Friday, 26 September 2003

The European MegaState: Controlling the Four Freedoms

by Kevin Ellul Bonici

The European Union is meant to ensure the free
movement of people, capital, goods and services across the
territories of its Member States. It is this free interaction
that socially unifies Europeans, not a centralised EU government
bent on hegemonic law-making. Yet what we have in Giscard’s draft
is a constitutional blueprint for a centralised European

Opposition to the draft is increasing, and
proposals for amendments have been pouring in, but they do not go
deep enough. Today’s EU goes deeper than it appears, and this
constitutional draft helps it seize more legislative power from
Member States, while seeking to further diminish the power that
enables them to block its pursued direction.

The seizing of legislative power is sought
through what in eurospeak they call “Union competence”. On the other hand,
disarming Member States of the power to block this centralising
action is sought through “qualified majority voting”.

What follows here in Part II is an outline of
the centralising effects of EU legislative power and the
interplay that presents itself between “Union competence” and
“qualified majority voting” as framed in the draft EU

The Key to a Centralised State: Unbridled
Legislative Power

As pointed out in Part I, with the European
Union’s ‘role and function’ being to ‘rule and control’, its
singular political finality is preconditioned. And the actual key
to a centralised European State is the extent of the Union’s
legislative power. Once a supranational entity is given the power
to legislate, it is in a position to self-empower and would
gradually, even ‘instinctively’, create the need to further
centralise so as to consolidate its control and growth. The
Union, as a separate entity above the Member States, would
legislate according to unknown socio-structural-behavioural laws,
aiming for self-preservation and self-perpetuation.

This may seem too deterministic and would
appear to ignore the extent of ‘democratic participation’. But
even if the European Council and Parliament are made up of
peoples’ representatives (and the representatives of those
representatives), who can theoretically participate and reject
laws proposed by the EU Commission, the EU, as a separate entity,
would still have its own personality and its own life-cycle with
the preconditioned (even organic) aim of surviving and growing
stronger. This is more than just a “legal personality” as defined by
eurospeak. It means that all of the Union’s institutional
components, including those that possess a semblance of peoples’
representation, would eventually find themselves towing the line
set by the Union’s “objectives” and “common values and interests”
as defined by the Constitution. (What is better understood by all
is that the peoples of Europe cannot vote this EU government out
of governance.)

So this Constitution consolidates the
legislative power gained by the EU throughout its existence, and
builds upon the past, ensuring enough legislative leverage for
further self- empowerment. This legislative leverage is measured
in “Union competence”, while the ability of Member States to
control Union competence is determined by EU voting procedures.
In both spheres the constitutional draft predominantly favours
the Union.

A Question of ‘Union Competence’

In order to appreciate this centralising
process, one needs to analyse the actual meaning of ‘Union
competence’, not only as framed in the draft Constitution, but
also as it already exists today.

Article 10 categorises Union competence into
six. We have ‘exclusive competences’; ‘shared competences’;
‘coordination’ of economic policies; the ‘implementation of a
foreign and security (defence) policy’; ‘supportive measures’
that ‘coordinate’ and ‘supplement actions’ of Member States; and
a sixth frame that concerns ‘specific provisions’ to each area,
to be elaborated in Part III of the Constitution.

The “exclusive competences” of the
Union are supreme and untouchable [Art. I-11 (1)]. And the very
first competence here is “to ensure [the four freedoms of
movement] and establish competition rules, within the internal
market, and in the following areas: customs union, common
commercial policy, monetary policy” (for all Member States
except the three still outside the eurozone), and a “common
fisheries policy“.

(This is quoted from the
May, 14 version (pdf)
of the draft;
by the time another draft appeared on May, 26, the ‘four
freedoms’ disappeared, article 11(1) is now Art. I-12(1), and the
starting point was moved to competition rules . . . must have
seemed too blatantly over-ambitious . . . )

Added to this [Art. I-12(2)] we also find that
the Union “shall have exclusive competence for the conclusion
of an international agreement” (i.e. Member States are not
allowed to sign agreements with other nations) as long as such a
conclusion “is provided for in a legislative act of the
Union” (i.e. when the Union itself would have decided to
provide for it), or when such a conclusion “is necessary to
enable the Union to exercise its competence internally” (i.e.
whenever the Union thinks this conclusion is necessary in order
to enforce an earlier decision by the Union to exercise a
competence), “or affects an internal Union act” (i.e.
whenever a Union law already exists). Of course, whether
it affects it or not, and how it affects it, is all
subject to Union interpretation.

The second category concerns “shared
“, which supposedly means that in the listed areas
both the Union and Member States may share competence. But the
word ‘shared’ has a deceptive function. In fact competences are
never shared. The last sentence of Article I-11(2) wraps it up:
“The Member States shall exercise their competence to the
extent that the Union has not exercised, or has decided to cease
exercising, its competence.” (Fresh out of the May, 26
version; tastes sweeter, but no difference). It does not state
what happens if the Union decides to exercise its competence
after a Member State had taken the initiative. It does not have
to do this since EU laws prevail anyway. So “shared competence”
essentially means that unless the Union does not already have
exclusive competence in an area, a Member State may exercise
competence in that area, but only as long as the Union

The list of ‘shared’ competences is wide and
varied. The constitutional draft lists the principal areas
[Art.I-13 (2)], where one finds the “internal market“, the
“area of freedom, security and justice . . . ” (the new
eurospeak term for ‘justice and home affairs’),
“agriculture and fisheries, transport and trans-European
networks, energy, social policy, economic and social cohesion,
environment, consumer protection [and] common safety concerns in
public health matters.“

In “areas of research, technological
development and space, the Union shall have competence
[Art.I-13 (3)], but unlike other ‘shared competences’, this would
not prevent Member States from exercising their
competence. The same goes for “the areas of development
cooperation and humanitarian aid” [Art.I-13 (4)]. These come
closer to truly shared competence, but of course any action a
Member State may take would still be subject to related EU laws
and regulations.

The third category concerns the
coordination of economic and employment policies
. Article
I-14(1) proposes to establish EU power over the control of
economic policies, which is termed as a competence “to ensure
coordination… by adopting broad guidelines for these
policies“. This had been detailed in Art. 13 of the May, 14
version, where Member States are also to take into account the
“common interest” in achieving the “objectives of the Union”. How
broad these policies could be for the purposes of the Union’s
common interest and objectives would be subject to Union
interpretation. So with this proposal on board, the door would
have remained open even for centralised economic control!

[Eventually the May, 26 version struck off the
sub-article concerning the “common interest”, but added two more:
the ‘coordination’ of ‘employment policies’ and of ‘social
policies’. Apparently it was Tony Blair who informed Giscard that
the constitution would sell better without the ‘economic control’
thing and the f-word (the words “federal basis” were also
struck off from Art.1) and it seems Giscard bought the idea…
What’s in a word? However, the question of a permanent EU
President does not seem to bother Blair, even if in the UK this
is as contentious as the f-word. Blair himself is a contender for
the post of President of the “European Union”, which is how the
May, 26 version christens this new Europe. I guess “United
Europe” or “United States of Europe” sounded too rash. After all,
what’s in a name?]

As regards monetary policy, there are of
course “specific provisions” that apply (and most already do)
only to eurozone Members — which will soon mean all 25
Member States minus the three who have so far managed to opt out
of the European Monetary Unit, that is, the UK, Sweden and
Denmark (the candidate countries are granted no such privileges,
although they’ll be given time). Within the eurozone, monetary
policy is entirely and exclusively determined by the European
Central Bank, which is an ‘autonomous’ Union institution
(autonomous in so far as no Member State may advise it on fiscal
measures, such as interest rates).

The fourth category concerns Union competence
in building a ‘common defence system‘, which I will
discuss in the third article, together with the “area of freedom,
security and justice”.

And the fifth category is one that already
exists today, whereby the Union may take “coordinating,
complementary or supporting action” in those areas where Member
States exercise ‘full’ competence (the word ‘exclusive’ is never
used for Member States), such as employment, industry, education,
culture, sports, protection against disasters [Art. 15 (Title

So, as one can see, the pan is full, even if
they say it’s half empty. And beneath this pan is the fire that

The Three Principles Governing ‘Union

Before detailing “The Union’s Competences
and Actions“, ‘Title III’ of Giscard’s draft lays down the
“Fundamental principles“, which supposedly are
‘restrictive’ measures that ‘limit’ the extent to which the Union
may use its legislative and regulatory powers (that is, the
extent of self-empowerment).

Article 8 says that the limits and use of
Union competences are governed by three principles (conferral,
subsidiarity and proportionality — a fourth, ‘loyal
cooperation’, was struck off in the latest version). These three
principles, in use for some years, are of utmost importance since
they actually govern the extent of ‘Union competence and actions’
and are relied upon throughout the Constitutional draft. Yet,
written in eurospeak, these principles are a political
exercise in blatant deceit: they are worded in such a way as to
appear to limit and restrict the use of Union competence, yet
each principle favours the Union exclusively and unfailingly.

Starting with “Conferral“, this
principle concerns the “limits of the competences
conferred” by the Constitution in order to attain the
“objectives the Constitution sets out”. It would have been
favourable to Member States had there been any real
limits, but as it is, it simply serves to bind the Member States
to respect the vast competences that the Constitution confers on
the Union. In the end of the day, there’s a so-called
“flexibility clause” (Art. I-17), which leaves the door open for
‘Union competence’ even where it is not conferred, and “delegated
regulations” (Art. I-35), which means the Commission would have
the power to enact laws “to supplement or amend certain
non-essential elements of the law…” The Union, of course,
decides what is essential and what’s not.

Subsidiarity” is the principle that
came with the Maastricht Treaty in 1992. It was ostensibly
intended to achieve a devolved rather than a
EU, with decision-making at the ‘lowest possible
levels’. However, the definition of subsidiarity (which this
draft further distorts) has nothing to do with devolution of
power. In fact, it establishes the Union as the arbiter on what
action can be carried out ‘more efficiently’ by the Union. This
principle, of course, concerns only those areas where the Union
does NOT already hold ‘exclusive competence’. So in reality, what
subsidiarity does is that it enables the Union to
exercise competence in areas where competence is
supposedly “shared“. This is allowed when, “by reason
of the scale or effects of the proposed action“, it feels
that the particular action “cannot be sufficiently achieved by
the Member States” (note that the action is always proposed
by the Commission in the first place). This is subject to Union
interpretation: What can or cannot be sufficiently achieved by
Member States?

The principle of “Proportionality” is
related to that of subsidiarity. It is meant to limit Union
action to “what is necessary to achieve the objectives of the
Constitution“. But this says nothing for it too is subject to
Union interpretation: What Union action is necessary to achieve
the objectives of the Constitution?

The unbalanced relationship between the Union
and Member States was evidenced in the May, 14 version with a
section entitled ‘Application of the fundamental principles’,
which detailed the required allegiance on the part of Member
States. This section is now called ‘Union law’ and it has been
heavily reduced. What is now Article I-10, establishes the
primacy of Union law over that of Member States, and binds Member
States “to ensure fulfilment of the obligations flowing from
the Constitution or resulting from the Union’s Institutions’

Whenever the Union or its Institutions are
held under obligation, it is either according to the
interpretation of the three principles, or the obligation is to
exercise competence, coordinate and implement, i.e. to legislate
and if necessary enforce. Member States’ obligations, however,
are to serve the Union and comply with its laws — under the
penalty of sanctions, of course . . . Heads I win, tails you
lose . . .

The Peoples’ Power to Block a Self-empowering
Union: from Unanimity to QMV

The EU’s competences are already far and wide,
but this Constitution would provide the Union with an even more
expansive operational field. Whenever restrictions appear to
exist, these are undermined by escape clauses, or are governed by
interpretable principles which unfailingly go the Union’s way.
Clearly, effective measures of control are required, enabling
Member States to block the Union from over-exercising its
competences. The peoples of Europe need the power to check Union
action and stop a self-empowering and self-centralising process
from taking off irretrievably.

Yet, even here the draft goes the Union’s way
since the powers of Member States and national parliaments are
further diminished, following the well-tried EU road that has
taken us from unanimous voting to ‘qualified majority voting’

Indeed, Article I-22(3) states that “except
where the constitution provides otherwise, decisions of the
Council shall be taken by qualified majority.” This is a
clean-sweep article that establishes qualified majority as the
decision-making procedure in the European Council. So the
Council, made up of representatives from the national parliaments
of Member States, can decide to adopt or reject the proposed laws
on the basis of a qualified majority. The only partial exceptions
to the QMV rule so far concern a “common foreign and security
policy” (Art. I-39), a “common defence policy” (Art. I- 40) and
the “implementation of the area of freedom, security and justice”
(Art I-41). We do not yet know how many areas will be moved from
unanimity to QMV, since this will be known when Part III of the
Constitution is levelled out and presented.

In Article I-33(1) we find that what in
eurospeak used to be called the ‘co- decision procedure’ is
now called the ‘legislative procedure’, and this means that while
the Commission proposes laws, the European Council and Parliament
would decide together “in accordance with special legislative
procedures“. As far as the Council is concerned, it would act
through “double majority voting“, which requires the
majority of Member States (13 out of 25) representing 60% of the
EU population, as explained in the previous part.

A No-win Situation for Devolved Power

The trend is visibly moving towards the
general rule of ‘qualified majority voting’ (QMV), where mere
representation and participation are hoped to preserve democracy
and transparency. But as stated earlier, the European peoples’
‘representation’ in the European Council, and still less in the
European Parliament, does not effectively check the Union’s
actions. In the longer term, no form of QMV can stop
centralisation of power once the process of self-empowerment
takes off.

The Union is one single entity. Over a period
of time the ever-changing flow of ‘participants’ ensures that
they become part of this entity. No conspiracies are required for
this sort of institutional evolution. The Union’s Institutions,
described as a “single institutional framework” [Art. I-18 (Title
IV — The Union's Institutions)] exist to propose, adopt and
in some cases execute EU laws, regulations and policies, while
the EU Court judges over any outstanding conflict of
interpretation. From the Commission to the European Council, and
on to the Council of Ministers, the EU Court of Justice, the
European Central Bank, the Court of Auditors and the European
Parliament, down to the various sub-councils and committees, the
Union is one ‘single institutional framework’ that functions on
the semblance of being ‘democratically’ made up of represented
bodies of the peoples of Europe. It is in fact no framework at
all, but a technocratic institution empowered to act as a State
and ostensibly checked by a democratic process.

With such an institutional set-up, majority
voting is the fuel that sets the fire flaming. Majority voting
builds on the ‘whole’, as opposed to unanimity which builds on a
‘diversity of wholes’. In other words, whereas unanimous voting
is possibly a means for national parliaments to be influential at
Union level, QMV evens out the powers of individual Member States
by creating one whole political arena where an overall majority
overrides the needs of diverse minorities. With QMV the
individual components that make up the Union are levelled out
into one single component where smaller Member States become
minorities, and politically less influential than current regions
and provinces.

The EU has managed to get thus far on the
beginnings of the veto and unanimity (and a lot of idealism and
romanticism, too), and without the initial power to self-empower.
Unanimous voting could not prevent centralisation of power, and
was unable even to prevent its own gradual eradication. So with
QMV replacing unanimity we would have a much less effective
procedure against centralisation of power.

Whichever constitutional version prevails, the
Union is close to clinching full competence and unbridled
legislative power. It just needs to consolidate its control over
a common economic policy, a common defence system and a common
criminal justice system . . . which we now know as an area
of freedom, security and justice . . .

Funny that phrase… and not just for its
characteristic eurospeak qualities. For when that aim is
achieved, that’s when the nightmare begins. And it will not be as
slow and as winding as the US nightmare is turning out. The EU
nightmare has the potential to create a modern Hegelian
supranational State. Could this be the next step in Western

(to be continued)

Kevin Ellul Bonici is a criminal justice
specialist currently working in Brussels. Email:

from The Laissez
Faire Electronic Times
, Vol 2, No 22, June 9,