The Dark Side of the Lisbon Treaty

Hooray! Today’s the day that the Lisbon Treaty finally comes into effect in the European Union! As a result, the Union’s operations will from now on supposdly be more transparent, more effective, and more democratic. Those, at least, are the three elements that made up the principal content of the Laeken Declaration issued by EU leaders at their summit in December, 2001, in which they noted how the actual operation and accomplishments of the Union had become disappointing to so many, and so called for the setting-up of a convention to consider what could be done about that.

Inevitably, there remain many within the boundaries of the EU who go beyond mere disappointment to an outright rejection of that process that began at Laeken (that’s in Belgium, by the way) and ended up, through many twists and turns that included a rejected EU Constitution, with the Lisbon Treaty. Most prominent in this regard are the Czechs, if only because Czech president Václav Klaus was the last obstacle to the ratification of that treaty, holding out until only one month ago. Klaus was finally forced to knuckle under, but Czech anti-Lisbon opinion will not let this day pass without at least one more loud cry of protest. Thus it is that we get this article in today’s on-line edition of the Czech daily Lidové noviny. (Those signs brandished in the photo up top read “We want a Europe of free nations” and “We don’t want EU vetoes/prohibitions”; and the Czech word “dost” that’s also there simply means “enough.”)

That this sort of piece should appear on is no surprise, since that newspaper – otherwise quite a mainline Czech broadsheet worth recommending, by the way – has through the years consistently provided a platform for the writings of Václav Klaus, whether in or out of power. This time it’s not Klaus himself who wrote the article – he’s still president, after all, so that would truly be rather too awkward – but instead one Michal Petřík, an advisor to President Klaus.

Petřík spends about the last third of his piece delivering rather thick Czech legal prose seemingly designed to prove either that the country’s supreme court was wrong to dismiss a last-minute appeal to it that the Lisbon Treaty is incompatible with the Czech Republic’s constitution, or that the final concessions granted to the Czechs to get them finally to sign (involving certain derogations from the EU’s Document of Fundamental Rights) were actually not forthcoming – or both, it’s hard to make out. But many of his points from the first part of the article are actually relevant and well-taken.

Complaints against the Lisbon Treaty? Anyone who has been paying attention at all over the past eight years, whether they are otherwise for the Treaty or against, can surely come up with a few. Yes, when the ratification process for the EU Constitution hit a dead end with its rejection in the French in Dutch referenda of mid-2005, what ultimately happened was that most of its provisions were simply re-packaged in a “treaty” form that would have a lower threshold for ratification. And yes, where that subsequent threshold still required a national referendum and that referendum result turned out to be “No” (as in Ireland), those same electors were inevitably offered another chance to vote “correctly.”

Petřík does deal here with that first point (although, surprisingly, not with the second), but he also reminds us of other objections:

  • That Laeken Declaration that started things rolling: it didn’t call for any new constitution! It simply called for a convention of prominent European politicians and thinkers to get together to think up ways to improve the EU’s functioning, transparency, and degree of democracy. But this initially rather unambitious and limited aim was obviously hijacked into becoming something quite a bit more.

  • Something I had forgotten: the new EU members – i.e. the ten who joined in 2004 and then the additional two in 2007 – really never had any true input on the constitutional process whose result they were later going to be asked to adhere to. That is mainly because they were not yet actual member-states when most of the content of the EU Constitution was being hammered out, generally at that constitutional convention that did get up and running. (They were only permitted to send rather powerless observers to it, whose role was to listen rather than do any talking.)

    So what? you may ask. Well, it should follow that, with the derailment of the EU Constitution process in the wake of the French and Dutch referenda, those new member-states should have regained the full opportunity to judge for themselves the proposed Union re-structuring as the process dragged on – yes, even to object to it if they did not like what they saw, even to dare to be the one state that refused to ratify (as in the Czech Republic) and so that would sink the process the second time around. Instead, the propaganda-line was developed that all the 25 governments making up the EU (at the time) were in favor of pushing through the proposed changes, that the only things in the way were the somewhat misguided French and Dutch electorates. And those changes were pushed through . . .

  • . . . despite the “period of reflection” announced by EU Commission President Jose Manuel Barroso after the French and Dutch referenda defeats to give an impression of EU officials’ new chastened willingness to listen to the concerns of ordinary citizens. In actuality, that time involved rather little “reflection,” but instead fevered thinking about what new path to take to finally successfully attain the desired end-state of having those constitutional changes implemented. That path, as we know, involved relabeling the body of those changes as just a “treaty,” rather than a “constitution.” But it also involved the calculated waiting for a suitably strong and motivated EU presidency to come along to pick up the ball and get things moving again, in what turned out to be the form of the German EU presidency of the first half of 2007, which at the end of its term ensured the adoption of a “mandate” for an intergovernmental conference to meet during the next presidential term, held by Portugal, and launch the new “treaty” on its way. That duly occurred, at the routine end-of-presidency EU summit held by the Portuguese government on 13 December 2007 at Lisbon.

To summarize Petřík’s message: If you had a sneaking suspicion that the ratification of the Lisbon Treaty over the past couple of years has been subject to a bit of official EU manipulation to ensure that it succeeds, well, you really don’t know the half of it! And, although they do smack of “sour grapes” from those who tried to fight and keep the Treaty from ever being implemented at all, these arguments are still worth recalling even on the very day, today, that it does come into force. They don’t make a pretty picture.

Maybe the most that can be said in response by someone (such as this blogger) who believes that the Lisbon Treaty changes were needed for the EU to be able to function reasonably well in a challenging world, trying to blend the interests of 27 member-states, is that the US Constitutional Convention, back in 1787, also went far beyond its initial mandate, which was only to revise and improve the Articles of Confederation in effect as the law of the land in the newly-independent United States of that time. Given the more-primitive public communications means of that day, it could even be asserted as well that that Constitution was hardly ratified by the fully-informed consent of the citizens in whose name those at the Convention – and then those at the individual state ratifying conventions – claimed to be acting. What is more, that Constitution had a number of serious flaws, such as the sanction it gave to slavery and its lack of clarity over whether a state could secede, that would only be settled later by the outpouring of copious amounts of blood. (Indeed, it may even have various serious flaws today, such as the notion of the Senate filibuster – but that’s certainly a discussion for another time.) That de facto EU Constitution going into effect today no doubt has quite a few serious flaws as well – how will they be corrected?

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