To The
European Ombudsman
COMPLAINT ABOUT MALADMINISTRATION
Against the Council of Ministers
1.
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.
On 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, 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,
the Ombudsman should remind the Council and Member States’ parliaments that a
readable consolidated treaty must be produced BEFORE any democratic debate can
usefully take place. The Hungarians voted the same day as the Official
Journal C306 published the draft Treaty, 17 December 2007! The parliaments
that have apparently decided that they can ratify an unfinished and unreadable
treaty without a consolidated version, should be reminded by the Ombudsman that
they have a democratic duty to have a consolidated treaty in their hands and
debate it properly with electors about how it would work before
they can ratify it. Only then should they should consult and debate in
parliament and vote. If they do not, they are compounding an undemocratic abuse
of administrative power.
Where Governments have failed their
citizens
How Schuman envisaged the Community
system to work
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.
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.