28 March 2012
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The rhetoric of transparency and public debate in the EU
by Deirdre Curtin
One of the main victims of the failure of the Constitutional Treaty on the EU and its replacement by the new 'Basic Treaty" is transparency and its counter?part public debate. However ones views can differ as to whether it was wise politically to hold a referendum on the issue in the Netherlands one cannot deny that there was public debate on various issues relating to the European integration process as a result. As the Dutch Council for Scientific research put it in a report earlier this year, Europe in the Netherlands, "in the run?up to the referendum the EU was for the first time in history the subject of discussion in the hairdresser, in the pub, newspaper and the public and commercial broadcasting channels" (authors translation). Before that the Constitutional Treaty was the product of a "Convention" that discussed and deliberated largely in the open and with input from a broad range of actors, including substantial delegations from national parliaments.
Precisely because of this recent history the manner in which the new 'Basic Treaty" has been rushed through behind closed diplomatic doors is poignant. National parliaments were consulted as far as I can see only on the mandate for the new inter?governmental conference that started on 19 july 2007. This detailed mandate was contained in a document of the German presidency setting out the main lines of the to be drafted new treaty dated 19 June 2007. According to the European Scrutiny Committee of the House of Commons those representing the UK at the European Council meeting in Brussels less than 48 hours later "did not see the draft IGC mandate until 5pm on 19 June". Presumably this was also the case for their Dutch and other national counterparts. Less than 48 hours later this "draft IGC mandate' provided the basis for discussion and agreement at the European Council meeting. On 25 june the Dutch parliament (tweede kamer) was informed of the final mandate and the agreement reached on the immediate convening of an IGC.
In other words a process that had taken two years, of shock and reflection, was bounced into the European Council in two days, with no time for consultation with national parliaments, not to mind public debate. The IGC mandate was in itself relatively incomprehensible to all but relatively expert insiders as it simply lists subjects and articles for revision and insertions (of existing Treaties). It was only a month later, 25 July, that at the first IGC meeting the Portuguese Presidency presented a draft text of the entire Reform Treaty, article by article (available in French only initially). On 30 July 2007 an initial draft text on the Basic treaty became available in English (although not other languages it seems, at least these language versions are not available on the Councils dedicated web?site). At no stage was a consolidated text made available by the IGC including the two existing Treaties as amended by the new Treaty. In other words the substance of what was being proposed was hidden in an extremely complex and convoluted outer shell, at best comprehensible to a small group of specialists.
Given the sitting terms of national parliaments they have only rather recently been able to respond ?and then only on the original mandate for the IGC. In the UK for example the House of Commons Select Committee only on 9 October published a quite critical report on the mandate and UK White Paper. In the Netherlands the Dutch Council of State (Rand van State) in its advice of 12 September did not take into account the draft Basic treaty text of 23 July 2007, only the IGC mandate. When the Dutch parliament (Tweede Kamer) debated this advice in early October the reference point was still the IGC mandate as such.
In the meantime the clock had not stood still nor indeed the work and progress made by the IGC and in particular its group of legal experts who had been busy for a two month period putting the broad provisions into precise legal wording and text and cross?checking for inconsistencies, overlaps and redundant provisions. On Friday 5 October the Council finally made available through its web site an updated draft of the new basic treaty including all the protocols and declarations, "resulting from technical negotiations" in the Council's own words.
The compressed timetable is that this is the text that will be discussed ? and presumably agreed?at the European Council meeting to start on 19 October. National parliaments had barely two weeks to debate the outcome of the "technical negotiations" and to give very clear indications to their government as to what they do not wish to see included on the basis if an actual treaty text. If the ongoing process of steamrollering is anything to go by this draft of 5 October is what will be agreed to by the heads of state and government European Council in Brussels on 19?20 October. Once agreed it will be very difficult for national parliaments to play any role of meaning or substance. Other than to say 'yes' or 'no'.
Is there anything new in the 154?page treaties text plus 76 pages of protocols plus 25 pages of declarations? Yes! In particular there are amended protocols (which are legally binding and an integral part of the Treaties to which they are attached) largely concerned with the opt?ins and opt?outs that certain Member States managed to negotiate for themselves over the course of the past weeks (mainly the UK). The devil is as always in the detail: hidden away in a new protocol, number 10 on "transitional provisions", there is a new general provision that excludes the full jurisdiction of the European Court of Justice for a five year period as and from the date of entry into force of the new treaty (expected in 2009 plus 5= 2014) for " acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force" of the new treaty. From the perspective of the citizen this prolongation of the status quo and the very fragmented and partial jurisdiction of the Court is less beneficial than what had been regulated in the Constitutional Treaty and what was indicated in the IGC mandate.
With the publication of this very complex treaty amendment text barely two weeks before the European Summit that should agree on its adoption there was quite simply no more time for information and public debate. Of course on the one hand this follows from the method of the IGC that decisions are taken behind closed doors. On the other hand the recent history of the EU and the progress already made on more transparency and public debate than hitherto makes it all the more regrettable that this IGC was so secretive and so rushed. And national parliaments have been entirely sidelined.
Deirdre Curtin Professor of International
and European Governance University of Utrecht
Statewatch Bulletin; vol 17 no 3/4 October 2007
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