is sufficient to stop a proposal.
This, needless to say will impact severely on British strategic and foreign policy goals.
A vague veto right is given in the last subparagraph of section 2; only usable for "vital and stated reasons of national policy".
The problem is, this "safety valve" is a fucking farce anyway, because later on, paragraph 4 (in the same article) nullifies paragraphs 2 and 3 (those allowing for abstension) for "decisions having military or defence implications". - FFS!!
Weakening of UN security council powers
If there was any doubt that Britain's military and foreign policy independence was not already holed below the water line, this should finish it off: Another doozy worth quoting in full, Article 34, Section 2, subparagraphs 2 and 3:
"Member States which are also members of the United Nations Security Council will concert and keep the other Member States and the High Representative fully informed. Member States which are permanent members of the Security Council will, in the execution of their functions, defend the positions and interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position."
In other words, the independent positions of France and the U.K. on the security council are GONE and they are obliged now to go through the EU Foreign secretary.
- And what influence does the democratic chamber (the Parliament) have on these policies? They are allowed to "ask questions" and "make recommendations" - i.e. NO legal binding power, even a veto. FFS.
- It also looks like the member states with the best developed military structures will be asked to do most of the heavy lifting (no surprise there). What is irritating beyond belief though is clause 2. in Article 41 that seems to state that any costs incurred for military or defence implications are to be taken on by the member states, *not* the Union. It gets better - Article 41, clause 2, subparagraph 2 states that any state using the previously mentioned abstention clause will not be compelled to contribute to "military or defence" expenditure. In other words, the member states with no military to speak of can simply register an abstension and not be expected to pay anything towards a security or defence operation full stop. FFS!!
- Let's clarify that commitment again - Article 42, Section 7: "If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power". The accompanying note restates this, in case you were in doubt: "Mutual assistance clause for ALL member states in case of an armed aggression."
Summary: Fuckwit extremist in Estonia decides to bomb a building in Russia, Russian forces invade Estonia in response, British forces are legally compelled to respond immediately and start fighting Ivan, meanwhile the British taxpayer, not the Union, has to foot the cost.
- A "start up fund", to be taken from Members' contributions is introduced, which is expected to "provide the Union with an operational capacity drawing on civil and military assets". This is intended to fund the following:
- Humanitarian tasks
- Military assistance
- Combat forces
- Conflict prevention
- ^ With such a vague list of terms, could this "security" remit get *any* damn wider!?
- The "specific character" of NATO commitments are to be "respected". Oh great, that makes me feel better. It is purposefully soft language re: NATO; the language specifying obligations to the Union and Member States is significantly stronger.
- If you were in any doubt that the EU intends to become a cohesive and large military power, consider this clause: (Article 42, Section 3) "Member States shall undertake progressively to improve their military capabilities". This is to be overseen by the European Defence Agency (an entity already in existence, and a long way ahead in its future planning by the way....).
- Article 33 gives the Foreign Secretary the ability to create "special representatives" to carry out their work. So, like the Council president, they can create their own Morlocks.
It is far more interesting from Article 35 onwards (plus other scattered references, earlier and in amendments to the Rome Treaty) however:
- Diplomatic and Consular missions are now expected to effectively harmonise their activities and policies. If there was *any* doubt left that an EU wide diplomatic service was to replace the national ones, this should clear it up:
- All Member State foreign services are now expected to renegotiate their agreements with foreign states to the effect that any member state embassy must now be able to represent citizens from *any* of the member states. This is a fucking huge diplomatic change!! And again, confirmation that national missions will essentially be replaced - its going to work like McDonalds franchises.
Amendments to the treaty and Getting out
- Turns out that Cameron can't practically do any of the things he said he would. That is to say - technically he could - but the provisions in the treaty make it clear that what he is proposing would be exceptionally difficult.
- Proposals can be made by any member state to increase OR reduce the competencies conferred on the Union (for what competencies it has already been awarded, see later). Going on the basis of history, I expect the trend to be almost completely in the direction of increasing competency.
- Unfortunately just to agree to discuss such a change - every branch of the EU governing infrastructure has to be involved - the Council, the Parliament AND the Commission (COREPER will probably be in there slithering around by default also, but this is not explicitly specified).
- "Recommendations" regarding proposed changes have to be adopted by consensus - i.e. not even the change itself, just recommendations regarding it!!!!!!
- The Council has the option, with permission of the Parliament, to avoid convening everyone (i.e. Council, Commission, Parliament), in which case the Council is the only body that discusses it. I really can't see this happening with regard to *anything* involving Britain "renegotiating", not that it makes much of a difference as the assault course is just then all the other heads of state.
- Here's the first super-giant killer clause for everything Dave proposed: Article 47, Section 2, subparagraph 6/7: "The amendments shall enter into force after being ratified by all the member states in accordance with their respective constitutional requirements". Remember Dave's "referendum lock"? The problem is *all* the member states have such a lock on any changes that might be proposed for Britain. Fantastic. It also means Dave wasn't promising anything new at all. This was already in the treaty.
- For general changes to the treaty involving Part Three of the Treaty of Rome (covering the internal workings of the union) that do not include new competencies, an Inter-governmental conference is not required - this is the often described 'self-amending' part of the treaty. Amendments however do still have to be approved by all member states. This is one part where Dave's proposals *could* hold the show up, though not necessarily to the UK's benefit (and this also explains the hostile reaction to his proposals) as any future UK government could use it to hold up progress in the EU machinery.
- If I've understood Article 48 correctly, national parliaments DO have a veto when it comes to new competencies, but not for the 'self-amending' treaty section (as long as proposed changes do not include competencies, obviously). So again, Dave was being disingenuous. His proposals for clawing *back* power for the UK however are up a certain creek for the reasons already outlined above - it really does require consent of all the other Member States for any significant change (and a change to the UK's terms and conditions *would* be an alteration of competencies).
- Requirements in the Treaty of Rome that require the council to act in unanimity, can instead be decided by qualified majority (except for defense).
For actual withdrawal, here's the second super giant-killer for Davy Boy:
- Withdrawal requires a qualified majority in the Council (currently 72%) and the consent of the Parliament (though the latter, as usual is more like an afterthought than an actual obstacle). In other words, everyone else gets to vote on whether or not we leave, moreover, any discussions of the conditions of our leaving we are *not* party to (Article 50, section 4). Looking at the charts put up by Wat Tyler on the UK's net contribution, I can't see this agreement being reached any time soon. Can you?
Closing clauses in the modified Maastricht treaty:
Worthy of note:
- NO sunset, or even review, clause. "This treaty is concluded for an unlimited period."
- Protocols and Annexes are legally binding, "declarations" are not. I can see the protocols and annexes clearly, not sure what is meant by declarations though.
- Disputes over interpretation are expected to resolve issues in French, as the "language of the Court and the negotiations".
More of this anon as I work through the Rome amendments and the Protocols.......
By way of a final word for this section though, I'd like to leave you with the words of Professor R. Daniel Kelemen (Rutgers University), and this was before Lisbon was close to being ratified:
"Unencumbered by the prejudice that the EU is sui generis and uncomparable, federalism scholars now regularly treat the EU as a case in their comparative studies (Friedman-Goldstein, 2001; Fillippov, Ordeshook, Shevtsova, 2004; Roden, 2005; Bednar, 2006). For the purposes of the present analysis, the EU has the necessary minimal attributes of a federal system and crucially the EU is riven with many of the same tensions that afflict federal systems."
Welcome, citizen, to the United States of Europe.