LISBON TREATY: Complaint to the Ombudsman, 11 February 2008 |
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To The European Ombudsman COMPLAINT ABOUT MALADMINISTRATION Complainant: Name withheld 11
February 2008 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 TreatyOn 4 February 2008, I viewed the europa.eu
website to obtain a consolidated version of the Lisbon Treaty. http://europa.eu/lisbon_treaty/index_en.htm 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, in principle 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, timing. In June 2007, Heads of State and
Government meeting in the European Council pledged that they would
provide “full and comprehensive information” about the treaty
before the democratic process began. It has failed to do so. The
Council has acted irresponsibly by not producing a readable,
consolidated Lisbon Treaty before Member States began
their public debates and their parliamentary ratification process. The
Council knew the ratification timetable. The Council committed a grave
error in not publishing a consolidated version in all official languages
before December 2007. The Hungarians voted on 17 December 2007, the same
day as the Official Journal C306 first published the draft,
unconsolidated Treaty, which its authors described as “aimed to be unreadable
… and unclear.” The Council, in direct violation of European
Council pledges, made no readable, consolidated version available, thus
making democratic debate meaningless. The Ombudsman should therefore
remind the Council of its obligation to publish widely a readable,
consolidated treaty and a comprehensive commentary BEFORE any democratic
debate can usefully take place, especially if it involves re-organizing,
modifying or eliminating existing European democratic bodies or adding
new presidencies and powers. The Council of Ministers should set up
systems so that this error of timing cannot happen again. It
should immediately produce parallel texts of Constitutional and Lisbon
Treaties plus a full commentary on the changes from a supranational
Community system to an EU system. This commentary would explain why
Council plans to undermine the independence of the Commission by its
permanent politicisation and thus damage the anti-cartel powers against
the interests of some 500 million citizens. Fourthly,
the Commission, as guardian of the treaties and with its powers under
article 48, Treaty of Nice, had given fair warning that a readable,
consolidated official version was legally and morally required. In COM
(2007) 412 final, the Commission wrote to the Council Secretary General
that “The
European Council emphasised that during the IGC
(Intergovernmental conference) and during the process of
ratification, the EU should reinforce communication with its citizens,
providing them with full and
comprehensive
information and involving them in permanent dialogue. The
approach chosen – amending the existing treaties – makes it
particularly important to communicate the proposed reforms and their
underlying rationale, and to make available as soon as possible an
easily accessible and readable text of the Treaties.” (Emphasis
added). Obviously, this full and comprehensive information and permanent
dialogue would have to start by providing a consolidated version with a
full commentary for each national debate. It was needed well before
ratification. Mrs Wallström re-affirmed to the Ombudsman on 13 March
2008 that this was still the Commission’s position. However, the
Commission did not act, nor issue warnings, that the Council had acted
irresponsibly in not publishing a consolidated version with a full and
comprehensive commentary. It did not alert the public. The Ombudsman
should condemn this laxity and remind the Commission of its duties
towards the public and the institutions in this regard. The Commission
should guarantee such lapses – now involving possible illegalities
in the ratification process – do not happen again. Under the Lisbon
Treaty (article 1-20) the Commission President will be elected according
to the ideological majority of Parliament. The list of candidates will
be in the hands of political party secretariats. Impartiality is no
longer assured by unanimity in Council. As part of its own dialogue
responsibilities, the Commission should publish its opinion about the
loss of its impartiality, the seriously reduced choice of candidates and
the weakening of its anti-cartel powers implicit though often not openly
stated in the Treaty. Fifthly, the European Parliament, whose party
political members will greatly benefit from the passage of the Lisbon
treaty, should be reminded that some 98 per cent of the EU population
are not members of a political party. If 98 per cent of the population
are to be disenfranchised from becoming candidates for European
institutions like the Commission and consequently for other bodies that
Commission and Parliament will control, then the European Parliament has
the legal and moral obligation to (a) publish the consolidated version
of the treaty, (b) open a debate with the public who are not members of
political parties and explain why the majority of Europeans should be
eliminated as candidates and (c) as part of its dialogue
responsibilities, provide a democratic mechanism, in conjunction with
Council, so that the public can signal an agreement or disagreement to
their disenfranchisement and the one-sided cession of power to party
political members and their secretariats. Sixthly, the Consultative Committees, EcoSoc and CoR, are also culpable. According to the Treaty of Nice, (article 257) they have as members the democratic ‘representatives of organized civil society’ (article 257) or democratic ‘representatives of regional and local bodies’ (article 263). They failed in their duty to demand and assure that Europe’s regional bodies and European NGOs and other civil associations (consumers, labour and enterprise) have in their hands a consolidated treaty version for a debate among their democratic constituents and associations. The Ombudsman should remind the Committees that their democratic responsibility is to serve these sectorial constituencies and not to succumb to the dishonest blandishments of the Council. They are to be “completely independent in the performance of their duties in the interest of the Community” (articles 258, 263). Their duty is to confront such political forces as the Council when it follows a self-serving and undemocratic path. It is against the interests of civil society and the regions that citizens who refuse to subscribe to party membership will largely be eliminated from consideration as candidates for the European Commission and other bodies. It is reprehensible if, because of their negligence, millions of citizens active in European civil society and regions do not know about this because the Consultative Committees have neglected their duty. That duty is to obtain information, in the form of a consolidated version with commentary, which will clearly show the implications (and even hidden manipulations) of the Treaty amendments. The Consultative Committees should therefore establish independent systems that prevent such a stifling of democracy and of public debate in the future. They should send comprehensive information about the Lisbon Treaty as outlined above to all civil society associations and all regions in the European Community that the Nice Treaty says they represent. They should also initiate a permanent dialogue about their own democratic representation in relation to the Treaty and other matters. 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. I have written more than a hundred letters, including the Council, Member States, the Commission, European Parliament, the Economic and Social Committee and the Committee of Regions. So far I have not received a single reply. 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. Brussels 11 February 2008 |
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