The European Union, Council Autocracy and the Proposed Constitution

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The European Union is a quasi-state where legislative power is wielded by anonymised rounds of bureaucrats, without effective parliamentary control. The software patent directive is a point in case. The proposed constitution threatens to further strengthen the Council's and Commission's autocracy.

"If the EU were to apply for membership in the EU, we would have to reject the application due to lack of democracy." (apocryphal quote by enlargement commissioner Guenter Verheugen)

Todays EU has several serious democratic deficiences. This has become apparent, for example, in the software patent directive (2002/0047 COM, "on the patentability of computer-implemented inventions"). Here a small group of patent bureaucrats is able to largely ignore the European Parliament and national parliaments. Due to the relatively great public interest in the case (many Members of the European Parliament say popular concern over this directive was greater than over any other piece of legislation which they have handled) and the tradition of oligarchy in patent legislation, the problems have perhaps become more apparent in this case than in most others.

However the EU's lack of democracy has been well known and identified in the European Convention, which also recommended possible solutions. However, these solutions were incorporated into the Draft Constitutional Treaty only partly.

Criteria

• Should be: Legislative powers in the hand of an elected body. Codecision by indirect elected body. Balance of Powers.
• Today: Hostile takeover from the executive branch (Commission, member states administration), Elected bodies Eu-Parliament and national Parliaments may issue "statements." EU-Parliament is voted with regard of National policy. In the Council process National Parliament has very little influence. Commission has legislative initiative right only and drafts a lot of different legislative acts with its large staff, for which EU-Parliament lacks capacity to care about them all. Additionally Brussels is overcrowded with Business lobbyists, while NGOs and citizens' are underrepresented. Meps often take ordinary citizen not serious as long as they do not represent a larger group.
• Souvereignity: The EU is granted its rights by member states, not by the people.
• Lack of interest from unprofessional observers. Criticism of EU policy is often bound to the EU at large. E.g. being against the current EU-Constitution draft does not mean beeing anti-European.
• Frame regulation under the mantra of harmonisation which decreases flexibility: FCN - Test: Cheap, Fast, Narrow.
• one Commissioner for each memberstate leads to unsystematic Profiles of Commissioners: Industry, Internal Market, Information Society, ... with a lot of overlap.
• Programmatic rather than liberal policy.
• Constitution draft commits European parties to a certain core policy, this could be rendered meaningless but is expression of abusive pratice.

Convention works

Introduction

The process of discussing and reaching agreement on Treaty change is known as an Intergovernmental Conference (or IGC). On 4 October 2003, at a meeting of Heads of State or Government, an IGC was convened by the President of the Council of the EU (Council), on the recommendation of the Council and following consultation of the European Parliament and the Commission, and was conducted by Heads of State or Government, assisted by Ministers for Foreign Affairs. This IGC was different from others, since it has been preceded by a Convention which was set up in order to come forward with recommendations on the key issues arising for the Union's future development. The Convention met between March 2002 and June 2003, and was built by Representatives of

• the Heads of State or Government of the Member States
• the National Parliaments
• the European Parliament
• the European Commission
• the Governments of the accession candidate countries
• the National Parliaments of the accession candidate countries
• Observers

The European Convention submitted its recommendations in the form of a new draft Constitutional Treaty on 19 June 2003.

_Contribution by Mr Joachim Wuermeling, MEP and deputy member of the Convention_

Brussels, 1 October 2002 CONV 279/02

EU reform: Questions relating to the European Commission's sole right of initiative

Note: The following are not quotes but only excerpts roughly translated from a german original !

• There was a discussion in the plenary 02-09-12/13 about the commissions monopol of legislative initiative: Only the commision can start a legislative process, including requests for changes in the EU law itself, which was considered to be a serious democratic weakness.
• Parliament and Council can request starting a lex procedure, however, this is not legally binding for the Commission. It can decide to meet such requests freely. (There are a few exceptions for Council in some special areas). Example: EP decided to support the EU border regions with ¤ 100,000,000 and requested to create a new legal basis for such purpose. Commission, however, simply refused to do so and intends to direct the money into another (already existing) programme.
• The commission refuses even strong political will to propose law corrections. Example: Commission didn't follow the clear request by member states to postpone the duty-free abolishment.
• Also, the commission can withdraw a proposal (eg in the case of unwanted amendements) at any stage of the procedure. This can be used to pressure EP to abstain from specific amendements, as for example with the directive on 'alien take-over'.
• As a consequence, reasons and desire for corrections of laws increases over years, and once a directive get voted in EP, many amendments on a broad scope are done at once, which is rather strenuous for politicians, and not very efficient in terms of dynamic flexibility.
• Especially critical is the fact that Commission regulates itself. For example, if it simply doesn't propose to hand over responsibilities itself, the will never happen.
• The initiative monopol descends from the EC foundation which was built by 6 member states only and had a very limited scope. It doesn't fit into todays democratic EU of 25 member states with a wide range of responsibilities and much more power.
• For real democracy, there's no way but Parliament and Council must also have the right to propose laws, where Commission should be focused on executive tasks.
• Accordingly Council should hand over executive tasks to Commission.
• As first step, Council and Parliament could get the right to porpose law modifications at least in the area of legislative and codecision itself. Commission would participate in this process with limited power of influence only: In Council, the fall-back on unanimity voting in case Commission disagrees should be abandonded, and Commission wouldn't have the right to withdraw proposals which origin from Council or EP.

_Contribution by Mr Jens-Peter Bonde, member of the Convention_

Brussels, 18 September 2002 CONV 276/02 CONTRIB 95

True Subsidiarity Contribution to the Convention on Subsidiarity

The 3 principles in art. 5 of the treaty now has to be taken seriously. The principle of legality means that the EU can only take a decision if there is a proper legal base for the decision in the treaty. The principle of subsidiarity means that decisions shall be taken as close to the people as possible. The principle of proportionality means that no EU decision can be defended if it is possible to fulfil the purpose with a less restrictive measure. It means that directives shall be preferred for regulations. Recommendations should be preferred before directives. Deliberate and voluntary standards shall be preferred before harmonisation. That minimum-harmonisation shall be preferred before total harmonisation.

_The scope of the problems_

The existing acquis shall be tested towards the 3 strong principles. The European Commission shall be asked to deliver a report. Every GD shall be asked to define what part of their acquis they would prefer to get rid of if they should reduce their part of the acquis to the half. The Regional committee should have the same parallel task. The working group of subsidiarity could then put forward a proposal for slimming the existing acquis. This exercise is paramount if we want to be in dialogue with the citizens. The majority of citizens in all European countries except Luxembourg and Ireland would ignore or even be happy if the EU was dissolved. Rightly or wrong, Peoples across Europe feels that the EU decides too much. Referendums can have No-majorities in any country in Europe unless all EU institutions adapt to the 3 fundamental limitations in art. 5. The former Commission president Jacques Santer was aware of the fundamental problem of lack of popular support when he proposed that the EU should work "Less and better" in order to apply to the principle of subsidarity. For a lot of reasons he could not deliver less and better. President Prodi has suggested the same cure, and even former president Jacques Delors has criticised too much centralisation in Brussels. Since we now have an EU, with a degree of centralisation that no one wanted, we have to adopt new procedures to avoid unwanted centralisation in the future.

_We are all Sinners_

All Members of the European Parliament are sinners to the principles of legality, subsidiarity and proportionality. The distribution of competencies invites to sin. When a Member of Parliament has a good idea or is asked to help for a good cause, they automatically try to do it through the EU system, instead of considering whether it should really be an EU affair or a national task. The European Parliament has no responsibility for taxing the citizens but a wide range of possibilities for inventing new expenditures leading to future taxation where the electorates do not hold them responsible. They can decide expenditure but has no responsibility for where the money comes from. The budget procedure is used in creative and even illegal manners to insert new expenditures for new purposes. Many projects start as pilot projects without proper legal base from a decision in the Council. The Commission is forced to use the non-obligatory money as decided by the Parliament. If the Commission refuses they can be punished through the decharge procedure.

• The European Parliament shall no longer have a right to insert new expenditures before there is a proper legal base decided by legislative authority.
• The European Commission shall have no right to finance any activity without a proper legal base.
• Any citizen and institution shall have the right to question the lack of legal base before the Court. The right to initiate new legislation and activities is a monopoly of an institution in Brussels who would gain influence and power by using this monopoly to centralise activities. You cannot expect the Commission to act against their own narrow interest. We need a system of checks and balances where the monopoly of proposing legislation is modified by a body composed of others interests.
• The national parliaments and regional parliaments with a legislative function shall control the Commission initiative right. Shall it be in a new institution as proposed by Joschka Fischer and Tony Blair? Can we establish a second chamber of elected national MPs to control subsidiarity? If we establish a new institution based in Brussels it will soon start thinking and working as the other centralising institutions in Brussels. A vast majority of speakers in the Convention clearly rejected the idea of a second chamber.

_Recipe for how National Parliaments to control Subsidiarity_

We should avoid setting up a new institution and instead give the framing of the initiative right to the national parliaments.

• The national parliaments shall adopt the legal base for any piece of community legislation and activity. It can be unanimously or by qualified majority, but the decision on the legal base shall be moved from Brussels to the capitals of our parliamentary democracies. The national parliaments should have the final say when decided on whether the Community can make binding regulations or recommendations according to the legal base are taken. The decision on the legal base can be included in the annual legislative programme. The procedure could start with meetings between the specific committees of the Member States parliaments who could form specific Cosac-structures for the transport committees, environmental committee's etc. They could discuss where they are not able to make efficient legislation in their own countries. They could also suggest where common legislation could give an additional European value, which can not be obtained by the parallel acting of 15 - 25 different parliaments. If they propose a common regulation it must be because of added value, for they would lose the legislative power in their own parliament. They can only win from centralisation if they have nothing to loose. If their own democracy is powerless they can win a co-influence in an area where they otherwise would have no say. Centralisation in that case would then add to democracy instead of increasing the democratic deficit. And that shall always be the condition for accepting a decision from a higher level than the national parliament.

To balance sectors interests the adoption of the annual legislative programme could be taken by for example 20 representatives of each national parliament meeting on an ad hoc basis for example one week twice a year. With 20 members from each parliament it will be possible to include all political directions in the national delegations. They could decide the legislative programme With legal bases for every proposal for example with 75 % majority and representing 50 % of the population. Then, the Commission can draft the proposals with the binding character decided downwards up instead of the existing procedure where it is always top down. Today all member states need to be unanimous if they will alter a legal base proposed from the Commission. It gives over centralisation a strong position.

• The final decision on the annual legislative programme could be taken by the national parliaments in a yes/no vote. To be adopted the annual programme would need the support of 75 % of the Member State parliaments.

_Further initiatives for simplification and democratisation_

This downward-up system could be further underlined by giving the national parliaments the right to appoint their national commissioner. The commissioner could then meet with a European Committee of a national parliament ones a week and listen and report. The wish to decentralise could be further strengthened by giving every national parliament a right to veto a proposal for binding European law as proposed by Georges Berthoin, the former right hand of Jean Monnet.

• The veto should be limited to vital issues the condition being that the prime minister is prepared to defend the veto in the next European summit. One could also demand a public reading and decision in the national parliament for those seldom occasions. With a veto right in vital questions it might be easier to make qualified majority vote the general rule for the necessary cross-frontier legislation. It could also facilitate clearness in decision making if the existing more than 30 different decision making methods were reduced to the two fundamentally different methods of common laws or co-ordination. Why continue with directives and regulations when there is no clear difference? Why not simply talk about a community LAW if it is binding according to the European Court. Then the national parliaments would know clearly the consequences when they decide if they want a common law. If a decision is not legally binding we do not need a lot of different words for that.
• Keep it simple and call all non-binding decisions for recommendations. If the national parliaments don't call for a law they would then know that they them selves have the last word on what shall happen with the recommendation and they will be able to alter their decision at a later date after their own decision. The proposals here will give the national parliaments a strong position in defining legality, subsidiarity and proportionality. What about the citizens, companies and organisations? Could they have a legal access to question a proposal before it is decided? Why not open a possibility for questioning the proposed legal base in the annual programme?
• The Court could then annul a proposal for law deciding that there is only a possibility for coordination through non binding recommendations or that their is no legal base at all because the proposal is outside the competencies assigned to the institutions by the treaties.
• The distribution of competencies could be much clearer if all competencies were described in a more precise way in a so-called catalogue of competencies. This catalogue of competencies could then be changed for new needs only through clear procedures involving a unanimous decision by the national parliaments and eventual ratification. With these proposals the national parliaments will become the masters of European cooperation. Our elected representatives will have the last word over legality, subsidiarity and proportionality. That is what democracy is about.

Selected Quotes

"In a radical democracy in which everybody should be able to co-decide, not everyone meets the of competence, preparedness to serve the common interest and economic independence. That's why this form should be rejected. Every four years, the citizen can give his judgement on government policy in all openness, and in this manner have influence. For this, it is necessary however that the citizen is well informed. That is a task of the government" -- Frits Bolkestein in: Lecture at the University of Amsterdam, 11 March 1997

"I am a proponent of representative and not of direct democracy. I don't like referendums and all those things. Representatives are chosen for an integrated rule, they have to be able to oversee everything." -- Frits Bolkestein in: De Standaard Magazine, 28 February 1997

"We are in a democracy, and the commission itself is a collegiate body," Torres said. "And, of course, I do find that the commissioners have, obviously, to have an opinion on such an important subject Turkey's accession. Whether they make it public or whether they should make it public is another issue." -- Commission Spokeswoman Torres, in this article.

Problems still persisting in the Constitution

• The power of the Council is preserved, the Europarl wins only very little (see section How Council can decide with much smaller majorities below)

• A major bug is a short article about "Intellectual property shall be protected". After all, a constitution should protect citizens, not something as fuzzy as IP which is not a basic right but simply an economical instrument.
• Will something called constitution indeed be adopted without a pan-european referendum ?
• However, the participation in european election was lower than 30 % in some member states. So how democratic would a referendum be ?
• Better something that can be changed in the near future than no constitution at all.
• The Commission and its Commissioners should be 'elected' by the parliament, e.g. by a working coalition of the political parties in the parliament.

How Council can decide with much smaller majorities

Contribution by Gibus

Art I-23.3

1. The Council shall act by a qualified majority except where the Constitution provides otherwise.

Art I-25 defines qualified majority:

• Article I-25 Definition of qualified majority within the European Council and the Council
• A qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union. A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
• By way of derogation from paragraph 1, when the Council does not act on a proposal from the Commission or from the Union Minister for Foreign Affairs, the qualified majority shall be defined as at least 72 % of the members of the Council, representing Member States comprising at least 65 % of the population of the Union.
• Paragraphs 1 and 2 shall apply to the European Council when it is acting by a qualified majority.
• Within the European Council, its President and the President of the Commission shall not take part in the vote.

Note that European Council is not the Council of Ministers (named here simply "Council"), who is co-legislator (along with European Parliament) in the software patents directive, thus paragraphs 3 and 4 don't apply to swpat directive. Note also, that more restrictive criterium for qualified majority in paragraph 2. does not apply for swpat directive.

Thus, with only Denmark, Poland, Portugal and others countries in favour of B-item but not specified by Luxemburg presidency (but we know that Spain, Italy, Austria, Belgium, Latvia and Neederland could be included), the requirements for a qualified majority, as defined in paragraph 1, for refusing a B-item should be easily reached (could we have confirmation of this point ?).

Nevertheless, refusal for B-item, implying removing of A-item, doesn't need a qualified majority. I haven't found any reference to A-item or B-item in the Treaty for an European Constituion. Thus, my (Gibus) interpretation is that rules of procedures, as defined in OJ Art3 still apply:

• 3.8. However, an "A" item shall be withdrawn from the agenda, unless the Council decides otherwise (...)

It is up to the Council to decide. How ? It isn't specified, but it isn't the Presidency'will alone.

Sources

• Council: State of proceedings

• The reader-friendly edition of the EU Constitution in the EU dictionary for Internet users

• Convention Site (now closed)

• Convent Documents

• Intergovernmental Conference Documents

--> Some constitution-related IGC documents:

Provisional consolidated version of the draft Treaty establishing a Constitution for Europe, 25/06/2004CIG 86/042003/2004 IGC

Provisional consolidated version of the Declarations to be annexed to the Final Act of the IGC, 25/06/2004CIG 86/04 ADD2IGC 2003/2004

Provisional consolidated version of the Declarations to be annexed to the Final Act of the IGC, 15/07/2004CIG 86/04 ADD2|COR1IGC 2003/2004

• Prospects for EU Democracy After Eastern Enlargement

• European Initiative for Democracy and Human Rights EIDHR (concerning "third" countries)

kwiki.ffii.org:

• Report: Council adopts Constitution

• Report: Council adopts Constitution (german)

• The EU Constitution and Intellectual Property

• The EU Constitution and Intellectual Property (french)

• Some comments about an article entitled "A bad constitution revealing a secret cancer of our democracy" (french)

critical voices:

• Liebreich

• teameurope

• An outline analysis of EU Constitution

• Cynical letter to "The Sprout"

related:

• The Treaty of Nice (pdf download)

• Enlargement

• Codecision and voting (official quotes).

• directive 2002/0047 COM, eu internal structure and processes, and more

• democracy and technology

• wikipedia: Democracy

Scientific discussions

• Alexander Proelß: Nationalsozialistische Baupläne für das europäische Haus - John Laughland's "The Tainted Source" vor dem Hintergrund der Großraumtheorie Carl Schmitts - German legal historical analysis of Laughland's Anti-EU Grossraum (C.Schmitt) polemics in the UK - while he agrees that Schmitt's theory applies partially as a positive description, he points out that the core of Schmitt'S Grossraum concept translates to structural techno-economic 'power sphere', and does not mean domination of the German State in particular.

• McCormick, J.P. (Yale): Carl Schmitt's Europe - Cultural, Imperial and Spatial proposal for European Integration

Selected media discussions

• Die Zeit, Nr. 15 Gleiches Unrecht für alle