To be Independent of a Despotic System

The Treaty of Nice and Ireland’s referendum

by Michael Dickgiesser, Hamburg, and Rainer Rothe, lawyer, Radolfzell

On 7th June 2001 Ireland will hold a referendum on the Treaty of Nice. To date, the citizens of Ireland are the only ones to have the opportunity to vote democratically, in the context of a referendum, on whether they agree to accept the consequences stemming from the Treaty of Nice. An Irish rejection of the Treaty would prevent it from taking effect, from becoming legally binding in other EU countries as well.

The states of Europe, or rather, the member states of the European Union and its Communities are (still) the ‘Masters of the Treaty’, therefore their existence as states is the basis upon which the treaties, hence also the EU and its Communities, can continue to exist. Moreover, the core of the EU is built around common principles of state as formulated in Article 6, paragraph 1 of the Treaty on European Union: ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States.’ From this follows that a democratic state of law based on fundamental freedoms must form the basis and be the standard for the EU as well. Furthermore, observance of the principles laid down in Article 6, paragraph 1 represents the fundamental condition for the EU’s existence, particularly since there are many nations of Europe, and since the European Union and its Communities do not form a state or one nation. Rather, the EU is a union of various states which have to some extent formed a common organisation to pursue specific goals.

Amsterdam and Nice—neither freedom nor democracy

In the court case filed by Professor Schachtschneider challenging the Treaty of Maastricht the highest German court upheld the following:

1. There is no such thing as a European people. The nation states remain the masters of the treaties.

2. As a consequence, every country still has the right to withdraw from the EU/EC. Certain aspects of a country’s sovereignty may be delegated as long as the sovereign decides to do so. The EU/EC is furthermore not a state but rather a so-called supra-national structure.

Therefore, the various citizens of Europe cannot be expected to relinquish the civil liberties, rule of law and democratic structures that they have fought long and hard for, neither should they be expected to accept the establishment of lower standards in the European Union and its Communities for the same reason.

Yet the European Union’s basic structure does not even conform to the essential conditions outlined above.

For instance, the most fundamental principle of state, the division of powers into the legislative, executive and judicial branches of government—which has undergone continuous development since Montesquieu and Kant up until today and which forms one of the most essential principles of a democratic state under the rule of law—does not exist in the EU or its Communities.

Instead, there is an unsatisfactory and so-called system of institutional balance, which has been set up in its place, which does not conform to the principles laid down in Article 6, paragraph 1 of the Treaty on European Union and which enables special interest groups to gain power and influence with which to push through their particular interests.

Moreover, observance of the principle of democracy as stipulated in Article 6, paragraph 1 of the Treaty on European Union, which presupposes that the legislative institutions of a liberal society be democratically legitimised, is also not guaranteed. Once the Treaty of Nice has taken effect, the structrues of the EU and its Communities’ will be even less democratic than the democratic constitutions of its member states.

Both the Council of the European Union (Council of Ministers) and the Commission execute sovereign powers without direct and sufficient democratic legitimisation.

The right of veto is removed

The Council of Ministers is only conditionally subject to parliamentary control in that each of its members must also hold a post on the ministerial level in his or her home country, subjecting him or her to national parliamentary control. This means that the Irish Minister of Agriculture is, for example, as a member of the Council of Ministers, democratically legitimised only by the Irish people, and not by the British, German or French.

This deficit will be exacerbated once the Treaty of Nice takes effect. Until now the Council of Ministers had to vote unanimously on many issues, ensuring that each member state, through its ministers, would be able to exert influence and, when in doubt, safeguard its country’s national sovereignty through its right of veto. Once the Treaty of Nice takes effect, the principle of unanimity will be abolished in many areas, allowing individual states to be easily outvoted and forcing them to accept decisions made by the others.

Commission without legitimisation

A deficit of legitimisation is already evident in the articles of the Treaty of Amsterdam Treaty regulating the Commission. Until now the members of the Commission were neither voted into office by the member states themselves nor by the citizens of each European country, even though its right of initiative to submit legislation on the European level can have a major effect on each individual European citizen. Members of the Commission are independent, at least according to Article 213, paragraph 2 of the Treaty establishing the European Community, yet they are selected according to the party guidelines established by their respective governments.

The suspicion arises that what the members of the Commission may represent are the interests of their respective ruling parties and not ‘the common good of the European peoples’. If the Treaty of Nice comes into effect, this deficit in democratic legitimisation will become further compounded in so far as the Commission’s members will no longer be chosen by the governments of the member states. Instead, to add to the problem, each member of the Commission will be appointed by the Council of the European Union which itself lacks sufficient democratic legitimisation.

According to Article 214, paragraph 2 of the Treaty establishing the European Community, the governments of all member states have to appoint the members of the Commission and the President by common accord. However, revision of Article 214, paragraph 2 of the Treaty establishing the European Community (Nice) means nomination will occur only by a qualified majority. The principle of unanimity, which allowed a country (such as Ireland) to, when in doubt, use its right of veto to secure its candidate’s position on the Commission, will be done away with in the Treaty of Nice, The European Parliament will still continue to be only able to reject or approve the Commission and its President in its entirety.

Yet the European Parliament is still controlled along party lines and is therefore biased. Just recently, the parties represented in the EU Parliament decided that only those may candidate who belong to a party existing in all member states. This dependence on parties is exacerbated by the addition of paragraph 2 to Article 191 of the Treaty on establishing the European Community, decided on in Nice, further confirming a complete break with the democratic principle of the division of powers (Article 6 of the Treaty on European Union).

In Article 191, paragraph 2 (Nice), a new provision states that the Council (i.e. the executive branch) shall determine the status and funding of political parties at European level simply by a qualified majority. Due to this article’s reference to Article 251, the initiative usually can only come from the Commission. Parliament itself (the legislative branch) only has the right to take a position on the issue. As a consequence, once the Treaty of Nice comes into force, the executive branch will determine the legislative.

A parliament that isn’t one

According to Article 189 of the Treaty establishing the European Community, the European Parliament‚ shall consist of ‘representatives of the peoples of the States brought together in the Community’. Because there is no such thing as a European people, these representatives cannot form a European Parliament and they therefore cannot act in the name of the citizens of the European states, let alone represent them. It is therefore no coincidence that the original task of Parliament, to draft and decide on legislation that is valid for all citizens, cannot be fulfilled by the European ‘Parliament’. Its task is to hold hearings and consultations; and on specifically assigned issues it has a limited right of co-determination, which can be fulfilled after certain obstacles have been overcome. According to Article 251 of the Treaty establishing the European Community, it can block the decisions taken and made by the Council. It can also only reject the Commission in its entirety.

Should the Treaty of Nice come into effect, the number of European ‘Parliament’ members will increase from 626 to 732, which of course must be financed by European tax payers. This plainly exceeds the upper limit of 700 established in the Treaty of Amsterdam—without previous consultation of Parliament. The purpose this increase serves becomes evident in a quotation taken from an article on the issue published in a trade journal: ‘This increase […] obviously played a role in helping the governments of the member states to reach a compromise with respect to the weighting of votes in the Council.’(1) What is purported to raise Parliament’s legitimisation is a provision in the Treaty of Nice establishing Parliament’s equality of status in procedural law with the Commission and Council of Ministers. However, what needs to be noted here is that Parliament should receive its legitimisation through its citizens and not through power-motivated special interest politics.

Loss of freedom

The European Union’s and its member states’ treatment of the citizens of Austria have made it explicitly clear how the freedom of its citizens is respected in Europe. The sanctions against Austria not only violated established principles of international law, they even violated the EU’s own legal provisions. By not accepting the outcome of a vote that was completely democratic and by placing an entire country under quarantine, the EU determined how (voting) freedoms for the citizens of all current and future member states are defined: voting may be allowed, but with an outcome sanctioned by the EU and its member states!

Article 7 of the Treaty on European Union, which has been reformulated by the Treaty of Nice, seems to have been included as a belated formal justification for the EU’s and its member states’ illegal treatment of Austria. The inclusion of undefined, general clause-like legal concepts make it now possible for the EU and its protagonists to implement sanctions already at an early stage against member states who are not EU- conform. It is furthermore remarkable to note that the sanctions the EU and its member states are able to implement are not subject to any kind of substantial judicial control, meaning the EU and its member states do not have to fear any legal consequences from implementing illegal sanctions against other member states.

Concepts such as freedom, democracy and the rule of law have been ‘re-defined’ to serve the puposes of European Union and its Communities; as a result the ability to apply sanctions is for greater in the Treaty of Nice and its reformulation of Article 7 of the Treaty on European Union. Freedom in the Kantian sense—an original right that every human being has by virtue of his nature as a human being—is rejected in favour of a functionalized phoney morality. Is the freedom of citizens of the European Union in future to be limited surely to the freedom of consumption?

In conclusion it can be said that the structure of the European Union and its Communities already display a lack of conformity with the principles of freedom, democracy and the rule of law, which in Article 6 of the Treaty on the European Union (Amsterdam version) was its very foundation.

The fundamental flaws as outlined above have not been corrected by the Treaty of Nice, indeed they continue to exist and will be compounded once this Treaty has been ratified.

Further Problematical Issues

1. Recognition of the EU as a Subject under International Law

The European Union is not a state with a people (see above). As an organisation it is not a legal subject, even under international law. For example, it cannot conclude treaties with other states or organisations that are binding under international law. The treaties it does conclude must always be ratified by each of the states involved.

According to Article 24, paragraph 1 of the Treaty on European Union (Amsterdam Treaty) the European Union is allowed to enter into agreements with other states and international organisations to carry out so-called common activities or adopt common positions in the areas covered by common foreign and security policy.

This provision already offered aroused the question in whose name the Council may make these agreements—for all of the member states or as a legal subject under international law acting in the interests of the Union’s common foreign and security policy (CFSP).(2) However, the provisions laid down in the currently valid Treaty of Amsterdam do not clarify whether the Union is an independent legal subject under international law. At present, there is every reason to believe that the Union may only conclude agreements on behalf of the member states, who are the actual parties to the contract.

The Treaty of Nice radically changes this. According to the revised Article 24, paragraph 6 of the Treaty on European Union (which now reads: ‘Agreements concluded under the conditions set out by this Article shall be binding on the institutions of the Union’), the institutions of the European Union itself become legally binding, making it a party to international treaties. As a result, the European Union acquires the status of a legal subject, becoming an independent legal subject under international law, which is in total contrast to its present status.

This is particularly problematical for neutral countries such as Ireland, especially since Article 24, paragraphs 2 and 3 of the Treaty on European Union was revised in Nice to establish the principle of qualified majority in agreeing on common actions, common positions, and on cooperation in police and judicial matters with regard to criminal cases. According to Article 23, paragraph 2, a member of the Council can only use his/her country’s right of veto to prevent a qualified majority in areas of common activity or common positions and only for important, declared reasons.

The problematical nature of this change already becomes evident in the prominent position it is given in the Treaty of Nice. The EU may act independently in the areas of foreign and security policy, maintain its own army with an active core of 60 000 soldiers although it is neither democratically legitimised, nor does it conform to democratic rule of law principles, nor is it sufficiently subject to the control if its member nation states.

2. A European Army

The changes that were agreed upon at the intergovernmental conference in Nice will lead to a considerable militarisation of Europe once this treaty has come into effect, increasing the threat of further wars.

A few aspects underlining this situation are:

• The fact that the WEU and the EU are integrated, allowing the EU to formulate a common European foreign and security policy itself.

• Within the context of ‘enhanced cooperation’ the Treaty of Nice gives certain groups of states (such as Germany, France and England together with five other states) the right to relinquish sovereignty and to hasten political union without having to secure agreement from the entire Union, let alone from the citizens of Europe.

The establishment of a European army with an active force of 60,000 soldiers which can be deployed within 60 days and be capable of fighting for up to one year no longer needs to be ratified by the member states. Nor does the erection of further military structures under the jurisdiction of the European Council of Ministers need to be ratified, together with the creation of a ‘troop catalogue’. This ‘troop catalogue’ is to be understood as pools of troops of more than 100,000 soldiers, including 400 combat planes and 100 ships, which are to be completely put at the Council of Ministers’ disposal by 2003.

What is astonishing is that in no document are the conditions for deploying this military force outlined, meaning that every EU member state who, like Austria, may not have behaved in conformity to the EU’s wishes, may and should expect to have troops deployed in their countries.

3. Ireland’s Neutrality

From the time Ireland was established as a state there has existed a consensus on neutrality, held in honour by all, and a striving not to become involved in ‘the struggle for power of major European states.’ From its liberation as a colony its policy of neutrality was formed, its non-membership in military alliances.

Through the Treaty of Nice, the opportunity to carry out common EU activities in the areas of foreign and security policy has been established in, among others, Article 24 of the Treaty on European Union. According to Article 25 a Political and Security Committee is to be newly established, which previously had only monitored matters of politics but is now given the power to assume the political control and strategic direction of crises management operations, meaning war (cf. Article 17, paragraph 2 of the Treaty on European Union). Although it is possible to demand a unanimous vote here (cf. Article 24, paragraph 3 in connection with Article 23, paragraph 2), the greatest and eternal danger posed by this provision is that such actions may be agreed upon, without submitting the issue to popular vote, thereby violating or abandoning neutrality.

In the context of the referendum on the Treaty of Nice there is a danger that this provision alone—without consideration for neutrality—may represent a blank cheque to every future Irish government to abandon neutrality. In itself it represents a contradiction to neutrality.

In addition, the revised version of Article 17 of the Treaty on European Union represents a further threat. The Treaty of Nice has taken the WEU out from Article 17 as originally formulated. As a result, the tasks outlined in Article 17, paragraph 2 of the Treaty on European Union—‘humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking’—are now the responsibility of the entire EU and not only of those states participating in the WEU (Germany, Belgium, France, Italy, Luxembourg, Portugal, Spain, Great Britain and Holland). The Treaty of Nice has equally changed the so-called WEU’s Petersberg tasks (Article 17, paragraph 2 of the Treaty on European Union) into those of the entire EU.

As a consequence, the EU has become an offensive alliance in which a neutral state cannot be a member at all. A neutral state must remain professedly neutral with respect to the international community. The Treaty of Nice will force even a neutral state to become part of a offensive alliance which it had particularly avoided by being excluded from the WEU. Denmark, Finland, Austria, Sweden, Greece and Ireland had all explicitly decided against joining the WEU.

4. The Charter of Fundamental Rights of the European Union

From a formal perspective the European Charter of Basic Rights presents a major problem with regard to its legal applicability. According to official statements, the Charter has only been proclaimed and not been legally established by the Treaty of Nice. This, however, is only partially true. The President of the European Parliament, Nicole Fontaine, wrote in a statement that from now on Parliament would not make decisions contradicting the Fundamental Rights Charter. Legal experts at the European Court of Justice assume that the Charter will be used in its judicial decisions, thus establishing its applicability.

Furthermore, in their referendum the Irish will vote on the ‘Treaty of Nice and on a few legal documents corresponding to it’. Among other things, these legal documents include a statement on the future of the Union and a reference to a European Council conference to be held in Laeken/Brussels. The conference will deal with the status of the Charter of Fundamental Rights of the European Union as proclaimed in Nice and according to the concluding agreements of the European Council in Cologne. This will open the way to deciding the legal status of the Charter of Fundamental Rights at the level of the European Union rather than at the national level where the citizens of each nation state would decide its status. Once the European Charter of Fundamental Rights becomes legally valid through a decision passed by the Council of Ministers it would have priority over all other national constitutions and basic rights codifications, which means that they would no longer be applicable in the event of conflict.

Professor Karl Albert Schachtschneider, an expert in constitutional law, describes the character of the fundamental rights charter as being directed against freedom:

‘The Charter, is anti-constitutional in design and serves to hasten the European Union’s existential status as a state through a process of constitutional legislation which does not ask the peoples of Europe whether they are willing to give up their existential state status in favour of that of the European Union. The Charter fails to recognise freedom as a principle. It diminishes the citizen’s status as citizens, who are left with small rights to better tolerate their status as mere subjects. The Charter minimises citizens’ social and ecological basic rights. The draft is a polemical treatise for the interests of global capital. The Charter cannot become legally valid in any real sense and probably will not do so. It can, however, soon become part of a European constitution, which is being discussed on the highest levels, and in the process of constitutional legislation will hardly be revised again. This is where the great danger lies. The [Union’s] illegitimate symbolism of integration does not in any way justify the Charter. As an act of great political portent the Charter poses a threat to the status of the people and citizens of Europe. The procedure in drawing up the Charter was in itself anti-democratic as the approach used in establishing its legal findings can neither be considered free, broad nor public. The draft of the Charter should not become the basic rights constitution of a current or future Europe. Therefore, all opposition to the Charter is appropriate in order to avoid cause for resistance later.’(3)

5. The President of the Commission’s Position

Because the Commission is appointed by a qualified majority instead of by unanimous vote, each country, even Ireland, will lose its right of veto. It is no longer certain whether a certain country’s representative will be included in the Commission. This means that, as soon as the members of the Commission are no longer delegated by the individual countries, it completely loses its democratic legitimisation.

In contrast to the Treaty of Amsterdam, the Treaty of Nice considerably raises the status of the Commission President, a situation that promotes greater centralisation. Once the Treaty of Nice has come into force, the President of the Commission will decide on the make-up of the Commission. The President will allocate competencies which he can change anytime during his term of office. He will also supervise the members of the Commission in carrying out their tasks. Moreover, he can force individual members to resign. It is striking that, just like the sanctions against Austria, an existing practice introduced by Prodi as President of the Commission and which has no legal basis is given subsequent justification through belated codification into European Community law.

6. Weighting of Votes in the Council of Ministers

What is concealed behind the Treaty’s textbook explanation of the weighting of votes is the difference in economic weight and population size of each member state, also taking into account certain political interests that would make a majority vote system more acceptable. It leads one to believe that there was a positive consensus in establishing the weight of each member’s vote in the Council of Ministers. The reality, however, becomes evident in a quotation from an article on the negotiations in Nice: ‘It (the weight of votes) is a compromise based completely on power politics, the result of which mirrors the negotiating weight of each participating member state.’(4)

7. The European Court of Justice

The Treaty of Nice will considerably expand the present judicial system. An example of this is that the Treaty has created new judicial panels and jurisdictions.

The acceptance of judicial courts is fundamentally based on their democratic legitimisation through the citizens of each state and through the citizens’ trust in the decisions issued by the courts. This is a logical consequence stemming from the division of powers in government. Despite its function as a ‘motor of integration’, the Treaty of Amsterdam already did not provide any provisions with which the European Court of Justice is bound to the citizens of Europe in any way and as a result it is completely deficient in this respect. Judges are appointed by the governments, making it just as problematical as the way in which the members of the Commission are appointed (see above), despite their apparent independence. Seated on the Court of Justice itself are only one judge per member country. This is not a sufficient basis to secure citizens’ trust in its decisions, let alone to fulfil democratic requirements of legitimisation through the citizens of each member country.

In conclusion

Every citizen of Ireland should be conscious of the Constitution of the Republic of Ireland, in particular Article 9, paragraph 2, which states that ‘fidelity to the nation and loyalty to the State are fundamental political duties of all citizens.’ And the Preamble to the Constitution already mentions the centuries of trial and honours the unremitting and heroic struggle that was undertaken to regain Ireland’s rightful independence. Finally, Article 5 declares Ireland as a sovereign, independent and democratic state.

If the people of Ireland want their right of self-determination, their sovereignty and nation to endure, they should take the opportunity provided by the referendum to document their independence from a despotic system (as described above) with a vote of ‘no’ to the Treaty of Nice.

As other citizens in a few other countries of Europe, the citizens of Ireland are still consciously aware of their nation’s sovereignty. Together with these other countries—Denmark and its rejection of the Euro; Austria with its referendum to repeat the vote on EU membership; Switzerland with its recent rejection of a petition for a referendum on EU membership—Ireland is a further country in which its people are putting up a fight for freedom, and in their struggle they can pave the way and be an example for the other nations and peoples of Europe.

( 1) Neue Juristische Wochenschrift, 7 May 2001, p. 1379

( 2) Schwarze, EU-Kommentar, Article 11—28 Treaty on European Union, Rn. 20ff

( 3) Zeit-Fragen, No. 35, of 9 October 2000

( 4) Neue Juristische Wochenschrift, 7 May 2001, p. 1381