Professor Roland Vaubel
The European Emperor wears new clothes: he has thrown off the insignia of statehood. But he has not abandoned the substance of the old constitutional treaty. Nor will Britain be exempted from it. His mandarins have merely tried to remove the trappings of constitutionality.
A few examples from the conclusions of the German presidency show how this window dressing works:
“The ‘Union Minister for Foreign Affairs’ will be called High Representative of the Union for Foreign Affairs and Security Policy”.
“The denominations ‘law’ and ‘framework law’ will be abandoned, the existing denominations ‘regulations’, ‘directives’ and ‘decisions’ being retained”.
“There will be no article in the proposed Treaty mentioning the symbols of the EU such as the flag, the anthem or the motto”.
“Concerning the primacy of EU law, the Intergovernmental Conference will adopt a Declaration recalling the existing case law of the EU Court of Justice”. (In this case law, the Court has asserted the primacy of EU law).
The Charter of Fundamental Rights will be omitted but an “Article on fundamental rights will contain a cross reference to the Charter on fundamental rights, as agreed in the 2004 Intergovernmental Conference, giving it legally binding value” (except for the U.K.).
“Article 48… will make it clear that the Treaties can be revised to increase or reduce the competences conferred upon the Union”. From a purely legal point of view, this has never been in doubt. But any repatriation of competences would require a proposal from the EU Commission. The Commission is not interested in making such proposals.
“Concerning national parliaments, their role will be further enhanced… If a draft legislative act is contested by a simple majority of the votes allocated to national parliaments, the Commission will re-examine the draft act, which it may decide to maintain, amend or withdraw… If, by a majority of 55 % of the members of the Council or a majority of the votes cast in the European Parliament, the legislator (Council and Parliament) is of the opinion that the proposal is not compatible with the principle of subsidiarity, the legislative proposal shall not be given further consideration”. This leaves the national parliaments powerless in ordinary EU legislation. The German presidency was merely stating the self-evident: EU legislative acts under the codecision procedure cannot be adopted against a majority of the Council or the European Parliament.
As these examples demonstrate, Europe’s political class is merely exchanging the labels. By doing so, they want to create the impression that referenda are not necessary. They are trying to mislead their citizens. The democratic deficit is widening.
One of the most important changes will be the lowering of the upper majority requirement in the Council from 73.9 to 65 per cent. This is to be but to postpone is not to abandon. There will be no “opt-out” for Britain. Quite the contrary, the lowering of the voting threshold will make it more difficult for Britain to assemble a blocking minority against EU regulation of labour and financial markets. This is not a mini-treaty. It will weaken the continent of Europe and most of all Britain.