Skip to comments.The European MegaState: Controlling the Four Freedoms
Posted on 06/14/2003 1:23:11 PM PDT by Sir Gawain
The European Union is meant to ensure the free movement of people, capital, goods and services across the territories of its Member States. It is this free interaction that socially unifies Europeans, not a centralised EU government bent on hegemonic law-making. Yet what we have in Giscard's draft is a constitutional blueprint for a centralised European State.
Opposition to the draft is increasing, and proposals for amendments have been pouring in, but they do not go deep enough. Today's EU goes deeper than it appears, and this constitutional draft helps it seize more legislative power from Member States, while seeking to further diminish the power that enables them to block its pursued direction.
The seizing of legislative power is sought through what in eurospeak they call "Union competence". On the other hand, disarming Member States of the power to block this centralising action is sought through "qualified majority voting".
What follows here in Part II is an outline of the centralising effects of EU legislative power and the interplay that presents itself between "Union competence" and "qualified majority voting" as framed in the draft EU Constitution.
The Key to a Centralised State: Unbridled Legislative Power
As pointed out in Part I, with the European Union's 'role and function' being to 'rule and control', its singular political finality is preconditioned. And the actual key to a centralised European State is the extent of the Union's legislative power. Once a supranational entity is given the power to legislate, it is in a position to self-empower and would gradually, even 'instinctively', create the need to further centralise so as to consolidate its control and growth. The Union, as a separate entity above the Member States, would legislate according to unknown socio-structural-behavioural laws, aiming for self-preservation and self-perpetuation.
This may seem too deterministic and would appear to ignore the extent of 'democratic participation'. But even if the European Council and Parliament are made up of peoples' representatives (and the representatives of those representatives), who can theoretically participate and reject laws proposed by the EU Commission, the EU, as a separate entity, would still have its own personality and its own life-cycle with the preconditioned (even organic) aim of surviving and growing stronger. This is more than just a "legal personality" as defined by eurospeak. It means that all of the Union's institutional components, including those that possess a semblance of peoples' representation, would eventually find themselves towing the line set by the Union's "objectives" and "common values and interests" as defined by the Constitution. (What is better understood by all is that the peoples of Europe cannot vote this EU government out of governance.)
So this Constitution consolidates the legislative power gained by the EU throughout its existence, and builds upon the past, ensuring enough legislative leverage for further self- empowerment. This legislative leverage is measured in "Union competence", while the ability of Member States to control Union competence is determined by EU voting procedures. In both spheres the constitutional draft predominantly favours the Union.
A Question of 'Union Competence'
In order to appreciate this centralising process, one needs to analyse the actual meaning of 'Union competence', not only as framed in the draft Constitution, but also as it already exists today.
Article 10 categorises Union competence into six. We have 'exclusive competences'; 'shared competences'; 'coordination' of economic policies; the 'implementation of a foreign and security (defence) policy'; 'supportive measures' that 'coordinate' and 'supplement actions' of Member States; and a sixth frame that concerns 'specific provisions' to each area, to be elaborated in Part III of the Constitution.
The "exclusive competences" of the Union are supreme and untouchable [Art. I-11 (1)]. And the very first competence here is "to ensure [the four freedoms of movement] and establish competition rules, within the internal market, and in the following areas: customs union, common commercial policy, monetary policy" (for all Member States except the three still outside the eurozone), and a "common fisheries policy".
(This is quoted from the May, 14 version (pdf) of the draft; by the time another draft appeared on May, 26, the 'four freedoms' disappeared, article 11(1) is now Art. I-12(1), and the starting point was moved to competition rules . . . must have seemed too blatantly over-ambitious . . . )
Added to this [Art. I-12(2)] we also find that the Union "shall have exclusive competence for the conclusion of an international agreement" (i.e. Member States are not allowed to sign agreements with other nations) as long as such a conclusion "is provided for in a legislative act of the Union" (i.e. when the Union itself would have decided to provide for it), or when such a conclusion "is necessary to enable the Union to exercise its competence internally" (i.e. whenever the Union thinks this conclusion is necessary in order to enforce an earlier decision by the Union to exercise a competence), "or affects an internal Union act" (i.e. whenever a Union law already exists). Of course, whether it affects it or not, and how it affects it, is all subject to Union interpretation.
The second category concerns "shared competences", which supposedly means that in the listed areas both the Union and Member States may share competence. But the word 'shared' has a deceptive function. In fact competences are never shared. The last sentence of Article I-11(2) wraps it up: "The Member States shall exercise their competence to the extent that the Union has not exercised, or has decided to cease exercising, its competence." (Fresh out of the May, 26 version; tastes sweeter, but no difference). It does not state what happens if the Union decides to exercise its competence after a Member State had taken the initiative. It does not have to do this since EU laws prevail anyway. So "shared competence" essentially means that unless the Union does not already have exclusive competence in an area, a Member State may exercise competence in that area, but only as long as the Union permits.
The list of 'shared' competences is wide and varied. The constitutional draft lists the principal areas [Art.I-13 (2)], where one finds the "internal market", the "area of freedom, security and justice . . . " (the new eurospeak term for 'justice and home affairs'), "agriculture and fisheries, transport and trans-European networks, energy, social policy, economic and social cohesion, environment, consumer protection [and] common safety concerns in public health matters."
In "areas of research, technological development and space, the Union shall have competence [Art.I-13 (3)], but unlike other 'shared competences', this would not prevent Member States from exercising their competence. The same goes for "the areas of development cooperation and humanitarian aid" [Art.I-13 (4)]. These come closer to truly shared competence, but of course any action a Member State may take would still be subject to related EU laws and regulations.
The third category concerns the coordination of economic and employment policies. Article I-14(1) proposes to establish EU power over the control of economic policies, which is termed as a competence "to ensure coordination... by adopting broad guidelines for these policies". This had been detailed in Art. 13 of the May, 14 version, where Member States are also to take into account the "common interest" in achieving the "objectives of the Union". How broad these policies could be for the purposes of the Union's common interest and objectives would be subject to Union interpretation. So with this proposal on board, the door would have remained open even for centralised economic control!
[Eventually the May, 26 version struck off the sub-article concerning the "common interest", but added two more: the 'coordination' of 'employment policies' and of 'social policies'. Apparently it was Tony Blair who informed Giscard that the constitution would sell better without the 'economic control' thing and the f-word (the words "federal basis" were also struck off from Art.1) and it seems Giscard bought the idea... What's in a word? However, the question of a permanent EU President does not seem to bother Blair, even if in the UK this is as contentious as the f-word. Blair himself is a contender for the post of President of the "European Union", which is how the May, 26 version christens this new Europe. I guess "United Europe" or "United States of Europe" sounded too rash. After all, what's in a name?]
As regards monetary policy, there are of course "specific provisions" that apply (and most already do) only to eurozone Members which will soon mean all 25 Member States minus the three who have so far managed to opt out of the European Monetary Unit, that is, the UK, Sweden and Denmark (the candidate countries are granted no such privileges, although they'll be given time). Within the eurozone, monetary policy is entirely and exclusively determined by the European Central Bank, which is an 'autonomous' Union institution (autonomous in so far as no Member State may advise it on fiscal measures, such as interest rates).
The fourth category concerns Union competence in building a 'common defence system', which I will discuss in the third article, together with the "area of freedom, security and justice".
And the fifth category is one that already exists today, whereby the Union may take "coordinating, complementary or supporting action" in those areas where Member States exercise 'full' competence (the word 'exclusive' is never used for Member States), such as employment, industry, education, culture, sports, protection against disasters [Art. 15 (Title III)].
So, as one can see, the pan is full, even if they say it's half empty. And beneath this pan is the fire that governs.
The Three Principles Governing 'Union Competence'
Before detailing "The Union's Competences and Actions", 'Title III' of Giscard's draft lays down the "Fundamental principles", which supposedly are 'restrictive' measures that 'limit' the extent to which the Union may use its legislative and regulatory powers (that is, the extent of self-empowerment).
Article 8 says that the limits and use of Union competences are governed by three principles (conferral, subsidiarity and proportionality a fourth, 'loyal cooperation', was struck off in the latest version). These three principles, in use for some years, are of utmost importance since they actually govern the extent of 'Union competence and actions' and are relied upon throughout the Constitutional draft. Yet, written in eurospeak, these principles are a political exercise in blatant deceit: they are worded in such a way as to appear to limit and restrict the use of Union competence, yet each principle favours the Union exclusively and unfailingly.
Starting with "Conferral", this principle concerns the "limits of the competences conferred" by the Constitution in order to attain the "objectives the Constitution sets out". It would have been favourable to Member States had there been any real limits, but as it is, it simply serves to bind the Member States to respect the vast competences that the Constitution confers on the Union. In the end of the day, there's a so-called "flexibility clause" (Art. I-17), which leaves the door open for 'Union competence' even where it is not conferred, and "delegated regulations" (Art. I-35), which means the Commission would have the power to enact laws "to supplement or amend certain non-essential elements of the law..." The Union, of course, decides what is essential and what's not.
"Subsidiarity" is the principle that came with the Maastricht Treaty in 1992. It was ostensibly intended to achieve a devolved rather than a centralised EU, with decision-making at the 'lowest possible levels'. However, the definition of subsidiarity (which this draft further distorts) has nothing to do with devolution of power. In fact, it establishes the Union as the arbiter on what action can be carried out 'more efficiently' by the Union. This principle, of course, concerns only those areas where the Union does NOT already hold 'exclusive competence'. So in reality, what subsidiarity does is that it enables the Union to exclusively exercise competence in areas where competence is supposedly "shared". This is allowed when, "by reason of the scale or effects of the proposed action", it feels that the particular action "cannot be sufficiently achieved by the Member States" (note that the action is always proposed by the Commission in the first place). This is subject to Union interpretation: What can or cannot be sufficiently achieved by Member States?
The principle of "Proportionality" is related to that of subsidiarity. It is meant to limit Union action to "what is necessary to achieve the objectives of the Constitution". But this says nothing for it too is subject to Union interpretation: What Union action is necessary to achieve the objectives of the Constitution?
The unbalanced relationship between the Union and Member States was evidenced in the May, 14 version with a section entitled 'Application of the fundamental principles', which detailed the required allegiance on the part of Member States. This section is now called 'Union law' and it has been heavily reduced. What is now Article I-10, establishes the primacy of Union law over that of Member States, and binds Member States "to ensure fulfilment of the obligations flowing from the Constitution or resulting from the Union's Institutions' acts."
Whenever the Union or its Institutions are held under obligation, it is either according to the interpretation of the three principles, or the obligation is to exercise competence, coordinate and implement, i.e. to legislate and if necessary enforce. Member States' obligations, however, are to serve the Union and comply with its laws under the penalty of sanctions, of course . . . Heads I win, tails you lose . . .
The Peoples' Power to Block a Self-empowering Union: from Unanimity to QMV
The EU's competences are already far and wide, but this Constitution would provide the Union with an even more expansive operational field. Whenever restrictions appear to exist, these are undermined by escape clauses, or are governed by interpretable principles which unfailingly go the Union's way. Clearly, effective measures of control are required, enabling Member States to block the Union from over-exercising its competences. The peoples of Europe need the power to check Union action and stop a self-empowering and self-centralising process from taking off irretrievably.
Yet, even here the draft goes the Union's way since the powers of Member States and national parliaments are further diminished, following the well-tried EU road that has taken us from unanimous voting to 'qualified majority voting' (QMV).
Indeed, Article I-22(3) states that "except where the constitution provides otherwise, decisions of the Council shall be taken by qualified majority." This is a clean-sweep article that establishes qualified majority as the decision-making procedure in the European Council. So the Council, made up of representatives from the national parliaments of Member States, can decide to adopt or reject the proposed laws on the basis of a qualified majority. The only partial exceptions to the QMV rule so far concern a "common foreign and security policy" (Art. I-39), a "common defence policy" (Art. I- 40) and the "implementation of the area of freedom, security and justice" (Art I-41). We do not yet know how many areas will be moved from unanimity to QMV, since this will be known when Part III of the Constitution is levelled out and presented.
In Article I-33(1) we find that what in eurospeak used to be called the 'co- decision procedure' is now called the 'legislative procedure', and this means that while the Commission proposes laws, the European Council and Parliament would decide together "in accordance with special legislative procedures". As far as the Council is concerned, it would act through "double majority voting", which requires the majority of Member States (13 out of 25) representing 60% of the EU population, as explained in the previous part.
A No-win Situation for Devolved Power
The trend is visibly moving towards the general rule of 'qualified majority voting' (QMV), where mere representation and participation are hoped to preserve democracy and transparency. But as stated earlier, the European peoples' 'representation' in the European Council, and still less in the European Parliament, does not effectively check the Union's actions. In the longer term, no form of QMV can stop centralisation of power once the process of self-empowerment takes off.
The Union is one single entity. Over a period of time the ever-changing flow of 'participants' ensures that they become part of this entity. No conspiracies are required for this sort of institutional evolution. The Union's Institutions, described as a "single institutional framework" [Art. I-18 (Title IV The Union's Institutions)] exist to propose, adopt and in some cases execute EU laws, regulations and policies, while the EU Court judges over any outstanding conflict of interpretation. From the Commission to the European Council, and on to the Council of Ministers, the EU Court of Justice, the European Central Bank, the Court of Auditors and the European Parliament, down to the various sub-councils and committees, the Union is one 'single institutional framework' that functions on the semblance of being 'democratically' made up of represented bodies of the peoples of Europe. It is in fact no framework at all, but a technocratic institution empowered to act as a State and ostensibly checked by a democratic process.
With such an institutional set-up, majority voting is the fuel that sets the fire flaming. Majority voting builds on the 'whole', as opposed to unanimity which builds on a 'diversity of wholes'. In other words, whereas unanimous voting is possibly a means for national parliaments to be influential at Union level, QMV evens out the powers of individual Member States by creating one whole political arena where an overall majority overrides the needs of diverse minorities. With QMV the individual components that make up the Union are levelled out into one single component where smaller Member States become minorities, and politically less influential than current regions and provinces.
The EU has managed to get thus far on the beginnings of the veto and unanimity (and a lot of idealism and romanticism, too), and without the initial power to self-empower. Unanimous voting could not prevent centralisation of power, and was unable even to prevent its own gradual eradication. So with QMV replacing unanimity we would have a much less effective procedure against centralisation of power.
Whichever constitutional version prevails, the Union is close to clinching full competence and unbridled legislative power. It just needs to consolidate its control over a common economic policy, a common defence system and a common criminal justice system . . . which we now know as an area of freedom, security and justice . . .
Funny that phrase... and not just for its characteristic eurospeak qualities. For when that aim is achieved, that's when the nightmare begins. And it will not be as slow and as winding as the US nightmare is turning out. The EU nightmare has the potential to create a modern Hegelian supranational State. Could this be the next step in Western civilisation?
(to be continued)
Kevin Ellul Bonici is a criminal justice specialist currently working in Brussels. Email: firstname.lastname@example.org.
At any rate, the concepts are so involuted, and projected in so confusing a manner, one can only suppose that Giscard was under the influence of some mind altering substance when this was drafted.
Quite a contrast between the clarity and directness of Madison & others in our Constitutional Convention.
The cause of the upcoming schism ....Franco/Belgium/Saxon alliance trying to assert it's control over member states.
The Fourth Reich...seig heil baby