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Sborník č. 6 "Ekonomika, právo, politika"

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The forthcoming Nice treaty will continue the anti-democratic trend on which the European Union has been set for the last fifteen years or more. Already, the institutions of the European Union are largely impervious to democratic accountability (the so-called "democratic deficit"). When the Nice treaty is ratified, further powers will be centralised in the inter-governmental and surpra-national institutions of the EU, to the detriment of national democratic accountability. While these developments are of concern to all democratic states in Europe, they should be of especial concern to small countries who are candidates for EU membership

The three most important areas which, it is proposed, Nice will address are:

I. The principle of "flexibility" and the development of a "hard core"

II. A charter of fundamental rights

There is a third important element, the end of the national veto and the extension of majority voting in the Council to all areas. But for the purposes of the constitutional analysis contained in this paper, this third element can be subsumed under the first.

The historical context

Before discussing these proposals in detail, it is important to understand the past development of the EU. This will enable us to see the direction in which it is heading now.

The European Union is undemocratic for two main reasons. First, there is a predominance of institutions which are unelected. Second, the agenda in Europe is driven forward by national governments acting in concert with one another, or in a cartel. This cartel operates against the democratic rights of national electorates.

The predominance of unaccountable institutions in the EU does not need to be emphasised. The principal ones are the European Commission in Brussels and the European Central Bank in Frankfurt. The role of the European Court of Justice in Luxembourg, which sees itself as a motor of European integration, is also important.

The Commission has numerous powers, of which the most important are the exclusive monopoly over initiating legislation and the generation and monitoring of secondary regulation. Competition policy is an area in which the Commission is judge, jury and executioner. This is why the Commission suffers from all the usual defects which accrue to unaccountable power: especially corruption and arrogance.

The creation of the European Central Bank, which took over the monetary affairs of the euro states on 1^st January 1999, represents the second most important transfer of power from national bodies to an unaccountable supranational one. As with the Commission, the Bank is constitutionally independent, reflecting the underlying philosophy of the EU that it is better to be governed by an unaccountable administration than by democratically elected bodies. There are few greater discretionary powers in the hands of modern governments than the power over the money supply, and it is a power which carries immense political responsibilities with it. Yet this power is wielded completely unaccountably in the states which have adopted the euro.

However, the predominance of such unaccountable institutions in the EU should not distract attention from the fundamental constitutional anomaly of the EU. This is that European law is passed by the Council of Ministers, i.e. by the 15 national governments sitting in secret conclave. It is impossible to imagine a greater infringement of the principle of the separation of powers than to give extensive legislative power to executives in this way. This deformity is equivalent to a wholesale transfer of legislative power from a national parliament to its government, or to the institution of law-making by decree. In the words of a famous pamphlet written attacking the constitution of the 5^th Republic in France by the then presidential candidate, later president, François Mitterrand, it is a "permanent coup d’état".

Between these two types of unaccountable institution, therefore, political power in Europe is divided. Broadly speaking, we can say that the underlying ideology of European integration is to construct a system allowing national governments to escape from the restrictions of national parliamentary life and to allow instead all state power to devolve to the executive. It is for this reason that power in the EU is always discussed in terms of "decision-making" and never in terms of law-making. The unaccountable executive institutions like the Commission and the Bank are ultimately just creations of this usurpation of the rights of legislatures by European executives.

At no stage in the history of European integration has there ever been de-centralisation of power. This, indeed, is forbidden by the treaties, which requires member states to accept the "acquis communautaire" in full: de-centralisation of power is constitutionally impossible in the EU. Power is only ever ratcheted up further to the unaccountable centre.

I The principle of "flexibility"

The suggestion is now that the European Union should move towards a new kind of arrangement, whereby certain states would be allowed, if they choose, to integrate further leaving the other states to catch up later but never to veto their actions. This idea is particularly advanced by France and Germany.

In 2000, it was initially suggested by the German Foreign Minister, Joschka Fischer, who claimed to be speaking in a personal capacity when he addressed the Humboldt University in Berlin in May. He suggested that flexibility would allow certain states (he was widely understood to mean France, Germany, the Benelux countries, and maybe Italy) formally to found a European federation with a constitution. Other states would be allowed to join this group later but they would not be allowed to veto the direction laid down by the hard core.

This notion of creating a hard core of states has a much longer history, though. Indeed, the idea of a Europe of concentric circles was originally suggested by two officials in the German Federal Chancellor’s office on 19th July 1989 (‘Das verhängnisvolle Irrtum eines Entweder-Oder: Eine Vision für Europa’ by Michael Mertes and Norbert Prill in Frankfurter Allgemeine Zeitung. The date of publication is significant: it was just three weeks after a visit by the then Soviet leader, Mikhail Gorbachev, to Bonn. After dinner one evening, Kohl had taken him into the garden of the Chancellor’s office and the two men had stood by the side of the Rhine in the moonlight together. ‘German unity is like the Rhine,’ said Kohl. ‘However hard you try, you cannot stop it from flowing on.’ Gorbachev made no reply and Kohl – according to his own subsequent account of the event – took this as meaning that Gorbachev would indeed not stand in the way of German unity.

In other words, the decision to reconstitute Europe along a system of concentric circles, with Germany at the centre dictating policy to the ‘peripheral’ states was conceived precisely in order to compensate for the expected loss of Soviet control over the Eastern part of Europe. At this time, indeed, euro-cognoscenti were all warning of the dangers of ‘nationalism’ if the states of Central and Eastern Europe were liberated from the Soviet yoke.

The Germans returned to the idea of a Europe of concentric circles in 1994. Two leading CDU politicians, Karl Lamers and Wolfgang Schäuble, published a policy paper entitled Betrachtungen zur europäischen Politik. It introduced the concept of Kerneuropa, which meant France, Germany and the Benelux countries exercising a directorate over the rest of the EU. The same pattern was visible as had been in 1989 and as was to be the case in 2000: the ‘hard core’ was to have the right to determine the direction of European integration without other states being allowed to have their say. Indeed, this idea has itself been explicitly advanced during the negotiations over the Maastricht treaty, when the British were told that if they tried to veto monetary union, then the other states would go ahead with it anyway, outside the existing treaties.

The Lamers-Schäuble paper contained, however, one very menacing sentence. ‘Without this further development of European integration,’ they wrote, ‘Germany could be required or tempted for reasons of her own security to ensure the statbilisation of the Eastern part of Europe on her own and in the traditional manner.’ The threat was very clear: unless Europe gives the Germans what they want, control over the apparatus of the EU, then it will break loose from the structures of the treaties and use military force on its own.

1996 saw another paper on the same theme and by the same authors. Once again, the requirement was stressed for Europe to develop a military capacity. The paper called for he integration of the Western European Union, the only exclusively European military treaty organisation, into the European Union, which was to occur four years later in 2000 when Javier Solana, the former Secretary-General of Nato, was appointed simultaneously EU High Representative for Foreign and Security Policy and Secretary-General of the WEU. Europe was on the road to becoming a super-power.

A last indication of the super-power temptations of Germany/the EU came in a paper written by Professor Werner Weidenfeld of the University of Munich in 1998. Professor Weidenfeld was an adviser to Chancellor Kohl and so his ideas have more than personal significance. He wrote in the Neue Zürcher Zeitung on 10^th July 1998, ‘The creation of the euro has catapulted Europe into the status of a world power … But what Europeans still lack is the ability to think in world power political categories … The European Union is rapidly becoming one of the most important centres of global architecture.’

So when the Fischer speech came in 2000, little was new. Instead, the speech was a re-statement of the old Franco-German dream to institutionalise their leading role in the EU by removing the national veto from other ‘lesser’ states and to give themselves a military role over which other states would have no say. It was power-politics in its rawest form.

The Nice treaty, therefore, will remove the last remaining vestiges of control or restriction over the unfettered wielding of discretionary executive power by large states. National vetoes having been brushed aside and the role of the Commission having been reduced, France and Germany will be able to run European affairs as they fit and without having to answer to any electorate. Acting in the name of ‘Europe’ will be sufficient, it seems, to ensure the nobility of their actions. By removing the principle that EU law must be the same for all, Europe’s most powerful states will be able to act as they like. For years, we have been told that the European Union is necessary to ‘bind in’ Germany. Now, however, the Germans have turned that tables and are setting about re-arranging the institutional framework so that the EU no longer represents a limit on their power but instead becomes a vehicle for it.

II The Charter of Fundamental Rights

It is also proposed at Nice to introduce a Charter of fundamental rights. The Charter has been drawn up in conditions of near secrecy and with absolutely no public debate whatever. Although published on a web site a few months before it is due to be ratified, the Charter has not been submitted to any electorate or parliament. Instead, it has been written by a Convention chaired by the former President of Germany (and former President of the German constitutional court), Werner Herzog. Various MEPs and national representatives have also sat on the Convention, which held hearing with numerous ‘human rights’ organisations, many of whom are themselves in receipt of large subsidies (in at least one case, 100% of their income) from European institutions.

It is obvious that the Charter will destroy all independent national jurisidictions and subject all national policy to the say-so of the European Court of Justice in Luxembourg. In the nature of such documents, the articles of the Charter are phrased in a fairly broad way: what matters is obviously the interpretation put on them by judges. How, for instance, do you reconcile the right to information with the right to privacy, or the right to life with the right to abortion? Such conflicts are the very essence of judicial activity and, whatever the exact phrases used in the Charter, its principal effect will be to subject all European and national law and policy to a jurisdiction whose Supreme Court will be Luxembourg.

Ever since the European Communities were first founded, the Luxembourg court has explicitly understood itself to be one of the primary motors of European integration, driving forward a centralising and authoritarian conception of EC law on the basis of vague commitments in the preambles to the treaties, such as the desire to promote ‘an ever closer union among the peoples of Europe’.

It is thanks to the judicial activism by the ECJ, for instance, that European law operates according to the twin doctrines of ‘direct effect’ and ‘direct applicability’. These mean, respectively, that EC law has direct effect on individuals, i.e. not just on EU member states, and direct applicability even before national legislation has been amended in conformity with EC directives. This is why EC law, unlike the law of any other international organisation, penetrates into the very heart of national jurisdictions, rendering them – in the words used in 1994 by Lamers and Schäuble to describe national sovereignty – ‘an empty shell’. This primacy of EC law is nowhere to be found in the treaties: it was the result of a simple act of judicial fiat by the ECJ.

Under such circumstances, it is obvious that any Charter of rights, whether formally justiciable or not under the ECJ, would soon be appropriated by it as a benchmark for judging all national policy. It is inconceivable that the court would allow any other outcome, knowing what we do about its behaviour over the last four decades. The consequence of this is that a law voted by a national parliament, elected by and accountable to its people, could be struck down by a panel of judges in Luxembourg.

The judges on the ECJ are, in any cases, not really judges at all but instead retired politicians. The Belgian judge, for instance, is the former Interior Minister who ordered the early release from prison of the paedophile pornographer and child murderer, Marc Dutroux – a release which enabled him to commit some of his most grisly crimes.

III Conclusion

First, it is often alleged that the European construction is inevitable and that there is nothing small nations can do to stand in the way of it. This is nonsense. The Danes are one of the smallest peoples in Europe and yet on 24^th September, they voted against abandoning their national currency. This was in spite of a massive campaign in favour of the euro which united all mainstream political parties, all of industry and all of the trades unions.

Sweden, incidentally, has never adopted the euro even though it is obliged to do so under the terms of the Maastricht treaty. Unlike Britain and Denmark, it negotiated no opt-out but simply has one de facto. It is now very likely that the Swedes will never adopt their euro, since the Danes have voted against it and the population is hostile.

Second, as the above remarks should have shown, grabs for power are deliberate and concrete. There is nothing inevitable about them. They repose instead on certain changes in the law of the European Union, and they can be undone if those changes are refused. There is nothing inevitable about allowing power on the European continent to be wielded without democratic accountability. Such developments will occur only if they are allowed to occur. It is the duty of all democrats to stop them.

Finally, the danger of the current developments is especially great for small countries if they decide to swim with the tide and join the EU. A large country like Britain can, broadly speaking, fend for itself (although the same arguments about Britain being isolated are advanced in Britain as they are in the Czech Republic). Smaller countries, if they join he full panoply of the EU’s policies, the so-called acquis communautaire, will be simply swamped with foreign legislation and have removed from their national state organs any powers to counter-act them. Any suggestion that small countries will have greater ‘influence’ inside the EU than out should be set against the declared intentions of the more powerful EU states to do what they like whether other peripheral countries agree or not.

Under such circumstances, smaller candidate countries should give very serious thought to whether it is better for them to have a 100% share in running their own affairs or a 1/20^th share in running the affairs of the whole continent – especially if even that residual area of influence is now formally and genuinely under threat.

John Laughland