Analysis of new EU constitution

national | politics / elections | opinion/analysis

Tuesday November 11, 2003 02:27

by Brendan Young

youngbren at eircom dot net

0857131903

Steps towards more privatisation

The Assembly of the European Regions, an official body of the EU, has produced an analysis of the proposed new EU constitution that reveals measures which will allow Health care, Education and Cultural / Audio-visual services to be privatised and traded as part of the GATS.

Assembly of the European Regions

Comment of the Final Draft of the EU-Constitution:

- Important changes for education under the EU-Common Commercial Policy
- No further exemption of Education, Health and Social Policy
- Council now can decide by Majority and overrule objections of individual member states

The European Convention, in its final sessions on 13 June und 10 July 2003, adopted a draft of a "Treaty establishing a Constitution for Europe". The text (Conv 850/03) was published on 18 July 2003 and submitted to the European Council the same day. http://europeanconvention.eu.int/bienvenue.asp?lang=EN).

The Text will be discussed and decided upon at the Intergovernmental Conference, which has been scheduled to start on 4th October 2003. This Intergovernmental Conference (IGC) will work till the end of 2003 ending with the adoption of the Constitution. In fact, the new member states will also participate in the IGC and will have voting right therein. Following formal entry of the new member states they will also be asked to adopt the treaty.

The text has also to be ratified either by parliamentary decisions of some member states or even by referenda, where Ireland and Denmark are bound to held them and other countries such as France, Spain and Italy are still undecided but are largely in favour of consulting directly the electorate. Therefore, the Constitution will not be in force before 2005.

Background

The text submitted by the Convention, composed of members of the European Parliament, of the Commission and of representatives of the national governments and parliaments of the member states (including also the representatives of the new states entering the EU), presents a turning point for the European Union. The task of the Convention was established by the European Council at its session in Laeken (Belgium) on 14 and 15 December 2001.

The Convention was asked to draw up proposals on three subjects:

1. to bring citizens closer to the European concept and institutions
2. to provide for a constitutional framework with regard to the organisation of politics in the European area and an enlarged Union
3. to make proposals on how to develop the Union into a stabilising factor and a model in the new world order.

Major aspects of the envisaged European Constitution were:

- better division of Union and Member States competences
- merger of the existing Treaties and establishing the Union as a legal personality
- simplification of the Union's instruments for action
- introducing measures to increase democracy, transparency and efficiency of the Union, i.a. simplification of decision-making processes
- introduction of new measures to enhance the structure and role of the Union's three institutions, i.e. of the Council, the Commission and the European Parliament.

The Convention decided not to restrict itself to a simple reformulation and restructuring of the existing treaties but to elaborate a new draft Treaty which establishes de facto a Constitution of the Union.

During the work not only politicians but also citizens, political interest groups, various organisations and NGOs made proposals to the Convention and were also asked to attend hearings. Many suggestions and demands were made particularly in relation to the preamble, the definition of the Union and its objectives, but also to fundamental rights and citizenship of the Union. In the end, they were only incorporated in the text to a lesser extent.

The new general framework , the definition and repartition of competences

The most important principle, very much disputed, is laid down in "Article 10: Union law". Under paragraph 1 it is established that "the constitution, and law adopted by the Union's Institutions in exercising competences conferred on it, shall have primacy over the law of the Member States." This implies that the Constitution of the Union has supremacy over the different national constitutions, being of a higher quality. It implies that member states can not pass anymore constitutional laws or national regulations in areas or political sectors where they rendered already exclusive or shared competences to the Union. Therefore, consequently paragraph 2 of Article 10 declares: "Member States shall take all appropriate measures, general or particular, to ensure fulfilment of the obligations flowing from the Constiution or resulting from the Union Institution's acts."

One can say that the most significant attributes of the sovereignity of a state are given up and passed to the Union. This touches the principle of the division of power with regard to institutions and the structure of the member states, the competences a state held so far and the decision making process within a state.

Special attention has to be paid to the articles dealing with the definition and repartition of competences as they determine, expand or limit the scope of action and the legal capacity of each institutional level, including the member states.

As a general rule, all competences for those policy areas which are not particularily referred to in the Constitution remain the exclusive competence of the members. Further transfer of power or common action of the Union presupposes a decision based on a unanimity vote. Members can stop envisaged changes also via veto (Article 17 [1]).

But as it is shown at a later stage, through the introduction of so called " supportive actions", the Union will also be involved to a not negligible degree in the policy sectors which remain in the exclusive competence of the member states. De facto there will be no policy area where the Union will not be able to intervene to some extent.

Rules concerning the application of the principle of susbsidiarity (Article 9[3] and annexed "Protocol on the application of the principles of subsidiarity and proportionality") give the national parliaments of member states the right to monitor whether any actions or new initiatives of the Union may infringe the rights of the member states.

The convention established the following categories for competences in Article 11:

 Exclusive competences

Paragraph 1: "When the Constitution confers on 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 acts adopted by the Union."

One has to note here that, in relation to negotiations on trade and services - this includes GATS - under the heading of the Common Commercial Policy (Part III, Articles III-216 and III-217), the Union has exclusive competences. This implies that the Union is entitled and obliged to ensure the achievement of "the harmonious development of world trade, the progressive abolition of restrictions on international trade and foreign direct investment and the lowering of customs and other barriers."

Other objectives for the Common Commercial Policy, as laid down in the constitution, demand that the Union assures a "common commercial policy based on uniform principles, particularily with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services and the commercial aspects of intellectual property…".

The Union is also bound to assure "the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those be taken in the event of dumping or subsidies".

Exclusive Union competences, such as for the Common Commercial Policy, practically forbid all individual initiatives of the member states and give the Commission, acting for the Union, the right of initative in the development of new policies. When adopted by the Council of Ministers by qualified majority, the Commission has the right to conduct and conclude negotiations only assisted by a special committee of the Ministers.

 Shared competences

Paragraph 2: "When the Constitution confers on the Union a competence shared with the Member States in a specific area, the Union and the Member Sates shall have the power to legislate and adopt legally binding acts in that area. The Member States shall exercise their competences to the extent that the Union has not exercised, or has decided to cease exercising, its competence."

This Article gives practically also the primacy to the Union. Legislative acts of the Union restrict the members.

Shared competences exist between the Union and the member states i.a. in the following areas:

- internal market
- agriculture and fisheries
- transport
- energy
- social policy
- environment
- consumer protection
- common safety concerns in public health matters

On all these matters decisions are made by qualified majority.

 Areas of supporting, coordinating or complementary actions

Article 16: These are areas, where the exclusive competences of the member states prevail, but where the Union is allowed to take action only in a supportive, coordinating or complementing way.

These are above all:

- industry
- education, vocational training, youth and sport
- culture
- protection and improvement of human health

Decisions in these sectors, but only on supportive actions, can now be taken by qualified majority. But one should remember that the present Treaties still demand unanimity vote also for the supportive actions in culture.

The Current Regulations concerning the Common Commercial Policy with its exemption clause for culture (audiovisual matters), education, health and social policies

As mentioned before, since the implementation of the Nice Treaty the Union already assumes exclusive competences for formulating and conducting the Common Commercial Policy. The European Commission acts on the basis of a mandate by the Council representing the member states.

The Commission is assisted by the "ad hoc-Committee 133" which includes a specific group dealing with services. The Group derives its name from the Article 133 of the Nice-Treaty which deals with the Common Commercial Policy.

It may be seen as a curiosity, but due to the fact that, for example, in the Federal Republic of Germany exclusive competence for Culture and Education is constitutionally assigned to the Länder and not to the federal level, the German members of the "ad hoc-Committee 133-services" are delegated by the Länder.

The exclusive competence of the Union establishes that, for the conclusion and adoption of agreements in trade and services, the Council of Ministers will decide on the basis of a qualified majority, thus not allowing a veto of a single member in case it foresees negative consequences for the own internal national commercial policies.

Due to the insistence of France, Belgium and, to a lesser extent, Germany and also the majority of European Regions - led by the Assembly of European Regions -, the Nice Treaty in Article 133, paragraph 5 rules that the Council has to "act unanimously when negotiating and concluding an agreement … where that agreement includes provisions for which unanimity is required for the adoption of internal rules or where it relates to a field in which the community has not yet exercised the powers conferred upon it by this Treaty by adopting internal rules." This rule also applies in the case of horizontal agreements - which is of particular importance in relation to GATS - in those sectors still remaining in the exclusive competence of the member states.

The text of paragraph 5 of Article 133 refers explicitly to the sectors listed under paragraph 6 of the same Article as "trade in cultural and audiovisual services, educational services and social and human health services."

This special treatment is regarded as an "exemption clause", where France, particularily in view of its special interest in the national film production, underlines the aspect of the "cultural exemption".

In order to bring a certain logic into the Nice-Treaty, which establishes generally the exclusive competence of the Union for the Common Commercial Policy, and in order to leave for the Union still the option open to take certain action and also to test the possibility for the negotiation of trade and service agreements on culture, education - when being dealt with under their commercial aspects - fall under the category of "shared competences".

There is also another reason for putting it under "shared competences". It is connected with the rules of the WTO that the Union is under a certain obligation to pursue negotiations without taking note of specific reservations for certain sectors. The WTO-principle of "single undertaking" prohibits that sectors are treated separately. Each WTO-Agreement such as GATS, GATT, TRIPS etc. is treated as a package which also has to be accepted at the end of the negotiations in its entirety (see Thomas Fritz, http://www.attac.de/gats/hintergrund/fritz_eu_konvent.rtf; or via link: http://int-protest-action.tripod.com/id277.htm)

This means for the Union as a common commercial area that the package is either accepted by all or else refused by all. The latter would be the case when no positive vote can be obtained by unanimity or one state declares a veto.

The present regulation in force of "take it all or leave it all", as far as all EU member states are concerned, can be regarded as a permanent moratorium and blockade, totally depending on the existence of the "exemption clause".

We should remember the turmoil about the deadline for submitting new offers under the GATS agreement in spring 2003. The European Commission with Commissioner Lamy as the chief negotiator was desperately urging and pushing the member states to give way for widening the list of offers, but finally failed to gain consensus and unanimity vote for a new consolidated list. He finally had to give in by announcing that no further offers were to be made in the field of education and culture.

One could argue that it was not primarily the protest of individual members of Parliament, of trade unions, ONGs, Universities, teachers, Anti-GATS Campaigns, Regional Ministers for Culture and Education or the Assembly of European Regions which finally stopped the Commission. They certainly created a wider awareness of the issue and made the Commission change its communication policy to suddenly posing itself as major defender of public services in culture and education.

But the decisive factor was finally the stumbling block of the unanimity requirement, which made the Commission and liberalization protagonists in a number of governments of member states abandon the idea of achieving a consolidated list with new offers.

It is understandable that these provisions mobilize all those member states which, for example, are seeking to make more liberalization offers under GATS, feeling thus encouraged to push with much vigour for the elimination of the exemption clause. They argue for a transfer of power to the Union and the introduction of qualified majority voting. In the present round, it was above all the UK and the Netherlands that had exercised pressure in the fields of education and the media. A preliminary survey suggests that in the future, with the entry of new members into the EU, there will be a sound qualified majority for backing an increased liberalization of public services, particularily in the sectors of education and culture.

Having said this, the described dilemma will presently not uproot or change the categorization of the aforementioned sectors for which the exclusive competence of the member states is beyond doubt. Therefore, by way of derogation from from the rule of qualified majority vote that normally applies in case of shared competences, any Council decision on trade and service agreements in these sectors can still only be made on the basis of unanimity. Members can also stop actions and negotiations by vetoing. But only so long as the provisions of Nice Treaty remain intact.

On what basis the different member states come to their decisions is an internal matter. In the case of Germany, the Länder and their body at the federal level, the Bundesrat, would have to agree. The Federal Government would not be able to make decisions on their behalf. Therefore, the Federal level would also be obliged to support the veto to a decision on culture and education, if demanded by the Länder. Similar regulations exist in Belgium and, to a certain extent, in Austria.

The new regulations in the Draft Constitutional Treaty

Seemingly unnoticed by the general public and also by critical GATS observers, the Draft of the Constitutional Treaty proposes major changes which, when adopted at the Intergovernmental Conference, will have serious implications and consequences for the future handling of all trade negotiations within the WTO and particularily in relation to GATS. Its adoption would present a real turning point for the different national educational systems and for cultural diversity in Europe, as it paves the way for harmonization and unlimited liberalization of public services in these sectors. Once adopted there is no chance to get back to the old regulations, as the Treaty marks a point of no return.

The draft Treaty only keeps two exemptions. One concerns culture (audiovisual), but with a rather important restriction. Under Article III-217(4) it says:

"The Council shall also act unanimously for the negotiation and conclusion of agreements in the field of trade in cultural and audiovisual services,where these risk prejudicing the Union's cultural and linguistic diversity."

The formulation of the restriction for culture is rather ambiguous and leaves much room for a wide range of interpretations about the procedure for the decision making process and the definition of the elements and contents of agreements in culture prejudicing "the Union's cultural and lingistic diversity".

Already a legal definition of the term and criterium "Union's cultural and linguistic diversity" poses enormous problems. The same goes for delivering a precise description and identification of the phenomenon, when referred to the social and political reality of Europe and political strategies and actions.

It is also an open question whether the risks of agreements have to be identified ex ante and before starting with negotiations or only when finally assessing negotiated agreements before concluding them. Does the formulation imply that there will be two different evaluations, one when starting with negotiations and another one when concluding an agreement?

What will be the final substance, what requires the vote by unanimity?

It remains to be seen, if negotiations cannot be started on the basis of a decision by qualified majority. Negotiations are generally open with regard to results and therefore do not entail a risk. But we know from GATS that already the negotiations involve dealings, which often lead to committments. Another question is, if the assessment has to cover in a broad way the entire agreement or if it allows for a scrutiny of certain apects.

One can predict that defenders of cultural and linguistic diversity are facing a rather difficult task when trying to establish the risks of a certain agreement. Does for example the general opening of the University sector to unlimited competition pose a risk to the Union's cultural and linguistic diversity?

The setting of fixed bookprizes in the german speaking countries of Europe will certainly have to go as it will be hard to establish, why it is undispensable for linguistic and cultural diversity. Will equal treatment of private TV and Radio Stations on the one side and Public Corporations such as BBC or the German ARD on the other encompass a real threat for cultural diversity?

Some may argue that with the WTO-principle of "single undertaking" there will still be the possibility to veto the whole package with its different sectors, including education, by blocking the agreement through insisting on the unanimity requirement for the cultural sector. As they are too many interested to proceed in areas such as transport or energy, it is more than doubtful that members playing this card will finally stay firm and stop the whole process just because they insist that cultural diversity has to be rated higher than possible gains through new deals in international trade.

The second exception covers agreements "in the field of trade in services involving the movement of persons and the commercial aspects of intellectual property" where unanimity is required in those cases "where such agreements include provisions for which unanimity is required for the adoption of internal rules" (III-217,4). It is more than doubtful, if this provision will cover objections to modes of delivery under GATS such as presence of natural persons.

But all other sectors, previously covered by the obligation of obtaining unanimity for any decisions, have been transferred into the Union's exclusive competence, notably education. The Council of Ministers can now decide with qualified majority. The Commission gets the right of initiative, to make recommendations to the Council and to ask for authorization to open negotiations. A new aspect is also the regulation that the European Parliament has to be informed regularily "on the process of negotiations". This may seem positive in view of achieving more transparency. But, taking account of the fact that, in the future, the national parliaments or those regions with legislative power for education, health and social affaires - which is the case in Germany, Belgium and Austria - will have no say in these matters, this change does not present a real advantage compared with the old regulation of Article 133 EC.

Regrettably in view of the transparancy of the discussions in the Convention, the delimitation and assignment of the competences and formulation of the policy sectors were left to the last minute, so that the public practically had not much chance of influencing the debate. Even for the members of the Convention there was not much time to comment on the different proposals and to seek external advice. The subject under discussion here was de facto only adopted on the last day.

Those pushing for substantial changes, which eliminated the restriction, were well prepared, had lobbied extensively in advance and achieved strong support of influential circles. Personalities such as Lamy, supported by other members of the Commission, but also the influential German MEP Elmar Brok (Christian Democrat, PPE) -according to his official entry in the directory of the European Parliament, lobbyist of the Media Giant Bertelsmann Corporation (Random House) that has considerable interests in the education business - were able to hold down any opposition.

The members of the European Parliament, which is always eager to expand its role within the Union, were lured with a new regulation. Following Article III-217, it is stated that "European laws or framework law shall establish the measures required to implement the common commercial policy". This wording implies a full European legislative procedure.

Consequently, according to Chapter VI "International Agreements" Article III-227 (7e), it is obligatory "for agreements covering fields to which the legislative procedure applies" to obtain "the European Parliament's consent".

We are faced with the fact that, to the detriment of national parliaments or in some specific cases of regions (Länder) with legislative competences, the European Parliament gained new power and a decisive position when determining goals and objectives of the Commercial policy.

That means also that, in the future, the European Parliament will have more influence in decisions about the future of public services than local, regional and national assemblies.

It has also to be said that education and culture, not to mention Social Policy and Health, did not receive the attention they deserve. They were obviously regarded as issues of minor importance. Therefore, they were traded with much ease against other demands regarded as more important, for example maintaining the requirement of unanimity vote in relation to immigration policy. Most of the German representatives, with the exception of Ministerpresident Erwin Teufel from Baden-Württemberg, did not even care considering that these issues touched above all the interests and competences of the Länder. France was only interested in maintaining, to some extent, the "cultural exeption", but was unable to gather full support in her own delegation.

As one of the ardent defenders of the exemption not only for culture, but also for education, health and Social Policies, one has to mention the Scottish Liberal Democrat Robert Mclennan. He made the same point as frequently and permanently argued by the Assembly of European Regions (AER), that it is somehow contradictory and illogical to generally accept the exclusive competence of the member states for the above mentioned sectors, but to put them under the exclusive competence of the Union when treated under the aspects of trade and services.

Mclennan is also of the opinion that the phrasing of Article III-217,5, which will be cited further down, does not present a safeguard to protect the exclusive competences of the members. The term "Harmonisation of legislative or regulatory provisions" does not cover policy contents but only more formal administrative technicalities. The fact that the Union will be able to proceed by qualified majority and to force a member against its will to accept the decision in fact means that, to a great extent, the latter's exclusive competence is infringed and corrupted. It is not anymore an exclusive competence in the strict meaning of the term. The phrase reads as follows:

"5. The exercise of the competences conferred by this Article in the field of commercial policy, shall not affect the delimitation of internal competences between the Union and the Member States, and shall not lead to harmonisation of legislative or regulatory provisions of member States insofar as the Constitution excludes such harmonisation."

Conclusions

One has to face it that with the decisions of the last sessions of the Convention in the second week of July, the protagonists of liberalization gained what they were bargaining for all the way, in a relatively easy way. The Commission, never really interested in protecting cultural diversity and maintaining full public services in education, saw with the Constitutional Treaty the great chance to obtain the powers it needed, in order to proceed in future with no obstacles in its WTO negotiations. Therefore, it did not cost much to announce in spring 2003 that, in view of cultural and educational considerations, one was not prepared to make further GATS offers. GATS Campaigners leaned back, because they thought the fight had finally been won.

There were only few voices which expressed concern. Many members of the convention, eager to establish more powers for the Union via the introduction of qualified majority voting, did not reflect in detail the consequences, the existing interests and what this will mean for the more sensitive sectors such as education and culture with regard to GATS and the opening of these areas to more competition.

GATS Protagonists in the European Parliament were also able to use the broad public sentiment expressing the need for a stronger Union with more ability to act. This means introducing majority voting as a general rule and reducing the competences of the member states as much as possible. Unanimity vote is depicted as anti-democratic and seen as a symbol for blocking progress and further European integration.

The idea to have a clear repartition of competences, implying full and unrestricted responsibility for policy areas at one institutional level, did not receive the necessary support. This applies also to the actual implementation of the principle of subsidiarity .

There is still a chance, but only a limited one, to turn the tide and to obtain changes in the text. The Governments will have the last word in the Intergovernmental Conference, starting in October 2003.

Above all the national governments of the member states and the national parliaments should be put under strong pressure to veto the draft of the Constitutional Treaty in relation to Chapter III and the Articles III-216 and III-217. There is also the possibility to mobilize the regions with legislative powers for culture and education - particularily the German and Austrian Länder and the Belgian Regions - as their competences will be seriously affected and curtailed. According to their constitution, the proposed changes would need their consent.

A major demand should be to retain the version of the Nice Article 133 in the new Treaty.

One has to be aware that the present draft is generally regarded as a good compromise. The political elite in Europe is more than hesitant to change the text, as one is really afraid of launching a new debate which could lead to an extensive scrutiny of the whole draft.

Action has to be mounted urgently. Left to itself, in October it will be too late to start campaigning. The European Regions, bound by the Brixen Declaration (http://www.aer.org/COMMUN/A214a1.html#Brixen) will also use all their influence to lobby for a change of the Article on the Common Commercial Policy.

Strasbourg, 23 July 2003

Dr. Franz-Josef Stummann
Secretary to Committees B (Health and Social Affaires)
and D (Culture, education, media)
Assembly of European Regions
Immeuble Europe
20 Place des Halles
F-67000 Strasbourg
Tel.: (++33) 3 88 22 74 47
Fax: (++33) 3 88 75 67 19
e-mail: f.stummann@a-e-r.org
Web:http://www.a-e-r.org/

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Comments (17 of 17)

Jump To Comment:

Does anybody know who Ireland's reps are to the IGC?

by Curious

Tue Nov 11, 2003 11:18

And would it be worth lobbying them at this late(ish) stage?

A military constitution for the European Union?

by War Resisters' International

Tue Nov 11, 2003 16:52

info at wri-irg dot org

5 Caledonian Rd, London N1 9DX, Britain

+44-20-7278 4040

Or: The European Union too is on a course towards war
This text was written by Tobias Pflüger from the German-based Informationsstelle Militarisierung. It analyses the draft EU constitution, and proposes a European campaign against the European Constitution. This text is important, as it highlights the appalling development of a military Europe, which will mainly mirror the United States of America. A German language version is available on the WRI website, and on the website of the Informationsstelle Militarisierung. Other language version will be made available soon. (War Resisters' International)
Introduction

After a long time the so-called European Convention produced a draft for a EU Constitution, which consists of 260 pages, divided into four chapters. Added to the draft constitution are several appendices of additional agreements, which will also be part of the constitution. The EU Constitution can be read or downloaded at http://www.european-convention.eu.int.

On the significance of military policy within the EU draft constitution

The so-called “Common Foreign and Security Policy” (CFSP) and the “European Security and Defence Policy” (ESDP) take up a lot of space and are central to the draft. The regulations regarding the military policy are very concrete and go into a lot of detail. The EU Commission itself comments: “Finally, by virtue of the fact that it replaces all the provisions of the current Treaties and, in particular, rewrites the provisions on external action and the area of freedom, security and justice, while adopting the Treaty provisions on policies wholesale, the draft Constitution has inevitably become a lengthy and fairly detailed document.” (Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the Member States’ governments convened to revise the Treaties, 17/09/03) The European Commission describes the significance of foreign and security policy as follows: “The Convention examined closely the provisions on the Union’s external action and the area of freedom, security and justice. It produced draft articles completely rewriting the originals. As far as the other policies are concerned, the Convention confined itself to reproducing the provisions currently featuring in the EC Treaty, with only a few alterations.” In the same document, the content of the EU draft constitution is described as follows: “... it revamps the provisions concerning the common foreign and security policy; it develops the common security and defence policy and enables those Member States wishing to do so to enhance their capacity for action within a common framework.”

EU integration through common military policy?!

The draft constitution explicitly states: “The Union shall have competence to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.” (Article I-11, paragraph 4; it is similar in article I-15, paragraph 1.) Article I-40 paragraph 2 clarifies the steps that need to be taken: “The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides.” There will be such a thing as a duty of loyalty within the European Union. Article I-15, paragraph 2 reads: “Member States shall actively and unreservedly support the Union's common foreign and security policy in a spirit of loyalty and mutual solidarity and shall comply with the acts adopted by the Union in this area. They shall refrain from action contrary to the Union's interests or likely to impair its effectiveness.” As long as there is no decision of the European Council on “security policy”, individual member states of the EU who, regarding their military, “have made more binding commitments to one another” may established a “structured cooperation within the Union framework”, according to Article I-40, paragraph 6 (more below under Council of Ministers decides on its own). If this constitution is passed, then member states won't have the power to block the developing common military policy. If this draft EU constitution becomes reality the common military policy of the European Union will play a – if not the – central role in the process of the integration of the enlarged EU of 25 member states. In particular, the regulations on competences (especially Article I-11) or on general obligations (Article I-15) highlight this aspect. Additionally, the common military policy is one – if not the – central (new) element of this draft of a new EU constitution.

Commitment to armament in the constitution

Regarding peace or military policy, the draft constitution includes dramatic new regulations. There is an explicit commitment to armament in the constitution: “Member States shall undertake progressively to improve their military capabilities.” (Article I-40, paragraph 3) This means engraved in the future constitution is a commitment to regular increases in armaments! A “European Armaments, Research and Military Capabilities Agency” will be set up “to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council of Ministers in evaluating the improvement of military capabilities.” (Article I-40, paragraph 3). Regarding the “improvement of military capabilities” and the “evaluating the improvement of military capabilities” the constitution explicitly defines commitments!

EU troops all over the world? Combat operations (including abroad) in the constitution!

The EU member states provide military contingents for the EU military policy: “Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council of Ministers. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.” (Article I-40, paragraph 3). It is again unique that readiness for military interventions world-wide gets the status of a constitutional duty. EU troops will be used as “combat forces in crisis management, including peacemaking and post-conflict stabilisation.” (Article III-210). It goes on, “[a]ll these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.” (Article III-210). This is an extremely broad mandate for potential EU military operations. It even allows for the EU to intervene in a civil war on the side of one or other faction, and to influence the outcome of the war militarily, justified by the “fight against terrorism”. Any limitations for such extra-territorial EU military operations remain undefined.

Codification of the concept of core Europe

Article 40 paragraph 6 of the draft constitution says: “Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish structured cooperation within the Union framework.” This means that individual member states, which “have made more binding commitments to one another”, can create permanent common military structures. Article I-40 paragraph 7 defines more concretely what Jacques Chirac has described once as an advance team such as at the tour de France: “Until such time as the European Council has acted in accordance with paragraph 2 of this Article, closer cooperation shall be established, in the Union framework, as regards mutual defence.” This translates into the area of the military what German Foreign Minister Joshka Fischer described in a speech at the Humboldt University on 12 May 2000 in Berlin (From Confederacy to Federation - Thoughts on the finality of European integration). There he talked about an “avant-garde” Europe, about a “centre of gravity” within the EU, but the older term of a “core Europe” coined by Wolfgang Schäuble and Karl Lamers is more to the point. It remains open how this closer military cooperation within the union framework could be slowed down or prevented by other EU member states.

This so called “structured cooperation” in the area of military policy is something like an exclusive club within the EU: Article III-213 paragraph 3 reads: “When the Council of Ministers adopts European decisions relating to matters covered by structured cooperation, only the members of the Council of Ministers that represent the Member States taking part in structured cooperation shall participate in the deliberations and the adoption of such decisions. The Union Minister for Foreign Affairs shall attend the deliberations. The representatives of the other Member States shall be duly and regularly informed by the Union Minister for Foreign Affairs of developments in structured cooperation.” It is absolutely unclear how other member states of the EU could slow down or block this closer military cooperation. For those EU countries that are officially still neutral – Finland, Ireland, Austria, and Sweden – there are more problems. The EU constitution includes several explicit regulations for cooperation with NATO, for example in Article I-40, paragraph 7: “In the execution of closer cooperation on mutual defence, the participating Member States shall work in close cooperation with the North Atlantic Treaty Organisation.” This means that the fear that the ratification of the EU constitution by non-NATO members in fact means a “NATO membership light” is not unjustified.

Council of ministers decides on its own – no involvement of parliament

The draft EU constitution stresses several times that the Council of Ministers is alone responsible for EU military policy. Translated into plain English, Article I-40 rules that the Council of Ministers will take decisions on EU military operations. This is effectively repeated in Article III-198 paragraph 1: “Where the international situation requires operational action by the Union, the Council of Ministers shall adopt the necessary European decisions.” The EU parliament won't take part in this. Paragraph 8 of Article 40 says only that the EU parliament shall be consulted regularly on the “main aspects”, and shall be kept informed on the development “and basic choices of the common security and defence policy”. This is dealt with more precisely in Article 205 paragraph 1. Paragraph 2 says: “The European Parliament may ask questions of the Council of Ministers and of the Union Minister for Foreign Affairs.” But the duty to inform parliament does not mean that parliament has the right to make decisions.

Javier Solana's EU military strategy: The EU as a military actor all over the world in a multilateral system

On behalf of the EU's heads of government, Javier Solana, the EU's High Representative for Common Foreign and Security Policy, drafted a paper on EU strategy in military matters. All EU heads of government welcomed this military strategy paper at the EU Summit in principle. “This paper proposes three strategic objectives for the European Union. First, we can make a particular contribution to stability and good governance in our immediate neighbourhood. Second, more widely, we need to build an international order based on effective multilateralism. Finally, we must tackle the threats, new and old.” For this, the European Union mainly focusses on its (new) military strength: “As a Union of 25 members, spending a total of 160 billion Euros on defence, we should, if required, be able to sustain several operations simultaneously. We need to develop a strategic culture that fosters early, rapid, and when necessary, robust intervention.” “If we are serious about new threats and about creating more flexible mobile forces we need to increase defence resources.” (Note: it doesn't say “if the new threats are serious”, it says “if we are serious about new threats...”!) “In a world of global threats, global markets and global media, our security and prosperity depend on an effective multilateral system.” Solana concludes: “This is a world in which there are new dangers but also new opportunities. If it can become a fully effective actor, the European Union has the potential to make a major contribution, both to dealing with the threats and to helping realise the opportunities. An active and capable European Union would make an impact on a global scale. In doing so, it would contribute to an effective multilateral system leading to a fairer and more secure world.” This is a call to battle against the “unilateral world order” with the USA as the single world power, as promoted by the US and UK governments. The European Union is to become something like the second world power in a “multilateral” world system!

The EU too wants to fight “preventive wars”

The Solana paper also codifies the concept of preventive wars. “In an era of globalisation, distant threats may be as much a concern as those that are near at hand. Nuclear activities in North Korea, nuclear risks in South Asia, and proliferation in the Middle East are all of concern to Europe.” And: “Our traditional concept of self-defence - up to and including the Cold War - was based on the threat of invasion. With the new threats the first line of defence will often be abroad. The new threats are dynamic. Left alone, they will become more dangerous. [...] This implies that we should be ready to act before a crisis occurs.” This transfers the core element of the USA National Security Strategy, also called the “Bush doctrine”, to Europe, and codifies it for the European Union. The bombing campaign of the war against Iraq was a test for this concept of preventive wars (i.e. Financial Times Deutschland, 19 March 2003). By now, Western militaries and governments seem to regard the preventive war concept as a recipe for success. The wording of the preventive war concept in Solana's paper shows that there is no difference between the USA and the EU in terms of quality – there is in terms of quantity – regarding their far-reaching military policy. Many, including governments in “old Europe”, like to criticise the US government and its methods, but precisely these EU governments – including the German social democrat/green coalition – very much like to take these methods, such as the preventive war concept, on board. They do this for example with the new EU military strategy.

The fight for the good in the world – or where is the problem, in the South or in the West?

The Solana paper names the three main threats as seen by EU governments: “Taking these different elements together - terrorism committed to maximum violence, the availability of weapons of mass destruction and the failure of state systems - we could be confronted with a very radical threat indeed.” Only joint action would help against those threats. The goal of EU policy is stated openly and very clearly, even if you have to read it several times to believe that it is really written into the military strategy of the EU: “[...] Acting together, the European Union and the United States can be a formidable force for good in the world.” Together for “good in the world”, against all “evil”? For whom this “good” will be good is obvious. It all is about as much power, influence, and economic expansion of Western states as possible. The Western states agree on the core issues, with differences in details (Iraq): more armament and the development of military forces that are able to fight wars. The wars of the future will be fought with permanently changing coalitions, and not everyone will join in every time. But the wars will happen, against countries and people in the South. The analysis which is behind the draft EU constitution and the Solana paper sees the problem in the South, in the “failed states”. The draft EU constitution explicitly codifies neo-liberal economic policy which leads to pauperisation world-wide. Obviously, the problem is not in the South but in the West. The policy of the Western states has to be changed fundamentally. The present neo-liberal and neo-imperialist policy of the EU states – two sides of the same coin – should not be codified as part of the future constitution of the European Union.

Proposal for a campaign against the EU Constitution, to campaign against the militarisation of the European Union

The Informationsstelle Militarisierung therefore proposes to initiate a campaign against this European constitution. The EU constitution is the result of a mistaken policy of the governments of the European Union. Regarding the military, the EU draft constitution is appalling, and this constitution has to be opposed. A campaign against the EU constitution could be set up by groups from the peace and anti-war movement, from the anti-globalisation movement, groups working against welfare cuts and those working with refugees. A campaign against the EU constitution could be carried out in cooperation, across borders, among groups from different EU countries. This draft EU constitution is not a constitution for the people. This draft EU constitution is not our constitution!

Sources

The draft European Constitution: http://www.european-convention.eu.int

European Commission: Opinion of the Commission, pursuant to Article 48 of the Treaty on European Union, on the Conference of representatives of the Member States’ governments convened to revise the Treaties, 17/09/03 http://ue.eu.int/igc/docs/st12654.en03.pdf

Javier Solana, EU High Representative for the Common Foreign and Security Policy: A Secure Europe in a Better World: http://ue.eu.int/pressdata/EN/reports/76255.pdf

Joshka Fischer: From Confederacy to Federation - Thoughts on the finality of European integration, 12 May 2000, http://www.auswaertiges-amt.de/www/en/eu_politik/ausgabe_archiv?suche=1&archiv_id=1027&bereich_id=4&type_id=3

Informationsstelle Militarisierung e.V.
Hechingerstrasse 203
72072 Tübingen
Germany
Tel +49-7071-49154
Fax +49-7071-49159
email imi@imi-online.de
http://www.imi-online.de

War Resisters' International
5 Caledonian Road
London N1 9DX
Britain
Tel +44-20-7278 4040
Fax +44-20-7278 0444
email info@wri-irg.org
http://wri-irg.org

needed.

by seizer

Tue Nov 11, 2003 16:58

every empire needs

common army
common currency
common taxes and laws.

hail

This is some of what the EU is really up to behind our backs

by Mr commissoner

Tue Nov 11, 2003 16:59

Welcome to the European Commission’s Hall of Shame

In the following ten case studies, Corporate Europe Observatory (CEO) highlights the alarmingly regressive manner in which the European Commission—in particular EU Trade Commissioner Pascal Lamy and his legion of trade bureaucrats in the EU’s DG Trade—has conducted its affairs on the world stage in the last few years. The case studies show how, in stark contrast to its self-proclaimed goals of “harnessed, equitable globalisation”, the powerful Commission consistently promotes the interests of EU multinational corporations. Behind a veil of sustainable development rhetoric, the Commission pursues a corporate-driven, market-access agenda inimical to the interests of the world’s poor and environmental sustainability.

Soon the world’s trade ministers will gather at one of the most important and decisive trade policy meetings in recent history: the Fifth World Trade Organisation (WTO) Ministerial Conference to be held in Cancún, Mexico, September 10-14, 2003. Trade ministers from the WTO’s 146 member governments will continue the “Doha Round” of trade negotiations begun in 2001 in Doha, Qatar. The goal at Cancún is to set the stage for a final global agreement—provisionally to be completed by the end of 2004—that WTO member governments will then have to implement.

And who will be sharing center stage at this meeting? Europe’s own Pascal Lamy: by day a friend of the poor and environment; by night an aggressive promoter of the corporate agenda. In WTO negotiations, the European Union is represented by the European Commission, and in particular DG Trade. Lamy, trade commissioner since 1999, will lead the European Commission’s negotiating team in Cancún.

The case studies cover a range of topics: the Commission's power abuse inside the WTO, its push for policies which (in effect) kick the development ladder out from under the world's poorest countries, its determination to sacrifice international environmental agreements to further its trade agenda (while simultaneously painting itself a
champion of sustainability), its addiction to undemocratic alliances with big business, and its subordination of civil society opinion to a corporate agenda.

We can expect more of the same from Lamy and his team at Cancún. Given that the European Commission hopes to expand and entrench its neoliberal agenda by forcing an expansion of the WTO’s powers, it is absolutely crucial that Lamy is reigned in at the upcoming Ministerial Conference. EU trade ministers have the power to revise Lamy’s mandate at any moment, including in the run-up to the meeting. A prime opportunity is the EU’s foreign affairs summit in Riva del Garda, Italy, to be held September 5 and 6.

Now more than ever, the European Commission’s role in WTO negotiations must be put in the full spotlight. Global justice demonstrations in Cancún and around Europe will make it known that the EU is being watched and held accountable for its actions.

That the European Commission gets away with promoting its irresponsible policies on the world stage has everything to do with the democratic vacuum in which the EU makes its trade policy decisions. With European unification, significant power over trade issues has been concentrated in hands of the European Commission, while neither the European Parliament nor national assemblies exercise effective control. National trade officials feign innocence by pointing to the political complexity of changing the European Commission’s negotiating mandate, whilst the Commission argues that is simply carrying out the delegated will of the EU member states. Global justice demonstrations in Cancún, all around Europe and the rest of the world will make it known that the EU is being watched and held accountable for its actions.

A coalition of civil society groups from around Europe will gather in Riva del Garda on September 3-6 for the alternative forum titled “The Europe we want”. On Saturday September 6th, thousands will demonstrate in Riva del Garda against neoliberal trade policies. http://www.stopwtoriva2003.org/
Click Above to Return to Index

--------------------------------------------------------------------------------

The Cunning Bully - EU bribery and arm-twisting at the WTO
By Fatoumata Jawara, with contributions from Aileen Kwa of Focus on the Global South, Geneva, Switzerland.
September 2003.
The full, 22-page paper is available in PDF format by clicking on this link.
CEO has also produced a shorter, 8-page summary which draws out the main points from Fatima's paper. This is also available in PDF and can be downloaded from this link.

--------------------------------------------------------------------------------

Corporate Europe Observatory,
Paulus Potterstraat 20,
1071 DA Amsterdam,
Netherlands,
tel/fax: +31-20-612-7023,
e-mail:

Transnational Institute,
Paulus Potterstraat 20,
1071 DA Amsterdam,
Netherlands,
tel: + 31 20 662 66 08,
fax: + 31 20 675 71 76,
e-mail:

--------------------------------------------------------------------------------

LINKS

Corporate Europe Observatory: http://www.corporateeurope.org/

Investment Watch
GATsWatch
Friends of the Earth International
Seattle-to-Brussels Network
Our World is Not for Sale
World Development Movement
Play WTO Bingo!

The Toxic lobby is all powerful in the halls of power in Brussells

by toxic avenger

Tue Nov 11, 2003 17:59

Born into the Chemicals Crisis

Chemical pollution is personal. Even before a baby is born today, it is exposed to dangerous chemicals absorbed by its mother from the environment and passed on in the womb. Everywhere around the world.

Help ensure a Toxic free Future!

Act below to help ensure that the new EU chemicals policy protects future generations against toxic chemicals:

Send an email to the EU Commissioners.
Tell your friends - send the e-card
More cyberactions you can do now

Background:
The world-wide chemicals industry produced 400 million tons of chemicals in 1995. Europe is the largest chemicals-producing region in the world, accounting for 38% of the total. (Western Europe 33%).

The number of existing chemicals on the market is large, but the exact number is unknown. Over 100,000 were registered in the Europe in 1981, but the current estimate of marketed chemicals varies widely, from 20,000 to as many as 70,000. More than 100 new chemicals are added to this every year. (1)

Despite the extensive global production and use of chemicals, our current understanding of the potential toxic effects on wildlife and humans is limited to only a handful of chemicals, namely some persistent organic pollutants and some heavy metals. For 86% of the 2700 chemicals that are marketed in quantities above 1000 tons/year in the EU, there is insufficient or no basic toxicity data at all. In other words, basic understanding of chemicals is limited to around 400 out of 100,000 chemicals.

The chemicals we have extensive information on, like PCBs and DDT, are known to be capable of causing serious negative impacts on wildlife. Effects in wildlife which have been linked to persistent organochlorine contamination range from interference with sexual characteristics to dramatic population declines. And human-kind itself is also contaminated with many toxic chemicals, e.g. organochlorine pesticides, PCBs, brominated flame retardants, plasticisers and byproducts from industrial and combustion processes such as dioxins and furans (2, 3, 4, 5, 15)

There is also evidence to suggest that human health in different parts of the world is influenced by exposure to toxic chemicals. Many disease rates are rising, e.g. cancers, endometriosis, asthma, diabetes and developmental disabilities, and often a link to environmental pollution is suspected. These impacts on health cannot be explained by other causes alone, and their increase mirrors the increase in toxic chemical production, use, and release (6, 7, 8, 9, 10, 11).

Nevertheless, the production, marketing and use of toxic chemicals continues and even increases globally, although it is clear that several of them possess similar hazardous properties to the PCBs and chlorinated pesticides which have been the focus of most attention to date (12, 13, 16).

In essence, our present state of knowledge on exposure to toxic chemicals and their health effects on wildlife and humans is likely to be only the tip of the iceberg. We are taking part in a chemical experiment.

EU Chemicals Policy - Failure by design

The existing system of chemicals regulation in Europe is widely seen to have failed to provide adequate protection of human health and the environment. This is particularly true with respect to the so-called "existing chemicals", i.e. more than 100,000 chemicals which were listed as being marketed in Europe prior to 1981. These chemicals account for 99.99% of the market volume. Although they are on the market since more than 20 years, base toxicity information is available for only around 400 of them. And the information even on the most relevant uses is often insufficient. In other words - we do not know which chemicals are used where and what their properties are. Furthermore, there is the unintentional formation of chemical by-products such as dioxins and furans in a number of processes.

In 1993, the EU adopted Regulation EEC/793/93 on the evaluation and control of the risks of these existing substances. Restrictive action is foreseen only after full risk assessment - until such moment, any existing chemical can be put on the market unhindered.

Until summer 2000, out of the total of 100,000 chemicals, the EU had prioritised 110 substances for full risk assessment. After six years of work, only four risk assessments have been published, and not a single risk reduction measure has yet been adopted as a consequence of the risk assessments.

And further barriers are waiting before any such measures will effectively be implemented, as there is no direct link to the legal instrument which could provide such implementation, and doubtful cost-benefit analyses will be used to question the need for risk reduction. The current system first minimises the scope of action (110 out of 100,000 substances) and then delays it to a maximum (full risk assessment). The system accepts a certain degree of chemical pollution instead of seeking to prevent it. The current system is failing by design.

The failings of the existing chemicals policy have, to some extent, also been recognised by the European Union itself, prompting the ongoing review of key instruments of EU chemicals legislation. With the revision of their chemical policy, the EU now has the opportunity to ensure that the main policy elements will be included to eliminate the manufacture, use and release of toxic substances.

The Way Forward

The need for a revision of EU chemicals legislation has already been highlighted in the Informal Environment Council in April 1998 in Chester, England. This became all the more relevant after the Environment Ministers adopted the generational goal at the OSPAR Ministerial Conference in July 1998 in Sintra, Portugal, where they committed to progressively work towards the cessation of discharges, emissions and losses of hazardous substances by the year 2020. A complete structural overhaul of EU chemicals legislation will be essential to achieve the OSPAR objectives, particularly the effective implementation of the generational goal, which needs to be fully transposed into EU legislation.

A complete structural overhaul of EU chemicals legislation will be essential in order to meet these challenges. Under the alternative, precautionary approach proposed (14):
•chemicals would be regulated on the basis of their intrinsic properties (= hazard) instead of on the basis of risk, with special emphasis on persistence and bioaccumulation
• chemicals would be permitted for use for limited periods and specific uses instead of just notified
as a precondition for permission for use, the following information would be required to be made publicly available:

- Within one year of entry into force of new legislation:
~ total production and/or marketed volumes (yearly update)
~ actual applications for >90% of total production/marketed (yearly update)
~ the presence of additives or contaminants in the chemicals as produced or marketed

- Within three years of entry into force of new legislation:
~ hazard identification and evaluation for high production volume or high market volume chemicals (>1000t/year)

- Within five years of entry into force of new legislation:
~ hazard identification and evaluation for remaining chemicals (90% of total production/marketed (yearly update)
~ the presence of additives or contaminants in the chemicals as produced or marketed

- Within three years of entry into force of new legislation:
~ hazard identification and evaluation for high production volume or high market volume chemicals (>1000t/year)

- Within five years of entry into force of new legislation:
~ hazard identification and evaluation for remaining chemicals (

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