2. Institutions
responsible.
The Council
of Ministers has created a system to
make popular consultation
impossible. It is therefore an abuse of
administrative power. The supposedly
independent European democratic institutions (Commission,
European
Parliament, the two consultative
committees, the Economic and Social
Committee and the Committee of Regions)
should be demanding a clear and
understandable treaty. They have yet to do so.
They are co-responsible.
3. Complaint
about draft Lisbon
Treaty
On
4
February 2008, I viewed the
europa.eu website to obtain a
consolidated version of the Lisbon Treaty.
The
document
is of primary importance to all European people.
It covers and
modifies all institutions, all competences of
previous treaties plus it
makes major changes in the philosophy of
governance. Defying
elementary democracy, ministers in meetings closed
to the public made changes
to existing treaties. The proposed changes deal
with transparency of
legislation, human rights, the European system of
Justice including the Court
statutes, the European monetary policy, the
security, defence policy and
foreign policy plus major aspects of all European
internal and external
policies, the flag and anthem.
The
website
says:
“A
consolidated
version of the Treaty will be published once
it enters into force.” (This
text has since
been moved to the less prominent FAQ section, 9
Feb 2008)
It
also
says:
“The
treaty
will not apply until and unless it is ratified
by each of the EU’s
27 members. It is up to each country to
choose the procedure for
ratification, in line with its own national
constitution.”
This
bureaucratic
abuse puts citizens, like myself, all civil
associations and all
democratic institutions in the impossible
position that they have to agree to a
document before it has been finalised or before
it is in understandable form.
4. What
is
wrong.
Consultation
is an essential part of all European legislation
including treaties. How can
the European institutions and the European people
be consulted with an
incomplete draft Treaty of Lisbon and secondly,
with the refusal of the Council
of Ministers to supply a consolidated treaty?
The
Court
of Justice of the EC ruled that consultation was
essential for all
legislation in European democracy. ‘Due
consultation of the Parliament in
the cases provided for by the treaty therefore
constitutes an essential
formality,’ It added that disregard of
consultation ‘means
that the measure concerned is void.’
(Case 138/79 1980)
The principle applies to all consultative
committees and broader consultation
with the European peoples. Without real
consultation the draft Lisbon Treaty
cannot be ratified and therefore is void.
Consultation is impossible without
the relevant documents. Ratification of an unseen,
unfinished draft treaty in
these conditions is legally unsafe.
It
should
be pointed out that a number of sections of the
Treaty are not complete.
They include phrases such as ‘any necessary
grammatical changes shall be
made.’ etc. If a second-hand car
dealer made such an incomplete
contract, the court would have no hesitation in
throwing it out as illegal. If
the car dealer demanded the client’s money and the
client’s purchase of an
indispensable car be irrevocably finalised before
he fixed the sale contract,
for which he and he alone had the final choice of
words, the car salesman might
be accused of extortion. Without a consolidated
treaty, it is like demanding
the purchase without seeing the engine to find out
if it works. I have grave
doubts on the new European motor because the
treaty appears to violate the
original, fair-minded principles of a
supranational European community. It
institutionalises dangerous discrimination against
minorities and even
majorities, in fact, anyone who declines loyalty
to dominant political party
machines.
The
Irish
Institute of European Affairs has published a
Consolidated Version of the
draft Treaty but the publishers caution the
reader/voter:
“ *DISCLAIMER*
All
Treaty citations are the sole responsibility
of the author. “
How
can
the voter agree to a Treaty if Governments AND
private expert lawyers
decline responsibility about what is the final
version?
Open
Europe has
tried
to produce a comprehensive treaty for discussion.
It says in their
version:
“
The official version of the new constitutional
treaty {the
treaty of
Lisbon} is almost unreadable for
non-specialists, as it takes the
form of a series of amendments to the existing
treaties without reproducing the
existing text that it would alter. “
It
adds:
“The
numbering
of the revised treaties is a potential source
of major confusion. The
treaty of Lisbon refers to articles in its own
text in one format, but in a
later provision changes them all, meaning that
the article numbering in the
final consolidated texts would be different
from those referred to in the
Treaty of Lisbon (although the ordering of
articles would be the same.)”
‘The
Treaty
of Lisbon is thus a catalogue of amendments.
It is unpenetrable for the
public.’ V Giscard d’Estaing, Independent 30
Oct
07
Is
this
inherent confusion accidental or purposeful? We
have the testimony of the
treaty-writers themselves that the confusion
was designed to be
confusing. This is an abuse of
administrative of the most serious kind.
The
Belgian
Foreign Minister, Karel de Gucht, one of the
ministers responsible for
the Lisbon Treaty, is quoted as saying: ‘The
aim of the Constitutional
Treaty was to be more readable. … The aim of
this treaty is to be unreadable. …
The aim of the Constitution aimed to be clear,
whereas this treaty had to be
unclear. It is a success.’ (Flanders
info, 23 June 2007)
This
is
not just the individual opinion of one minister.
It was the intent of all
the ministers involved in the creation of the
Lisbon Treaty according to one of
the architects of the Constitutional
Treaty. Former Italian Prime
Minster Giuliano Amato is quoted as saying and on
video: ‘They
decided that the document should be
unreadable. If it is unreadable, it is not
constitutional, that is the sort of
perception…’
The
former
Irish Prime Minister, (Taoiseach) Garret
Fitzgerald
wrote: Virtual incomprehensibility has
thus replaced simplicity as
the key approach to EU reform. (Irish
Times, 30 June 2007)
Writing
an
unreadable Treaty and designing a Treaty purposely
to be unreadable are both
serious administrative abuses. This document is of
the highest importance for
every single citizen in the European Union and
millions of people outside it.
It covers all the aspects of previous treaties. It
covers many new areas of
activity. If it is unreadable or not
understandable, it is not a democratic
document.
A
consolidated treaty is the very least form that
should be produced for a
democratic debate, not only in (a) national
parliaments, but in (b) all civil
society collective associations and (c) for all
individuals among the nearly
500 million citizens who wish to consult and
understand it. Above
all it should be available as a base of discussion
and analysis in (d) the
European Parliament (e) the Economic and Social
Committee and (f) the Committee
of Regions.
Proof
that
this deception is ministerial Policy.
The Council is obviously able to
produce a consolidated version and a readable
treaty immediately.Private
organisations have produced unofficial versions.
The fact that the Council is
refusing to produce a consolidated Treaty UNTIL
the treaty is ratified proves
that:
(a)they
do
not want democratic consultation with Europeans
about the complete,
unambiguous document;
(b)this
Council
policy to publish the real treaty ONLY after
ratification of this
incomplete draft list of amendments proves they
are doing everything to AVOID
consultation. ‘Public opinion will be
led to adopt, without knowing
it, the proposals that we dare not present to
them directly ... All the earlier
proposals will be in the new text, but will be
hidden and disguised in some way.’
V.Giscard D'Estaing, Le Monde, 14 June
2007, S Telegraph, 1 July. Citizens
will only know what their parliamentary
institutions have decided once the
ministers have forced its passage. Two referendums
have already rejected what
is almost exactly the same treaty. (It was by spin
called a Constitution but
legally it was still a treaty.) This is clearly a
dishonest approach.
Consequences.
This is
fundamentally undemocratic. Secrecy by
unreadability biases a decision in
favour of the autocracy of party political
machines rather than free decisions
of free representatives in 27 parliaments. One of
the many serious but hidden
aspects seems to be that the European Commission,
which should act as an
impartial arbitrator of all European interest,
will irrevocably become the
plaything of party political machines. The
Commission President will be chosen,
not by unanimity of governments for the most
qualified and fair-minded
candidate: candidates will be elected in rotation
by political majorities in
Council and Parliament and are thus WEDDED to
parties. The change profits only
party machines. The people in general and civil
society associations will be
losers. It would mean that independent people like
Jean Monnet, the first
president of the Commission would be excluded from
these lists of candidates
because he was not a party political nominee. All
independent people like
Hallstein and Davignon, diplomats, all
party-independent contributors to
Europe’s culture, lawyers, academics, journalists,
philosophers, theologians, scientists
or futurologists, experts on energy problems and
climate change will henceforth
be excluded. The disinterested, too. Commissioners
will all be politicians.
The
Commission’s
legitimacy derives not from party factionalism but
on the
contrary, from its impartiality and disinterested
expertise in all Europe’s
needs and interests. Instead, the Commission will
no longer be able to aspire
to be an honest broker. Despite fine words about
independence, the Commission
will be permanently defined as
the instrument of political
technocracy. AS PARLIAMENT’S CREATURE, IT WILL BE
UNSACKABLE. Obedience to
party will replace the founding principle of
reconciliation of Europe’s
diversity. Cartels will flourish. Initiatives like
the single market or the
Euro are likely to become impossible. Consensus on
climate change and energy
policy will dissipate as issues become politicised
to seduce powerful
interests, some covert, some undemocratic. All
initiatives will become
partisan. The motive is clear. Public support for
party politics and party
finances have both sunk, their ethics and morality
are questioned and voter
numbers have fallen. Diverting Commission jobs and
money to parties is corrupt
politics. This attempted party political take-over
of the Commission will create
serious divisions in Europe and inside Member
States at all levels.
Institutionalising the bad practice of recent
years will lead to political
blockages and reduced economic growth. All will
suffer the consequences.
It
is
obviously with a great deal of cynicism, given
this evidence and the
testimonies of the treaty’s authors, that the
europa.eu website says about this
treaty: “Its main objectives are to make the EU
more democratic, meeting the
European citizens’ expectations for high
standards of accountability, openness,
transparency and participation.” http://europa.eu/abc/treaties/index_en.htm This
sentence
has since been deleted. Ministers have yet to
fulfil basic democracy
of earlier treaties, see annex 1.
5. Action
to
be taken by the 5 bodies.
Firstly, all treaties
must be understandable. The public is demanding
better, more readable Regulations.
It is simply not acceptable for bodies that
purport to be European democratic
institutions (the Council of Ministers plus four
other democratic bodies, EC,
EP, CoR, EcoSoc) to FAIL to produce a readable
draft Treaty for debate. The
Ombudsman should remind the Council that it cannot
present to the public a
major document that is designed to
be unreadable. This Treaty
is to be concluded for an UNLIMITED PERIOD
(Article 3). People cannot
understand it to agree or disagree about its opaque
governance system.
This is an unconsultable treaty, defying
the
European Court ruling that all legislation should
be subject to full, legal
consultation.
Secondly,
the
Council must produce a consolidated
version where (a) the
amendments in the proposed Treaty of Lisbon can be
seen in context and
understood a little better, (b) the numbering of
the articles is clarified and
(c) that all ambiguities of grammar and phrasing
are finalized as is normal in
legislation. The Council must publish a two-column
version with the rejected
Constitutional Treaty, side by side, because this
is vital for democratic
consultation and decision-making. It should
describe how this system differs
from the original supranational Community
governance system of the
1950s.
Thirdly,
the
Ombudsman should remind the Council and Member
States’ parliaments that a
readable consolidated treaty must be produced
BEFORE any democratic debate can
usefully take place. The Hungarians voted the same
day as the Official
Journal C306 published the draft
Treaty, 17 December 2007! The
parliaments that have apparently decided that they
can ratify an unfinished and
unreadable treaty without a consolidated version,
should be reminded by the
Ombudsman that they have a democratic duty to have
a consolidated treaty in
their hands and debate it properly with electors
about how it would work before they
can
ratify it. Only then should they should consult
and debate in parliament
and vote. If they do not, they are compounding an
undemocratic abuse of
administrative power.
6.
Contact
with the Council. The Council
position is clear and published on
the website. It is being discussed in
legal, academic circles. The
urgency of the action needed requires a direct
approach to the Ombudsman and
rapid reaction from him.
7.
The
matter does not concern Staff Regulations.
8.
It
has not been introduced before a Court.
9.
Please
treat this matter publicly while withholding my
name and organisation.
10.
I
agree the matter may be passed on to another
institution, if required.