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Union at the Laeken crossroads

Laeken process: institutionalisation of the member states segregation?

The long and successful process of European integration encountered, in the mid - 1980th, a qualitatively new stage. The period of common market creation has been after the Maastricht treaty (1992) replaced by the process of political unification in the new order: one currency area, one economical entity (Union with an economic government), one political entity (Union with one foreign policy and an obvious political government.)

Today, the importance of second milestone to European political Union, the Laeken Declaration adopted at the end of the Danish presidency, is perhaps forgotten. However this document is quite crucial to revisit as the basic elements of the political process initiated at the end of 2001 have already been driven twice into the collapse: for the first time in the spring 2005, when its first product - the European Constitution - had been refused by the French and Dutch citizens in their referenda. The second time in June 2008, when almost the same quasi-constitutional text had been refused by the Irish in a referendum.

The Lisbon treaty, Reform treaty, or originally the Constitutional treaty (Treaty establishing the Constitution for Europe) is not designed to become just another amendment to the establishing treaties, but in the case of ratification by all Member States it becomes a viable, real Constitution of a new political entity, a new European near-federal state. In the case of the Lisbon treaty, the adoption the present sovereign properties, authorities and competencies of the EU member states (MS) are going to migrate into an Union supranational body - the institutions of the EU.

The Member States will only be able to exercise those competencies that are left to them under the EU Constitution, not the other way around - which was the original idea of European integration. Moreover, there is no clear definition what is remaining in the exclusive competencies of the Member States. The Union is going to extend its powers in each single field of possible public policy intervention.

By the establishing of so-called shared competencies, which are, however, the competencies of Union, the Member States are authorised to interfere - if the EU is not already doing so. Here we can find such important fields as agriculture, economic, social and territorial coherence and solidarity, energy, environment, legal co-operation, some social policies and - of course - transport and internal market policy.

The EU Member States are going to become a part of the European Federal State in the position of their - depending on the competence examined - provinces or a constitutive republics.

To clarify this issue, we should mark that in fact, after the possible adoption of the Lisbon treaty the position of current EU - member state is going to be very similar to the position of a simple autonomous province or area. Historically, these entities always have a certain degree of a cultural, educational or similar type of autonomy, however without being able to prevent any type consensus and decisions which may arise at the federal level.

On the contrary, federal structures allow the Member States, lands or republics direct participation on the federal policy issues, including their right to veto some of the the most important decisions.

For example, in the case of my country in the period of the federal Czechoslovak state (1969 - 1992), the list of issues where it was not allowed simple majority voting and the consensus of Czech and Slovak deputies (in a federally split second chamber of our Parliament) was necessary including in the areas such as approval and dismissal vote to the government, changes in federal constitution, elections of the president of republic, declaration of war, citizenship issues, major economic plans of development, fiscal law, federal taxes and fees, federal budget, customs, tariffs and quotas, single currency issues and so on. Here, we should of course underline that a real "voting," real democratic process could be seen here in the period ending 1989 to the end of 1992 only.

Under the Lisbon treaty, the EU Member States are going to simply loose their preserved competencies, because a majority of them are going to be the EU exclusive rights and powers.

Executive consensus sufficient

It is not the Parliaments of the Member States (or referenda where necessary), but its executive representatives (i. e. Prime Minister or President) that are going to decide (although unanimously, however, since already under the current institutional arrangement of Nice treaty there is very low will to vote alone or almost alone against everyone else) over those areas of decision-making where the Member States will retain, in the future, their right of veto which can be transferred at any time under majority voting (under Articles 48.6 and 48.7 of the Treaty establishing the European Union.)

With the Lisbon treaty, the elementary principles of the division of powers at the EU level are clearly endangered. Here, the system of checks and balances is not going to exist in any obvious form.

The European Constitution, product of Valéry Giscard d'Estaign's efforts, was clearly designed to became a license, a catalogue of all possible powers, competencies, rights and claims, not a constraint, so necessary in the constitutional and legal system safeguarding the freedom, rights, liberties and dignity. Those principles are described already in the Magna Charta Libertatum of 1215, the first written guarantees of the private property and liberties of a free man.

The crucial difference between the principles of license providing various catalogues of positive rights and - on the other hand - the legal principles of power constraints incorporated into any democratic structure show clearly the direction where both quasi-constitutional texts find its inherited hardships.

These constraints can be numerous and could be defined as a traditions of resistance against the central authorities (originally King, now the European bureaucracy in the Brussels perpetually proposing excessive new primary and secondary EU provisions) to enlarge its prerogatives, to recall on respected traditions and transparency based on clear rules and natural rights. Freedom under the law of the EU Member States, not under supranational bodies or a continental super-state. We should not forget that in the UK, there is still validity in article 40 of the 1215 Magna Charta Libertatum: "To no one will we sell, to no one will we refuse or delay right or justice." Yes, some of the principles of the Magna Charta remain in legal force in the UK for almost eight centuries.

The European Union, instead, is leaving the present relative clarity of written rules, rule of law of the Union or law of the Member States. To conclude this introduction and with special regards to the quasi-constitutional Lisbon text: the rules and laws written a long time ago by the already dead - ones are so often better for the country and freedom of man than the laws written to satisfy the immediate interests of the "very alive" ones.

To paraphrase F. A. von Hayek, the countries of the post-communist/transformation part of Europe had to find its own road out of the serfdom. Our experience of the 1990th is strong and unique.

Now, we should return and recall the Czechoslovak federation and Czechoslovak exception with its so called velvet divorce in 1992 and without any doubts we could see a truly peaceful and almost friendly separation of the two parts of one federal state existing (with the WW-II interruption) for historically given period of 74 years (1918 - 1992).

So, let’s examine in the detail the crucial elements of the Laeken declaration of 15 December 2001 with respect to the political heritage of the Laeken process: the Constitutional treaty and the Lisbon treaty.

"EUROPE AT A CROSSROADS"

Under this title, the Union (not Europe) has been, for now more than 7 years, stuck in at the Laeken crossroads: the red light is still on and will remain until the citizens of the Member States will be allowed to express their own free will.

What can we find out?

I´ll try to comment on the most important statements of the Laeken declaration.

For centuries, peoples and states have taken up arms and waged war to win control of the European continent. We should be aware that peace-war question has nothing to do with a degree of institutional unification. The war-harassment will always remain the myth behind the-story of European integration. Finally, let’s make it clear: the peace was after the WW-II guaranteed within the block system and persistent cold war safeguarded by the soft balance of nuclear and other armed powers of the two political and military blocks of the Warsaw Pact and the NATO alliance.

The debilitating effects of two bloody wars and the weakening of Europe's position. No. There was nothing like "Europe's position" before the WWII, so there was nothing to be weakened. Or, perhaps, should we think of the common position of, say, France, Germany, Italy and UK in the 20s and 30s of the 20th century? We should rather not, because there can hardly be any field of acceptable common position. At least, according to post-war mainstream historical explanations.

World brought a growing realisation that only peace and concerted action could make the dream of a strong, unified Europe come true. However this was clearly not a dream of the Member States citizens: peaceful Europe does not necessarily mean "strong and unified." Who dreamt this dream? Certainly not citizens of the Member States. Maybe some ambitious intellectuals, but they are still missing a very basic political mandate.

Twenty years ago, with the first direct elections to the European Parliament, the Community's democratic legitimacy, which until then had lain with the Council alone, was considerably strengthened. Symbolic, consultative and affirmative powers of the EP, quite formal compared to the national parliaments, can never "considerably strengthen the community’s democratic legitimacy." The right to dismiss the Commission belongs only to the Council, and only under very limited conditions.

The European Union is a success story. For over half a century now, Europe has been at peace. But this is almost blackmailing. Union means peace, less of unification should perhaps imply less of peace or even a war?

Along with North America and Japan, the Union forms one of the three most prosperous parts of the world. Union came later, much later. First, there was an after war peace and prosperity based on the free market economy and the mutual opening of originally closed national markets. This could be so thanks to the 60 years of democracy, freedom and the free market economy in this part of Europe - not thanks to the Union or Community.

The Union is about to expand to bring in more than ten new Member States (…) thereby finally closing one of the darkest chapters in European history: the Second World War and the ensuing artificial division of Europe. This is a completely misleading approach: the darkest chapters in European history were not caused by the "artificial division of Europe," but by the totalitarian Nazi and Communist regimes - the period when some European countries were deprived of liberty and freedom. The division of European continent by the so called "iron curtain" was nothing, but only a secondary provision, not the primary political cause of problems. More explicitly: imagine that after the WW-II the communist regime won in western, northern and southern Europe as well: would the authors of Laeken declaration reveal that the unity of Europe was not in the danger and Europe was not divided?

European institutions must be brought closer to its citizens. Citizens undoubtedly support the Union's broad aims. Now, when the citizens of already three EU Member States have refused the proposed quasi-constitutional text, we have not only doubts, but a certainty that these EU broad aims are simply not supported by the citizens of the Member States. They certainly do not always see a connection between those goals and the Union's everyday action.

Europe's new role in a globalised world: What is Europe's role in this changed world? Europe doesn’t have a role. Continents don’t compete. The decline of certain old European national states -former world powers- should not imply that its global and very often megalomaniac ambitions should be satisfied on the level of the EU. This is a very sensitive issue and we should not hesitate to open this discussion.

Europe should play a role of a a power wanting to change the course of world affairs in such a way as to benefit not just the rich countries but also the poorest. A power seeking to set globalisation within a moral framework, in other words to anchor it in solidarity and sustainable development. Well, such a strong and purely ideological ambition was really incorporated to the Preamble of the proposed constitutional text. And the debate before the two referenda in the Netherlands and France refused this constitution also hardly criticised this purely ideological goal which has nothing to do with an obvious treaty of this type. Anyway, as we can clearly see, we are still looked into the ground plan of these obsolete and for old Europe designed principles.

The expectations of Europe's citizens: Citizens also want results in the fields of employment and combating poverty and social exclusion, as well as in the field of economic and social cohesion. The bureaucrats behind these quasi-constitutional principles are trying over and over again to pretend to know better than the citizens of the member countries what they really want and expect. Moreover, the EU level is the last-one to help in the level of employment, poverty and social exclusion. These phenomenon are caused, not cured, by the arbitrary and artificially high "automatic standards" administratively imposed for the life of these, which are not (yet) excluded. However, the exponential manufacturing of these standards seems to be the supreme aim of the EU institutions.

In short, citizens are calling for (…) an approach that provides concrete results in terms of more jobs, better quality of life, less crime, decent education and better health care. The answer should be: yes, but all these areas are and should remind in the responsibility of the Member States, not of the Union. There was no single argument that the member states should give up these fields of responsibilities for the EU level. Why so? Because all these habits, cultural standards, GDP per capita, business cycle and expectations about the future are almost the same across the EU member states?

At what level is competence exercised in the most efficient way? This is a very misleading question. There is no reason for these questions: democracy and efficiency of decision making process are very often in a classical trade-off relationship. Plus, such a question can be legitimate only within a given federal structures of the already existing state. The fiscal federalism tries to answer the questions such as: what competencies should be exercised (and public money spend) at the municipal, local, regional, republic/state and federal level?

The European Union derives its legitimacy from the democratic values it projects. Hardly. The EU projects the direct contradiction of democratic values: administrative efficiency is for the EU more important than democratic accountability. As for the aims it pursues: democratic legitimacy can be never derived from the aims pursued! This is a limited form of a pure voluntarism breaching all obvious understandings of what should be called democratic and what should be called legitimate.

The first question is thus how we can increase the democratic legitimacy and transparency of the present institutions. And what if the present institutions have to undertake a considerable change and reduction before being able to continue and process further? Then, there will be nothing like "present institutions" any more.

With a view to greater transparency, should the meetings of the Council, at least in its legislative capacity, be public? If we want to crowd all the important or sensitive discussions out of the Council meetings and turn these meetings just into a show, the online broadcasting at the European TV channels will be transmitted. The result will be immediate.

How should the coherence of European foreign policy be enhanced? European foreign policy is exactly what makes EU a superstate. European foreign policy should never exist, be expected or formed.

The question ultimately arises as to whether this simplification and reorganisation might not lead in the long run to the adoption of a constitutional text in the Union. What might the basic features of such a constitution be? This is a crucial point: the Convention adopted the constitutional text within one year of work. Three years after the Laeken declaration, the proposed European Constitution was signed in Rome. Only few federalists believed in 2001 in a full constitutional text. Constitutional text was clearly not an assignment for the Convention of VGE. This experiment of Convention to shorten long run into two years or so had to pay a heavy price: the product of this Convention had already been twice refused.

The European Council has appointed Mr V. Giscard d'Estaing as Chairman of the Convention and Mr G. Amato and Mr J.L. Dehaene as Vice-Chairmen. This mistake must never have been repeated: three euro - federalist as the heads of the Convention not only violates the principle of democratic representation of the different political views about the EU 's future, but bear the core responsibility for the repeated refusal of the product of this Convention.

And last but not least: the accession candidate countries will be fully involved in the Convention's proceedings, (…) without, however, being able to prevent any consensus which may emerge among the Member States.

This is really strong. This is a clear institutionalisation of the Member States segregation: old Member States' representation had more rights then the representation of the accession candidate countries. The beginning of the Convention should have been, for example, postponed to the year 2004. This unprecedented project could have waited for a couple of years, when the new members came into the EU.

Or the other way around: this whole ratification process should have been finished before April 2003, when 10 new members signed their Accession Treaties in Athens and a ratification process started.

This is a direct violation of all the possible democratic principles: this was a political dictate for the new EU members revealing the undemocratic methods used by the founding fathers of the present quasi-constitutional text, the result of the Laeken process.

So, welcome back to the good, old Orwellian times: all the EU Member States are equal, but some of them are more European then the others …and therefore have more rights.

Michal Petřík

Adviser to the President of the Czech Republic

The European Journal, April 2009

Ing. Michal Petřík, poradce prezidenta republiky

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