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Dear colleagues and friends,
After six months of intense reflexion, an
argumentation about the "constitutional treaty" is taking shape,
stemming from it but extending beyond it, an argumentation that is neither
rightist nor leftist, and that points out a historical danger to us all, far
above politics. For this reason, this short argumentation should interest
citizens of all sides.
Six months ago, in September 2004, I, like
everyone, favored this text without having read it, on principle, just "to
move forward", even though I knew very well that Europe’s institutions
were far from perfect. I did not want to be someone to slow down. I really believe that the vast
majority of Europeans, regardless of left/right political orientation, love
this beautiful idea of a united Europe, more fraternal, stronger. It is a dream
of peace, consensus, a very widespread dream bringing the majority together.
I had not read the text and I really did not
have the time: too much work... And then again, Europe is far away. And with
all those politicians, I felt safe, should any dangerous tendency arise there
were bound to be some of them to protect us... and I exempted myself from
" doing politics", i.e. I exempted myself from taking care of my own
business.
Some voices had arisen already, protesting against
the treaty, but they came from the extremes of the political spectrum and for
this simple reason, I did not even start reading their arguments, still
confident in the mainstream opinion without checking for myself the validity of
the ideas at stake.
And then suddenly, some protests emerged from
people one could not suspect of being anti-European. I then read their appeals,
leaving aside their political labels, and I found their arguments very strong.
I started reading, a lot, entire books, from any side, Fabius, Strauss-Kahn,
Giscard, Jennar, Fitoussi, Généreux, etc. And many more articles of those in
favor of the treaty because I wanted to be sure not to be misled. And the more
I read, the more anxious I got. Today, I can think of nothing else, I have lost
sleep over it, I am afraid, simply, afraid of losing what is essential:
protection against the arbitrary.
Today, I still read all speeches, those in
favour as well as those against, I keep searching for the flaw in my reasoning
and this text is an incitation to think and an attempt to make progress: if you
can find a flaw, let us talk it over, please, with calm and honesty; it is very
important. I can be mistaken, I sincerely seek to avoid it, let us reflect
together, if you care to.
I feel that it is my duty, as a law teacher [1], to talk about it a little more than the
others, to discuss it with my colleagues, but also with my students, with
journalists too. I would be an accomplice if I remained silent.
I have thus found more than ten serious reasons
to be opposed to this extremely dangerous text, and ten other reasons to reject
an unpleasant text, not fraternal at all, actually. But the five strongest
reasons, the most convincing ones, those that are shared across the political
spectrum because they simply threaten the very reason for having a political
thinking, those appeared to me later because it takes a lot of work to uncover
them. It is these reasons, the five most significant ones, to which I would
like to draw your attention, seeking your opinion so that we can speak about it
together, given that the journalists deprive us of public debates.
In this public affair, the pillars of
constitutional law are shaken, and this calls to mind five
traditional principles designed to protect the citizens.
Preamble:
Constitution or Treaty?
How to designate
exactly this project?
We
shall recall what a Constitution is and why its elaboration should be subject
to special caution.
A
Constitution is a pact between citizens and governments. It is because
they have accepted to sign this pact that citizens accept to obey laws. It is
upon this pact that the authority bases its legitimacy. This pact must protect
people against injustice and the arbitrary. Certain Principles
which will be discussed below should guarantee that this pact plays its
protective role and that citizens will be able to control it.
The project establishing a constitution for the
European Union ("constitutional treaty") has no time limit [2]. It imposes itself on
essential matters of the people's lives [3], its legal force is higher than national standards
(bills, laws, constitution) [4], it organizes all main powers (executive,
legislative, judicial) and it balances them.
This project for a "Constitutional Treaty"
is, by nature, a Constitution, since it defines "the law of the
law".
Current
debates show that this preamble is at the centre of the refutations. So, I
shall support my statement with a citation from Olivier Gohin, professor at Paris II
University: "The new treaty is a Constitution since it satisfies the practical definition of a Constitution:
organisation of public powers and guarantees for fundamental freedoms, with the
identification of a constitutive power(...) the new European Union comprises,
now already, the elements required for the definition of a State." [5].
Moreover,
the primacy
of European law, even for a simple bill, over the laws of members States, even
over their Constitutions, is cogently demonstrated by several University
professors who evidently protest against this juridical ‘seism’ purposely
under-estimated by the French Constitutional Council. (cf the texts of Frédéric Rouvillois and
Armel Pécheul, note 4)
Therefore, the point is not, in my opinion, the
designation chosen for the text by its authors (“Treaty” rather than
“Constitution”), but the fundamental principles that will be discussed below,
which are meant to protect citizens against dangerous institutions: Any
fundamental text that defines or modifies institutional powers must respect
these principles, whatever its official designation.
Does
this text, which involves constitutional law, offer the guarantees that we
should expect? [6]
First principle
of constitutional law: a Constitution is a readable
text
A constitution
must be accepted, directly, by the People, who will submit itself to its rule.
For
this agreement to make sense, the text must be readable by the People, who will
agree to it (and not only by experts).
From this viewpoint, the so-called "Constitutional
Treaty" is too long and too complex [7]: 485 pages in A4 format, close to one ream of paper (in the compact version
presently accessible on: http://europa.eu.int/constitution/download/print_en.pdf)
Not
only is this length unprecedented for a Constitution, anywhere in the
world, but the text contains innumerable cross-references that make it
simply illegible for the average citizen.
Some
important points, such as the definition of the "Services of General
Economic Interest" are not in the text [8].
Contradictions
even show up between distant parts [9].
To
illustrate further the difficulty of reading this text, we must also underline,
and it is a serious issue, the absence of a list of domains in which each Institution is entitled
to make the law. Thus, the list of domains in which the
European Parliament is prohibited from legislating is nowhere to be found (and
we could therefore be completely unaware of the existence of such a list - this
is by no means an innocuous or trivial matter). To understand this
distribution, you need to scrutinize hundreds of articles, one by one, hoping
not to miss any (see below). Can we speak of readability?
Other
important articles, such as I-33, which creates "non legislative acts"
(rules and decisions), which allow a (non-elected) Commission to create, without
parliamentary control, norms as binding as laws [10], are not followed by any
check-list.
This
length and complexity makes criticism from the average citizen impossible [11].
The 75%
of Spanish voters who approved this text, as well as the 60% who did not go to
vote, probably
did not read it. Neither did the ministers, nor the members of
parliament, the professors, the journalists and the citizens who all have other
things to do. Who can find the time to read 500 A4 pages? You just have to ask
yourself whether you can: it is no different for others.
These
citizens thus take the major risk, for them, but also for their children and
their grand-children, to discover too late what it is that they voted for and
cannot change any more.
Obviously, it is necessary to read and understand what
one signs.
Otherwise, one refuses to sign.
Even if
it were simple (and it is not), a text that long is impossible to assess with
any degree of discernment distinctly.
And
yet, one has to make up one’s mind. But how to decide about a text that one
cannot read? By thinking like "the others" do, we feel reassured, like Panurge’s sheep.
This
length is, in itself, non democratic: the debate is restricted to experts.
A Constitution is the fundamental law, it is the "law of law",
it must be readable by all, so as to be endorsed or rejected in full awareness
of the facts.
Second principle
of constitutional law: a Constitution is neutral and permits political debate without deciding of its outcome
A
democratic Constitution is neither of left nor right, neither socialist nor
liberal. A Constitution does not take sides: it makes it possible for a
political debate to emerge, it stands above politics.
On the
contrary, the "Constitutional Treaty", in addition to setting the
rules of the political game, would like to
fix the outcome of the game too!
By
imposing liberal constraints and references in all its parts [12] (I, II and especially
III), this
text cannot be considered politically neutral. It imposes, for a long
time, economic policies, which should normally come out of daily political debate, changing according to
circumstances. This is like holding a gun to any idea of economic alternatives.
For
example, this text establishes for a long time that Europe deprives itself of
the three major economic levers which allow all States of the world to govern:
No
monetary policy: We, Europeans, are the only ones in the world who
have set a totally independent Central Bank with, moreover, as a major,
constitutional, unalterable role, to fight inflation, not to promote employment
or economic growth [13]. No means is given to
political powers to modify these missions. We already know, however, that
anti-inflationist policies are paid with unemployment [14], as an almost mechanical
effect. (carefully
read note 14)
No
budget policy: The growth and stability pact [15] confines
States to a severe budgetary policy, which, for sure, is one possible policy, but should not be the
only possible one forever. A Keynesian boost (through public works) is now
excluded.
No
industrial policy: Any obstacle to competition is prohibited [16], therefore any help to specific
national actors, be they fragile or in the public interest [TC added this!
sorry, it’s getting late...;-)], is prohibited.
A policy of economic
impotence, as described by the economist Jean-Paul Fitoussi [17], is thus
institutionalised, imposed for years.
On this
subject, one should read the fascinating synthesis of twelve economists
against the "Constitutional Treaty" [18].
The
"Constitutional Treaty" project reduces European citizens to morons.
With it, there would be no incentive left to think about alternative policies.
What is the point of a political debate, once any actual alternative is
formally excluded by the Supreme Text?
To be
concrete: if, tomorrow, a European majority wants to change directions and revert
to a non-merchant organisation, with more emphasis on solidarity, it will not
be possible: Such a simple political change would require full unanimity.
Apart
from the Soviet Constitution (which imposed a specific policy too:
collectivism), such a biased Constitution would be unique in the world.
Third principle
of constitutional law: a democratic Constitution is revisable
All
people of the world who live in democratic countries can revise their
governmental pact.
The ECT
is much too difficult to revise [19]: to change a comma in this
text, one first needs the governments to agree unanimously on a revision
project, then one needs the unanimity of the people (Parliaments or referenda)
to ratify it (this is called the ordinary revision procedure).
With 25
member States, this double unanimity constraint is a true guarantee, given
to those opposing any change, that the text is unalterable. It is moulded solid
from the outset.
Practically,
if tomorrow a broad European majority
wants to change its fundamental law, it will not be able to. This is both shocking and
frightening.
This is
unacceptable for a Constitution [20] and it would be, there
again, a unique case in the world.
In reply to this point the word
"treaty" is put forward, along with the claim that unanimity is
therefore normal (which is true as regards treaties) but this doesn't hold:
this text self-evidently plays the role of a constitution and by playing with
words the "constitutional treaty" oxymoron (attaching contradictory
words) makes way for, the creation of a new supreme
standard much too rigid andtoo difficult
to modify.
Strangely
enough, this excessive rigidity is accompanied by a very flexible revision
procedure which does not require the people's direct approval: the simplified revision
procedure [21] allows one particular
power (the Council of Ministers) to modify, of its own initiative, one of the
key elements of the Constitution
affecting the degree of sovereignty member states retain in such or such
a domain
(because the passage to a simple majority decision makes all countries lose any
right of veto) [22]. This is really serious: this constitution is of
variable geometry, but does not involve people’s direct
approval of each variation.
On
another matter, for the entry of a new State in the EU, the unanimity rule is a
protection, but it is not the unanimity of the people consulted by referendum
which is necessary. First it requires the unanimity of the 25 representatives
of the governments (a lot of them are not elected and none is elected with a
mandate to decide on this specific point), and then the unanimity of the States
(according to their national procedure of ratification [23]). Thus, only those
countries which use a referendum in their ratification procedure, as France
does, will directly consult their people.
It
really seems as if what the people want is of little importance to those who
govern them.
The 4th Principle of
Constitutional Law: A democratic Constitution protects from the exercise of arbitrary power by insuring both the
separation and the control of powers
The “Spirit of Laws”, defined by Montesquieu,
is probably the best idea in the whole history of mankind: all powers naturally and
mechanically tend toward abuse. It is therefore essential, in order to protect man
from tyranny, first to separate the powers and then to organise their control.
There should be no confusion of powers and no power should exist without counter-powers.
Thus
the People say: “You,
Parliament, you make the laws but do not enforce them. And you, Government, you
enforce the laws but you cannot make them yourself.” In this way no single power can,
alone, impose its will. This is essential.
“In
addition, if one of the bodies considers that the other one is not behaving in
an acceptable manner, it is entitled to revoke it. The Assembly can dissolve
the government and the government can dissolve the Assembly. In both cases the
People is called upon to arbitrate (through elections) and the People must remain the unique source of
power.” Each body must be held
accountable and know it is being controlled at all times. This
is also essential.
This
may well be the best idea in the world and it frees us from the fear of
tyranny.
Even
within the modern framework of a union of states one fails to see why such
basic protective principles should be dropped.
However
the balance between the three types of power (the legislative, the executive
and the judiciary) is hard to strike.
Direct universal
suffrage gives legitimacy to the legislative power and it is tempting to give
it more power again. But an assembly, no matter how legitimate, can become tyrannical because the election mechanism is no
substitute for a counter-power. Besides, an assembly is not
necessarily the best place to make decisions: mob effects and a dilution of
individual responsibility when it comes to collective decisions can lead to
abuse [24].
This is
the reason why provision is often made to limit parliamentary power in spite of
the sovereignty it embodies: in a bicameral (two chambers) system, the one
tempers the other. In France the Sénat (Senate), whose members are also
elected, plays the role of moderator of the Assemblée Nationale (National
Assembly) but it cannot block decisions since the Assembly has the last word in
case of disagreement.
Another
important limit is often imposed on the legislative body: it must be possible to
dissolve the Assembly, such a counter-power being essential to
make public authorities aware of their responsibilities.
Within
these two limits - two chambers and the threat of dissolution – Parliament should play a
real legislative role; it should have the initiative to make
laws, the right to amend texts in every field and a real role in fixing taxes
(one of its main historical prerogatives being to control the tax burden
imposed by public authorities).
This is not at all what is foreseen in the ECT: Parliament doesn’t have
the initiative to make laws at all [25], which in itself is
unacceptable, and its role in voting the budget, although increased, remains
limited. Above all, it is excluded from deliberating upon laws in certain areas of
competence left to the Council of Ministers (special
legislative procedures [26]).
In fact
the problem is more serious: for a long time I concentrated my attention on
laws (legislative acts) but now, much to my surprise, I am discovering “decisions”
(Art I-33, I-35). These “non-legislative acts”
are not to be confused with simple regulations. There is nothing wrong
with a regulation,
which is an application text, like decrees and orders in France, a limited
power traditionally conferred upon the Executive with a view to quickly fixing
the practical procedures of law enforcement. However “decisions” are of a
different order and they are described separately [27].
“Decisions”
appear just as binding as laws are, with a wide-sweeping scope. But they seem easier
to make than laws; they are submitted to lesser control (probably they are
controlled by th European Court of Justice, ECJ but not by Parliament). Having
studied the text of the Treaty with great care to discover who can make these
“decisions”, akin to “laws without parliament”, I
find four institutions: the European Council (heads of state and
governments), the Council of Ministers, the Commission – all members of the
executive power, at national or European levels, and often not elected – and
the Central Bank. The Central Bank has the power to make such “decisions” on
its own, but who controls the Central Bank? Where are the safeguards against such norms
elaborated without any parliamentary discussion?
We need
to make the inventory ourselves (because it has not been provided to us) of
those articles in the Treaty which make it possible – for the time being – to
create “laws without Parliament”. I am talking here of the special legislative
procedures and general non-legislative acts. This needs further work…
We are
presented with a triangle made of the Parliament, which represents the peoples
of Europe, the Council of Ministers, which represents the States, and the
Commission, which represents the common interest (sic).
The
Commission mainly emanates from the Council [28], which nominates its
members. Parliament has some say in this and it “elects” the Commission’s
President – proposed by the Council. The Commission is totally independent, it
does not receive instructions from anyone, but it may be revoked by Parliament
following a vote of no confidence. Any single Commissioner may be asked to resign by the President of the
Commission.
The
Commission is in charge of the technical preparation of the laws and submits
its proposals to the Council of Ministers and to the Parliament, which are both
presented as legislative bodies.
The Council of Ministers is thus presented as a “high
chamber” which could be compared to our French Senate. But this idea is not
acceptable;
not only are the ministers not elected but they are part of the Executive in
their own countries. In other words they control the public means which will
allow them, when they get home, to apply the rules they have created themselves.
The
same people therefore make the laws at a European level and enforce them at a
national level: this is an obvious case of confusion of powers.
The
Council of Ministers clearly belongs to the Executive but it has also been
given a legislative role.
The
absence of separation of powers means we are losing an essential safeguard
against the arbitrary. Even if we are talking of a limited number of
issues/competences (Is it 21? Does anybody know the exact number?), it is dangerous.
In the
article previously quoted [29], Laurent Lemasson notes
that the Parliament is composed of only one chamber and is not accountable to
anyone: nobody can dissolve it. We have seen that it does not
have the initiative to make laws but it can revoke the Commission who has that
initiative. This gives Parliament a certain weight when “suggesting” proposals.
According to Lemasson, such an organisation poses the risk of an assembly
regime (i.e. a sort of parliamentary tyranny). This fear is
probably exaggerated because a vote of no confidence in the Commission requires
a two-thirds
majority and can only
apply to the
way the Commission’s affairs are conducted. In other words,
true political censure [30] seems out of the question.
We can
see co-decision
in a positive light as a two-way counter-power: neither
Parliament not the Council of Ministers can abuse their power(s). But a system
with two chambers (involving for instance an Assembly of national Parliaments
or an Assembly of Regions rather than an “Assembly of Ministers”) would be more
democratic.
Moreover
the
co-decision completely disappears when Parliament is excluded outright from
certain issues where the Councils, the Commission and the Central Bank make the
laws on their own (not surprisingly these happen to be
essential economic issues) (Art III-130-3 on the internal market and Art III-163 and III- 165 on the
rules of competition).
This
is shocking because here, we have
practically no counter-power any more. Can the Commission (with
whom the initiative often resides) really be considered capable of intervening
should the Councils be guilty of arbitrary abuse, when Commission and Councils
are so closely related?
It seems therefore that there is a real lack of democracy
in all the areas in which Parliament is not involved: there is neither
separation nor control. The list of these areas denied
parliamentary control is written nowhere and the fact that Parliament is
excluded from them is not even clearly stated [31].
Wherever
power is not controlled, we are lacking another safeguard against its arbitrary
use. .
To any
citizen not psychologically prepared for it, this is a shocking state of
affairs. But maybe I am wrong. Can anyone explain this strange “balance” of
powers? For whom was the text written?
As citizens, we would like to be told why such an exclusion exists, what criteria were
used to justify the excluded areas and why no explicit list (which would be
open to criticism) has been provided.
We
would also like to know who in the European organisation is really accountable for their
decisions.
Indeed,
Parliament is not accountable to anyone (except during elections,
which – see above – cannot be considered as a counter-power) because there is
no provision for it to be dissolved.
The
European Council is not accountable to anyone at the European level. One
has to rely on its members’ accountability at a national level in order to
bring them to account one by one. The obvious difficulty of organising this
accountability, since we are talking here about Heads of State, cannot be of
any consolation, leading as it does to a certain irresponsibility at a federal
level.
The
Council of Ministers is not responsible to anyone at the European level.
(Again we have to rely on accountability at a national level in order to bring
its members to account one by one ). Here again, we cannot be consoled by the
difficulty involved in organising the accountability of ministers who embody a
form of popular sovereignty which is not in itself European, since it leads to
an absence of responsibility at a level where decisions are taken. The
implementation of such accountability appears both complicated and illusory.
The European Court of Justice (ECJ) is not
elected and its
judges are directly accountable to the members of the executive power who have
appointed them- an incredible state of affairs. So the Court is
also beyond the control of Parliament or the citizens (this often happens, but
at least normally the judges are truly independent). There is no possible recourse
against the Court’s decisions despite the fact that it has immense powers
at its disposal, since it interprets all the texts and arbitrates
in all conflicts. How can we talk of democratic institutions? [32]
The
European Central Bank (ECB), not elected and strictly independent from public
authorities, cannot be controlled either. It is therefore not accountable
despite the considerable impact its decisions have on the daily lives of 450
million Europeans (see above).
Aren’t
we entitled to feel that such overall absence of accountability in our
institutions is extremely disquieting? Should we really be in such a rush to
ratify a text like this?
In the
end the Commission is the only body exposed to any risk [33]: first of all, it is
liable to global
censure from Parliament (however only with a two-thirds
majority, which is a lot; and only as regards “the conduct of its affairs”, which
makes the possibility of censure somewhat remote); secondly, the President of
the Commission may demand individual members to resign.
But is
the Commission really the centre of power? Opinions on the subject
vary, but on the whole I would tend to agree with Yves Salesse [34] when he says that the
real power is detained by the Council of Ministers (which is not accountable to
anyone) and that the Commission is used as a screen, a very convenient
scapegoat allowing the ministers to make the law while claiming: ”It’s
not me, it’s the Commission which is responsible, there’s nothing I can do, I
can’t force it: it is independent…”
Nevertheless
the Commission is clearly an important body. For instance the Commissioner for
International Trade, appointed for the duration of the mandate, is the sole representative
of Europe in all international negotiations (WTO and others). A
huge amount power is thus in the hands of this one individual. He is the one
who will negotiate the GATS (the General Agreement on Trade in Services, a
giant project in deregulation[35], a world version of the
Bolkestein Directive) in the name of all Europeans, but in strict secrecy. He doesn’t give any
account of the negotiations he is carrying out to Parliament,
although this agreement is likely to bring drastic changes into the lives of
people in Europe. Parliament cannot call him to account [36].
At this
point in time we can already see tangible elements that point to dictatorial
abuse. And the “constitutional Treaty” consolidates for years an institutional
imbalance that allows it.
The
Commission can be censured by Parliament, but a two-thirds majority is
required, which means that the Commission may govern 450 million people with the
agreement of only one third of Parliament.
The voting system
itself (list system) guarantees party leaders a seat in Parliament, which means
they are hardly likely to feel they will be held accountable when it comes to
elections. So many authorities who are not accountable, a generalized absence
of responsibility… What is left of democracy? Where are our safeguards against
the arbitrary use of power?
Apparently
for the last twenty years the textbooks for students of Political Science have
been using the expression “democratic deficit” with regard to the European Union.
This is a very euphemistic term to describe the neglect of citizens whose only
fault has been to put their trust in those they chose to defend their rights.
It seems to me that all citizens should very carefully analyse
this undermining of democracy: almost every body in the European institutions seems to be
unaccountable to anyone; what people want seems to have little importance to those
in power and a specific economic policy is being imposed for a long period of
time.
How can
analysts and commentators ignore these issues as if they were unimportant? Do
we want a Europe at any cost? Any old Europe? Even an undemocratic Europe?
Isn’t
one allowed to discuss it, without being branded anti-European ?
The
argument that says “it is the same everywhere” is of no reassurance to me; on
the contrary, it is even more worrying. While most citizens neglect democracy,
hypnotised as they are by adverts, football and television, others are
actively, if discreetly, working on the subject.
We are being told “this text is better than before, you would have to
be stupid to refuse to move forward.” This hides the fact that
moving forward is not the only thing we would do: we would condone, reinforce
and lend
popular support to those texts which have so far managed without it
(with the exception of Maastricht, at least for the French), with the results we
know.
Even if
it were better than before, this text is dangerous. Montesquieu would turn in his
grave…
How can
one expect that people should of their own accord accept a
reduction in democracy, accept to do away with the various safeguards they need
to protect themselves against the law of the jungle?
We are
asked to believe that these defects are more than compensated by spectacular
advances:
Those
who applaud the creation of a referendum by popular initiative validated by a million citizens
[37] can’t have read the text
properly. The treaty only mentions a right of petition which has absolutely no binding effect
on the Commission. The commission is invited to
reflect on it, and can throw it out without any justification [38].
A reader has just sent me the Constitution of
Venezuela.
There I found practical examples of an authentic democracy: article 72 allows
20% of registered voters to demand – and 25% to bring about - the revocation of any
elected representative and a new round of elections. You need
serious political courage and a real understanding of democracy to submit your own power
in this way to the permanent possibility of censure by the citizens.
The fact that a revocation at the initiative of the people is only possible in
the second half of the mandate and only once during that mandate dispels all
risk of instability. This procedure has been used several times without
creating havoc. Provisions are made for other referenda at the initiative of
the people to
create or to annul laws. In Europe our institutional actors are
a long way from such political responsibility, both at national and European
level. Article I-47.4 of the ECT in this respect
is a poor substitute!
In the
same way, all those great general and generous principles which all the
radio and television channels, all the newspapers and official adverts keep
harping on about, represent in fact a regression
from our present rights [39]. Furthermore, the binding character of
these principles is judged highly controversial by the best
legal experts and many contradictory arguments can be heard on the matter [40].
The whole text is misleading and masks a
deadly attack on democracy. Over the past fifty years of Europe’s construction,
little by little, stealthily, while shamelessly denying it, the national executive
powers - both left and right - have been trying to do away with parliamentary
control where it is most needed: in the economic field. More generally these powers
are trying to dispense with all real accountability in most of their political
decisions.
Fifth principle
of constitutional law: a democratic Constitution has to be established by an assembly which is independent of the
powers in office
A Constitution is not granted to the People by the
powerful. It is established by the People itself, precisely to protect itself
from the arbitrary use of power.
On the contrary, the European institutions were
written (over the last fifty years) by politicians in office
who are thus obviously both judges and counsel: whether from left or
right, having to draw up themselves the constraints which were to hamper them in
their daily activity, the persons in charge, (it is only human, but also
foreseeable), were led to a dangerous bias.
This, again, is unique as far as democracies are
concerned.
And one can observe the result, a true caricature
showing what should not be done: in some selected economic domains, an
Executive totally free of control; almost all bodies of the Union unaccountable
at their decision level, a semblance of democracy riddled with falsehood, some
small progress paraded, but a true undermining of safeguards against the
arbitrary use or power.
The only reliable way to
create a balanced and protective fundamental text is a Constituent Assembly,
one which is independent of the powers in office, elected to work out a
Constitution, elected for that purpose only, and revoked immediately
afterwards, fully respecting a very public and very contradictory procedure [41] (in law, the word contradictory means that opposing
parties must have the right to express themselves fully and completely).
It is the citizens' duty to
demand this procedure if the political leaders try to dispense with it.
The fairly varied composition of the Convention
presided by Valery Giscard d'Estaing (including many personalities, some of great
value) is not a satisfactory argument: we are still miles away from a
Constituent Assembly. Its members were not elected with this mandate,
they were not all independent of the powers in office, but above all, they did
not have the power to write a balanced and democratic text: they could only validate, compile (and modify
slightly) the former texts written by actors who were both judge and counsel. [42]
Furthermore, the rewriting of the text by governors in office,
over an entire year that followed the Convention's submission of its proposed
text, is quite scandalous, constitutionally speaking [43]. It is not the mandate of the power in office to
write the law of the law. The State is not the people.
By drawing up a
Constitution by means of a treaty, a procedure far less constraining than a
cumbersome Constituent Assembly (public, tediously contradictory and validated
directly by the People), parliaments and governments from left or right have
acted as if they owned popular sovereignty, and this treaty, like the
former ones, can be perceived as an abuse of power: though they may indeed have
been elected, those we voted for were never given a mandate to surrender our
sovereignty. It is for the People, directly, to make sure that the conditions
of this transfer (in my opinion desirable in order to build a
strong and peaceful Europe) are acceptable.
I profoundly respect, naturally, all the eminent
members of the Convention, but I simply believe that they had no mandate to do
what they did.
Besides, one is stunned to see many major politicians
daring to regret publicly that the TEC be submitted to a referendum,
pointing that all this would have been far less complicated and uncertain if
the Parliament had voted upon it as one man, even without reading it maybe [44]... What value do the People
have in the eyes of to our elite?
By the way, the numerous governments who have had this
text ratified by the national Parliament [45], rather than by the people
(referendum), are committing a true breach of honour: the people of these
countries have been deprived both of a debate and of the direct expression of
their opinion, a possibility which would have permitted them to resist
the democratic regression exposing them to the arbitrary.
What means is left to these citizens to resist this
confiscation of their sovereignty? [46] There is one solution more
peaceful than riots: a firm and determined No of the French people.
This
disdain for the people and their true choices is quite telling of the silently
growing danger: our elite, from left or right, does not trust democracy, and is
deliberately, gradually and slyly depriving us of it.
Conclusion
The TEC therefore seems dangerous for many a
reason. What sort of replies to this contention have I received so far? (My
apologies for any omitted arguments, but it is an immense task to compile all
this).
To allay my fears, some tell me that progress
has been accomplished, but in fact it all depends on the reference chosen by
which to measure progress: if we compare with the Nice Treaty (which I find
deplorable, democratically speaking), it is indeed "better", it
constitutes "progress" and we
can therefore understand why some refer to the Nice text in order to try and
sell us the TEC.
But if I refer to the national democracy I am
losing in order to gain the "European democracy", it is objectively a
step backwards I am being asked to endorse: a step backwards as regards accountability
for the daily acts of all powers in office, a step backwards as regards control
over the executive power in any of its (X) reserved domains, a step backwards
on the level of fundamental rights, and above all, a step backwards
concerning the economic policy imposed upon us, clearly for
many years to come, most probably a cause of chronic
unemployment and slack growth in Europe.
Let us not forget that this is the first time in fifty years I am being asked my
opinion: as a citizen, I am not in any way a signatory to the Treaty of
Nice, nor any of the earlier treaties. With Maastricht, I was asked about
currency and economic constraints, if I remember well, not, or hardly, about
the balance and control of powers. And as for the economic constraints (the convergence
criteria), we were promised we would be consulted in order to assess the
outcome. Was the outcome ever assessed? Do we have good reason to be satisfied
with the economic performance of those institutions whose purpose, nonetheless,
is more economic than political? Read Fitoussi and Généreux again.
Why
should I restrict myself only to evaluating the little difference between Nice
and the TEC?
Why
shouldn't I have my word ("I", as the average citizen, naturally)
about the whole of this overall formidable "coup" the national
executive powers have carried out, during the last fifty years, over the
citizens’ control of policies conducted?
I do not see why the text submitted to the vote
should be artificially reduced to the 50 or so new articles of the TEC.
When I see eminent experts claim there are only
60 pages to judge, 50 tiny little articles, saying the rest already exists and
is therefore outside the scope of the debate, not submitted to the referendum,
when I hear this, I think to myself (and I have the feeling that in this I am
not completely alone) it is time to wake up.
If one refuses this overall picture I am talking
about, if this fifty years' period is sacred, deemed untouchable, irreversible,
if one imposes Nice as a reference, then, indeed, the TEC is a "good text",
given that "we
make progress"; but doesn't it seem to you that a tiny part of
the demonstration is missing, and that we are thus being asked to validate a
path that is not the right one?
It was no doubt a mistake in fact (for those
building this Europe so lacking in democracy) to have labelled this text a Constitution
(they aroused our suspicion), and another mistake again to have submitted the
text by means of a referendum to those arrogant grumblers that are the French;
but for us, citizens, I have a strong feeling that these two mistakes hand us a
historical opportunity: that of seeing the danger clearly and resisting at
last.
There is one undeniable progress in this
treaty... It is this new possibility given to us to break free from the trap: Article I-60-1: "Voluntary withdrawal from the
Union. Any Member State of the Union can, in conformity with its constitutional
rules, choose to withdraw from the Union". This right currently
does not exist, which means refusal of this text drops us into another trap,
that of Nice. Some choice!
At the end of the day, this "constitutional
treaty" brings to light all that has been decided without us for such a
long time.
In a way, the word is out now, and citizens can
see the danger at last, and resist.
One major error, probably, is to favour
economics over politics, to give away the ability to act, to blindly trust the
markets, to give the helm to economists who should, instead, stay working
in the engine-room (Bernard Maris, in his delightful Antimanual of Economics,
suggests this, tongue in cheek).
By setting up freedom as a superior value,
instead of fraternity, by institutionalizing competition instead of
collaboration and mutual help, by enforcing it in the supreme text via the
dogma of absolute competition, in other words a morality of "every man for himself and against everyone
else", by destroying State regulation, as a safeguard of the
general interest, in order to install market regulation instead (an addition of
individual interests), the neoliberal economists are threatening the foundations
of democracy so to speak, in order to free the most prominent economic decision
makers from any control.
The systematic deregulation carried out in
Europe (by its institutions, its policy and the gridlock of the unamendable
Constitution), and more widely throughout the whole world (WTO, GATS, TRIPS) is
a regression of civilisation, a return to the barbaric free for all in which
the strongest win [47].
Out of optimism, naive faith or carelessness,
modern people let their most precious possession be jeopardized, the rarest of
assets on this planet, one which underlies the serenity of their daily life:
the various protections against the arbitrary abuse of power, spreading from
the heart of corporations (social rights) all the way through to the nation
(democratic institutions controlled and revocable).
Democracy is not eternal,
it is extremely fragile, even. By thinking it is invulnerable, we are gradually
letting go of it.
Even after rejecting this
text, we will still have to fight to keep democracy, and we will need to carry
on militating to force our representatives to build another Europe, one that is
simply democratic. I have
no ready made alternative, maybe other people have. If not there is a need to
imagine and elaborate one.
This duplicitous founding text is presented to
the citizens through a debate which is itself duplicitous [48].
Several journalists, assimilating opponents to
this text with opponents to Europe, dishonestly create a confusion: the double
equation "Yes
to the treaty=Yes to Europe, No to the treaty=No to Europe" is
a blatant
lie, an inversion of reality, a misleading slogan never demonstrated,
intended to seduce those who have not read the treaty or studied the arguments,
strong though they are, of those who oppose this treaty precisely to protect
the prospect of a democratic Europe.
Journalists
are an essential, modern defence to protect democracy. Montesquieu could not foresee the
paramount importance they were to attain, but what is certain is that the immense
power of journalists could itself do with a true counter-power (from this point
of view, we may wonder whether we do not commit a fatal error in letting media
be bought and sold like any other commercial product) and their responsibility here is historic.
More than 70% of the media time for the Yes, less
than 30% for the No, a whole apparatus which resembles State propaganda, with
such benign questions when a partisan of the Yes is interviewed, and questions so
ill-intentioned when it comes to a partisan of the No...
Can this project be honest if it necessitates so
much malice? Check out the very
detailed file (in French): http://www.acrimed.org/article1950.html
So far, the Internet has been the most democratic
media, uncensored, the best tool with which to resist. If this message seems
useful to you, spread it quickly through your own network and beyond Internet,
on paper.
Some advice to supporters of the TEC (I cannot
help them, I have not found myself the arguments they are lacking ;o) : to reassure those who
perceive a great danger in the TEC, it is a bad strategy to underline what is
good in the TEC: this is clearly not sufficient reassurance.
One does not sign a text if it contains merely one unacceptable sentence, no
matter how many marvels and beauties it may contain aside from that. And this
treaty includes many unacceptable points.
They should, instead,
convince us that there is no reason to worry, for example, that each Institution of the Union is
fully accountable for its acts (beyond the mere election process) throughout
all the phases of rulemaking, that the economic policies are not as
irreversible as they seem, that the future will of the European people is
guaranteed to be respected... This proof should of course be founded on the
text rather than on empty pledges or insulting statements.
As for opponents to the treaty, they will not
really convince those who, for the moment, vote yes while holding their nose
(they are so numerous...) unless they offer a credible alternative, a plausible
prospect.
The pile of messages I receive daily has a
unity, a coherence, a strength: whatever the political side (and they really
come from all sides), the general feeling is fundamentally pro-European and
demanding as far as democracy and the respect of the people's will are
concerned. And these messages are generous and humane (except those horrible
ones insulting me, but they are not so common).
I can see in them a common stand (or the seeds
of a stand) for politicians to find a new inspiration, to unite differently, to
modify their programmes and imagine a project for the aftermath of the No, a
true Europe dedicated to people, not States.
We surely have two or three years in which to
rally our European brothers and trigger this momentum everywhere, don't we? And
what if it was the people of Europe who started demanding firmly from political
parties this democratic renewal, starting at grassroots level, communicating
via the net to passing on the word without necessarily respecting party
political divisions? You may say that I’m a dreamer...
I am becoming aware,
indeed, that it is the States (or their political personnel?) who refuse Europe and reject the transfer of sovereignty.
Shouldn't we start from scratch: ask the 25
people if they want to unite to create a eEuropean republic? Then start, only with those
countries who wish to, a genuine constituent process, organised
by the powers in office, but independent from them ?
This is worth thinking about, isn’t it?
I heard a sentence on the radio a few weeks ago,
a sentence that hit the nail on the head, that keeps resonating in my brain and
that is changing me. It says:
we are not born citizens,
we become so.
Étienne Chouard, Trets (Marseille).
Updated 2005, 17 june.
I here repeat that I have no authority
at all to explain the European law that I am in the process of discovering,
step by step (and from surprise to surprise).
You
may e-mail me at etienne.chouard@free.fr
You may download
the last version of this document
from http://etienne.chouard.free.fr/Europe
and redistribute the link as you
see fit.
Post-Scriptum (3 & 12 April 2005)
This text had an unexpected success and caused
thousands of reactions. I receive hundreds of messages daily, almost always
enthusiastic, sometimes critical, which enabled me to make progress. Some
questions, some doubts also, keep turning in, and I would like, in a few words
here, to answer them and anticipate on those to come.
I am a teacher of law, economics and computer
science, in a BTS (French syllabus), in a college of Marseilles, I am 48 years
old, have four children, I do not belong to any party, trade union or
association. In my life, I have made more paraglider than politics in which I
am virgin, an absolute beginner who "awoke" six months ago, and I
will not dwell there long (free flight is a hard drug which will call me back
quickly).
I am therefore nobody's "submarine" (I
recently received this funny question).
I am just an average citizen :o)
I received proposals for publication on sites or
in newspapers which I accepted without controlling whether the CIA or the KGB
acts as writing pad. Many sites already published links to this text, sometimes
without telling me about it, and rightly so.
I would like to pre-empt probable libels to
come, based on hasty political labelling for an easy discredit. I am not a politician, I do not wish to become
one, nor do I claim I am a lawyer to impose my point of view in an arrogant
manner but to explain my purpose, besides I am not really a lawyer, rather, I
have received a law training mostly, it is, anyway, not very significant for I
would like the debate to remain focused on the bottomline without deriving on pointless and sometimes
malevolent personnal quarrels or accusations of intentions of the kind that
political commentators have learned to master.
Don't blame me for all what this document turns
into, for all foreseeable exploitation and manipulation. Everyone can imagine
that it fled out of my control, and lives a life of its own... :o)
I am not trying to manipulate anybody: I may be
mistaken in my analysis, I am merely awaiting that one proves this to me and a
respectful debate is always seminal: "light springs out of discussion"
my father would tell me when I was a child.
Please, trust the ideas and arguments, come into the debate as if your counterpart
were in good faith, without dark hidden agenda, and do not let your analysis be
polluted by parasitic considerations.
This
significant debate belongs to the common run of people, such is the beauty of
democracy, do not
let it be confiscated by so-called experts. Read, reflect and speak without shame :o)
Do not blame me for the
potential errors as if I were dishonest: they are bound to occur, are
envisaged, and they are in no way permanent, if one sincerely seeks to identify the true
stakes of this treaty: reckon that the task is hard given this complex and
sibylline text, and that one is much stronger with several others to help
refine a criticism
which will (perhaps) eventually become irrefutable.
Lastly, you may have understood that this text evolves/moves, improves, pending your contributions, it is
thus dated. To pass the word, prefer sending a pointer to the site, rather than a fixed and frozen pdf
document, to be sure that the most recent version circulates.
I here express a warm thanks to the thousands of
persons who, it is moving, I can assure you, have expressed their thrill ever
since I launched this call like one sends a bottle to the sea. I wanted a
debate, I have been fulfilled :o)
Also, thank you to those who, deeply in
disagreement with my iconoclastical analyses, have written me splendid, very
learned and documented, respectful mails, understanding my fear without sharing
it though. These counterparts of all origins really made me accomplish great
progress, I am changing, I strive to answer them individually but cannot do it
like I hoped, I
must have 1500 mails in backlog (4 000 mid-may)...
Don't be cross
with me, it is simply not possible, you are too numerous.
Thank you all for your attentive and kind
listening :o)
Important Clarification (21st april
2005)
I have just learnt that some politicians are
being called upon, during their meetings, by citizens asking: "What have you got
to say to Etienne Chouard, law teacher in Marseille, when he says (quotation of
Chouard)"...
I have also just received a pdf file bluntly
labeled "Marseille
Law University" with the march 25th version following this
invented title, that first version which still bore troublesome errors (about
Turkey and the length of the Nice treaty, amongst other).
I now
understand better some infuriated faculty teachers' messages crying out for forgery.
If this
is how things evolve, they are right, one really shouldn't read me as if I were
a specialist of international law, I should not be presented as such, this is a
misunderstanding: I have strictly no authority to say the communitarian law, and I make,
like every body nowadays because this text is not simple, errors.
I made it clear, as early as in my introduction,
that, only six months ago, "like anybody", I was paying little
attention to Europe and did not know much of communitarian law. I keep saying
that I may be wrong and that I am precisely seeking to make progress. It is paradoxical, and,
truly, dangerous for the quality of everybody's information, that I be
mistaken, after 15 days only, for "the faculty teacher in public law who
is an authority".
This misunderstanding can be attributed to me,
due to the style I used in the beginning, but this document was not aimed at
the whole world then. The quick interlinking of facts also has created this
misunderstanding.
It is essential to re-establish the reality of
my message, which is moving, much to my dismay, way beyond what I had first
imagined: to fully understand what I mean, refer to the "Caution"
page of my site, which I updated yesterday morning.
Public callings should
rather be thus worded : " What have you got to say to Etienne Chouard,
citizen in Marseille, when he says (quotation)".
I speak as a citizen. I have withdrawn in this
version of my text (too late, I must admit, I had not seen the problem coming)
this litany "isn't it the teachers' mission...?".
I insist: there is, at the moment, a great
debate which is gaining momentum amongst citizens, in order to better de-cipher
this complex text which may end up being our Constitution. I see daily, through
hundreds of messages, people discovering today the importance of a Constitution
in their daily life, and they invest into the ECT.
I find it remarkable that standard citizens
invest so much into the text that tells in their name the law of the law.
I wish we had more time to communicate and exchange.
Please, get rid of older versions of my text and
let us discuss frankly on the current state of our respective thinkings.
Our exchange really got me growing, it is true.
I am getting aware of an almost overall lack of
responsibility in this "Europe-which-needs-a-constitution-to-be-stronger".
I notice the little importance granted to the citizens to act upon the policies
which govern their lives. Yes, of course we do need a Constitution. But does
this one truly protect the people supposed to unite to be stronger?
We have a true problem with the democratic
relationship between the people and their elite.
How complicated it is to evaluate this text...
and what terrible disease it is revealing in our "City".
Notes
[1] I am a teacher of Economy and Management, in
“BTS” (a technical degree in Business, at the undergraduate level), at “Lycee
Marcel Pagnol”, Marseilles (a French ‘Lycee’ that covers both high school and
college levels), For years, I have taught Civil, Commercial and Constitutional
Law in “Terminale” (last year of French high school), as well as Fiscal Law in
BTS of accounting. Today, I have somewhat specialised in Office Computer
training, and I am also the administrator of my college’s PC network (150
machines).
I invoke my job as a teacher to explain my taste for clarifying and lecturing,
*not* as a
claim for any kind of ‘authority’, which, precisely, is not my point. Indeed, I
am not a University Professor, I am not a Public Law professor and I am not a
specialist in Constitutional Law. My training in Law (Master's
degree) has given me a taste for legal stuff, but I am writing here as a
simple citizen, surprised as I have been by the absence of debate, most
notably from the beginning of year 2005. I certainly make mistakes, but I am
happy to correct them, as soon as someone points them out to me.
I claim
that all citizens, while mostly ignorant of the Community Law, like me, should
nonetheless be invited to think about this Constitution.
Moreover, this fundamental text should be written by representatives that have
been elected precisely with that mandate, and with a political program adapted
to the circumstances. In my opinion, this debate should not be confiscated by the
specialists. Maybe it will be.
Today, this text ("A bad constitution…") has totally escaped my
control. All I can do, and this was the initial idea, is to keep correcting my
mistakes or bad formulations, or sometimes to add complementary notes,
according to my readings, which I am still pursuing, and thanks to the endless
advice from hundreds of constructive readers who email me everyday.
[2] Applicability
duration of the text: Art. IV-446 :
"This treaty is concluded for an unlimited period."
[3] List of
the domains where Europe is competent: Article I-13: "Areas of exclusive
competence §1. The Union shall have exclusive competence in the following
areas:(a) customs; (b) the establishing of the competition rules necessary for
the functioning of the internal market; (c) monetary policy for the Member
States whose currency is the euro; (d) conservation of marine biological
resources under the common fisheries policy; (e) common trading policy. §2. The
Union shall also have exclusive competence for the conclusion of an
international agreement when its conclusion is provided for in a legislative
act of the Union or is necessary to enable the Union to exercise its internal
competence, or insofar as its conclusion may affect common rules or
alter their scope." Article I-14: "Areas of shared competence: (…)
§2. Shared competence between the Union and the Member States applies in the
following principal areas: (a) internal market; (b) social policy, for the aspects
defined in Part III; (c) economic, social and territorial cohesion; (d) agriculture
and fisheries, excluding the conservation of marine biological resources; (e)
environment; (f) consumer protection; (g) transport; (h) trans-European
networks; (i) energy; (j) area of freedom, security and justice; (k) common
safety concerns in public health matters, for the aspects defined in Part
III.(…)".
Among exclusive competencies, see article I-13, §1: "(e) common trading
policy."…
National
Parliaments are then totally deprived, for example, from any ability to
influence international trading agreements (GATS, TRIPS and
others avatars of WTO), while the daily lives of citizens will be deeply
affected by such agreements, which are put together in the greatest discretion.
[4] Primacy of European standards over all
other standards, national or international:
Art. I-6: "The
Constitution and the Law adopted by the Institutions of the Union in exercising
competences conferred on it shall
have primacy over the law of the Member States."
This is the first time that a European treaty, as it claims to be a
Constitution, expresses this rule and, more importantly, nothing can force the
European Court of Justice (ECJ), the only final arbitrator (without appeal), to
interpret this text in a restrictive manner, as did the French Constitutional
Council (CC, 19 nov. 2004, 505 DC): it is even highly probable that the Court
will apply it to its full possible extent, which means that any European norm will
prevail, even over the Constitutions of members States. See the
very interesting analysis of Frédéric Rouvillois, professor at
Paris V University, in the chapter 1 "The double language of the Constitutional
Council" from the small book (in French) "La nouvelle
Union européenne. Approches critiques de la Constitution
européenne", (éditions XF de Guibert).
Article I-12: "§1.
When the Constitution lends to the Union exclusive competence in a specific
area, only the Union may
legislate and adopt legally binding acts, the Member States being able
to do so themselves only if so-empowered by the Union, or for the
implementation of Union acts.".
See also "The
primacy of the community Law over the French Constitution: implicit repeal of
the Constitution", by Armel Pécheul, professor at Angers University (20 p.),
chap. 3 of the same book "La nouvelle UE. Approches critiques …", (XF
de Guibert):
"In its
decision n°2004-505 DC dated 19 nov. 2004, the French Constitutional Council
states simply that the constitutionalisation of the primacy principle doesn't
go over what is presently required by the European Court of Justice. But,
precisely, this is important. The Luxemburg Court had already d all about that
and what has been said is essential because it imposes the primacy of the
European Law over national Constitutions !"
A bit later, p. 54, Armel Pécheul recalls the decision
Tanja Kreil dated 11 january 2000 (ECJ, aff. C-285/98, Rec. I,
p. 69) in which a simple Council directive dated 1976 was imposed over specific and
sovereign dispositions of the German Constitution (article 12) and in a domain
which was not within the scope of the community because it was in the domain of
the military defense.
I quote Armel
Pécheul, in his conclusion of a rigorous argumentation: "The essence of the French Constitution, the
DNA, the specific and express dispositions, dispositions inherent to its
fundamental structure are no longer protected by the watchdog of the
Constitution (i.e. the Constitutional Council). The latter has given out the
keys of our Constitution to European judges. These aren’t even in the hands of
the constituent power, because the French People is called to abandon of power
by ratifying the Treaty. Then yes, the essential is really at stake, that is,
as said by President Mazeaud: the very existence of the French Constitution
itself."
What are the different standards planned by the Constitutional Treaty?
Art. I-33 : "The legal acts of the Union:
To exercise the Union's competencies the institutions shall use as legal
instruments, in accordance with Part III, European laws, European framework
laws, European regulations, European decisions, recommendations and opinions.
• A European law shall
be a legislative act of general application. It shall be binding in its
entirety and directly applicable in all Member States.
• A European framework law
shall be a legislative act binding, as to the result to be achieved, upon each
Member State to which it is addressed, but shall leave to the national
authorities the choice of form and methods.
• A European regulation
shall be a non-legislative act of general application for the implementation of
legislative acts and of certain provisions of the Constitution. It may either
be binding in its entirety and directly applicable in all Member States, or be
binding, as to the result to be achieved, upon each Member State to which it is
addressed, but leaving the choice of form and methods to the national
authorities
• A European decision shall be a
non-legislative act, binding in its entirety. A decision which specifies
those to whom it is addressed shall be binding only to them.
• Recommendations and opinions shall have no binding
force."
[5] See
the arguments of Olivier Gohin, in chapter 4 of the small book (inFrench)
"La nouvelle Union européenne. Approches critiques de la
Constitution européenne", éd. XF de Guibert.
Some professors go further: "the legal personnality
of the Union, instituted by article
I-7", according to François-Guilhem Bertrand, professor emeritus at
University of Paris XI, "shall be read with the decision dated 31 march
1971 of the Cour of Justice AETR, which decides that the personnality given to
Europe erases those of the menber States and forbids them to manifest
themselves when Europe is voicing" (same book).
This might be exagerated, or this might be the reality; this might be good or
bad, I have no certitude about that, but at least we could debate on this point, instead of
pretending it is nothing, and arguing about the sex of angels
and other futilities, such as the ‘Charter’ or the right to petition, which
impose virtually nothing to no one.
[6] We
will find most of these principles, among others, in the book of Paul Alliès,
political science professor at University of Montpellier I, (in french) "A constitution
against democracy ? Portrait of a depoliticized Europe".
Again a really thrilling book. Extract (each word counts) :
"The European Construction has silently endangered the tradition of
popular sovereignty, which has legitimized the exercice of power by State
authorities, whose decisions have only been an emanation of the sovereign
People. And it has done so in two ways: On the one hand, the European constitutional
Law ignores any constituent Sovereign ; which means that
decisions from the Authorities are attributed to an entity, the Union, which is
not a political community. On the other hand, it is more and more difficult to attribute
national standards, as derived
from European norms, to the People, which the Constitution of each member State
proclaims to be theSovereign.
We are entering an unprecedented system, that of the Union, where neither the
existing treaties nor the Constitution mention any "Sovereign". None of these texts has
been able to design a legitimate source for the power of the Union,
to better pretend respecting the heritage of a popular sovereignty nationally
divided, State by State. The problem here is not to know if a European People does exist,
sociologically or culturally. It is to make a clear decision as to the political
nature of the Union, through the foundation of the power it holds.
Until now, the constituent power used to invent a People and to organize its
life. Now, a Constitution invents an authorithy with neither subject nor
object." (page 57)
[7] European Constitutional
Treaty (ECT): How to get the full text?
http://europa.eu.int/constitution/download/print_en.pdf
To read before vote:
a/ Treaty establishing a Constitution for Europe - 349 pages.
b/ Protocols and annexes I and II - 382 pages. Document named "Addendum 1
to the document CIG 87/04 REV 1.
c/ Declarations to appendix to final act of the CIG and final act - 121 p. Doc.
named "Addendum 2 to the document CIG 87/04 REV 2. Total: 349 + 382 + 121
= 852
pages in the version of end of 2004.
The version presently
proposed (mid april 2005) is now more compact:
Only one pdf file: 485 pages. While writing densely, in small font, and on
broadsheet newspaper pages, one can fit everything within less than fifty
pages.
To compare things, French and US Constitutions have each one around 20 pages
(A4 or US Letter format).
In more standard units, that is less subject to typographic variations, let’s
count words and characters: the European Constitution contains 70 904 words,
that is 14.7
times the French Constitution (or 441 895 and 46 515
characters, respectively).
Quantitative
argument, from the partisans of the Treaty: "To unite 450
millions people, the founding text cannot be short." The
actual reason behind such an extravagant length (448 articles), they add, lies
in the Third Part, so it is useless to look for other reasons. Interested by
this quantitative approach, I have looked into the Indian Constitution, which
rules one billion people, and I found… 151 articles. ;o) http://www.oefre.unibe.ch/law/icl/in00000_.html
Then again, the US Constitution, which rules 300 millions people, is totalling
7 articles. ;o)
Here is an interesting link, which allows to compare numerous Constitutions from all
over the world: http://www.constitution.org/cons/natlcons.htm
[8] However,
despite its length, all is not there: an information so essential as the definition of the
"Services of General Economic Interest", (SGEI) cited
in articles II-96, III-122, III-166), which must not be confused with Public
Services, is not to be found anywhere in the 485 pages: on this occasion, you
need to consult the "white book" of the Commission, to find out
that these Services are not synonymous with "Public Services": http://europa.eu.int/comm/secretariat_general/services_general_interest/index_en.htm, p. 22: "The terms "service
of general interest" and "service of general economic interest"
must not be confused with the term "public service" (…)".
[9] You should
read all the pages till the end: The interpretation of the Charter
of fundamental rights is described outside the Constitution itself, in
a text called Declaration 12 (page 432): the Preamble to the Charter
establishes that "In this context, the Charter will be
interpreted by the courts of the Union and the Member States with due regard to
the explanations prepared under the authority of the Praesidium of the
Convention which drafted the Charterand updated under the responsibility of the
Praesidium of the European Convention."
In this Declaration n°12, you can find
sometimes the exact opposite to what the Charter claims so loudly.
Thus, once the right to life has been affirmed and death penalty forbidden in
the article II-62 of the
Charter, the article 2 of declaration n°12, page 435 (who speaks of a
readable text?) qualifies: "Deprivation of life
shall not be regarded as inflicted in contravention to this article when it
results from the use of force as made absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to lawfully arrest or to prevent the escape of a person lawfully
detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection."
The same article also
states: "A
State may make provisions for the death penalty in its Law , with respect to
acts committed in time of war or of imminent threat of war; such penalty shall
be applied only in the instances laid down in the Law and in accordance with
its provisions…".
So we can see that all is not said in the Charter itself, and that you should carefully read
all the pages.
[10] The danger of the
"non-legislative acts", which allow to
non-parliamentary bodies (not elected) to create freely binfing rules about
general matters, has been denounced in the counter-report
of the conventionals judging the treaty as being non-democratic. An
interesting document, to read here:
See annex III, pages 21 to 24:
http://europa.eu.int/constitution/futurum/documents/contrib/doc180703_en.pdf
About juridic acts of the Union, see article I-33 and note above.
[11] Extract of the
course of administrative law of J. Morand-Deviller (éd. Montchrestien), page
256 : "This Such an inflation of texts, more and more talkative and
confusing, is a troublesome problem. This tendancy, so detrimental
to legal safety and so opposed to the nice rigor of the French
Law, has been denounced in energic terms by the State Council, in its public
report for 1991: "overproduction of norms… legal and regulatory logorrhea…
inflation
means depreciation: When the law babbles, the citizen will only listen to it
distractly… If we don't pay attention, there will soon be two categories
of citizens: those who will be able to pay an expert to turn around the
subtleties to their profit, and the others, endless wanderers of the legal
maze, abandoned by the law state." The Constitutional Council has
made the principle of "accessibility" and "legibility of the
law" an objective of constitutional value (decision dated
16 December 1999)."
[12] Entire books
have been written to vigourously denounce such institutionnalisation of neoliberalism… The catch is, before one can
understand their arguments, one needs to read them :o)
We can cite a few articles in the Treaty, which carry
neoliberalism in themselves (neoliberalism can be defined as depossessing the
States from their means of intervention in the economy, to the benefit of
individual freedom, which invariably ends up in the law of the strongest) :
I stop quotations because Part III is simply stuffed
with such rampant liberalism, which oozes from everywhere and shackles member
States. Anyone can take note when reading the text.
The fact that some ultra-extremists across the Channel
ask for more, and reject this Treaty because it is not liberal enough does not
make the Treaty less of a liberal Bible. Everyone
must read the text and see for oneself the place that is left to the States and
to their intervention power.
As Jacques
Généreux (professor at the Institute of Political Sciences, Paris)
demonstrates so well, "at the end of the day, the
so-called Constitution for Europe guarantees that we will get ever tougher
competition and increasing exposure to
the social and ecological disasters produced by the economic war."
Unleashed liberalism is the dogma of individual
responsibility, it is the "one for oneself and against everyone
else". It is the negation of civilisation and humanism.
Dogmatic neoliberalism is just as dangerous for humans
as blind collectivism.
Incidentally, I found the precise
definition of the (deceptive) phrase "social
market economy". Frédéric Lordon enlightens us about it, when he
recalls where the jargon came from, in his stirring paper "The social lie
of the Constitution" (in French), http://www.sociotoile.net/article104.html, p. 8 and following, where
we discover that the expression actually
referes to an extreme form of liberalism, even more radical than Hayek’s,
in which the word 'social' has strictly nothing to do with what the French
would expect from it.
"That ‘social’ is merely the effect of the market itself and nothing else,
certainly not a control that would be imposed from outside the market."
You should read this text of Lordon, it is very strong, it sheds a bright light
on the deeply dogmatic nature of the Treaty (see my page ‘Links and docs’ on http://etienne.chouard.free.fr/Europe/index.htm).
[13] Independence and missions of the Central Bank: Article
I-30: "§1. (…) The European
Central Bank, together with the national central banks of the Member States whose
currency is the euro, which constitute the Eurosystem, shall conduct the
monetary policy of the Union.
§2. The European System of Central Banks shall be governed by the
decision-making bodies of the European Central Bank. The primary objective of the European System of
Central Banks shall be to maintain price stability. Without
prejudice to that objective, it shall support the general economic policies in
the Union in order to contribute to the achievement of the latter's objectives.
It shall conduct other Central Bank tasks in accordance with Part III and the
Statute of the European System of Central Banks and of the European Central
Bank.
§3. The European Central Bank is an institution. It shall have legal
personality. It alone may authorise the issue of the euro. It shall be independent
in the exercise of its powers and in the management of its finances. Union
institutions, bodies, offices and agencies and the governments of the Member
States shall respect that independence." and
Article III-188: "(…)
neither the European Central Bank, nor a national central bank, nor
any member of their decision-making bodies shall seek or take instructions
from Union institutions, bodies, offices or agencies, from any government of a
Member State or from any other body."
[14] See J.P. Fitoussi, University Professor and
President of the Scientific council at the ’Institut d’Etudes Politiques (IEP),
in Paris, , President of the ‘Office Francais du Commerce Exterieur’ (OFCE),
and general Secretary of the 'International Association of Economic Sciences',
interview with J.C. Guillebaud, "The policy of impotence", (in
French: “La Politique de l’impuissance”,
2005, Arléa):
- JCG : "You are saying that, basically, obsessed by the fight against inflation, we practically have consented
to unemployment."
- JPF : "Worse than that! In a
first phase unemployment was made an instrument to fight inflation. Each
"central banker" of the planet knows that, as soon as he increases
the interest rates, he creates unemployment for the most vulnerable categories
of the population. Not only is he aware of it, but it is precisely the reason
why he does it. Why does one increase interests rates? Because one is
persuaded that the demand is too high and that companies producing at their
maximum capacity could only satisfy to it by raising prices. The 'cold shower'
of interest rates thus reduces the demand, and is an incentive for companies to
fire people." (p. 45)
(…)
- JCG : "What do you think of the two arguments that were made in those
days [after 1982] about inflation and respect of the great equilibria ? First
it was said that it was legitimate (and moral as well) to fight against
inflation, because it penalized the poorest ; second, it was claimed that the
main equilibria should be maintained out of simple respect and generosity for
future generations, in order not to overburden our children. In a way, that
policy was draped into a discourse about generosity …"
- JPF : "This was a double lie. First, by raising interest rates,
and moreover by maintaining them high after the inflation had been beaten, one
knew that this would favour those who own the capital, and that the most
vulnerable categories of the population would thus be barred access to durable
goods (which requires borrowing). (…) The second lie was that, by raising
interest rates, one made the revenue from the debt one of the biggest line in
the State budget." (P. 46)
- JPF : "That the orientation of
economic policies of the Union should be, for the most part, independent from
any democratic process is both opposed to political traditions of European
peoples, and dangerous for the economic efficicacy of the whole." (p.
72)
- JPF : "To push the metaphor a
bit, one could say that the "economic government" of Europe looks
pretty much like an enlightened despot who, away from popular pressures, would
look for the common good by applying a rigorous doctrine –liberalism -, assumed
to be superior to any other in terms of economic efficiency. Democracy would
therefore not be the best political system to apprehend general interest ; it
would place governments in a vulnerable position, facing the pressure from
populations calling for redistribution. The power has has thus changed hands.
Politicians chose to give it over to independant agencies. (…)
But it is also true that, from the origins, the European construction was has
been the work of a democracy of the elites, rather than of democracy short.
Meanwhile, elites have changed (…) today they tend to assimilate the public
good with the market."
The rest of the text is edifying… An important little book, to read…
[15] Pact of
stability: art. III-184 (2 pages) and art. 1 of the protocol n°10 on the excessive deficit procedure "
The reference values referred to in Article III-184(2) of the Constitution are:
(a) 3 % for the ratio of the planned or actual government deficit to gross
domestic product at market prices;
(b) 60 % for the ratio of government debt to gross domestic product at market
prices."
See also previous note.
[16] Interdiction
to warp competition: this interdiction is everywhere in the text, it is formal
and binding, including for public companies:
Art. III-166: "
2. Undertakings entrusted with the operation of services of general economic
interest or having the character of an income-producing monopoly shall be
subject to the provisions of the Constitution, in particular to the rules on
competition, insofar as the application of such provisions does not
obstruct the performance, in law or in fact, of the particular tasks assigned
to them. The development of trade must not be affected to such an extent as
would be contrary to the Union's interests.
3. The Commission shall ensure the application of this Article and
shall, where necessary, adopt appropriate European regulations or decisions."
Article III-167.1:
"Save as otherwise provided in the Constitution, any aid granted by a Member State or through State resources
in any form whatsoever which distorts or threatens to distort
competition by favouring certain undertakings or the production of certain
goods shall, insofar as it affects trade between Member States, be incompatible
with the internal market."
[17] "The politic of impotence": see
the luminous little book by Jean-Paul Fitoussi (a renowned economist) who
demonstrates this rampant disowning of political leaders, out of distrust for
democracy. (See except above, in note 14).
See also an exciting book by Jacques Généreux, Professor at
'Sciences Pol' (Institute for Political Sciences, Paris), "Critical manual
of the perfect European" who also protests against the
scuttling of the European economic intervention tools, and against the blind
dogmatism that supports this madness unique in the world. This book is a
thrilling page-turner…
[18] "Twelve economists against the project
of European Constitution", by Gilles
Raveaud, doctor in economy and professor (Institut d’études européennes,
Université Paris VIII), and eleven others: a remarkably cogent analysis of
the current project for the Union, a project more economical than political; a
must-read (French): http://www.legrandsoir.info/article.php3?id_article=2231 and http://econon.free.fr/index.html
[19] Ordinary
revision procedure: art. IV-443.3: "A conference of
representatives of the governments of the Member States shall be convened by
the President of the Council for the purpose of determining by common accord
the amendments to be made to this Treaty. The amendments shall enter into force
after being ratified by all the Member States in accordance with their
respective constitutional requirements."
[20] Reminder:
article 28 of the ‘Declaration of the rights of man and the citizen’ of the
year I of the french Republic (1793) stated: "A people always has the right to revise, to
reform and to change its Constitution. One generation’s laws cannot subjugate
futures generations."
[21] Simplified
revision procedure:
Art. IV-444: "§1.
Where Part III provides for the Council to act by unanimity in a given area or
case, the European Council may adopt a European decision authorising the
Council to act by a qualified majority in that area or in that case. This
paragraph shall not apply to decisions with military implications or those in
the area of defence.
§2. Where Part III provides for European laws and framework laws to be adopted
by the Council in accordance with a special legislative procedure, the European
Council may adopt a European decision allowing for the adoption of such
European laws or framework laws in accordance with the ordinary legislative
procedure.
§3. Any initiative taken by the European Council on the basis of paragraphs 1
or 2 shall be notified to the national Parliaments. If a national Parliament
makes known its opposition within six months of the date of such notification,
the European decision referred to in paragraphs 1 or 2 shall not be adopted. In
the absence of opposition, the European Council may adopt the decision.
- For the adoption of the European decisions referred to in paragraphs 1 and 2,
the European Council shall act by unanimity after obtaining the consent of the
European Parliament, which shall be given by a majority of its component
members."
[22] See the
rivetting analysis of Laurent Lemasson,
graduate of the ‘Institut d’Etudes Politiques’ in Paris, Ph.D. in Public Law
and Political Sciences, and part of the faculty at Essec (A top businees school
in France), "European Constitution:
Does Europe get something out it ?", a document to read on the site of
the Institute Thomas More (in French):
http://www.institut-thomas-more.org/showNews/24. About the
risk of extension of institutions’ power, on their own initiative and without
direct agreement by the people, see page 10.
[23] Procedure for
the ratification of a new State’s accession to the Union: Article
I-58: "Conditions of
eligibility and procedure for accession to the Union: (…) §2. Any European
State which wishes to become a member of the Union shall address its application
to the Council. The European Parliament and national Parliaments shall be
notified of this application. The Council shall act unanimously after
consulting the Commission and after obtaining the consent of the European
Parliament, which shall act by a majority of its component members. The
conditions and arrangements for admission shall be the subject of an agreement
between the Member States and the candidate State. That agreement shall be subject to ratification by each contracting
State, in accordance with its respective constitutional requirements."
These last words make the ratification procedure for the accession of a new
member depend on national Law.
In february 2005, the French Parliament, gathered in Congress (i.e. both
chambers at once), has changed the French Constitution so that such ratification
should necessarily be subject to a referendum: article 2 of the revision law: "I.
– The title XV of the Constitution is completed by an article 88-5 as follows:
"Art. 88-5. – Any law project authorising the ratification of a treaty
related to the adhesion of a State to the European Union and to the European
Community is submitted to referendum by the President of the Republic." When the text says "is submitted", it
is compulsory (in legal grammar, the indicative mode stands for the
imperative).
[24] Again I send
you back to the excellent article of Laurent Lemasson, page 5 (in French):
http://www.institut-thomas-more.org/showNews/24.
[25] Law proposals as the exclusive territory of the executive power:
Article I-26: " (…) §2. Union
legislative acts may be adopted only on the basis of a Commission proposal,
except where the Constitution provides otherwise. Other acts shall be adopted
on the basis of a Commission proposal where the Constitution so provides."
Consequently, for non-legislatives
acts (see note below), the norme is free
initiative: no need for the Commission if the Constitution doesn't mentions
it explicitely.
[26] Exclusive domains where the executive power can create law on its own:
The principle of codecision:
Art. I-34, §1: "European
laws and framework laws shall be adopted, on the basis of proposals from the Commission,
jointly by the European Parliament and the Council under the ordinary
legislative procedure as set out in Article III-396. If the two institutions
cannot reach agreement on an act, it shall not be adopted."
Exceptions to codecision (in both directions) :
Art. I-34, §2: "In the specific cases
provided for in the Constitution, European laws and framework laws shall be
adopted by the European Parliament
with the participation of the Council, or by the latter with the
participation of the European Parliament, in accordance with special legislative
procedures."
"Participation" possibly being
simple consultation (non binding): the possibility of "laws without Parliament"
seems, therefore,to be established (first surprise), but no clear list (which could
be controlled) is defined (second surprise).
[27] An antidemocratic politic tool? European decisions:
Article I-33: The legal acts of the Union : [reminder]
" (…) A European regulation shall be a non-legislative act of general
application for the implementation of legislative acts and of certain
provisions of the Constitution. It may either be binding in its entirety and
directly applicable in all Member States, or be binding, as to the result
to be achieved, upon each Member State to which it is addressed, but shall
leave to the national authorities the choice of form and methods.
A European decision shall be a non-legislative act,
binding in its entirety. A decision which specifies those to whom it
is addressed shall be binding only on them."
And when recipients are not defined ?... Could
one explain to citizens what the
difference is with a law, except for the source? It looks like there is
none. As it stands, I would say that the decisions have a devilish resemblance
to "laws without parliament"
(poor Montesquieu...) :
Article I-35 : Non-legislative acts
:
"§1. The European Council shall adopt European
decisions in the cases provided for in the Constitution.
§2. The Council and the Commission, in particular
in the cases referred to in articles I-36 and I-37, and the European
Central Bank in the specific cases provided for in the constitution,
shall adopt European regulations and decisions."
We note that the Parliament is excluded
from these "non-legislative acts" (Then why didn’t they also
exclude the Council of Ministers, which is presented as a "high
chamber", by definition a part of the legislative power?) while,
precisely, the authors of these standards are rarely elected and often out
of control. These "non-legislative acts" have been condemned
as antidemocratic by some member of the Convention who authored a
"Counter-report" that judges the Treaty as "going against all
democratic principles". See annex III,
pages 21 to 24:
http://europa.eu.int/constitution/futurum/documents/contrib/doc180703_en.pdf
[28] Who nominates the members of the
Commission?
Art. I-19 states that the expression "Council" without other precision defines the
Council of Ministers: "The Council of Ministers
(hereinafter referred to as the ‘Council’)".
Art. I-27.2 which describes the nomination of the members
of the Commission speaks of the "Council" without any other precision:
"2. The Council, by common accord with the President-elect,
shall adopt the list of the other persons whom it proposes for appointment as
members of the Commission." What council? The paragraph which is before
the article 27 makes reference to the European Council (to nominate the
President of the Commission): "§1. Taking into account
the elections to the European Parliament and after having held the appropriate
consultations, the European Council, acting by a qualified majority,
shall propose to the European Parliament a candidate for President of the
Commission. This candidate shall be elected by the European Parliament by a
majority of its component members. If he or she does not obtain the required
majority, the European Council, acting by a qualified majority, shall within
one month propose a new candidate who shall be elected by the European
Parliament following the same procedure."
One could legitimately wonder which Council it is that is then referred to so
elusively in the paragraph
[29] Laurent Lemasson, op. cit.
[30] Censure of the Commission by the Parliament :
Article I-26.8: "The
Commission, as a body, shall be responsible to the European
Parliament. In accordance with Article III-340, the European
Parliament may vote on a censure motion on the Commission. If such a motion is
carried, the members of the Commission shall resign as a body and the Union Minister
for Foreign Affairs shall resign from the duties that he or she carries out in
the Commission."
Article III-340: "If
a motion of censure on the activities
of the Commission is tabled before it, the European Parliament shall not vote
thereon until at least three days after the motion has been tabled and shall do
so only by open vote.
If the motion of censure is carried by a
two-thirds majority of the votes cast, representing a majority of the
component members of the European Parliament, the members of the Commission
shall resign as a body and the Union Minister for Foreign Affairs shall resign
from duties that he or she carries out in the Commission. (…)"
[31] Apparently,
there is no list of domains reserved
to the ‘executive lawmaker’ (Montesquieu
is spinning in his grave with such expressions), i.e. the domains reserved, on
the one hand, because of the exceptions to the codecision (I-34-§2), and, on the other hand, because of the
existence of European decisions (I-33 and I-35): One needs to go fishing down the 485 pages to
find the articles which provide for a special legislative procedure (without
the Parliament), or for the power to create the law by "decision"
(without the Parliament).
Such domains constituting
as it were a zone devoid of
parliamentary control, one would simply like to know which are the
matters at stake.
As I couldn’t find what I was looking for in my 485 pages of the original text,
I found the following explanations on (in French) http://www.legrandsoir.info/article.php3?id_article=2157: "The 21 domains from which the
Parliament is excluded and where the Council of Ministers decides alone are of
a decisive importance: the internal
market, most of the common agricultural policy, the common custom tariff, the
common foreign and security policy, the economic policy, the social policy, the
tax system... ".
Queried about the sources of this statement, the author Jean-Jacques Chavigné gave me the precise articles numbers and
added: "it will never be clearly written that the Parliament is
excluded from the decision. You will have to understand that the Parliament is
excluded when an article of the Constitution will mention that this is the
Council who decides and/or that the Parliament will only be consulted.
(JJC)"
Incredible opacity of the Supreme Text
which should instead be absolutely clear, one can easily see why. And JJC goes
on: "Here are the most important domains
(or parts of domains) where the Council decides alone and where the Parliament
is not co-deciding: (quoting JJC and the text of the Treaty till the end of the
note)":
”Common foreign and security policy:
Article III-295 §1: "The European Council shall define the general
guidelines for the common foreign and security policy, including for matters
with defence implications."
Article III-300, §1: "The European decisions referred to in this Chapter shall be adopted by the Council acting unanimously."
§2: "By way of derogation from paragraph 1, the Council shall act by a
qualified majority".
The role of Parliament is defined in the article III-304 §1: "The
Union Minister for Foreign Affairs shall consult and inform the European
Parliament…"
§2: "The European Parliament may ask questions of the Council and
of the Union Minister for Foreign Affairs or make recommendations to
them…"
Internal market:
Article III-130-3: "The
Council, on a proposal from the Commission, shall adopt European regulations
and decisions determining the guidelines and conditions necessary to ensure
balanced progress…"
Common Customs Tariff:
Article III-151-5: "The
Council, on a proposal from the Commission, shall adopt the European
regulations and decisions fixing Common Customs Tariff duties.".
Competition:
Article III-163: "The Council, on a
proposal from the Commission, shall adopt the European regulations to give
effect to the principles set out in Articles III-161 and III-162 [concurrence
rules]. It shall act after consulting the European Parliament."
The Council is in charge of "regulations", and the Parliament will
get the "recommandations".
Did anyone bother with
separation and control of powers ?
Common agricultural policy:
Article III-231 §2: "European laws or framework laws shall establish
the common organisation of the market…"
The expression
"framework laws" without any other mention, means that the ordinary
legislative procedure, as defined in article III-396, is applicable. It is then a co-decision between the Council and the European Parliament. Which
is a progress compared to former
treaties.
However:
§3: "The Council, on a proposal from the Commission, shall adopt
the European regulations or decisions on fixing prices, levies, aid and quantitative
limitations …"
The Council decides alone, on proposition of the
Commission, so as to fix prices, aids, quotas…
Tax system:
Article III-171: "A
European law or framework law of the Council shall establish measures for the harmonisation
of legislation concerning turnover taxes, excise duties and other forms of
indirect taxation provided that such harmonisation is necessary to ensure the
establishment and the functioning of the internal market and to avoid
distortion of competition. The
Council shall act unanimously after consulting the European
Parliament and the Economic and Social Committee."
Social:
One must distinguish three levels:
1st level: domain of co-decision:
Article III-210-1 :
(a) improvement in particular of the working environment to protect
workers' health and safety;
(b) working conditions;
(e) the information and consultation of workers;
(h) the integration of persons excluded from the labour market, without
prejudice to Article III-283;
(i) equality between women and men with regard to labour market opportunities
and treatment at work;
(j) the combating of social exclusion;
(k) the modernisation of social protection systems without prejudice to point
(c).
2nd level: the Council decides alone:
Article III-210-3: "…
in the fields referred to in paragraph 1(c), (d), (f) and (g), European laws or
framework laws shall be adopted by the Council acting unanimously after
consulting the European Parliament…"
(c) social security and social protection of workers;
(d) protection of workers where their employment contract is terminated;
(f) representation and collective defence of the interests of workers and
employers, including co-determination, subject to paragraph 6;
(g) conditions of employment for third-country nationals legally residing in
Union territory;
3rd level: the Union (whether it be the
Council alone or the Council with the Parliament) is not competent:
Article III-210-6: "This
Article shall not apply to pay, the right of association, the right to strike
or the right to impose lockouts."
Which makes impossible any
European minimum wage
Which depletes article II-210-3-f of its content.
Which depletes article II-88 of its content: the right
to strike cannot be imposed by the Union to a Member State that doesn’t allow
it or that would take it out from its law. This has the additional advantage
not to impose a "lock-out" to a national legislation that (as the
French legislation) may not recognize it. (JJC)
[32] The European Court of Justice
(ECJ): the cornerstone of the Constitutional Treaty? The Court of
Justice plays all at once the role of Cassation Court and of Constitutional
Council. In France, the Constitutional Council is nominated in part by the Senate,
by the National Assembly and by the President of the Republic, which allows
each power to somewhat find a bit of itself represented within the Supreme
Tribunal. No such thing in Europe: The Parliament has no say in the nomination
of the judges, who, instead, depend exclusively on the executive power.
One should read in the book of Paul Alliès, Political Science and Constitutional Law professor at the
University of Montpellier, "A Constitution against democracy"
(in French), stirring explanations (starting on page 121) about the danger represented by the European
Court of Justice (ECJ):
"The ECJ gradually rose up to become a
true Union Supreme Court. (…)
The ECJ always has one judge for each
Member State, as designated by each of them. (…) These judges are thus nominated very discretely, quite the
opposite to what happens in the US, where the procedure of confirmation by the
Senate gives a maximum of publicity to their selection. (…) They are deprived of the guaranty of irremovability.
Their mandate is of six years, which is very short, especially if we consider
they are eligible for additional terms in office. This double characteristic is traditionnally considered as opposed
to the independence of judges; in this case, the judges may be concerned to
displease the authority they owe their nomination and career to. It is easy
to understand why governmentswould advocate this system.
When they adopted the Maastricht Treaty, the same governments rejected a
proposition from the European Parliament, which suggested to set the mandate up
to 12 years, with no second term possible." (page 122) (…)
"It is thank to other recourses [than the "recourse in default"]
that the court has imposed itself as a Constitutional Court. By the
"recourse in annulation", it is called to control the
conformity of the acts of all European institutions, including the
Central Bank, on request from one of these institutions. By the "recourse
in deficiency", it can impose to an
institution the obligation to apply a standard, on request from the bodies
of the Union, of the Member States and private parties. Last but not least, by
the "prejudicial recourse", created by the Rome Treaty, it receives the requests from national
jurisdictions that face litigations concerning private parties and
including questions of community Law.
It therefore holds the monopoly of the
centralised and unified interpretation of the European Law in
general, as well as the monopoly of its compulsory application by all the components
of the Union, and by the Member States, including their national
jurisdictions." (page 123)
Paul Alliès then takes the example of secularity
to illustrate the great danger of a government of the judges: " article II-70 (…) is in absolute contradiction with
the French Law about secularity dating from one century ago. (…) At the end of article II-112, the
ECJ would have to interpret the Charter by looking at the explanations (…)
of the Praesidium of the Convention.
(…) So we see that the base of
secularity depends of the wisdom of the ECJ. (…) In short, all the elements are gathered so that (…) the Court creates a
specific Law in term of secularity in the Union. (…) The secret of the
deliberations and the absence of publicity of the "dissent
opinions" do not prompt to optimism." (Page 132)
[33] The Commission can be censured by the
Parliament, as a whole: see note 30 above.
A member of the Commission can also be
"resigned" by the President of the Commission (who is, for his part,
ratified by the Parliament): art. 1-27, last §: "A
member of the Commission shall resign if the President so requests."
But neither the Council of Ministers, nor the European
Council, are accountable to anyone.
The European Council nominates the members of the Commission (art.1-27
§2), only the President of
the Commission is "elected" by the Parliament (art.
1-27 §1) on proposal from the
European Council. The Parliament does not choose the President. The Parliament is not accountable to anyone either: no one
can disband it.
[34] Yves Salesse, member of French State
Council, "Manifest for another
Europe », page 36:
"The power of the Commission is
overestimated. In law as in fact, the power is fundamentally owned by the Council
of Ministers. (…) The Commission is not deprived of power, but it is
subordinated to the Council. It is composed of politicians and civil servants
from the States, who still have ties to them. (…) So, not only the power of the
Commission is subordinated, but the tendency is not in favour of reinforceing
it. All conspires, instead, towards the strengthening of the States’ grip.
When States pretend to be surprised by a decision ‘made in Brussels’, they
are lying.
Ignoring the power of States has political
consequences. It exonerates the governments from their responsibilities in
European decisions. They are the first to spread the phrase: "It is not
us, it is Bruxelles." ".
[35] See good
clarifications about the GATS on the
site (in French) www.urfig.org (by Raoul Marc Jennar).
[36] See the
detail of the humiliation inflicted by Pascal Lamy to the members of Parliament
who wanted to consult the provisionnal documents for the GATS in the exciting
book of Raoul Marc Jennar (in French), "Europe,
the elites’ betrayal", starting on page 64, and notably pages 70 and
71.
See also a stirring article of Jennar titles "How much longer of Pascal Lamy ?", about the two agreements
GATS and PITS (in French):
http://politique.eu.org/archives/2004/04/11.html.
[37] Noëlle Lenoir,
then French government minister delegated to European affairs, declared: "one million of signatures in Europe
will be enough to force the Commission to engage a legislative
procedure" (Newspaper 'Le Monde',
30 october 2003).
[38] Right of petition : art.
I-47, §4: "Not
less than one million citizens who are nationals of a significant number of
Member States may take the initiative of inviting the Commission, within the framework of its powers,
to submit any appropriate proposal on matters where citizens consider that a
legal act of the Union is required for the purpose of implementing the Constitution. European laws shall determine
the provisions for the procedures and conditions required for such a citizens'
initiative, including the minimum number of Member States from which such
citizens must come."
We are really a thousand miles away from the referendum of popular initiative
(as found in Switzerland, USA or Venezuela), which is advertised to the voters.
[39] For the detail
of the setbacks of fundamental rights, compared to existing law: see Raoul Marc Jennar (in French), "Europe, the elites’ betrayal",
starting page 102.
See also the point of view of Alain
Lecourieux, "The illusion of
fundamental rights in the European Constitution" (French):\\ http://www.eleves.ens.fr/attac/Lecourieux-droits-fondam.pdf
. Seealso the thesis of Anne-Marie Le
Pourhiet, professor at University Rennes I: "The values and objectives of the Union", in the book "the
new EU. Critical approaches of the European Constitution".
See also Jacques Généreux (in
French), in his "Critical manual of
the perfect European", starting page 113: no advance of social rights.
[40] Article II-111: Field of application [of the Charter]:
”1.The provisions of this Charter are addressed to the
institutions,bodies,offices and agencies of the Union with due regard for the
principle of subsidiarity and to the Member States only when they are
implementing Union law.They shall therefore respect the rights,observe the
principles and promote the application thereof in accordance with their
respective powers and respecting the limits of the powers of the Union as conferred
on it in the other Parts of the Constitution.
2.This Charter does not extend the field of application of Union law
beyond the powers of the Union or establish any new power or task for the
Union,or modify powers and tasks defined in the other Parts of the
Constitution.”
Article II-112: Scope
and interpretation of rights and principles [of the Charter]:
”1.Any limitation on the
exercise of the rights and freedoms recognised by this Charter must be provided
for by law and respect the essence of those rights and freedoms.Subject to the
principle of proportionality,limitations may be made only if they are
necessary and genuinely meet objectives of general interest recognised by the
Union or the need to protect the rights and freedoms of others.
2.Rights recognised by this Charter for which
provision is made in other Parts of the Constitution shall be exercised under the conditions and within the limits
defined by these relevant Parts.”
This indentation establishes
the Charter (that is part II of the Treaty) as a a legal text inferior to
all other parts (particularly part III), rather than the opposite, as often
claimed.
”3.Insofar
as this Charter contains rights which correspond to rights guaranteed by the
Convention for the Protection of Human Rights and Fundamental Freedoms,the
meaning and scope of those rights shall be the same as those laid down by the
said Convention.This provision shall not prevent Union law providing more
extensive protection.
4.Insofar as this Charter recognises fundamental rights as they result from the
constitutional traditions common to the Member States,those rights shall be
interpreted in harmony with those traditions.
5.The provisions of this Charter which contain principles may be implemented by
legislative and executive acts taken by institutions,bodies,offices and
agencies of the Union,and by acts of Member States when they are implementing Union
law,in the exercise of their respective powers. They shall be judicially
cognisable only in the interpretation of such acts and in the ruling on their
legality.”
Note to the note: this afternoon, I received a fabulous email from a Spanish
guy named Rodrigo, lawyer in Bruxelles, former community Law professor and a
dedicated advocate of the treaty. He writes an impeccable French. With absolute
respect, which is now close friendship, he writes me that he is enthousiastic
about what I am doing, even though he totally disagrees with me. Then he
explains in huge details why it is excessive to say that the article 111-2
"sterilizes" the Charter. I read carefully his explanations, I check
them against what Paul Alliès says : it
is the interpretation of the Court of Justice that will make, or not, the
strength of the Charter, and this strength is potential, but real… OK, I
take the paragraph I had entitled "111-2 sterilizing" out of my text,
and I keep only the basic step backwards (rather fewer rights than more). After
that, he and I talked for one hour on the phone. This is an example of the very
warm exchanges stirred by this debate. We are not obliged to kill each other on
the issue. We will survive to the ‘yes’ or the ‘no’, we can dream together of
another Europe.
[41] The election
of a Constituent Assembly to establish a democracy: each time the UN sets up democracy in
a country, it always begins by programming the election of a Constituent Assembly.
So, the founding model that the UN proposes to all countries throughout the
world is this procedure. So, I am surprised to see that some European jurists
accept to abandon it.
[42] About what can
be reproached to the Convention led by Valéry Giscard d'Estaing, read the
analysis of Robert Joumard, starting
page 13, see also that of Christian
Darlot. See also Paul Alliès,
" A Constitution against democracy?", starting p. 38. See also the counter-report of the Conventionals
cited above.
[43] Read on
this subject the position of Pervenche
Berès, member of the Convention led by Valéry Giscard d'Estaing, therefore
a cowriter of the text, who nonetheless disowns the final result, as it has
been so dramatically disfigured by the governments in the year following its
draft, and who finally calls to "Say
'No' to save Europe" (in French): http://www.ouisocialiste.net/IMG/pdf/beresMonde290904.pdf.
[44] Antidemocratic "plague"?
Newspaper 'Le Figaro', 11 april 2005, Alain
Minc writes: "Valéry Giscard d'Estaing has
committed only one mistake: to call the text of the Treaty a
"Constitution". This is precisely this word that has precluded
ratification by the Parliament. The referendum is like an antidemocratic
"plague", which France would have propagated to all
Europe."
This sentence has been resonating in my head for one week, it takes all its
sense, like a confession of what the
elites think they should have done really: bypass the people.
And that’s it: I no longer want that these men fix my fate. I will stop
trusting our elites so blindly, and, from now on, I shall take care of my own
business.
[45] Planning of ratifications:
Countries which do not submit the Treaty
to direct approval by their people: Lithuania (11 december 2004), Hungary
(20 december 2004), Italy (25 january 2005), Slovenia (1st february 2005),
Germany (12 may 2005), Slovaquia (mai 2005), Cyprus (mai 2005), Austria (spring
2005), Belgium (spring 2005), Greece (spring 2005), Malta (july 2005), Sweden
(december 2005, and yet 58 % of swedish people did call for a referendum),
Estonia (2005), Finland (end 2005), Latvia (undecided).
Countries which have opted for a
referendum: Spain (20 february 2005), France (29 may 2005), Netherlands (1st
june 2005), Luxemburg (10 july 2005), Denmark (27 september 2005), Portugal
(october 2005), Poland (end 2005), United-Kingdom (spring 2006), Czech Republic
(june 2006), Ireland (2006).
Three
of these referendums are only consultative (Spain, Netherlands and
Luxemburg) and, finally, only six peoples are really consulted
on this project:
Portugal and Ireland (which will probably vote Yes)
And Czech Republic, Poland, United-Kingdom and France (which are going to vote
No).
Six country truly consulted on
twenty-five…
I find this very telling about how much the governments of Europe care
about their peoples’ will.
[46] RM Jennar is
right: We must restate our fundamental principles, and recall what was
proclaimed, on 26 june
[47] According to
the famous quotation of Lacordaire: "Between the
powerful and the weak, between the rich and the poor, between the master and the
servant, it is freedom that oppresses and the Law that sets free".
Each one can foresee what will happen with free foxes in a free henhouse.
The charms of unrestrained freedom are a fable, an imposture.
[48] Read the analyses of the Acrimed
site about the partiality of the medias about this project (in French): http://www.acrimed.org/article1950.html
Read also the article of Bernard Cassen in 'Le Monde diplomatique': "Rigged debate about the Constitutional
Treaty" (in French):
http://www.monde-diplomatique.fr/2005/02/CASSEN/11908.
Parmi les
livres et articles que j’ai lu depuis six mois, tous profondément proeuropéens, certains aident particulièrement à
se forger une opinion construite et solidement argumentée sur ce texte
complexe, et plus généralement sur la construction européenne et la
dérégulation mondiale :
· Raoul Marc Jennar, docteur en
sciences politiques, chercheur pour le compte de l’ONG OXFAM, « Europe,
la trahison des élites », 280 pages, décembre 2004, Fayard :
pour un réquisitoire rigoureux et passionnant. Une étude consternante des
rouages européens et des dérives foncièrement antidémocratiques de cette Europe
qui ment tout le temps. Comment la défense des intérêts privés des
grands groupes a d’ores et déjà pris la place de celle de l’intérêt général.
Les chapitres sur l’OMC, l’AGCS et l’ADPIC sont absolument é-di-fiants. Un
livre essentiel, à lire d’urgence.
Tous les journalistes, par exemple, devraient avoir lu ce livre.
· Laurent Lemasson, diplômé de l’IEP de
Paris, docteur en droit public et sciences politiques, chargé de cours à
l’ESSEC, a écrit un article captivant
« Constitution européenne : l’Europe y trouve-t-elle son
compte ? », 15 déc. 2004 : une lectrice m’a envoyé
cette référence il y a quelques jours et je pense que c’est l’analyse la plus
finement argumentée, la plus pénétrante qu’il m’ait été donné de lire sur la question de l’équilibre et du contrôle
des pouvoirs. À lire absolument, ça va vous passionner. C’est sur le site
le d’institut Thomas More : http://www.institut-thomas-more.org/showNews/24.
· À 15 jours
du scrutin, un jeune homme vient d’écrire un argumentaire, passionnant, serré,
convaincant qui s’intitule « témoignage
d’un revenu du oui, suivi d'un inventaire
d'arguments inédits en faveur du Non », par Thibaud de La Hosseraye.
C’est à http://www.ineditspourlenon.com/.
· « Douze économistes contre le projet de
constitution européenne », par Gilles Raveaud, docteur en
économie et enseignant (Institut d’études européennes, Université Paris VIII,
et onze autres : une analyse
remarquable, très argumentée, du projet actuel de l’Union, plus économique que
politique, à lire :
http://www.legrandsoir.info/article.php3?id_article=2231
et http://econon.free.fr/index.html
· Paul Alliès, « Une
constitution contre la démocratie ? Portrait d’une Europe
dépolitisée », 223 pages, mars 2005, Climats : ce professeur
de sciences politiques à l’Université de Montpellier I rappelle d’abord les
fondements de la démocratie, parmi lesquels un authentique processus
constituant, et explique ensuite que le projet de TCE interdit à l’Europe de devenir une véritable puissance politique, sonne le
glas d’un gouvernement économique et
plus grave encore, d’un fonctionnement démocratique.
· Stéphane Marchand, « L’Europe est mal partie », 361
pages, février 2005, Fayard : ce journaliste au Figaro a un style agréable
à lire, il nous raconte l’Europe politique d’une façon vivante, il défend une
Europe des cercles. Un livre optimiste malgré son titre, vraiment intéressant.
· « La
nouvelle Union européenne. Approches critiques de la constitution
européenne », 182 pages, avril 2005, éd. XF de Guibert. Sous la
direction d’Olivier Gohin et Armel
Pécheul, préface de Jean Foyer, tous professeurs de l’Université : ce
petit livre important regroupe les analyses de neuf jeunes constitutionnalistes universitaires et argumente de
façon rigoureuse sur les vices rédhibitoires du TCE au regard de la démocratie.
(rapport du colloque du 12 mars 2005, disponible sur commande, 3 rue JF
Gerbillon 75006 PARIS).
· Anne-Marie Le Pourhiet, professeur de droit public, a écrit
dans le Monde, le 11 mars 2005, un
article qui résume bien l’essentiel :
« Qui veut de la
post-démocratie ? » : un article court (une page) et
percutant :
http://decrypt.politique.free.fr/constitution/lemonde.shtml.
· Jean-Paul Fitoussi, économiste distingué, Professeur des Universités à
l'Institut d'Études Politiques de Paris, Président du Conseil Scientifique de
l'IEP de Paris, Président de l'OFCE et Secrétaire général de l'Association
Internationale des Sciences Économiques, propose : « La Politique de
l’impuissance », 160 pages, janvier 2005, Arléa : un passionnant
petit livre d’entretiens avec Jean-Claude Guillebaud pour comprendre comment
l’Europe abandonne sciemment la démocratie et renonce à l’intervention
économique des États. En nous rappelant la chronologie des grandes décisions,
on comprend quelle progression insensible nous a conduit là. Fitoussi est d’une
rigueur étonnante, un grand personnage de l’analyse économique.
· Raoul Marc
Jennar, « Quand l’Union Européenne tue l’Europe », 40 pages, janvier
2005 : une brochure résumant un argumentaire serré contre le "traité
constitutionnel". Également un DVD où Jennar
présente lui-même, de façon pédagogique, très posée, trois exposés sur l’AGCS,
la directive Bolkestein et le traité constitutionnel. On y sent très
fortement la terrifiante cohérence qui relie ces textes. Documents importants
disponibles sur www.urfig.org.
· Jacques Généreux, économiste, professeur à
Sciences Po, « Manuel critique du parfait Européen – Les bonnes raisons de dire
"non" à la constitution », 165 pages, février 2005,
Seuil : encore un excellent petit livre, très clair, vivant, incisif, très
argumenté, avec une tonalité à la fois économique et très humaine.
Encore un enthousiasmant plaidoyer pour une vraie Europe !
· « Contre rapport – l’Europe des
démocraties », par un groupe de conventionnels qui ont refusé de
signer le projet de TCE, jugé comme
« allant à l’encontre de tous les principes démocratiques », pour
une série de raisons qui méritent d’être étudiées. Voir l’annexe III, pages 21 à 24 :
http://europa.eu.int/constitution/futurum/documents/contrib/doc180703_fr.pdf
· Dominique Strauss-Kahn, « Oui !
Lettre ouverte aux enfants d’Europe », 173 pages, oct. 2004,
Grasset : un petit livre facile à lire qui défend bien les points forts du
Traité, avec un style énergique, agréable à lire. Il tempête contre les
opposants au traité en insistant sur les avancées qu’on perdrait avec un Non,
mais il ne les rassure pas sur les points inacceptables du texte.
· Laurent Fabius, « Une
certaine idée de l’Europe », 125 pages, nov. 2004,
Plon : un petit livre sans longueurs, agréable à lire, qui résume bien ce
qui n’est pas acceptable et qui dédramatise le Non.
· Yves Salesse, membre du Conseil d’État, « Manifeste
pour une autre Europe », 120 pages, janvier 2005, Le Félin :
un argumentaire précis, rigoureux, constructif. Agréable à lire et très
instructif.
· Yves
Salesse a également rédigé un article plus court qui résume en 10 pages son
analyse : « Dire non à la "constitution" européenne pour
construire l’Europe » :
http://www.fondation-copernic.org/Flash-septembre2004.pdf.
· Un
document passionnant de Raoul Marc
Jennar, daté d’avril 2004, intitulé « Combien
de temps encore Pascal Lamy ? » : on y comprend rapidement
ce qu’est en fait « l’indépendance » de la Commission, l’incroyable perméabilité des commissaires aux
pressions extérieures, on découvre l’imbuvable ADPIC (accord sur les droits de propriété intellectuelle) et ses
implications en matière de médicaments, on y retrouve le révoltant AGCS (accord général sur le commerce des
services). Il faut lire cet article important : http://politique.eu.org/archives/2004/04/11.html.
· Un petit film d’une demi-heure résume de façon
pédagogique les griefs contre le TCE recensés par Jennar, Salesse et
Cassen : clip téléchargeable à http://www.fondation-copernic.org/
· Valéry Giscard d’Estaing, « présente la Constitution pour l’Europe », 396
pages, sept. 2003, Albin Michel : l’introduction
est intéressante car elle décrit les travaux de la Convention, les difficultés
rencontrées, les choix effectués. Le plus gros du livre est le texte du TCE
mais avec une ancienne numérotation.
· Olivier Duhamel, « Pour
l’Europe, le texte intégral de la Constitution expliqué et commenté », Seuil
2004 : une explication de texte
de première main, par un grand professeur de droit constitutionnel qui a
participé à la Convention et à l’écriture du TCE.
· Ces
temps-ci, une source majeure d’information non censurée, très orientée
politiquement (à gauche), mais absolument foisonnante, est le site portail www.rezo.net. J’y trouve chaque jour au moins un
document intéressant.
· Bernard Maris, « Ah Dieu ! Que la guerre économique est jolie », novembre
1999, Albin Michel : pour une démonstration de l’imposture de
"l’indispensable guerre économique", avec un parallèle très
convaincant avec la guerre de 1914 : comme d’habitude, la guerre
n'est pas inévitable, et ceux qui poussent à faire la guerre ne sont pas ceux
qui se battent et qui souffrent.
Un bel appel à la désertion.
À mettre en parallèle avec la religion de la concurrence (compétition) sans
entrave, rabâchée par le "traité constitutionnel" qui, finalement,
monte les États et les peuples les uns contre les autres, à coups de dumping
social, fiscal, et environnemental.
· Bernard Maris, « Anti-manuel d’économie », 355
pages, octobre 2003, Bréal : un livre important et savoureux pour comprendre l’ineptie du dogme de la
religion du marché et de la concurrence. Un livre qui remet de la chair et
du sang dans les théories économiques, qui fait l’éloge de la collaboration et
de la gratuité. Passionnant, souvent drôle. Un livre formidable, à lire et à
relire. Un économiste enthousiasmant.
· Agnès Bertrand et Laurence Kalafatides, « OMC,
le pouvoir invisible », 325 pages, juillet 2003, Fayard : un
livre palpitant et éclairant pour comprendre les objectifs et les moyens de
cette énorme machine à déréguler que sont le GATT puis l’OMC, outils de contrainte pour les États mais
jamais pour les entreprises. Ce livre permet de ressentir fortement la
parfaite cohérence qui existe entre les objectifs et les influences de l’OMC et
ceux de la construction européenne actuelle.
· Joseph E. Stiglitz, « La grande
désillusion », 324 pages, sept. 2003, Fayard : un pavé dans
la mare : un grand économiste libéral, patron de la banque mondiale, qui a
travaillé avec les plus grands hommes de ce monde, et qui décrit en détail le dogmatisme aveugle et criminel des technocrates
libéraux du FMI et ses conséquences sur les économies et les peuples. Un style soigné, 0% de matière grasse. Un grand bouquin, une référence. À lire.
· Pour
comprendre la logique d’ensemble de ce qui prend forme au niveau planétaire, il
faut lire l’article à la fois terrifiant et lumineux de Lori M. Wallach, « Le
nouveau manifeste du capitalisme mondial », dans Le Monde diplomatique de février 1998, à
propos de l’Accord Multilatéral sur
l’investissement (AMI), (une de ces « décisions
Dracula », appelées ainsi parce qu’elles ne supportent pas la lumière,
tellement elles sont évidemment inacceptables) : http://www.monde-diplomatique.fr/1998/02/WALLACH/10055.
On y perçoit clairement, comme grâce à une caricature, la logique qui sous-tend
de nombreux textes et accords essentiels en préparation aujourd’hui :
AGCS, Construction européenne libérale, OMC, ADPIC, directive Bolkestein,
etc. La parenté de tous ces textes devient
évidente : un redoutable « air
de famille ».
· Serge Halimi, « Le grand bond en arrière,
comment l’ordre libéral s’est imposé au monde »,
618 pages, mars 2004, Fayard : un gros bouquin qui permet de
comprendre comment on en est arrivé là. On
retrouve cette cohérence d’ensemble, et on ne lit plus le TCE de la même façon
après avoir lu Jennar et Halimi. On change. On a l’impression de se réveiller.
· Robert Joumard et Christian Darlot, enfin,
simples citoyens comme moi apparemment, ont fait la même démarche : ils
ont beaucoup lu, digéré, résumé, rassemblé, organisé tout ça avec talent pour
faire deux synthèses un peu longues, comme la mienne, mais vraiment très
intéressantes.
Deux documents très bien faits à : http://institut.fsu.fr/chantiers/europe/traite_constit/joumard.pdf
et Liens.
¯ ¯ ¯ ¯ ¯