The 'Modified' Treaty Recycles the Constitution Rejected in 2005


11-07-07, 9:55 am

The draft treaty, an inextricable tangle designed to discourage any debate, takes no account of the reasons that led the citizens, two years ago, to vote 'No.'

The endeavors toward which the experts mandated by the European heads of state exert themselves consists of appending to existing treaties (Rome 1957, 'Acte unique' 1986, Maastricht 1992, Amsterdam 1997 and Nice 1999) all those new elements which were contained in the constitutional treaty rejected by referendum in France and the Netherlands. [1]

As far as political institutions are concerned, the main elements proposed in the European Constitutional Treaty are now to be found in the 'Treaty modifying the Treaty of the European Union.' The term 'constitution' has disappeared, along with the flag and the hymn, in a camouflage operation designed to make palatable the contents, while making only formal modifications to the container.

The new treaty thus proposes the creation of a post of President of the European Council with a mandate of two and a half years, renewable once. The person 'responsible for foreign affairs and the security policy of the European Union,' proposed in the TCE (European Constitutional Treaty), trades his title of 'minister' for that of 'high representative,' a term considered less federalist.

The qualified majority is to consist, starting in 2014, of 55% of the members of the Council, representing at least 15 nations, and representing at least 65% of the population of the European Union.

The laws of the Community have priority over national laws.

The Commission will eventually be reduced in number of commissioners (down to two-thirds of the number of member states). In a contrary direction, the role of the President will be reinforced. The Commission alone retains the sole initiative for the introduction of laws, which are to be termed 'legislative acts of the Union.'

With the president of the Council (one evokes the name of Tony Blair), and the president of the Commission, the new treaty stokes the fires for a presidentialization of the European Union. Just as in the previous draft, the 'modified' treaty offers a variety of different modes of decision-making. A simple majority suffices to admonish a government for 'excessive deficits.' But any fiscal harmonization requires unanimity of states. Fiscal and social dumping have their best days ahead.

A Charter of Fundamental Rights reduced to a vacuum

Central to criticisms, during the referendum campaign, of the Charter of Fundamental Rights, were the multiple restrictions to its judicial applicability. These restrictions remain, and are even aggravated, thereby reducing this text to a purely aesthetic function. As in the project for a European constitution, it is repeatedly pointed out in the modified treaty that this Charter 'confirms the rights, liberties, and principles recognized by the Union, and renders them more visible, without, however, creating any new rights or principles.' A protocol on its application in the United Kingdom purely and simply relieves the nation from any responsibility to respect the Charter. 'To dissipate any doubt,' specifies the text, 'nothing in Title IV of the Charter (relative to social rights and rights to employment [2])' creates rights legally enforcible in the United Kingdom, unless the UK has enacted such rights in its national legislation.'

In the same vein, a Polish declaration stipulates that the Charter 'in no way limits the manner in which member states may legislate concerning questions of public morality or family rights.'

Finally, the entire battery of annexed 'explanations' of the constitutional treaty, certain of which affirm the contrary of the rights and principles proclaimed in the Charter, is totally reintegrated. One of these explains what one should understand by 'regime of limitations': 'According to well-established jurisprudence, restrictions can be made to the exercise of fundamental rights, notably in the exercise of the common organization of the market.' Similarly, one of the 'explanations' makes clear that 'references to social services apply in cases where such services have been established, but in no way imply that such services should be created when they do not already exist.' Worse, even the abolition of the death penalty, as in the former constitutional treaty, is subject to 'restrictions.'

Back comes 'free and unfettered competition'

Has the concept 'free and unfettered competition' been abandoned, as Nicolas Sarkozy said last June? This is far from being the case, since it remains the cornerstone of the European Union. The initial text of the treaty for a European constitution, upon which the modified treaty is based, stipulates clearly that the European Union carries with it 'a regime insuring that competition is unfettered in the internal market' and devotes four fundamental 'liberties' of the Union to this end: free circulation of merchandise, of persons, of services and of capital.

One of the protocols annexed to the modified treaty specifies, as if it were not yet already clear, that 'the European Union contains a system guaranteeing that competition is not falsified'. The Union has, the modified treaty states, 'an exclusive competence' in questions concerning 'the establishment of rules for competition necessary for the functioning of the internal market.' These rules of competition are the foundations of neo-liberalism. They do not spare the public services, despite the 'margin for maneuver' accorded in this domain, to the states. Preserved are the dispositions of the treaty setting up the European Community, which submits the public enterprises to rules of competition and restricts the possibilities for member states to offer aid and assistance to these enterprises. Outside the bounds of the internal market, the text adds, it is to the 'harmonious development of world commerce' that the Union should contribute 'by the progressive suppression of restrictions on international exchange'.

Still present, the 'full powers' of the European Central Bank

In an opinion rendered on last 5 July on the modified treaty, by the European Central Bank, Jean-Claude Trichet was delighted to see reaffirmed the independence of the institution that he heads. He stated that 'the stability of prices is (as always) one of the objectives of the Union' 'Changes introduced by the CIG [3] in the existing treaties will be limited, and will contain all the new measures introduced in 2004', he added. In clear: the statutes and missions of the European Central Bank remain unchanged, and dispositions relative to that institution compiled in part III of the project for a European constitution will not be changed an iota. Its unique objective, the fight against inflation, and to maintain a strong euro. And this, in support of the financial markets, with no consideration for employment or development.

The Union, affirms the modified treaty, 'enjoys an exclusive competence concerning the monetary policy for those member states for which the currency is the euro'. Otherwise said, the governments, on these questions, have no voice in the matter. Furthermore, the European Central Bank, the text specifies, 'is independent in the exercise of its powers and in the management of its finances. The institutions, organs, and organisms of the Union, as well as the governments of the member states, respect this independence'. In the domain, ever so crucial, of monetary policy, the European Central Bank remains thus the only pilot on board.

Reinforcement of allegiance to the United States

The new project confirms and comforts the links between the Union and NATO. Protocol number 4, which lays out the articles devoted to policies for defense and security, is quite clear: 'The Union respects its obligations derived from the North Atlantic Treaty for those states that consider that their common defense is realized in the context of NATO, which remains the foundation of collective defense for its members. The policy of the Union is 'compatible' with the North Atlantic Treaty, and 'a more positive role for the Union in matters of security and defense will contribute to a renewed vitality of the Atlantic alliance'. In other terms, the European defense is conceived of, at best, as a pillar of the North Atlantic alliance, in contradiction with the expressed will that Europe play an active role in favor of peace, in the prevention of conflicts, and of the reinforcement of international security.

The experiences of these recent years, marked by Bush’s war against Iraq, is an incitation for the Union to be more circumspect before lining up behind the Star-Spangled Banner.

The text also stipulates that the member states engage in progressively improving their military capacities, under the aegis of the European Defense Agency, which will identify the 'operational needs', and when appropriate, will put in place 'all appropriate measures for reinforcing the technological and industrial base for the military sector'. Finally, it invites all member states to engage in external military operations in order to 'preserve the values of the Union'. To this end, the Council will assign 'missions' to a certain number of states, notably in the 'combat against terrorism'. The door is wide open to the most sinister adventures.

Consult the text of the modified treaty in English or French.

--Translated by Henry Crapo

[1] Translator’s note: This analysis of the 'modified treaty' was annex to another important article published in l’Humanité on the 10th of September. My apologies for the delay.

[2] explanation added by the editor of l’Huma

[3] Intergovernmental Conference

From l'Humanite