аЯрЁБс>ўџ BDўџџџAџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџџьЅСgПz=jbjbˆРˆР.NтЂтЂz9џџџџџџ]zzzzzzz66666J$6” ъ‚‚‚‚‚‚‚‚Q S S S S S S ,~ єr4 z‚‚‚‚‚ nzz‚‚‚nnn‚z‚z‚Q ŽTтTzzzz‚Q nОn,:‹ МzzQ nяЅёЙ66оG Perspectives of the Nice Treaty and the Intergovernmental Conference in 2004, Dimitris Melissas / Ingolf Pernice (eds.),European Constitutional Law Network – Series, Vol. 1, Baden – Baden: Nomos Verlagsgesellschaft, 2002 Nice – or a reflexion upon the difficulties to progress in the European integration under the present iron law of oligarchy Antonio Lѓpez Pina Jean Monet Chair of European Legal Culture Universidad Complutense, Madrid. Spain Athens, 26-27 January 2001 Nice should have consolidated the legal framework for European integration in order to facilitate the entry of new countries. Demands were high. Let us examine the results. The Spanish viewpoint regarding the agreements The Treaty of Nice places Spain, at last, in her rightful place in Europe: among the great powers! Spain is now a great country, as the president of the government stated to the Congress of Deputies. Spain has achieved the fundamental aims she had set herself, and on January 1, 2005 she will find no obstacle or condition to tackling, with complete confidence in herself, on the one hand, enlargement, and on the other, the Intergovernmental Conference which from 2004 onwards will deal with the distribution of competences. With the conclusion of the institutional reform of the Council and the Commission, the European Union overcomes the last barriers to its enlargement to the East and to the Mediterranean. Spain went to Nice with three aims: - Firstly, to achieve a new weighting of votes in favour of the five most populated countries. Spain regarded this as a vital issue, in order to have sufficient votes when matters were being negotiated which were to be decided by qualified majority vote. For Spain, the outcome has been highly satisfactory, since its votes have been multiplied by 3.37%, whilst Germany, France, the United Kingdom and Italy have obtained 2.9% and small and medium-sized countries in a proportion of from 2 to 2.4%. From previously having eight votes in the Council out of a total of 87 (that is 9.2%), on January 1, 2005 Spain will have 27 votes of a total of 237 (that is, 11.4%). For the first time in the history of the Community Spain will be considered a great country; Spain will be able to constitute a blocking minority with the same force and effects as Germany, France the United Kingdom and Italy. - Secondly, to retain unanimity for significant decisions in the short term. So, Spain managed in Nice to maintain unanimity for a) approval of future financial prospects, from January 1, 2007 onwards and b) the approval of the corresponding interinstitutional agreement (to be signed between Commission, Council, and European parliament). Until the financial outlook and the interinstitutional agreement are approved, there will be no majority decision on the structural funds and the cohesion fund. Such a formula, accepted with gritted teeth by the net contributor countries- will enable Spain once more to obtain important financial transfers in the form of economic and social cohesion-9 billion pesetas for 2000-2007, in accordance with the European Council of Berlin. - Thirdly, to maintain unanimity in important subjects. Spain has achieved that the unanimity requisite has been kept for a) questions such as fiscal matters, social security, and social protection and b) in some environmental questions such as land regulation, and management of water or sources of energy supply So much for the official Spanish address. Were we to believe my government, thanks to Spain, as Pangloss would say, we find ourselves in the best of all possible worlds! 2. The Nice path towards the federal Union One can come to Athens, to this working session with you, to acquaint you with and defend the Spanish government version of Nice. Or, instead, one can turn up as a member of the European brotherhood of jurists (as a homage to Peter Hфberle), and, then, things look somewhat different. Making an improvised balance one can say that Nice has served to deny that the alternatives are as simple as to win or to loose. As is de rigueur in European summits, Nice gave out contradictory signals regarding the future: once again a compromise was reached between integrationist forces, henceforth to be called federals, and centrifugal ones. 2.1 Gains of the federal forces The battle between European integration and the idea of Europe as a free exchange area was decided in favour of the federals. Germany yielded to French opposition, and graciously accepted not to increase its number of votes compared to the rest in majority decisions. The total votes of the six original member states of the European Community are 117, that is 51%. There is a long-standing tradition of agreement among them. If, as is to be expected, Spain, Austria and Portugal align with them, there is no doubt as to the direction which the construction of Europe will follow - even in terms of the federal distribution of competences proposed by Germany. The English-Scandinavian bloc, albeit victorious in general during the nineties in terms of market expansion and the principle of free competition, is, on the other hand, weaker when voting in the council. This dividing line is henceforth going to have more clout than the one separating large and small states. Nor should we fail to learn either from the fact that in the report to the House of Commons Prime Minister Blair used a more pro-European language than usual; or, that he has accepted both the European Rights Charter, when, if he had had anything to do with it, it would never have seen the light of day, and the 2004 intergovernmental Conference, despite his manifest opposition to holding it before the first enlargement. A whole series of advances can be highlighted in the maze of outcomes: - Gratitude is owed to France for preserving - for everyone- the European idea of public services- article 133 TCE has been kept and, consequently, culture and audiovisual production, education, public health, social services and intellectual property are not to be considered as goods. - The attention given to reinforced cooperation (arts. 11, 43 to 45 TUE) confirms the willingness of the majority of states to make progress in integration. - The statute of the European corporation has been approved after thirty years of negotiations –but still does not clear up the uncertainty as to whether it has been a success for the public interest in general in the production and distribution of goods and services, in the face of Blair’s schemes, in cahoots with the London Stock Exchange, to make companies give prime consideration to the short-term interests of their shareholders. . - The Europe of Defence has been endowed with a 60,000 strong rapid Intervention Force to act in times of crisis - this also means a significant beginning. Until the European Court has given its verdict on the connection between the European Rights Charter and arts. 6.2 and 46 d TUE no-one should claim victory regarding its lack of normative force. 2.2 Federal dreams under control Thus dazzled by the lights of Nice, it would be naяve of us to ignore the shadowy parts; in plain language we have witnessed the staging of a triple-barred law of oligarchy of the Heads of State and Government who, enjoying political immunity in the European councils, gerrymander vetoes and concessions as if they were their own private property. For example, regarding the right of Asylum and legal regulation of immigration, (arts 63, 67, 251 TCE), fiscal matters (art 93, 175 TCE), social security (art 137 TCE), economic and social cohesion (arts 159, 161 TCE), the environment (arts 2, 3, 6, 175 TCE) certain states would have kept at all cost their right to veto against general interests. France, would, indeed, have sacrificed on the altar of particular national interests their plan to make of the co-ordination of economic policies (arts 99ss, TCE) the government which Europe so badly needs. Facing the raising by our princes of such barriers to the Union of equally free citizens we wonder, a) If the refusal to reduce the number of commissioners, regarded as representatives of each national government, does not go against the plan of the founding fathers of the Commission for it to be a body that initiates legislation and to have a European vocation transcending national interests. The first padlock b) If, in a territorial chamber, such as the European council really is, guarantees for minorities would not require a weighting of votes which is not so disproportionately unfavourable to small states. Second padlock c) If, however much changes in the distribution of seats according to population means less unequal voting, we do not manage to leave behind the national phase in the makeup of the European Parliament. Third padlock. Such questions affect the basics of European construction, and raise questions of principle. Dilatorische Formelkompromisse (delaying compromises) Whether it is a question of economic and social cohesion, fiscal matters, Commission reform, etc the only possible agreement has needed the concession by the majority of more or less extended time periods. The results are ambivalent, since, if on the one hand, a progressive rationalisation and integration by stages is achieved, on the other, blocking of progress in integration is institutionalised for several years. Overwhelming particular interests and defence of the principle of balance of power against general interests. Without prejudice to the possibility of counting from now on greater European integration than under the Amsterdam Treaty, in Nice, the heads of State and of Government have made a welter of corporate statements (the factions of The Federalist Papers) on behalf of particular interests which separate us Europeans and the precarious intraeuropean balances of power (Fischer), above general interests which unite us. Speaking frankly: for example for how long are we going to agree to the cancellation of social responsibility of property and the bankruptcy of fiscal morality so as not to trouble capital? For what reason must we recognise the higher value of the fiscal opacity of the London Stock Exchange or Luxembourg’s status as a tax haven? Leaving aside the obvious historical differences between the present day and the American War of Secession, the arguments put forward by the representatives of the particular interests of England and Luxembourg recall the old days of the Southern defence of slavery in that it provided, it was said, the economic basis of the southern states. When, on the contrary, how good it would have appeared if, during the long days and nights of the summit, somebody had referred to the link in sense between institutional reform and the brand-new European Charter of Rights. The Heads of State and Government as private lords of the Treaties. We have been present at a ceremony to maintain States as Lords of the Treaties and, thus, their Heads of State and government. These have unfolded their own vision of Europe as a private contract for promoting their respective interests. We are lacking in reasons to give the lie to those who argue that reform of majority voting in the Council, the refusal to reform the Commission and the redistribution of seats in the parliament are, not, as a last resort, simply a cosmetic change in the positions of power in the state itself and in the European Council - that is, no more than window dressing of the conversion of the European Union into a private fiefdom and the privatisation of Public Law, scorning aspirations of solidarity and equal freedom for all. But the triple bar effect has not run its course in what we have said above. Simply, the States, lords of the Treaties, have not carried out in Nice the task they had set themselves, and I am by no means sure that when the reform of the Union Treaties comes into force it will have the organisation ready to make enlargement effective. A confused political order. We shall have to see what type of confused political order may be the result when we move from a European Community initially conceived as a functional organisation for the achievement of the common market (H.P. Ipsen, 1972) to a European Union as a political integration regime (Maastricht, 1992; Amsterdam, 1997; Nice, 2000), without changing the Treaties’ reform procedure. The institutional balance of powers , however much it may be intermittently operative in isolated episodes in which either the European Parliament or the Justice Tribunal is the protagonist, is no less an obsolete model, for which the time and place were the period prior to Political Union and the Brussels which since Maastricht (1992) we have left behind. 3. An alternative law policy: Europe for its citizens! Finally just a few words as to the direction in which an alternative law policy should proceed. Precisely because the Nice commitments are too reminiscent of the old deutsche Bundesakte of 1815 and because the Heads of State and Government who are so familiar to us are convinced that they are Staatsfќrten, it must be pointed out that the private interests represented by such personalities do not have too much to do with the general ones; consequently, we must declare as Ancien Rшgime, for once I am ready to accept for it the name of enlightened despotism, the Political Union of Maastricht, Amsterdam and Nice. Admiring the wisdom of the founding fathers, of the American Constitution, Tocqueville emphasised that only the citizens make a Union a political community above territorial interests! Even more, in Europe, only the citizens can cause the padlocks of private-national interests to be broken in the balance of power that really exists. If we think that codifying the shareout of competences between regions, States and the Union and a Constitution should follow and never precede full political rights for the citizens, it is high time that peoples’ constituent power should be under way. Indeed, the inversion of the dominant private logic and the alternative logic of public representation presents a challenge to us lawyers to define procedures and draw up mechanisms to provoke it. But, if European heads of State and Government have, in spite of their contradictions, been able to agree on the type of balances of power and compromises which enable us to make stumbling progress towards integration, for what reason should European lawyers, distrained in our mission under the lead of Dimitris Melissas and Ingolf Pernice, not continue to view Europe as an alternative hope in a new historical phase of enlightenment? 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