PG3 THE EU CHARTER

OF FUNDAMENTAL
RIGHTS -
UNIFORMITY V
PLURALISM

PG11 LIMITING
FUNDAMENTAL
RIGHTS IN THE
A PUBLICATION OF THE INDEPENDENCE / DEMOCRACY GROUP ISSUE 10 - FEB/MAR 2008 INTERESTS OF THE
MARKET

PG14 THE CHARTER OF

FUNDAMENTAL
RIGHTS AND THE
BENEŠ - DECREES

PG18 THE BENEŠ

DECREES - A
BOOMERANG
ISSUE?

PG20 WHAT WILL

REMAIN OF THE
FRENCH 1789
HUMAN AND
CITIZENS’ RIGHTS?

PG22 FUNDAMENTAL
RIGHTS AND
FREEDOMS: THE
DAWN OF AN
UNPRECEDENTED
LEGAL REVOLUTION

PG25 THE IMPACT OF

THE CHARTER OF
FUNDAMENTAL
RIGHTS: AN
THE IMPACT INTERVIEW WITH
PROFESSOR HUBER

OF THE EU´S PG27 AN UNSETTLED

REFERENDUM
DEBATE

CHARTER OF PG32 THE BEST DISCIPLE

HUNGARY? TWO

FUNDAMENTAL QUESTIONS TO TWO

HUNGARIAN MPS

PG33 OPINION -

Source: European Community

RIGHTS FREEDOM IN THE
‘UNITED STATES OF
EUROPE'

Independence/Democracy Group www.indemgroup.org PG38 EUROPE IN

European Parliament, Rue Wiertz, 60 - D4 02 M055 - 1047 Brussels, Belgium NUMBERS
2

Letter from the editors

Dear “EUWatch” reader,

The Treaty of Lisbon inserts a new Article 6 into the Treaty on European Union
(TEU) which stipulates that the Union “recognises the rights, freedoms and
principles set out in the Charter of Fundamental Rights of the European
Union” and that this Charter “shall have the same legal value as the
Treaties.”
EUWATCH
- What does this mean for the new Union as shaped by the Treaty of Lisbon? Published by the IND/DEM Group
- Will the Charter extend the field of application of Union law or establish new in the European Parliament
powers or tasks for the Union? EUwatch@indemgroup.org
- Are specific national provisions, such as the Czech Republic's Beneš Decrees Ind/Dem Group, Rue Wiertz,
compatible with the Charter? 1047 Brussels
- Will the citizen benefit from a more efficient and coherent fundamental rights
CHIEF EDITORS:
protection or will, on the contrary, traditional national human rights be at Klaus Heeger
risk? Karoly Lorant
- Will this Charter and the Union’s accession to the European Convention on
Human Rights (Article 6.2 TEU) raise competence and demarcation issues EDITORIAL BOARD:
concerning the scope of the Charter, its relationship with individual Member Peter Henseler
States’ Constitutions and the European Convention on Human Rights? Jan Johansson
- May this lead to a lack of legal certainty and hence to a confusion of law
DESIGN & LAYOUT EDITOR:
and/or powers which will tend to detract from the notion of improving Henry Abela
protection of fundamental rights?
- Who will be responsible for interpreting this Charter and which Union ENGLISH LANGUAGE EDITORS:
principles, e.g. those of the single market, might limit the rights set out in the Kevin Bonici
Charter? Anthony Coughlan

FRENCH LANGUAGE EDITOR:

These are the main questions addressed by the various contributors from the
Christophe Beaudouin
Czech Republic, Ireland, France and Germany.

While other articles focus on the “unsettled” referendum debate in Austria and
on Hungary’s “precipitous” ratification of the LisbonTtreaty, “Europe in
Numbers” takes a critical view of the actual benefits of monetary union.

Hoping that you will enjoy reading our contributions and looking forward to
receiving whatever comments or reactions you may care to give us, we remain,

Yours faithfully,

Klaus Heeger Karoly Lorant

Chief Editors
 3

THE EU CHARTER OF FUNDAMENTAL

RIGHTS - UNIFORMITY V PLURALISM1
1
Note: This article refers to the EU Charter of Fundamental Rights in the context of the original EU Constitution, but it is
reproduced in this EUWatch issue as being equally relevant at present, since according to the Treaty of Lisbon the Charter of
Fundamental Rights will have the same legal value as the EU treaties

IN HIS ARTICLE, BRENDAN O´CONNOR ARGUES AMONG OTHERS THAT THE PUTATIVE
RESTRAINTS ON THE EXTENSION OF UNION LAW VIA THE CHARTER MAY NOT PREVENT THE ECJ
FROM DETERMINING PARTICULAR CHARTER RIGHTS TO BE PART OF THE FUNDAMENTAL RIGHTS
OF THE UNION WHICH IT PROTECTS ON ITS OWN AUTHORITY AND THAT THE SUBSIDIARITY
PROVISIONS OF THE CONSTITUTION ARE UNLIKELY TO BE SUFFICIENT TO RESTRAIN THE
CENTRIPETAL TENDENCY OF FEDERAL STRUCTURES VIS-À-VIS MEMBER STATES.
INTRODUCTION from determining particular Charter rather than the imposition of an
The Charter of Fundamental Rights rights to be part of the fundamental unworkable and inherently
of the European Union (“the rights of the Union which it protects substandard uniformity.
Charter”), originally formulated at on its own authority;
Nice in 2000,2 is now incorporated as the subsidiarity provisions of the LEGAL RESTRAINTS
Part II of the proposed Treaty
Establishing A Constitution For
Constitution are unlikely to be
sufficient to restrain the centripetal
ON THE CHARTER
Europe, agreed at the Inter- tendency of federal structures vis-à- Article II-51(1) says that the Charter
Governmental Conference of the vis member states; is “addressed to the Institutions,
European Union on 18th June 2004 a code of fundamental rights bodies and agencies of the Union …
(“the Constitution”)3. The Charter is requires a shared set of values in and to the Member States only when
to be interpreted in accordance with society, which in the case of the they are implementing Union law.”
“the explanations prepared under Charter does not exist; Article II-51(2) asserts that the
the authority of the Praesidium of the Charter encourages judicial Charter does not extend the field of
the Convention which drafted the activism, without any democratic application of Union law or establish
Charter”4 (“the Explanation”)5. The safeguards, which is a very any new power or task for the Union.
Constitution also provides (Article I- unsatisfactory way to resolve Article I-7(2) says that “Such
7) that the Union “shall” accede6 to controversial issues of social policy accession [to the ECHR] shall not
the European Convention for the and public morality; affect the Union’s competences as
Protection of Human Rights and the provision permitting the defined in the Constitution.” These
Fundamental Freedoms (“ECHR”)7. limitation of all fundamental rights provisions clearly address member-
in the Charter reveals important state concerns that the formal
The proposed Constitution conceptual flaws at the heart of the incorporation of these fundamental
categorically asserts the supremacy project; rights provisions into the
of all European Union law over the Charter supports controversial Constitution would greatly expand
national constitutions and domestic values such as rowing back on the the reach of EU law. The Explanation
law8. The inclusion of a dual human abolition of the death penalty, giving does not address the implications of
rights code, with full legal effect, priority to industrial strategy over proposed accession of the EU to the
would prima facie give it the stamp human life in embryo research and ECHR but expresses confidence that
of a truly federal constitution for the legal recognition to diverse forms of Article II-51 will prevent
European Union9. Unless adequately marriage and family; encroachment on member states’
restrained, the doctrine of legal the addition of federal layers to jurisdictions: “the incorporation of
supremacy (already asserted by the the adjudication of human rights the Charter into the Constitution
European Court of Justice under the would add substantial delay and cannot be understood as extending
early treaties10) would allow the new expense to the vindication of the by itself the range of Member State
Union rights law to displace national rights of the citizen, which would action considered to be
provisions in highly sensitive areas of normally favour the powerful over “implementation of Union law”.
social policy and public morality, the weak; These assertions cannot simply be
unrestrained by democratic juridical competence in the taken at face value. An
accountability or control. protection of fundamental rights can understanding of the fundamental
and should be expressly reserved by rights jurisprudence developed by
The following discussion argues that: the member states when ratifying the ECJ is important in assessing its
the treaty; likely approach to the Charter.
the putative restraints on the ECJ policy should be directed to
extension of Union law via the the management of a healthy
Charter may not prevent the ECJ pluralism in fundamental rights Continues on page 4
4
THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 3
Article I-7(3) states clearly that
“Fundamental rights, as guaranteed
by the European Convention for the
Protection of Human Rights and
Fundamental Freedoms, and as they
result from the constitutional
traditions common to the Member
States, shall constitute general
principles of the Union’s law.” In
Cinéthèque11 the ECJ expressed the
normative statement about human
rights as an Institutional duty: “It is
the duty of this Court to ensure the
observance of fundamental rights in
the field of Community law”. This
case is significant because it belongs
to the pre-SEA, TEU era, namely to an
era in which fundamental human
rights were not explicitly mentioned
or even alluded to in the treaties. The
duty which the Court imposed on
itself did not relate to an explicit
objective laid down in a treaty, but
was deemed by it to be necessary to
enable the Community to carry out its
functions. Respect for and protection
of human rights were thus conceived
as an integral, inherent, transverse
principle forming part of all
objectives, functions and powers of
the Community.
The attitude of the ECJ to the Charter,
in the period after it received a
political endorsement from the heads
of government (while devoid of any
legal status), was consistent with this
approach. In Case T-112/98,
Mannesmannröhren-Werke AG v
Commission, the applicant invoked
the new Charter, but the Court of First
Instance ruled against it (20th February
2001): “As regards the potential
impact of the Charter, to which the
applicant refers, upon the assessment
of this case, it must be borne in mind
that that Charter was proclaimed by
the European Parliament, the Council
and the Commission on 7 December
2000. It can therefore be of no
consequence for the purposes of
review of the contested measure,
which was adopted prior to that
date.” That early rejection, however,
was based on the date of the cause of
the action, not on any inadmissibility
of the Charter. The pattern in many
subsequent cases has been that the
Charter is regularly cited as
confirmation of the inclusion of a
particular right in the general body of
fundamental rights, which the Court
that the potential scope of future
Union law is as wide as the objectives
If the ECJ already of the Union - see also Article I-9(2).
uses a Charter with Article II-51(1) says that “The
provisions of this Charter are
no legal standing as addressed to … the Member States
a key reference only when they are implementing
Union law.” That begs the question as
point and a source to what will be found to come within
the scope of the new Union law.
of guidance for the Article II-51(2) provides “This Charter
protection of does not extend the field of
application of Union law beyond the
unspecified powers of the Union … defined in the
fundamental rights other Parts of the Constitution.”
Again, the question is begged as to
which have no what powers the Constitution will be
found to confer on the re-invented
treaty basis, it is Union. The Article II-51(2) restraint
reasonable to may be circumvented if the other
Parts of the Constitution (e.g. the
suppose that it will Union’s values and objectives in
not easily allow Articles I-2 & 3 and the “general
principles of law” in Article I-7(3)) are
ambiguous found to contain the legal authority
for such Union powers as may be
provisions in Article necessary to enforce particular
51 or 52 to prevent Charter rights.
Article II-9 commits the EU to protect
it from further the right to marry and the separate
expanding this right to found a family (whether or
not based on marriage),15 Article II-14
jurisdiction if the protects a right to education, Article
II-34 a right to social security and
Charter becomes Article II-35 a right to health care. Is
legally binding the Charter’s commitment to protect
and preserve such rights
has already taken upon itself to comprehensible if it is directed to EU
protect. It is read12 as a compendium institutions (which provide no such
of shared Union values and benefits) or to member states only
fundamental rights13. In I v The United when implementing Union law (in a
Kingdom (Application no. 25680/94), narrow sense)? The inclusion of such
the European Court of Human Rights rights in the Charter must invite a
(ECtHR) also cited Article II-9 of the presumption that they have some
EU Charter to confirm its argument legal effect. The Charter does not
that the modern understanding of claim otherwise. It says in fact that
Article 12 ECHR has changed, such these rights have effect when and
that marriage of a “man and woman” insofar as they arise in connection
no longer means what it used to with, or as concomitants of, other
mean14. provisions of the Constitution. The
Explanation goes no further than to
If the ECJ already uses a Charter with say that the Charter does not of itself
no legal standing as a key reference impose a pro-active obligation to
point and a source of guidance for the promote policies not elsewhere
protection of unspecified identified in the Constitution16. This
fundamental rights which have no would not prevent the ECJ (pace
treaty basis, it is reasonable to Cinéthèque etc.) from giving effect to
suppose that it will not easily allow a fundamental right identified in the
ambiguous provisions in Article II-51 or Charter if that right was deemed
52 to prevent it from further already part of the “general
expanding this jurisdiction if the principles of law” of the Union17.
Constitution is ratified. The
‘flexibility clause’ (Article I-17) shows Continues on page 5

THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 4
This in turn would suggest that issues
previously not considered matters of
Union law may in the future be so
designated by the ECJ. The question
therefore arises whether the
restraints proposed are likely to be
adequate to achieve the desired
result.
SUBSIDIARITY
We should learn the lessons of
history. The American Constitution
was drafted precisely to define and
confine the powers conferred on the
federal legislature and, conversely,
to protect and safeguard the powers
and prerogatives of the constituent
state governments. The Ninth and
Tenth Amendments were designed to
further many (if not most) of the
same goals as the Constitution’s
doctrine of “subsidiarity.” The Ninth
Amendment to the US Constitution
states that the “enumeration in the
Constitution, of certain rights, shall
not be construed to deny or
disparage others retained by the
people.”18 The Tenth Amendment, in
turn, provides that all powers not
delegated to the federal government
“are reserved to the States
respectively, or to the people.”19 But,
while unquestionably adopted to
preserve the same range of
subsidiarity interests as Articles II-51
and II-53, the Ninth and Tenth
Amendments have not protected
state governments (and their
constitutions) from the wholesale
expansion of federal power. The
United States Supreme Court
eventually abandoned as artificial
and impractical the attempt to police
the division of powers.20
A similar dynamic is evident in the
jurisprudence of the European Court
of Human Rights. Despite the clear
statement that “Nothing in this
Convention shall be construed as
limiting or derogating from any of
the human rights and fundamental
freedoms which may be ensured
under the laws of any High
Contracting Party or under any other
agreement to which it is a Party”,
Article 53 ECHR has not effected “any
constraints on the ECtHR’s dynamic
and teleological style of
interpretation.”21 Rather, the court
“has on several occasions discovered
or stipulated inherent rights” even
when they seemingly conflict with
national constitutions.22 A clear
indication of the impatience of the
ECtHR with the restraint implied in
the notion of subsidiarity may also be
gleaned from the following passages
from Christine Goodwin v. The United
Kingdom (Application no. 28957/95):
“In accordance with the principle of
subsidiarity, it is indeed primarily for
the Contracting States to decide on
the measures necessary to secure
Convention rights within their
jurisdiction and, in resolving within
their domestic legal systems the
practical problems created by the
legal recognition of post-operative
gender status, the Contracting States
must enjoy a wide margin of
appreciation. … Nonetheless, the
very essence of the Convention is
respect for human dignity and human
freedom. … In the twenty first
century the right of transsexuals to
personal development and to the
physical and moral security in the
full sense enjoyed by others in
society cannot be regarded as a
matter of controversy requiring the
lapse of time to cast clearer light on
the issues involved. In short, the
unsatisfactory situation in which
post-operative transsexuals live in an
intermediate zone as not quite one
gender or the other is no longer
sustainable. … Having regard to the
above considerations, the Court finds
that the respondent Government can
no longer claim that the matter falls
within their margin of appreciation,
save as regards the appropriate
means of achieving recognition of the
5
right protected under the
Convention.”
Following the example of the ECtHR,
the strongly activist and federalist
tendencies displayed by the ECJ
would suggest that - in a much
shorter time-frame than in the case
of the US Court - it would consider
itself entitled to uphold the rights
recognised in the Charter against
member states whenever necessary
to promote “common” Union values
or objectives or to implement
“general principles of law”. This
observation is not intended to
disparage the US Constitution, the
ECtHR or the ECJ, but to point out
that it is unreasonable and
undemocratic to proffer a “solution”
to the problem of subsidiarity which
has already been tried and (perhaps
for good reason) found wanting.
UNITED IN DIVERSITY
If this analysis proves to be correct,
the Charter will gradually substitute
a common human rights standard for
the indigenous value systems
developed organically by each
member state23. The motto of the
reconstructed Union is to be “United
in Diversity”24. This may be seen as a
frank acknowledgement of the
enormous practical difficulties
facing this political project, but it
also identifies a contradiction
inherent in the concept of a single
code of fundamental rights for 25 or
more diverse nation states.
Continues on page 6
6

THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM

Continues from page 5

A Charter of Fundamental Rights is

inescapably a statement of values,
of philosophical and religious beliefs
about the human condition, which
shape how human beings ought to
live together in society. While there
is substantial consensus on some
values, there are important
differences among member states as
to the basis and content of the most
fundamental of human rights25.
These differences (consistently
ignored in the Charter26) constitute a
major obstacle to the feasibility of
the constitutional project.
The “universal values of human
dignity, freedom, equality and
solidarity27” are common principles
in most national codes. It is the
content of these and related values
that defines the character of each
system. Article II-1, for example,
boldly declares that human dignity is
“inviolable”. This impressive
declaration is of little practical
value, however, until one can
identify what it is that cannot be
violated and who is entitled to the rights questions currently find categorisation is provided, however,
protection. Likewise with the right substantially different answers among even in the non-binding Explanation.
to life, equality etc. Is human dignity the 25 member states of the Union. The guidance that is given illustrates
inherent in the human being or is it We do not all share the same values or the difficulty in applying the
legally dependent on circumstances draw the same conclusions from the distinction in practice. The
or physical capacity or on the values we share. The first priority of Explanation mentions by way of
jurisdiction under which a detainee any valid code of fundamental rights example that Articles II-25, II-26 and
is interned? Are all human beings (or is not a fictitious uniformity or a II-37 contain “principles”. However,
only the able-bodied) equally “unity in diversity” but an Articles II-25 and II-26 are in fact
protected? Does legal protection run understanding of the truth about the expressed as potentially justiciable
from conception (or 14 days, or 12 human person, of the rights that personal “rights” which the Union
weeks or birth) to natural death (or necessarily follow from that truth “respects”, whereas Article 37 is
assisted suicide or euthanasia)? Is and a prudential judgement about clearly a general policy or
“marriage” a malleable social how best to regulate life in society. “principle” to be observed, in favour
construct involving two or more That understanding and those of environmental protection and
adults, or a life-long natural judgements are shaped over time by sustainable development. Article II-
institution involving a man and a a nation’s composition, history, 52(5) will therefore have to be
woman? What are the rights of a culture and religious beliefs. applied by the ECJ to each Article as
parent in the moral or academic it sees fit. This ambiguity adds to the
education of a child? Does JUDICIAL ACTIVISM indeterminacy of the Charter and
advertising which exploits aspects of increases the burden on the Court to
human sexuality violate human resolve politically sensitive issues
dignity? Can religion be practised In Article II-52(5) a distinction is according to its own lights. As many
and promoted freely or are religious made between “principles” (to be of the “rights” or “principles” in
symbols to be banned in public? Who observed) and “rights” (to be question are based on the European
can found a school or university? Are respected) in the Charter, with the Social Charter and derivative
all human rights amenable to idea that principles are not judicially instruments, the decisions of the
limitation by law in the interests of cognisable until implemented by Court as to whether it has
the State, or are some rights legislative acts. Given the jurisdiction in a particular area
inalienable or exceptionless (as “the importance of this distinction, one could have enormous implications
inviolable and inalienable rights of might expect a schedule or other for social policy, employment and
the human person”28 in the Preamble means of distinguishing those labour law and economic policy.
would seem to require)? Articles of the Charter which fall
These and other important human into each category. No such Continues on page 7

THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 6
The content of “fundamental” rights
may also be subject to radical
change by judicial decree over a
relatively short period of time. The
already established “dynamic and
evolutive” jurisprudence of the
ECtHR is clearly illustrated in the
parallel passages of the decision of
the Grand Chamber in I v The United
Kingdom (cited above) and Christine
Goodwin v. The United Kingdom
(cited above), both of 11 July 2002,
overturning UK law on transsexuals
and reversing its own recent case
law29 on the subject:
“Since the Convention is first and
foremost a system for the
protection of human rights, the
Court must have regard to the
changing conditions within the
respondent State and within
Contracting States generally and
respond, for example, to any
evolving convergence as to the
standards to be achieved30. It is of
crucial importance that the
Convention is interpreted and
applied in a manner which renders
its rights practical and effective,
not theoretical and illusory. A
failure by the Court to maintain a
dynamic and evolutive approach
would indeed risk rendering it a bar
to reform or improvement31. …
The Court proposes therefore to
look at the situation within and
outside the Contracting State to
assess “in the light of present-day
conditions” what is now the
appropriate interpretation and
application of the Convention32.”
The interpretation of much of the
Charter is tied to corresponding
provisions in the ECHR and it will
therefore be subject to a similar
evolution.33 This example also
illustrates that these codes cannot
enact ‘neutral’ value positions on
controversial questions which must
inherently be resolved one way or
the other. In its interpretation of the
Charter, the ECJ will inevitably adopt
value positions which will be
contrary to some deeply held beliefs
or conclusions. The sources
nominated in the Constitution from
which it may derive its human rights
jurisprudence34 are so varied and
indeterminate that they amount to a
licence to answer these questions as
it pleases. On many issues it will
follow the precedents of the ECtHR
but, whatever the basis, its decisions
will be divorced from any national,
social or political context or value
system. They will ultimately reflect
the personal values of the judges of
the Court and of the EU oligarchy,
rather than the values of the
societies they serve.
While to some extent this may also
be true of national courts, in the
case of the ECJ there would be no
practical possibility of any democratic
control or reversal of its decisions. In
the absence of unanimous agreement
among member states, it would
always be impossible to bring about an
amendment of the EU Constitution to
vary the effect of an unwelcome
decision. To all intents and purposes,
therefore, ratification of the
Constitution by a member state
involves a formal and irreversible
adherence35 to whatever
interpretations of the Charter may be
handed down in the future by the ECJ,
whether or not compatible with the
fundamental rights recognised in its
national constitution.
Respect for the Rule of Law is
grounded on an effective relationship
between the citizens and the legal
system, mediated through the
democratic process. Where there is
already a glaring “democratic
deficit”, as in the EU, the supplanting
of national human rights provisions
with what may be perceived as a
“foreign” code is likely to further
undermine respect for law and to
increase the alienation of the citizen
from the institutions of the state and
the EU.
LIMITATIONS ON
HUMAN RIGHTS
The underlying philosophy of the
Charter is also deeply problematic.
The Rule of Law protects the
interests of the weak against unjust
claims of the strong. It protects the
interests of the individual against
unjust claims of the community. It
puts people before politics or profits.
The priorities implicit in the
Constitution appear to be otherwise.
The catalogue of fundamental rights
is set out in very brief, unqualified,
statements (e.g. Article II-2(1):
“Everyone has the right to life”).
However, all of these rights are
7
subject to Article II-52(1), which in
turn is based on the case law of the
Court of Justice: “...it is well
established in the case law of the
Court that restrictions may be
imposed on the exercise of
fundamental rights, in particular in
the context of a common
organisation of the market, provided
that those restrictions in fact
correspond to objectives of general
interest pursued by the Community
and do not constitute, with regard to
the aim pursued, disproportionate
and unreasonable interference
undermining the very substance of
those rights” (judgment of 13 April
2000, Case C-292/97, paragraph 45
of the grounds). 36”
The proposed Charter thereby
formally subordinates the rights of
the individual to the collective, of
the person to the State, of the weak
to the strong. Article II-52(1) is a
succinct testament of the positivist
view of human rights – the
Benthamite theory that “rights are
the fruit of the law and the law
alone. There are no rights without
the law, no rights contrary to the
law, no rights anterior to the law.”37
It is a far cry from the “inalienable
and imprescriptible rights,
antecedent and superior to all
positive law” protected by the Irish
Constitution38 and various other
national Constitutions, or the
carefully worded limitations
permitted (in some Articles only) by
the ECHR.
Should all fundamental rights be
subject to limitation by law, to meet
“objectives of general interest”?
Clearly not. Whatever the underlying
philosophy of a constitution or
charter, the existence of
exceptionless norms is widely
accepted as a basic tenet of a well-
reasoned human rights
jurisprudence. There are some
actions which it is never just to
perform against an innocent person,
no matter what State objective or
other “good” end might be served in
so doing. What national constitution,
for example, would ever legislate to
allow some of its citizens to be
unjustly mutilated, poisoned or
killed (e.g. by medical
experimentation or research), even
to assist or protect others?
Continues on page 8
8
THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 7
Equally, there are no circumstances in
which a just law could permit
someone to be violated or tortured,
even in the interests of national
security. Recent events in Iraq
demonstrate that this is not an idle
observation. To allow anyone to be
abused in this way for the benefit of
others would be a denial of his radical
equality as a human being, the basis of
all human rights. It is the very
antithesis of a sound human rights
philosophy.
LIFE ISSUES
The limitation of all human rights in
the Charter is illustrated in its
approach to the death penalty. Article
II-2(2) - which purports to abolish the
death penalty - is in clear breach of
Protocol No. 13 ECHR,39 although that
Protocol has been adopted individually
by the member states. Any doubt
about the intent of Article II-2(2) is
removed
corresponding
by consulting
Explanation.
the
It
expressly relies on Protocol 6 ECHR,
which allows the death penalty in time
of or threat of war, instead of the
alternative Protocol 13 (which
provides a total ban). In the context of
the developing military role of the EU,
this derogation may become highly
significant. The corporate accession to
the ECHR by the EU (without ratifying
Protocol 13) would imply that the
death penalty would continue to be
available to it, e.g. in a future military
court under EU control, despite the
unanimous avowal by the member
states in ratifying Protocol 13 that
they have totally abolished the death
penalty.
The recent controversy over the
massive funding by the EU of research
on human embryos40 provides another
practical illustration of its approach to
human rights. An EU Commission
Report41 found that many member
states oppose embryo research and
that it is currently illegal in some
(including Germany, Austria and
Denmark). The Report noted:
“Opinions on the legitimacy of
experiments using human embryos are
divided according to the different
ethical, philosophical, and religious
traditions in which they are rooted.
EU Member States have taken very
different positions regarding the
being pursued by the Council Decision
in its funding of this research is given
A federalised human as follows: “The strategic objective of
rights jurisprudence this line [of funding of research on
human embryos] is to foster the
would therefore competitiveness of Europe’s
biotechnology industry by exploiting
interpose layers of the wealth of biological data
difficulty between a produced by genomics and advances in
biotechnology.”42 While this may be a
litigant and a final laudable economic or scientific aim, it
resolution of his cannot responsibly be argued that it
should be advanced at the expense of
dispute. This could human life, dignity and integrity.
There is nothing to indicate, however,
only favour the more that the ECJ would hold such funding
powerful interest, to be contrary to the fundamental
rights protected by the Charter. Article
often a State or II-13, in fact, provides that all
large corporation. scientific research “shall be free of
constraint”.
Uniformity and Issues such as this make it clear that
general undertakings about protection
remoteness would of human rights are worthless in the
thus combine to absence of a clearly defined common
understanding on fundamental
substantially questions. A member state which
diminish the found itself over-ruled by the ECJ on
an issue such as this would have to
protection of accept a rather heavy responsibility
for having conceded to the ECJ the
fundamental rights jurisdiction to protect fundamental
in important areas, rights without any effective guarantee
that those rights would be in fact be
far outweighing any protected.
additional
CROSS-BORDER
protections the FAMILY LAW
Charter might offer The demands of the internal market
in peripheral also loom large in relation to marriage
and the family. Although “the right to
matters marry and the right to found a
family” are each guaranteed “in
regulation of human embryonic stem accordance with the national laws
cell research”. governing the exercise of these
Ethical issues such as this, which rights” (Article II-9), the EU may adopt
impinge on very considerable in accordance with Article III-170(3)
industrial interests in the EU, would “measures concerning family law with
gradually come to be dealt with by the cross-border implications” and
ECJ on the basis of the fundamental “decisions determining those aspects
rights declared in the Charter. How of family law with cross-border
would the ECJ derive an answer, given implications which may be the subject
the strong differences that have of acts adopted by the ordinary
emerged among the Member States? legislative procedure.” Since many
The priorities that inform the EU aspects of family law could have cross-
institutions may be gauged from the border implications, Article III-170
fact that stem cell research is dealt arguably confers on the EU a broad
with by the Competitiveness (Internal competence in the areas supposedly
Market, Industry and Research) reserved for member state control
Council, although it touches on under Article I-9.
fundamental dimensions of human life
and dignity. The objective currently Continues on page 9

THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 8
Recent legal developments in the US
suggest that Article II-9 itself may also
give rise to surprising results. The
State of Massachusetts began to
recognize the “marriages” of same-
sex couples in May 2004. Some EU
states are already moving in that
direction. While there is some
disagreement, the great majority of
legal academics in the United States
believe that the United States
Constitution will require all states to
recognize Massachusetts’ homosexual
marriages. The wording of Article II-9
seems likely to yield a similar result in
the EU43.
EFFECTIVE RECOURSE TO
A FINAL DETERMINATION
OF DISPUTES
Article I-5a expressly affirms for the
first time in a treaty the supremacy of
all EU laws (including the Charter)
over all national laws44. National
courts of final appeal, currently
required to refer certain EU law issues
to the ECJ for an opinion, would in
future be obliged to provide a new
right of appeal to Union courts from
all decisions on Union law matters45.
The ECJ would in effect become a
Supreme Court of the Union.
It is precisely to protect individuals,
families, smaller groups and
communities from the (albeit well-
intentioned) machinations of State
authorities that easier recourse to the
Courts for the protection of human
rights has developed in modern
societies. If national courts cannot
effectively guarantee many of these
rights or if appeals lie to Union courts
(because an impugned government
action is allegedly mandated by EU
law), it will be cold comfort indeed to
the hapless citizen to offer him or her
the “right” to follow his complaint to
an EU Court, there to risk what may
be left of the family fortune in the
enterprise of seeking a long delayed
and very expensive redress.
A federalised human rights
jurisprudence would therefore
interpose layers of difficulty between
a litigant and a final resolution of his
dispute. This could only favour the
more powerful interest, often a State
or large corporation. Uniformity and
remoteness would thus combine to
substantially diminish the protection
of fundamental rights in important
areas, far outweighing any additional
protections the Charter might offer in
peripheral matters.
A PLURALIST ALTERNATIVE
The root of these difficulties lies in
the assumption that Union law must
be uniform and monolithic in order to
ensure the functioning of the internal
market. This doctrine was firmly
enunciated by the ECJ in Hauer v.
Land Rheinland-Pfalz,46 in response to
an indication from the German
Verwaltungsgericht that it would
review a Community law for
compatibility with fundamental rights
recognised in the German
Grundgesetz:
“As the Court declared in its
judgment of 17 December 1970,
Internationale Handelsgesellschaft,
[1970] ECR 1125, the question of a
possible infringement of fundamental
rights by a measure of the
Community institutions can only be
judged in the light of Community law
itself. The introduction of special
criteria for assessment stemming
from the legislation or constitutional
law of a particular Member State
would, by damaging the substantive
unity and efficacy of Community law,
lead inevitably to the destruction of
the unity of the Common Market and
the jeopardizing of the cohesion of
the Community.”
While this argument may justify the
concept of EU legal supremacy in
matters bearing directly on
economics, commerce and industry, it
seems bizarre to apply the same
concept to the protection of truly
fundamental human rights (bearing on
human dignity, life, marriage, family,
education etc.). The legal protection
of human rights must of necessity
reflect the values held in common in
a society and it is inevitable that in a
political conglomerate such as the EU
there will continue to be a wide
divergence on many important values
for the foreseeable future. That being
the case, a pluralist solution to the
protection of human rights is the only
viable option. A credible protection of
human rights by the ECJ should
accept and indeed welcome decisions
by the constitutional courts of
member states which point out
human rights defects in an EU law.
That would provide the ECJ with a
9
genuine “constitutional tradition
common to the Member States” with
which to guide the development of EU
law in ways compatible with human
rights. Where differences in the
national understanding of human
rights might arise, the ECJ - in the
interests of a genuine pluralism -
should allow a discretion to each
Member State to act on the
understanding proper to its own
culture and jurisprudence. The ECJ
would have the task of regulating the
consequences of any disparities that
might arise, but that would be less
objectionable than enforcing a
uniform standard of human rights, of
its own devising, for the sake of
political or commercial expediency.
Suitably restricted ratifications of the
Constitution, by those member states
willing to adopt it, would be a
practical way to initiate the process
of a reform in the direction of
pluralism. Such ratifications should
expressly reserve to their domestic
courts, in accordance with Article I-
5(1), Article II-52(4) & (6) and Article
II-53, the protection of fundamental
rights in accordance with national
constitutions, in matters not
exclusively within the competence of
Union law. Such reservations would
help to secure the spirit of the
subsidiarity provisions of the
Constitution and to ensure that the
federalising dynamic of the US
Constitution is not repeated in the
European Union.
The Union cannot hope and does not
deserve to prosper unless it
demonstrates a real respect for the
practical and ethical requirements of
its motto – “united in diversity”.47
___________________________________
Brendan O’Connor is an architect living
and working in Dublin. He has taken an
active interest in human rights, natural
and constitutional law issues for over
twenty years. This article is repro-
duced by kind permission of the European
Journal, London. Its text refers to the EU
Charter of Fundamental Rights in the con-
text of the original EU Constitution, but
it is reproduced in this EUWatch issue as
being equally relevant to the Treaty of
Lisbon according to which the Charter of
Fundamental Rights would have the same
legal value as the Treaties.
Continues on page 10
10
THE EU CHARTER OF FUNDAMENTAL RIGHTS - UNIFORMITY V PLURALISM
Continues from page 9
Footnotes:
1
This Article text refers to the EU Charter of
Fundamental Rights in the context of
the original EU Constitution
2
The presidents of the European Parliament,
the Council of the European Union and the
European Commission proclaimed the Charter
on 7 December 2000 during the Nice European
Council.
3
References to the Constitution in this article
are to the provisional consolidated version of
the draft Treaty establishing a Constitution for
Europe (CIG 86/04, dated 25th June 2004)
prepared for information purposes on the sole
responsibility of the Secretariat of the
Intergovernmental Conference. The Protocols
are contained in an Addendum 1 to CIG 86/04
and the Declarations in an Addendum 2. This
text represents the provisional consolidated
version of CIG 50/03 together with its
corrigenda, as well as documents CIG 81/04 and
CIG 85/04, as approved by the
Intergovernmental Conference on 18 June 2004.
Note that the Intergovernmental Conference
also agreed on a continuous numbering of the
text of the Constitution using arabic numerals,
with the proviso that, in order to accentuate
the division of the Constitution into four parts,
the arabic numerals will be accompanied in
each case by a Roman numeral corresponding to
the relevant part. This change is to be made
before the Constitution is signed in Rome in
October 2004.
4 15
Preamble to Part II, Recital 5, see also Article
II-52(7) and the Declaration concerning the
explanations relating to the Charter of
Fundamental Rights.
5 41
For the text of the Explanation, see CIG 86/04
ADD 2, dated 25th June 2004 (based on CONV
828/03).
6 17
Accession is subject, on the part of the Council
of Europe, to the ratification by all the parties
to the ECHR of the new Protocol 14, which
permits accession to the ECHR by the EU and
modifies the Court system of the Convention to
take account of the anticipated increase in its
workload.
7
The Explanation (Article II-52) states that
reference to the ECHR “covers both the
Convention and the Protocols to it”. It appears
from the Explanation to Article II-2(2) that
Protocol 6 is to be ratified by the EU rather than
the alternative Protocol 13 (which provides for
a total ban on the death penalty).
8
Article I-5a
9 22
In Case 294/83, Parti ecologiste, ‘Les Verts’ v.
European Parliament, 1986 E.C.R. 1339, 1365,
the European Court of Justice already spoke
matter-of-factly of the EEC Treaty as “the basic
constitutional charter” of the Community. On
this reading, the Treaties have already been
“constitutionalized” and the Community has
become an entity whose “operating system” is
no longer governed by general principles of
public international law, but by a specified
interstate governmental structure defined by a
constitutional charter and constitutional
principles.
10
Costa v ENEL, Case 6/64, [1964] ECR 585:
“[13] It follows from all these observations that
the law stemming from the Treaty, an
independent source of law, could not, because
of its special and original nature, be overridden
by domestic legal provisions, however framed,
without being deprived of its character as
Community law and without the legal basis of
the Community itself being called into
question. [14] The transfer by the States from
their domestic legal system to the Community
legal system of the rights and obligations
arising under the Treaty carries with it a
permanent limitation of their sovereign rights,
against which a subsequent unilateral act
incompatible with the concept of the
Community cannot prevail. Consequently
Article 177 is to be applied regardless of any
domestic law, whenever questions relating to
the interpretation of the Treaty arise.”
11
Joined Cases 60 and 61/84 Cinéthèque, 1985
ECR 2605, Recital 26.
12
See, for example, Case C-173/99: BECTU -
Opinion of AG Tizzano: “I think therefore that,
in proceedings concerned with the nature and
scope of a fundamental right, the relevant
statements of the Charter cannot be ignored;
in particular, we cannot ignore its clear purpose
of serving, where its provisions so allow, as a
substantive point of reference for all those
involved - Member States, institutions, natural
and legal persons - in the Community context.
Accordingly, I consider that the Charter
provides us with the most reliable and
definitive confirmation of the fact that the
right to paid annual leave constitutes a
fundamental right.” See also Case C-353/99 P:
Council v Heidi Hautala - Opinion of AG Leger.
13
Preamble to Part II, Recital 5
14
“The Court would also note that Article 9 of
the recently adopted Charter of Fundamental
Rights of the European Union departs, no doubt
deliberately, from the wording of Article 12 of
the Convention in removing the reference to
men and women.”
cf. Explanation (Article II-9).
16
cf. Explanation (Article II-51): “… an
obligation, pursuant to the second sentence of
paragraph 1, for the Union’s institutions to
promote principles laid down in the Charter,
may arise only within the limits of these same
powers.”
See, for example, Case C-173/99: BECTU -
Opinion of AG Tizzano and Case C-353/99 P:
Council v Heidi Hautala - Opinion of AG Leger.
18
U.S. CONST. AMEND. IX.
19
U.S. CONST. AMEND. X.
20
See generally NLRB v. Jones & Laughlin Steel
Corp., 301 U.S. 1 (1937) (concluding that any
distinction between matters of “national” and
“local” concern is artificial; federal regulatory
power extends even to local matters if there is
a legitimate federal regulatory interest.)
21
J. Liisbert, “Does the EU Charter of
Fundamental Rights Threaten the Supremacy of
Community Law”, Jean Monnet Working Paper
(2001) at 28.
Id. See, e.g., Open Door Counselling v.
Ireland, 1992, A-246, paras. 78-79. In that case,
the European Court of Human Rights concluded
that, despite Ireland’s strong and unequivocal
protection of unborn life, Ireland could not
restrain dissemination of certain information
about the availability of abortion services.
23
“The peoples of Europe, in creating an ever
closer union among them, are resolved to share
a peaceful future based on common values.” -
Preamble, Part II
24
cf. Article I-6a
25
The heated political dispute over the
proposed inclusion of references to Humanism
or Christianity in the Preamble of the
Constitution gave some inkling of the
difficulties to which these differences may give
rise in the future.
26
e.g. when referring to the “constitutional
traditions common to the Member States” –
Article II-52(5)
27
Preamble, Part II
28
Preamble, First Recital
29
See the Rees v. the United Kingdom judgment
of 17 October 1986, Series A no. 106; the Cossey
v. the United Kingdom judgment of 27
September 1990, Series A no. 184, p. 15, § 37;
the X., Y. and Z. v. the United Kingdom
judgment of 22 April 1997, Reports 1997-II, and
the Sheffield and Horsham v. the United
Kingdom judgment of 30 July 1998, Reports
1998-V, p. 2011.
30
See, amongst other authorities, the Cossey
judgment, p. 14, § 35, and Stafford v. the
United Kingdom [GC], no. 46295/99, judgment
of 28 May 2002, to be published in ECHR, §§ 67-
68
31
See the above-cited Stafford v. the United
Kingdom judgment, § 68
32
See the Tyrer v. the United Kingdom judgment
of 25 April 1978, Series A no. 26, § 31, and
subsequent case-law.
33
Article II-52(3)
34
See for example Articles I-2, I-3, I-4, I-7, II-52,
II-53 and the Preambles to the Constitution and
the Charter.
35
Short of voluntary withdrawal from the Union,
cf. Article I-59
36
CIG 86/04 ADD 2, at p. 61
37
Jeremy Bentham, Works, Vol. III, p.221
38
Article 41.1.1, Irish Constitution
39
This Protocol entered into force on 1st July
2003. It prohibits all exceptions to the abolition
of the death penalty. The 4th Recital says: “The
member States of the Council of Europe
signatory hereto, … Being resolved to take the
final step in order to abolish the death penalty
in all circumstances, Have agreed as follows
…”.
40
Council Decision 2002/834/EC - The amount
for ‘advanced geonomic’ research is E 1.1
billion, in a research budget of E 12.9 billion.
SEC(2003) 441 - “Report On Human Embryonic
Stem Cell Research”
42
Council Decision 2002/834/EC - Official
Journal of the European Communities, L 294/10
43
See the corresponding Explanation, and also
the decision of the ECtHR in Christine Goodwin
v. The United Kingdom (Application no.
28957/95), which cites Article II-9 and lays the
foundations for a same-sex marriage
jurisprudence in the ECHR. If member state ‘A’
adopts such legislation, a same-sex couple who
married in ‘A’ would appear to be entitled to
have that marriage recognized throughout the
EU. If the couple subsequently moves to
member state ‘B’, which does not recognize
same-sex marriage, the ECJ, enforcing the
Article II-9 right, could oblige member state ‘B’
to recognize the marriage of the same-sex
couple (and presumably to provide social
security and other spousal legal benefits also).
Otherwise, member state ‘B’ would either be
denying the couple “the right to marry … in
accordance with the national laws [i.e. the laws
of member state ‘A’] governing the exercise of
these rights” or else unlawfully frustrating their
right as a family to freedom of movement and
residence within the EU.
44
While the ECJ has developed this doctrine
over many years, its reception by national
courts has not been uniform. It is a matter for
speculation how the 25 national constitutional
courts would accept the new human rights
jurisdiction implied in the Constitution.
45
Article I-28.1 “Member States shall provide
rights of appeal sufficient to ensure effective
legal protection in the field of Union law.”
46
Case 44/79, 13 December 1979, Court of
Justice, [1979] ECR 3727
47
Article I-6a and Fourth Recital of the
Preamble to the Constitution

LIMITING FUNDAMENTAL RIGHTS IN THE
INTERESTS OF THE MARKET1
BY FRANK
KEOGHAN
In this instance the Court would
become the forum of last resort, and
its findings would have force
throughout the European Union.
However, the European Court of
Justice has already made it clear in at
least two cases that ‘the fundamental
rights recognized by the Court are not
absolute, but must be considered in
relation to their social function.
Consequently, restrictions may be
imposed on the exercise of those
rights, in particular in the context of
a common organization of the
market, provided that those
restrictions in fact correspond to
objectives of general interest
pursued by the Community...2’ ; and
in a later case the Court has stated
that ‘it is well established in the case
law of the Court that restrictions may
be imposed on the exercise of
fundamental rights, in particular in
the context of a common organisation
of the market...3’
It is clear from these precedents that
the ‘fundamental rights’ that would
be conferred on us by the Lisbon
Treaty4 would not be fundamental at
all, but could be varied or restricted
in the interests of a ‘common
organization of the market’ or to
advance ‘objectives of general
interest pursued by the Community’.
In a democratic society, restrictions
on the exercise of human rights must
be prescribed by law and must be
necessary to safeguard the common
good. It follows from the reasoning of
the European Court of Justice that, as
rights are subject to limitations,
restrictions on the EU fundamental
rights are also legitimate, and that
11
SHOULD THE PROPOSED LISBON TREATY OR RENAMED EU
CONSTITUTIONAL TREATY COME INTO FORCE, WE WOULD RELY
ON THE EUROPEAN COURT OF JUSTICE TO RULE IN FAVOUR OF
CITIZENS OR WORKERS IF A DISPUTE AROSE BETWEEN THEM
AND THEIR GOVERNMENTS REGARDING THE INTERPRETATION
OF ANY OF THE MEASURES PROPOSED IN THE CHARTER.
the European Union would be acting the EU level, however, the common
effectively as a State in restricting good is identified primarily with the
those rights5. good of the market and a fixed idea
of utility. The market becomes in
But in this instance the limitations on effect the substitute for democracy,
human rights are justified by and human rights become
reference to the objectives of the marketised.
Community and in particular the In General Provisions Governing the
organisation of the common market. Interpretation of the Charter6 (i.e.
National Constitutions and the the Charter of Fundamental Rights),
European Court of Human Rights the ‘Explanation’ associated with
allow those restrictions on Article 52 states explicitly that
fundamental rights that are limitations may be placed on the
considered to be necessary in a rights and freedoms recognised by
democratic society. But in a the Charter.7 Echoing the judgement
democratic society politics is of the European Court of Justice, it
connected with the contestability of states that these ‘limitations may be
what counts as the common good. On made only if they are necessary and
genuinely meet objectives of general
interest recognised by the Union.’
The important question in these
The ‘fundamental circumstances is: what are
‘objectives of general interest’ - and
rights’ that would be could they possibly be commercial
conferred on us by interests? Could citizens’ rights and
workers’ rights really be limited in
the Lisbon Treaty the interest of market forces?
would not be
The ‘general interests’ recognised by
fundamental at all, the Union are elaborated in Articles
2 and 3 of the Treaty on European
but could be varied Union (TEU) and assume a further
or restricted in the legal importance in the Charter8,
which makes it clear that ‘the
interests of a Explanations drawn up as a way of
‘common providing guidance in the
interpretation of the Charter of
organization of the Fundamental Rights shall be given
due regard by the Courts of the
market’ or to Union and of the Member States.’9
advance ‘objectives This constitutionally binding
condition would require courts to
of general interest take the Explanations into account in
pursued by the formulating judgments.10
Community’ Continues on page 12
12
LIMITING FUNDAMENTAL RIGHTS IN THE INTERESTS OF THE MARKET
Continues from page 11
These Explanations are cleverly
presented in a non-binding ‘Notice
from European Union institutions
and bodies’, but are then made
legally binding through Article 52 (7)
of the Charter, quoted above11.
‘General interests’ are presented in
the Explanations12 as the ‘objectives’
set out in Article 2 TEU dealing with
‘The Union’s Values’ and ‘other
interests’ protected by specific
provisions of the Treaty, as for
example the new Article 4 TEU,
which obliges the Union to
‘respect... Member States’...
national identities, inherent in their
fundamental structures, political
and constitutional’ and ‘their
essential state functions,
including... maintaining law and
order and safeguarding national
security’. The interpretation of
‘identity’ in this Article is not
benign, nor does it aim to foster a
sense of cultural or national identity.
Instead it looks towards essential
state functions, and primary among
those under this Treaty would be the
smooth functioning of the market.
Indeed it stipulates that: ‘The Union
shall establish an internal market …
based on balanced economic growth
and price stability.13’
Elsewhere the Treaty records the
accession of the Union to the
European Convention on the
Protection of Human Rights and
Fundamental Freedoms14, but
Protocol 5, Article 3, qualifies this
accession by stating that ‘the
accession of the Union shall not
affect the competences of the Union
or the powers of its institutions.’
This clearly indicates that ECJ
rulings will take precedence over
those of the European Court of
Human Rights, should their findings
possibly diminish the powers or
competences of the Union.
It is apparent that the requirement
to establish ‘balanced economic
growth and price stability’ imposes a
constitutional imperative on the
method of organising the market;
and should those who seek to change
this economic model begin to gain
such significant support as to pose a
threat to the model, the ‘general
Draconian labour
legislation already in
force in a Member
State can be
preserved under the
subsidiarity clause,
while on the other
hand the Union can
limit labour rights in
order to satisfy the
‘objectives of
general interest’ of
the Union – as
recently
demonstrated by the
Laval and Viking
cases. This is a win-
win situation for
business interests
and the big
corporations
interests’ of the Union could be
protected and fundamental rights
varied by Union or national
legislation. This in turn would be
likely to be supported by the
European Court of Justice. Those
who would oppose the privatisation
of public services in the Union might
suffer similar sanction as they might,
for instance, be found to impede the
realisation of ‘price stability’. It
would also be unlawful to campaign
against any of the measures in the
Charter15.
Any challenges to the interpretation
of these provisions made to the
European Court of Justice would be
so costly and time-consuming that
most rulings would be enforced by
default.
Nonetheless, it is notable that trade
unions throughout the European
Union have welcomed Article 28 of
the Charter, which appears to grant
the right to strike, and this has been
used by many of the affiliates of the
European Trades Union Congress as a
rationale for supporting the Treaty.
However, the operation of repugnant
legislation at the national level
would not be influenced by the
Charter. Although the Charter Article
states that workers may ‘take
collective action to defend their
interests, including strike action,’
the Explanation in Declaration 12
qualifies this by stating that ‘the
limits for the exercise of collective
action, including strike action, come
under national laws and practices,
including the question of whether it
may be carried out in parallel in
several Member States.’
But there is a sting in the tail:
‘subsidiarity’! The Charter directs
that ‘the provisions of this Charter
are addressed to the institutions,
bodies and agencies of the Union
with due regard for the principle of
subsidiarity and to the member
states only when they are
implementing Union law.’16 ‘Due
regard for the principle of
subsidiarity’ is spelt out in the case
law of the European Court of Justice
in the following terms: ‘It should be
remembered that the requirements
flowing from the protection of
fundamental rights in the Community
legal order are also binding on
Member States when they implement
Community rules...17’ This means that
draconian labour legislation already in
force in a Member State can be
preserved under the subsidiarity
clause, while on the other hand the
Union can limit labour rights in order
to satisfy the ‘objectives of general
interest’ of the Union – as recently
demonstrated by the Laval and Viking
cases. This is a win-win situation for
business interests and the big
corporations.
The Charter guarantees ‘freedom to
conduct a business in accordance
with Community law.18’ This is
qualified in the Union’s objective of
‘an internal market … based on
balanced economic growth and price
stability’. In effect, this imposes a
treaty obligation to establish a neo-
liberal economic model, something
that is normally the subject of
contestation between competing
political parties and ideologies.
Continues on page 13

LIMITING FUNDAMENTAL RIGHTS IN THE INTERESTS OF THE MARKET
Continues from page 12
This neo-liberal stricture is further
strengthened by the Union’s
commitment to ‘the progressive
abolition of restrictions on
international trade and on foreign
direct investment, and the lowering
of customs and other barriers19’, and
by the legally binding Protocol 6,
which states that, ‘considering that
the internal market as set out in
Article 2 of the TEU includes a
system ensuring that competition is
not distorted... the Union shall, if
necessary, take action under the
provisions of the Treaties, including
under Article 308 of the Treaty on
the Functioning of the European
Union.20’ And, just to ensure
undistorted competition, the Council
may use the notorious ‘Flexibility
Clause’ to extend the scope of the
Treaties in practice in all areas, with
the exception of common foreign
and security policy, as long as the
European Parliament approves21.
When the commitment to ‘price
stability’ is read in conjunction with
the right to conduct a business in
accordance with Community law,
great doubt is cast not only on the
future of State enterprise but on
sections of the civil service. If, for
instance, a payroll contractor
decided that they would like to
compete with public agencies in the
provision of tax returns and the
Government refused to co-operate,
an appeal to the European Court of
Justice - especially if the contractor
could be shown to provide the
service at a lower cost - could well
be ultimately successful.
ECJ Case 4/73 points to limits to this
right, in stating that it should, ‘if
necessary, be subject to certain
limits justified by the overall
objectives pursued by the
community’. This seems fair
enough, but when it is read in
conjunction with the Union’s
objectives outlined above, it leads
to the inevitable conclusion that our
State companies and public services
would be at increased risk.
Finally, it is worth noting that, in
response to a query on 6 October
2006, the President of the
Commission Jose Manuel Barroso
declared that the Charter had
already been used 117 times to
adopt legislation in the EU, even
though it currently has no legal
standing.22
____________________________________
Frank Keoghan is an Irish trade unionist
with a special interest in legal issues and
the EU Charter of Fundamental Rights. He
is secretary of the People’s Movement:
Gluaiseacht an Phobail, Ireland
Footnotes:
1 The main references used in this article are
from the Official Journal of the European Union
C303, and C306, Vol. 50, December 2007.
2 Hubert Wachauf v. Bundesamt für Ernährung
und Forstwirtschaft, C-5/88, summary, para. 2,
and grounds, para. 18.
3 Kjell Karlsson and Others, C292/97, grounds,
para. 45.
4 The Lisbon Treaty would bring an EU
Constitution into being by amending the Treaty
on European Union (TEU) and the Treaty
Establishing the European Community (TEC),
henceforth to be known as the Treaty on the
Functioning of the Union (TFU). These two
amended Treaties, with their declarations and
protocols, would comprise the new EU
Constitution
5 The statement that the Charter will be legally
binding will now be inserted in Article 6 (1) of
the Treaty on European Union, replacing Article
I-9 of the Constitution. This avoids reproducing
the text of Part II of the original Constitutional
Treaty in the text of the revised
Treaties/Constitution while producing the same
legal effects.
6 Now to be interpreted in accordance with the
general provisions in Title VII of the Charter,
governing its interpretation and application,
and with due regard to the Explanations
referred to in the Charter that set out the
sources of those provisions. This is a change of
title only.
7 ‘... it is well established in the case-law of
the Court that restrictions may be imposed on
the exercise of
fundamental rights, in particular in the context
of a common organisation of the market …’
8 At Article 52 (7).
13
9 Declaration Concerning the Explanations
Relating to the Charter of Fundamental Rights.
The declaration covers thirty-five pages.
10 As it is noted in the preamble to the
Explanations: ‘Although they do not as such
have the status of law, they are a valuable tool
of interpretation intended to clarify the
provisions of the Charter’ and have been freely
used by the ECJ.
1 Article 6 TEU, grants the charter itself ‘the
same legal value as the Treaties’.
2 2007/C303/02
13 12 Article 3(3) TEU. This can be compared
with ‘The Member States and the Union shall
act in accordance with the principle of an open
market economy with free competition,’
Chapter II, Article III 69 (1)
4 TEU, Article 6.
5 Charter, Article 54.
6 Article 51 of the Charter
7 Case C-292/97, grounds, para. 37.
8 Charter, Article 16.
9 TFEU, Article 118.
20 This was Article 1:3 (2) of the
Constitution, on the Union’s objectives, but
was changed at the insistence of M. Sarkozy. It
stated: ‘The Union shall offer its citizens. . . a
single market where competition is free and
undistorted.’ Its removal was lauded as a win
for social democracy, but this important
statement is now included in a legally binding
protocol annexed to the Treaty, where it has
precisely the same legal effect while allowing
proponents to maintain that it is not in the
Treaty.
21 Article 308 states: ‘If action by the
Union should prove necessary, within the
framework of the policies defined in the
Treaties, to attain one of the objectives set out
in the Treaties, and the Treaties have not
provided the necessary powers, the Council,
acting unanimously on a proposal from the
Commission and after obtaining the consent of
the European Parliament, shall adopt the
appropriate measures.’ Furthermore, TFU,
Article 249B (TEC), empowers the Council of
Ministers by majority vote to give the
Commission the power to make laws - so-called
delegated regulations - supplementing or
amending so-called ‘non-essential elements’ of
European laws or framework laws. The catch is
that it is the Commission which decides what is
‘essential’.
22 http://www.futureofeurope.parlament.gv.at/
sides/getAllAnswers.do?reference=E-2006-
3544&language=ET
14

THE CHARTER OF FUNDAMENTAL RIGHTS

AND THE BENEŠ - DECREES
REFLECTIONS ON THE ENFORCEABILITY OF CLAIMS UNDER THE SO-CALLED BENEŠ DECREES IN
VIEW OF THE CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION

BY JAN
TRYZNA

This reflection relates to the legal

consequences of the ratification of
the Lisbon Treaty with a view to
the possibility of citizens of other
EU Member States raising
property-related claims under the
so-called Beneš Decrees. Pursuant
to the Lisbon Treaty, the Charter
of Fundamental Rights of the
European Union formally becomes
a binding part of European law.
This is very likely to result in a
change to the approach to
applicability of the Charter not
only in the preparation of rules,
but also in the decision-making
activity of the EU bodies.
BINDING NATURE OF
THE EU CHARTER OF
FUNDAMENTAL RIGHTS IN
EUROPEAN LAW AND ITS
CONSEQUENCES
For a relatively long time European
law has not been purposefully
involved with the protection of
fundamental rights and freedoms
within a scope comparable to that
provided by national legal
authorities and legislation or by
international law. However, the first
judgments of the European Court of
Justice (ECJ) containing references
to human rights go back some time1.
Their number has grown over time,
while the importance of human
rights for ECJ2 case-law has
increased since the Charter was
introduced in 2000. Initially human
rights and freedoms were applied as
common legal principles of
Community law, which the ECJ
derives from the laws of the Member
States3. However, since the Charter
has been proclaimed, references to
this document can be also found in
the judgments of the ECJ, even
though the document has not been,
and still is not, legally binding4.
The legal significance of the Charter
can be assessed from the degree to
which it is legally binding and can be
pro futuro assessed with only a
relative degree of accuracy.
Uncertainty has arisen due to the
formulations used in the Lisbon
Treaty in the amended Article 6 of
the Treaty on European Union.
Furthermore, in this text it will be
presumed that the Charter will
become a legally binding component
of the primary law5 of the European
Union and, as a result of its direct
effect6 and the principle of
precedence7 over national law, it
will become directly applicable in
the Member States of the Union8.
In view of the problems
encountered, the EU Charter of
Fundamental Rights does not add
anything essentially new to Czech
law, since the rights and freedoms
recognised by the Charter
correspond to the rights and
freedoms that are already a
component of the Constitution of the
Czech Republic or binding under
international law. As regards the
national application of the Charter,
it cannot be presumed that the
approach of the Czech authorities
with regard to the application of the
Decrees would have changed in view
of the Charter.
Continues on page 15

THE CHARTER OF FUNDAMENTAL RIGHTS AND THE BENEŠ - DECREES
Continues from page 14
However, it is necessary to consider
the EU dimension of the Charter. If
the Charter becomes a part of the
primary law of the EU, it has above
all to be applied by the EU
institutions and authorities, in
particular by the ECJ9. Two basic
types of procedure come into play, in
addition to the application of the
Charter by the national authorities:
the procedure on non-compliance
with the Treaty pursuant to Articles
226 and 227 of the Treat, as well as
the procedure on preliminary rulings
pursuant to Article 234 of the Treaty.
CONTENT, LEGAL FORCE
AND APPLICABILITY OF THE
BENEŠ DECREES AT THE
PRESENT TIME
The so-called Beneš Decrees, more
precisely the Decrees of the President
of the Republic, represented a stop-
gap form of legislation introduced by
the Provisional Government in London
during the occupation of
Czechoslovakia. The vast majority of
the Decrees were provisions whose
applicability was limited to the
specific legal relationships to which
they related. In reality, because they
fulfilled their objective they became
obsolete, unless already expressly
repealed.
Only some of the Decrees of the
President of the Republic are still
legally relevant and are still part of
Czech law. The following Decrees in
particular should be considered
relevant in relation to the issue in
question:
1) Decree of the President of the
Republic No 5/1945 Coll. of 19 May
1945 on the invalidity of certain
property-related acts effected in the
period of non-freedom and on the
State administration of the property
assets of Germans, Hungarians,
traitors and collaborators and certain
organisations and institutes.
2) Decree of the President of the
Republic No 12/1945 Coll. of 21 June
1945 on the confiscation and
expedited distribution of agricultural
properties of Germans and
Hungarians, as well as traitors and
enemies of the Czech and Slovak
nation.
The Decrees are
officially part of the
Czech Republic’s
body of law and,
therefore, are
applicable in the
positive sense, i.e.
compensation claims
for expropriation or
damages can be
based upon them
3) Decree of the President of the
Republic No 28/1945 Coll. 20 July
1945 on the settlement of Czech,
Slovak or other Slavic farmers on the
agricultural land of Germans,
Hungarians and other enemies of the
State.
4) Decree of the President of the
Republic No 100/1945 Coll. of 24
October 1945 on the nationalisation
of mines and some industrial
companies.
5) Decree of the President of the
Republic No 108/1945 Coll. of 25
October 1945 on the confiscation of
enemy property and the national
renewal funds.
The European Court of Justice could
rule on the Decrees (or as the case
may be on the method of their
application) as early as the time when
the actions took place (or were
initiated) by the national authorities.
The problem of the applicability of
the Decrees under Czech law is
somewhat complicated. The Decrees
were, of course, applied primarily
after World War II in particular. In the
period between 1948 and 1989 they
were applied, if at all, in principle
only in the interest of the respective
governments in power. This only
changed after 1989, when the
Decrees became relevant via the
restitution acts that referred to
them10. In short, the Decrees cannot
currently be applied in a negative
sense, i.e. they cannot be used for
expropriation, nationalisation or
other recourse concerning individual
persons. But on the contrary, where
the Decrees establish certain rights
15
for individuals, their application is not
precluded.
Thus the possibility of direct
application of the Decrees was to
some extent pushed to the
background. Some legal rulings
contributed to this, in particular the
Institutional Court’s (Ústavní soud)
ruling No 55/1995 Coll., according to
which ‘… the exile legislation, as well
as the immediate post-war legislation
of the liberated Czechoslovak State,
is today basically a closed circle of
problems and issues that were closely
related to the events that took place
during the War and to the economic
recovery of the country. The laws
from that period thus fulfilled their
purpose in the above-mentioned time
immediately after World War II. From
today’s perspective, they are largely
without contemporary significance
and no longer have constitutional
character…’ The direct applicability
of the Decrees has become a subject
of legal rulings only in relatively
recent times. This is because some
original owners of property which had
already been nationalised before
February 1948 started to demand
compensation (for this
nationalisation) directly under the
Decrees11. These claims were
originally rejected due to the alleged
impossibility of applying the Decrees.
However, the decision of the
extended Senate of the Supreme
Administrative Court of 19.9.2007,
file ref. 2 Ans 4.2006, stated clearly
that the Decrees are officially part of
the Czech Republic’s body of law and,
therefore, are applicable in the
positive sense as mentioned
previously, i.e. compensation for
expropriation or damages can be
claimed pursuant to these Decrees.
RELATIONS BETWEEN
THE DECREES AND THE
EU CHARTER OF
FUNDAMENTAL RIGHTS
It is now a question of determining
whether the EU Charter of
Fundamental Rights can influence the
application of the Decrees by the
Czech authorities, i.e. whether
claims, which the Decrees rule out,
can be made in reference to the
Charter.
Continues on page 16
16
THE CHARTER OF FUNDAMENTAL RIGHTS AND THE BENEŠ - DECREES
Continues from page 15
A definitive answer cannot be found
in the exclusion of a retroactive
effect of European law12, because it
is not a question of retroactive
application of the Charter in relation
to the existence of the Decrees, but
in relation to their application at
present. The persons affected by the
Decrees can be divided into two
groups: on the one hand, those who
were considered untrustworthy by
the country; and on the other hand,
those who were not considered
untrustworthy by the country but
were still affected by the Decrees.
The untrustworthy persons13 were,
among others, German and
Hungarian nationals and other
persons who, regardless of their
nationality, were active against the
Czechoslovak Republic14.
The persons were thus defined as
trustworthy/untrustworthy not on
the basis of their citizenship, but
according to the criterion of
untrustworthiness from the country’s
perspective which was based on their
nationality (it has to be admitted yet
that this was done across-the-board
at the time). Therefore, the
presumption that European
citizenship15 -under the auspices of
the prohibition of discrimination
pursuant to the relevant provisions of
the Charter - could be used to submit
a claim under the Decrees, is not
justified. The Charter, however, also
prohibits discrimination on grounds
of nationality (Article 21), which in
combination with Article 20 (equality
before the law) defines the scope for
further reflection.
Equality before the law is not
understood as absolute equality in
the sense that a law must guarantee
to all individuals a fully equal
position. It is recognised that the law
gives certain subjects a more or less
privileged position, i.e. it is a
question of relative equality. The law
can create more favourable
conditions for some beneficiaries of
legal standards, but only when such
differentiation is based on rational
and legitimate (objective) grounds16.
The following conclusions may be
drawn from the situation described.
The Decrees were of a repressive
nature, aimed at persons who took
part in anti-State activities. Those
persons were punished by loss of
property, which can be considered a
legitimate way of holding such
people responsible for the
consequences of their actions.
However, if they did not take part in
any anti-State activity or even acted
in favour of the renewal of the
Czechoslovak State, their
opportunity to prove this was
preserved and in such cases they
were not (or should not have been) in
any way harmed by the application of
the Decrees. The chosen criterion for
differentiation can certainly be
considered to be rational and
legitimate because the State must
have the option of recourse against
actions that it considers
unacceptable.
SUMMARY AND
CONCLUSIONS
The Decrees of the President of the
Republic are, with the exception of
those that were officially repealed,
part of the statutes of the Czech
Republic.
Continues on page 17

THE CHARTER OF FUNDAMENTAL RIGHTS AND THE BENEŠ - DECREES
Continues from page 16
If these Decrees are amended in
favour of the citizens, they can be
applied at present in court
proceedings and by administrative
authorities. They can be used to
make claims for property or other
claims. The rights enshrined in the
Decrees can be claimed by Czech
citizens and citizens of other
countries under exactly the same
conditions. It is necessary to stress
that these could only be claims
based on the immediate application
of the Decrees.
The EU Charter of Fundamental
Rights is very likely to become the
reference criterion in assessments of
whether or not the principle of
equality and the ban on
discrimination were adhered to in
the application of the Decrees. The
European Court of Justice will be
able to assess this issue either on the
basis of a complaint pursuant to
Articles 226 or 227 of the Treaty, or
within the preliminary rulings
procedure raised within the
framework of the actions of the
Czech authorities, in which persons
concerned could demand
compensation for loss of property
resulting from the application of the
Decrees. The objective of the
analysis would be to assess whether
the chosen criterion, which is
unreliability from the State’s
perspective, can be considered from
today’s viewpoint to be legitimate
(objective) and rational.
It can be presumed that the chosen
criterion was at its time rational and
legitimate and that even at present
such a criterion might stand the test.
The main reason is that it is not an
absolute criterion, but a relative
one, i.e. it can be refuted by the
plaintiff. Therefore there is in
principle no danger that the entry
into force of the Lisbon Treaty will
mean that more property claims will
be made than before. As regards the
possibility of demanding a legal
application pursuant to the Decrees,
the Charter does not provide any
fundamentally new legal
amendment. The main consequence
of the Lisbon Treaty will be that the
rulings under the Decrees could be
re-examined by the European Court
of Justice.
17
1
For example, the judgements in Case C-33/74
(Van Binsbergen), Case C-130/75 (Prais) or
Case C-118/75 (Watson).
The EU Charter of 2
Or as the case may be, the case-law of the
Court of First Instance.
Fundamental Rights 3
See the recent ECJ judgment in Case C-438/05
of 11.12.2007.
is very likely to 4
See the recent ECJ judgment in Case C-
275/06. The Charter can be currently classified
become the as ‘soft law’, which means a collection of
regulations that can be used as a corroborative
source of law.
reference point 5
Immediate effect of European law means that
laws have direct legal effect on the citizens of
when assessing if the Member States without any requirement for
them to be accepted in national law. This
principles of equality aspect was among others described in the ECJ
judgment in Case C-106/77 (Simmenthal).
and non- 6
The immediate effect of European law is
characterised by the opportunity given to
individuals to appeal against violations of
discrimination are European law directly to Member State
authorities, and this applies especially in cases
respected by the where such violation follows from application
of national laws. For this aspect of European
application of the law, see, for example, the ECJ judgment in
Case C-26/62 (Van Gend en Loos) or C-6/64
Decrees. The (Costa).
7
ECJ ruling in Case C-6/64 (Costa).
8
Legal support of this presumption is to some
question will be if extent laid down in the fifth paragraph of the
Preamble to the Charter, according to which
the chosen criterion the Charter should be interpreted not only by
the courts of the Union, but also by the courts
to define whether of the Member States.
9
The Lisbon Treaty changes the designation of
somebody was the EU’s judicial bodies. The text simplifies the
designation of the European Court of Justice
(ECJ).
trustworthy or not, 10
For example, Act No 87/1991 Coll., Act No
243/1992 Coll., Act No 229/1991 Coll., and in
could be considered, general Act No 172/1992 Coll.
11
These claims were raised directly pursuant to
from today’s the Decrees, not under the restitution laws,
because the restitution laws related only to
viewpoint, to be assets that were taken from their owners after
February 1948 (with some exceptions).
12
The exclusion of a retroactive effect of
legitimate and rational legislation and the related principles of the
protection of legitimate expectations and legal
safeguard can be obviously considered to be
general principles of European law; see ECJ
____________________________________ judgment in Case C-99/78 or subsequent
combined Cases C-37/02 and C-38/02.
Dr. Jan Tryzna, Ph.D. obtained his law de- 13
It is not a term that would appear in related
gree at the Law Faculty of Charles Uni- documents, however it can be used with a
certain inaccuracy for the purpose of analysis.
versity in Prague in 2002 and his Ph.D. in 14
An illustration of a definition of
2006. He is a fellow member at the De- untrustworthy persons from the State’s
partment of Law Theory at the Law Fac- perspective can be found in paras. 4-6 of
ulty of Charles University in Prague and a Decree No 5/1945 Coll. II; para. 1 of Decree No
12/1945; para. 7 of Decree No 100/1945 Coll.;
fellow member at the Department of Pub- and finally, para. 1 of Decree No 108/1945 Coll.
lic Law Disciplines at the Police Academy 15
Article 17 of the Treaty. It can be stated that
of the Czech Republic. He gives lectures European citizenship has been a component of
in general theory of law, constitutional European law since as far back as 1993
(Maastricht Treaty), while the Treaty on
law and general theory of state. Since European Union amends this only formally
2002 he also practices as an attorney at (instead of the term ‘national citizenship’ in
law and has specialized in administrative relation to a Member State, only the term
law, constitutional law, human rights pro- ‘citizenship’ of a Member State is used).
European citizenship remains an additional
tection law, and civil and commercial law. citizenship, which complements national
He published several works dealing citizenship.
mainly with legal principles and legal ar- 16
In relation to the Czech Republic, see, for
gumentation. example, the ruling of the European Court of
Human Rights in the case of Kučera versus the
Czech Republic, Complaint No 7416/03.
18
THE BENEŠ DECREES - A BOOMERANG ISSUE?
BY MARTINA
ROZSIVALOVA
Czechoslovakia was the only east
European country to remain a
parliamentary democracy from 1918
to 1938; however, it had to face
weighty minority problems, the most
important of which concerned the
country’s large German population.
Constituting more than 22% of the
interwar state’s population and
largely concentrated in the Bohemian
and Moravian border regions (the
Sudetenland), members of this
minority included many sympathizers
to Nazi Germany. Internal and
external pressures culminated in
September 1938, when France and the
United Kingdom, in line with the
Chamberlain government’s
appeasement doctrine, yielded to
Nazi pressures at Munich and agreed
to force Czechoslovakia to cede the
Sudetenland to Germany. Fulfilling
Hitler’s aggressive designs on the
entire area of Czechoslovakia,
Germany invaded what remained of
Bohemia and Moravia in March 1939
and established a German
“protectorate.” By this time, Slovakia
had already declared independence
and had become a puppet state of
Germany. At the close of World War II,
Soviet troops overran all of Slovakia,
Moravia, and much of Bohemia,
including Prague. In May 1945, U.S.
forces liberated the city of Plzen and
most of western Bohemia. A civilian
uprising against the German garrison
took place in Prague in May 1945.
Following Germany’s surrender, some
2.9 million ethnic Germans were
expelled from Czechoslovakia with
Allied approval under the Beneš
Decrees.
In 1945-1946, the then Czechoslovak
President Edvard Beneš issued a
number of rulings that legalized the
often violent expulsion of Germans
and Hungarians from Czechoslovakia.
FOLLOWING GERMANY’S SURRENDER IN WWII, SOME 2.9
MILLION ETHNIC GERMANS WERE EXPELLED FROM
CZECHOSLOVAKIA WITH ALLIED APPROVAL UNDER THE BENEŠ
DECREES. IN 1945-1946, THE THEN CZECHOSLOVAK PRESIDENT
EDVARD BENEŠ ISSUED A NUMBER OF RULINGS THAT
LEGALIZED THE OFTEN VIOLENT EXPULSION OF GERMAN AND
HUNGARIAN SPEAKING CITIZENS FROM CZECHOSLOVAKIA. THE
SUDETEN GERMANS WERE DECLARED ENEMIES OF THE STATE
AND LOST THEIR CITIZENSHIP AND ALL PROPERTY.
Some 2.9 million Sudeten Germans be returned.3 The Czech government,
were declared enemies of the state however, rejected these demands,
and lost their citizenship and all saying that most ethnic Germans who
property, except for what they could had lived in Czechoslovakia as Czech
carry, as they were expelled across citizens at the time had betrayed
the borders to Germany and Austria.1 their country by siding with Nazi
During the EU accession negotiations Germany during WWII, adding that
the Czech Republic (and Slovakia) their property was now owned by
witnessed a media earthquake on the Czechs and could not be taken away
matter of the Beneš decrees, although from them. While preparing for EU
the issue had been on since the fall of membership, the Czech Republic
communism and recurring in the expressed regret over the post-war
media from time to time. Right-wing expulsion and persecution of
parties in Austria, Germany and Czechoslovakia’s large ethnic German
Hungary – but also politicians like minority (in the frame of the 1997
Austrian Chancellor Wolfgang Schüssel Czech-German Declaration).
and former Hungarian Prime Minister
Viktor Orbán – had called for the Leaving history behind, pragmatism
decrees to be annulled before the and the focus on the compatibility of
Czech Republic and Slovakia could the Czech system of law with the
join the EU.2 Edmund Stoiber, the then “acquis communautaire” turned the
prime minister of Bavaria (where scale before the Czech Republic’s
many of the expelled Germans from admission.4 This attitude prevailed
Czechoslovakia, including his mainly following the publication of
wife, had settled), told the Sudeten the so-called “Frowein report”, upon
German association that if he which both adherents and antagonists
became chancellor of the German of the Beneš decrees had fastened
Federal Republic he would push for their hopes and expectations.5
annulment of the decrees and The report took the view that the
question the fulfilment of the EU Czech Republic was “completely
membership criteria by those legally qualified to be a member of
countries that defended historical the EU”. While the analysis ruled out
expulsions; this lead the bilateral any EU member state blocking the
issue to become a multilateral one. It Czech Republic’s entry on the grounds
was incorporated promptly into the that Czech laws are incompatible with
EU enlargement agenda and, at a those of the Union, it did not rule out
certain point, centred solely on a the possibility of further disputes
very impassionate debate about the between individual countries.
Czech Republic, to which the problem The report’s main author, German
of the Beneš decrees was mostly Professor Jochen Frowein, concluded
related. that Czech restitution law could not
Ethnic Germans who had been apply retroactively to cover property
expelled from Czechoslovakia and seized during the post-war mass
who had moved to Germany and deportations; nor could the provisions
Austria called on the Czech restricting restitution claims to
government to abolish the decrees current Czech citizens be contested.
and compensate them for their losses,
with some wanting their property to Continues on page 19

THE BENEŠ DECREES - A BOOMERANG ISSUE?
Continues from page 18
He also found that EU law would not
apply to people whose Czechoslovak
citizenship was revoked in the
aftermath of the war.
On the other hand, a report of Ulf
Bernitz (as co-author), Professor of
European law at Stockholm University,
stated that the decrees could be
criticized under current human rights
standards. It also found insufficiencies
within the existing Czech laws on
property restitution, which in most
cases excluded any claims for assets
seized prior to the 1948 communist
takeover. Bernitz argued that the
laws would not allow people, who
may had been wrongly deprived of
citizenship and property, to seek
redress.6
Frowein’s report became paramount
for Jürgen Schröder‘s report7 on the
accession of the Czech Republic to the
EU. On 1 June 2002 the European
Commission, on the basis of its own
analysis, confirmed that as far as the
EU was concerned the Beneš decrees
issue was closed.8
In the end, the issue of the Beneš
decrees did not disrupt the closing
stage of negotiations, but it soured
the atmosphere. Many hoped that the
report would at least take some of the
heat off the issue. The European
Commission refused to express its
opinion on statements by Edmund
Stoiber, the former Bavarian Prime
Minister, who had promised that the
debate would continue on the EU
level.
On December 12, 2005, the European
Court of Human Rights in Strasbourg
rejected the complaint filed by 90
Sudeten Germans against the Czech
Republic as unsubstantiated. The
Sudeten Germans instituted
proceedings against the confiscation
of their or their ancestors’ property on
the basis of the post-war decrees of
the then-Czechoslovak President
Edvard Beneš. The group of Sudeten
Germans primarily criticised the fact
that the Czech Republic did not admit
they had suffered wrongs and did not
offer a compensation for the
confiscated property.
Most recently, the issue of the Beneš
decrees was touched briefly in the
Civil Liberties Committee in the
European Parliament. A debate on the
discrimination of national minorities
in the EU was initiated by MEPs from
the Hungarian Coalition Party (SMK)
who criticised Slovak declaration from
September 2007. The Slovak cabinet
declared the Beneš decrees as an
integral and unchangeable part of the
Slovak legislation. A similar act was
approved in the Czech parliament in
2002. The debate focused on the
rights of Hungarian people living in
current Slovakia; the property rights
of German and Hungarian minorities
in former Czechoslovakia were thus
not discussed. 9
A CHRONOLOGY OF
KEY EVENTS
1918 - Republic of Czechoslovakia is
proclaimed. Tomáš Garrigue Masaryk
is elected president.
1935 - Edvard Beneš succeeds Masaryk
as president.
1938 - Munich Conference results in
cession of the Sudetenland to
Germany. Beneš resigns.
1939 - Nazi invasion of Czech lands
which become a German
protectorate. Slovakia is proclaimed
an independent state under pro-
fascist leader Jozef Tiso.
1940 - Beneš establishes government
in exile in London. 1940-1945 the
decrees are issued in London.
1945 - Soviet troops enter Prague.
Beneš returns and issues decrees,
which lay the foundation for the
expulsion of over two and a half
million Sudeten Germans and more
than half a million ethnic Hungarians.
All of the decrees are retroactively
ratified by the Provisional National
Assembly on March 5, 1946 by
constitutional act No. 57/1946 Sb.
1948 - Beneš resigns, having been
completely marginalized by what
amounted to a communist putsch four
months earlier. He dies of natural
causes in September as
Czechoslovakia slips back into
totalitarian rule.
____________________________________
Martina Rozsívalová holds degrees in po-
litical science, international relations and
European studies at Masaryk University in
Brno and Charles University in Prague.
She currently works for the Czech dele-
gation in the IND/DEM group in the Euro-
pean Parliament
Footnotes:
1 http://www.europarl.europa.eu/meetdocs/2004
IN: SPIRIT, Jan,: Tzv. “Benešovy dekrety”:
19
předpoklady jejich vzniku a jejich důsledky.[The
so-called “Benes decrees”: Background of their
origin and their impact].1.vyd. Praha:
Oeconomica, 2004, ISBN 80-245-0755-2.
2
“The problem of the validity of the Beneš
decrees is in fact connected with the
Czechoslovak restitutional laws after 1989 which
opened some questions of our history. The people
who were deprived of property not only
according to the Beneš decrees but also during
the communist time, then claimed their property
back. There is a second problem to it and it is
that the so-called “Benes decrees” are a kind of
symbol or the wartime and post-war
development in the Czechoslovak-German
relations. Because especially for the Germans
who were expelled from Czechoslovakia the
Beneš decrees are symbols of the expulsion and
then transfer from the country. But in fact, it is a
combination of international decisions and our
post-war legislation, says a Czech historian Jan
Kuklík. In : KUKLÍK, Jan:Mýty a realita tzv.
“Benešových dekretů“: dekrety prezidenta
republiky 1940-1945. [Fiction and reality of the
so-called “Beneš decrees”: The decrees of the
President from 1940-1945]. 1. vyd. Praha: Linde,
2002, ISBN 80-7201-352-1.
3
Those expellees organized within the
Sudetendeutsche Landsmannschaft (a part of the
Federation of Expellees) and associated political
groups call for the abolition of the Beneš decrees
as based on the principle of collective guilt.The
European and international courts have refused
to rule on cases concerning the decrees as most
international treaties on human rights took
effect after 1945/46.
The Landsmannschaft is currently based in
Munich, Bavaria. Its spokesman is MEP Bernd
Posselt. http://www.sudeten.de/cms/
4
Compatibility with the acquis communautaire –
a documentation submitted to MEP Brok,
president of the Committee of Foreign affaires
in April 3,2001: Decrees of the President of the
Republic from the years 1940-1945, In: Ministry
of Foreign Affairs,
http://www.mzv.cz/wwwo/mzv/default.asp?id=
11086&ido=1&idj=1&amb=1
5
Directorate-General for Research, Working
paper: Legal Opinion the Beneš-Decrees and the
accession of the Czech Republic to the European
Union, prepared by Prof. Dr. Dres. h.c. Jochen A.
Frowein, Prof. Dr. Ulf Bernitz and The Rt. Hon.
Lord Kingsland Q.C. October 2002, In:
http://www.europarl.europa.eu/studies/benesd
ecrees/pdf/opinions_en.pdf
6
Ulf Bernitz: Legal Opinion concerning Beneš
Decrees and related issues, Stockholm
University, September 30, 2002.In:
http://www.mpil.de/shared/data/pdf/
bernitz.pdf
7
Jürgen Schröder (Rapporteur): Report on the
Czech Republic’s application for membership of
the European Union and the state of
negotiations (COM(2000) 703 – C5-0603/2000 –
1997/2180(COS)), AFET, Committee on Foreign
Affairs, Human Rights, Common Security and
Defence Policy, 16 July 2001. In:
http://www.europarl.europa.eu/sides/getDoc.d
o?pubRef=-//EP//NONSGML+REPORT+A5-2001-
0255+0+DOC+PDF+V0//EN&language=EN.
8
The Czechoslovak presidential decrees in the
light of the acquis communautaire - Summary
findings of the Commission services, European
Commission, Brussels, 14.10.2002
9
LIBE, Committee on Civil Liberties, Justice and
Home Affairs, DRAFT AGENDA
Meeting of November 5, 2007: Discrimination of
national minorities in EU countries (16:20-17:00)
_2009/documents/oj/690/690625/690625en.pdf
20
WHAT WILL REMAIN OF THE FRENCH
1789 HUMAN AND CITIZENS’ RIGHTS?
The Lisbon Treaty: fundamental rights as against human rights
BY ANNE-MARIE
LE POURHIET
With the absolute primacy of
European law over national and
constitutional law (“Declaration No
17 concerning primacy” annexed to
the Lisbon Treaty), the law
enshrined in what is known as the
‘Fundamental Rights’ Charter will
override all constitutional rights
and freedoms. History will record
that at the end of the 20th century,
the foolhardy leaders of the
country which invented human and
citizens’ rights and spread them
throughout the world accepted,
either deliberately or by choosing
to turn a blind eye (which comes to
the same thing) that with a stroke
of a pen, the 1789 Declaration, the
1946 Preamble (social rights), and
the Principles recognised by the
laws of the (Third) Republic, all of
which were placed at the forefront
of our political and legal principles
by the Preamble to the 1958
Constitution, would be swept away.
Anne-Marie Le Pourhiet, Professor
of public law at the University of
Rennes I, has unpicked this charter
of our new human rights.
A sentence by Marcel Gauchet could
sum up the European Charter of
Fundamental Rights: ‘A new
descendant of human rights is born
who has nothing but his name in
common with his 1789 ancestor’
(‘When human rights become policy’
Le Débat, No 110).
The simple fact that the term ‘human
rights’ has been replaced by
‘fundamental rights’ in the text of the
Charter clearly shows that the issue
has become germanised. The Lisbon
Treaty has, however, not totally
abandoned the expression ‘human
rights’, because it is there in (new)
Article 2 TEU among the Union’s
‘values’: ‘The Union is founded on the
values of respect for human dignity,
freedom, democracy, equality, the
rule of law and respect for human
rights, including the rights of persons
belonging to minorities’ (note the
deplorable way this sentence is
expressed).
The reference to the rights of
minorities was not in the initial text of
the ‘Giscard Convention’ and was
added later, no doubt under pressure
from the Hungarians. Its appearance
among the values in Article 2 TEU
rather than among the fundamental
rights in the Charter may seem
surprising but is a result of the fact
that the ‘Herzog Convention’ also
refrained from mentioning them in
the Charter (except for non-
discrimination based on ‘membership
of a national minority’; see below)
because of opposition from the
Mediterranean countries and
particularly France and Spain, which
did not want to see imported into
their territory the problems of Central
and Eastern European countries that
the latter wanted included in the
text. As there was no desire to
change the text of the Charter,
minority rights were therefore
included in the values of the new
Article 2 TEU. This poses two major
problems.
Firstly, it is fairly perverse to dare to
rank the rights of minorities among
human rights when we know that the
philosophy of human rights is entirely
built on the premise of an individual
who is unencumbered by any
adherence to, and refuses to
recognise, any body, group or
corporation standing between the
citizen and the Nation. As Alain
Finkielkraut notes, ‘the concept of
human rights was constituted against
the power of the tribes’1 and now we
are daring to include tribal rights
among human rights! Another sham.
Then, while the fundamental rights
referred to the Charter must be
interpreted ‘in harmony with the
constitutional traditions common to
the Member States’ (Art. 52), this is
not the case for the values listed at
Article 2 TEU.
Continues on page 21

WHAT WILL REMAIN OF THE FRENCH 1789 HUMAN AND CITIZENS’ RIGHTS?
Continues from page 20
Contrary to what the Constitutional
Council declared in its decision of 19
November 2004, the rights of
minorities will therefore not have to
respect national constitutional
principles. Moreover, prohibiting
discrimination based on
‘membership of a national minority’
(Art. 21) risks descending rapidly
into claiming specific rights in an
ideological climate where equality
under the law has come to be
considered an expression of a
dominant position.
Dignity has become the essential
element of post-modern law,
including criminal law, although this
term, which has no objective legal
meaning and is therefore open to
every kind of personal
interpretation, risks becoming a real
catch-all, which will greatly
facilitate government by judges.
The equality established a priori is
equality under the law (Article 20).
But strangely it goes together with
an Article 21 devoted to non-
discrimination (an inelegant term
which is not French) which seems
redundant, because equality under
the law presupposes a lack of
discrimination under the law. But
instead of being limited to non-
discrimination in general, it has been
thought necessary to satisfy every
community by going through a litany
of many and various adherences
which have little to do with each
other and look a bit like Noah’s Ark.
However to be certain that no lobby
group has been forgotten, Article 21
takes care to state ‘such as’, so that
a few more wagons could be hitched
on when the associations of bald
people or fat people make
themselves known. The post-
modern tendency to ban any
discrimination, however, carries
within it the seed of abolition of
hierarchies, discernment and value
judgment and risks leading us
straight to obligatory idiocy. A fine
prospect of totalitarianism.
Despite and contrary to this principle
of equality under the law, Article 23,
which deems it necessary to add
equality between women and men
although non-discrimination on
It has been thought
necessary to satisfy
every community by
going through a
litany of many and
various adherences
which have little to
do with each other
and look a bit like
Noah’s Ark
grounds of gender has already been
established, contradicts this by
stating that ‘The principle of
equality shall not prevent the
maintenance or adoption of
measures providing for specific
advantages in favour of the under-
represented sex’ (sic). This means
that we start by banning
discrimination but nevertheless
accept positive discrimination in
favour of women, which is clearly no
less than negative discrimination
against men. You might as well say
that we are giving up the principle of
equality under the law as soon as we
have established it and that other
categories of the ‘oppressed’ will
very soon obtain the same privileges
as women.
In the register of bans on
discernment, Article 9 on marriage
and the family already heralds some
legal U-turns. While Article 12 of the
European Convention of Human
Rights, like all the international
texts dealing with this question,
states ‘men and women of
marriageable age have the right to
marry and to found a family,
according to the national laws
governing the exercise of this right’,
the Charter prefers the formula:
‘The right to marry and the right to
found a family shall be guaranteed in
accordance with the national laws
governing the exercise of these
rights’. There is no certainty that
the cultural and religious diversity of
Article 22, or subsidiarity, will stand
firm for very long against the
homosexual lobby which we guess is
no stranger to this change of
21
wording.
The cultural, religious and linguistic
diversity enshrined in Article 22
seems a priori to concern diversity
between the Member States, that is
to prevent the Union from imposing
uniformity. It is, however, not
certain that this provision will be
read and interpreted in this way by
minority groups advocating diversity
within states. It seems that some
have seen it as a first step towards
recognition of ‘national minorities’
rather than ‘national diversities’2.
Taking this together with the now
explicit recognition of the rights of
people belonging to minorities in
Article 2 TEU, the French Republic
can expect new legal upheavals.
At all events the omnipresent
moralistic dogma in this Lisbon
Treaty can only lead to
‘standardisation’ of nations and
peoples and the denial of their
specific characteristics. As this
standardisation tends to be
influenced by Anglo-Saxon and
German thinking, countries with a
Latin culture will face a greater
threat. The Buttiglione affair and
the recent UN report criticising
Italian women for being too sexual
and maternal presage a bleak
cultural future. The emasculating
and standardising effect of the
hackneyed thinking that runs
throughout the Constitution
demonstrates a ‘soft’ totalitarianism
that is already well entrenched. The
French ‘no’ to the European
constitution has expressed, apart
from a legitimate rejection of
illogicality and servitude, quite
simply a leap forward for
civilisation.
____________________________________
Anne-Marie Le Pourhiet is Professor of
public law at the University of Rennes I.
She is the author of many articles and
contributions on European integration
and fundamental rights. Her latest text-
book, “Droits Constitutionnel”, has re-
cently been published by “Economica”.
Footnotes:
1
‘Un voile jeté sur la République laïque ‘, Le
Monde, 25 October 1989.
2
Guy Braibant, La Charte européenne des
droits fondamentaux de l’Union européenne,
éd. du Seuil, 2001.
22
FUNDAMENTAL RIGHTS AND FREEDOMS:
THE DAWN OF AN UNPRECEDENTED LEGAL REVOLUTION
BY CHRISTOPHE
BEAUDOUIN
Article 6 of the revised Treaty on
European Union gives the Charter
the same legal status as the
Treaties. European law, which now
concerns virtually the entire field
of law, takes precedence over the
law of the Member States,
including constitutional law
(“Declaration No 17 concerning
primacy” enshrining the case law
of the Court of Justice in
Luxembourg). It is that same Court
which will now determine human
rights and fundamental freedoms,
instead of the national courts.
However, the philosophy of the
Charter is, from many points of
view, different from, and
sometimes in contradiction with,
constitutional principles that are
recognised and protected in our
Member States. When this Charter
enters into force, because of its
almost unlimited scope, it will be
the greatest transfer of powers
from member States to the Union
ever seen in the history of
European integration.
I – TOWARDS THE DOWN-
FALL OF DEMOCRACY?
According to the traditional concept
inherited from Jean-Jacques
Rousseau, democracy is the political
system in which sovereignty belongs
to the people. President Abraham
Lincoln summed it up in an excellent
turn of phrase which is today
included in a number of
Rather than being a
sovereignty of
peoples the EU
considers itself
‘democratic’
because it is based
not on peoples but
on that much-
vaunted
transnational ‘civil
society’ – i.e. various
middlemen and
pressure groups
proclaiming
themselves to be
‘representative’ –
which was officially
invited to take part
in the drafting of
this Charter
constitutions: ‘government of the
people, by the people, for the
people’. Therefore, in order for
democracy to exist, it is not
sufficient to make technical
provision for the ‘right to vote and
to stand as a candidate’ (Articles 39
and 40). First we need a ‘people’,
i.e. a community of men and women
who feel that they are heirs to the
same history and who adhere to the
same values and same political
project to form a nation. But the
Charter itself admits in its Preamble
that there is no European ‘people’,
but ‘peoples of Europe’. So why then
proclaim that the European Union ‘is
based on the principles of
democracy’? Can there be a
supranational democracy? Can there
be a democracy without a people?
A DEPOLITICISED
SUPER-STATE
In actual fact, the EU ideal is not
‘government’ but ‘governance’ and
the ‘rule of law’, in the sense of a
depoliticised State, removed from the
vagaries of popular will and
successive majorities. Rather than
being a sovereignty of peoples it
considers itself ‘democratic’ because
it is based not on peoples but on that
much-vaunted transnational ‘civil
society’ – i.e. various middlemen and
pressure groups proclaiming
themselves to be ‘representative’ –
which was officially invited to take
part in the drafting of this Charter.
The shift began in Strasbourg, with a
judgment of 31 July 2001, in which
the European Court of Human Rights
stated that ‘Democracy requires that
the people should be given a role’
(ECHR 31 July 2001, Refah Partisi, RD
publ. 2002, p. 1493). So the people
now have only a mere ‘role’ which
they are magnanimously ‘given’? Of
democracy as a ‘government of the
people, by the people, for the people’
there is nothing left but a ritual
reference to a reality deemed to be
outmoded. That is probably why the
democratic ‘Nos’ of the French and
Dutch in 2005 are now being
circumvented, on the quiet, by a
Treaty of Lisbon which is being
presented as absolutely marvellous
for citizens, but which our leaders are
taking great care not to put forward
for public approval via a referendum.
II – TOWARDS NEW
DEFINITIONS OF OUR
FUNDAMENTAL RIGHTS
1) A DISREGARD FOR FREEDOM
The Charter of Fundamental Rights
devotes an entire chapter to
Freedom (Articles 6 to 19). From a
philosophical point of view, up to
now freedom has been regarded as a
power of self-determination.
Continues on page 23

FUNDAMENTAL RIGHTS AND FREEDOMS: THE DAWN OF AN UNPRECEDENTED LEGAL REVOLUTION
Continues from page 22
The Charter, on the contrary,
confuses it with “claiming rights”,
i.e. simple powers to demand a
service from others, such as the right
to the ‘protection of personal data’
(Art. 8) or the ‘Right to education’
(Art. 14). We are seeing the citizen
as the driver of his or her destiny
being transformed into a passive
consumer and the public powers as a
service provider.
This Charter thus shows a certain
disregard for freedom, which,
according to legal tradition, has
always been synonymous with
‘human dignity’. Now, Article 1
makes it into a higher, rival
principle. In place of a liberating
dignity the Charter is establishing a
liberticidal dignity, making it, in its
Preamble, subject to some rather
odd ‘duties … to the human
community’. According to this
redefined principle of dignity, there
is apparently an abstract ‘human
nature’ which has to be defined by
the ruling classes and judges
according to their own subjective
assessments, to restrict the exercise
of each freedom.
2) PUBLIC SPACE AND RELIGION
The principle of the separation of
the State from religion, which in
France we call laïcite (secularism),
is a fundamental, constitutional
principle. French judges regularly
enforce it, for example, by
prohibiting civil service officials
from manifesting their religious
beliefs in the course of their duties
(CE, opinion, 3 May 2000, Miss
Marteaux, AJDA 2000, p. 602).
However, Article 10 of the Charter
appears to affirm the contrary, by
proclaiming that freedom of religion
According to the
reshaped principle
of dignity, there is
apparently an
abstract ‘human
nature’ which has to
be defined by the
ruling classes and
judges according to
their own subjective
assessments, to
restrict the exercise
of each freedom
23
‘includes … freedom ... in public or
in private, to manifest religion’. This
is in fact taken from Article 9 of the
1950 European Convention on Human
Rights, which can -under certain
circumstances- be incompatible with
the principle of secularism,
following a judgment that was
delivered by the Court of Human
Rights in Strasbourg (ECHR, 15
February 2001, Mrs Dahlab v
Switzerland, AJDA 2001, p. 480). In
this case, the ECHR appears to
accept, by converse implication,
that public officials may wear a veil,
arising from their religious beliefs,
when performing their duties.
3) A PANDORA’S BOX OF
CLAIMS BY “MINORITIES”
The principle of equality,
meanwhile, is the subject of Articles
20 and 21, which proclaim that
‘Everyone is equal before the law’
and that any discrimination based,
inter alia on ‘ethnic origin’ or
‘membership of a national minority’,
shall be prohibited. However, this
principle of non-discrimination does
not exclude ‘positive’
discrimination, a principle that may
be claimed by groups which consider
themselves to be at a disadvantage
because of a specific characteristic.
Continues on page 24
24

FUNDAMENTAL RIGHTS AND FREEDOMS: THE DAWN OF AN UNPRECEDENTED LEGAL REVOLUTION

Continues from page 23

The following Articles – 22 and 23 –

give them the right to ‘specific
advantages’, pointing out that ‘the
Union shall respect cultural,
religious and linguistic diversity’
(Art. 22) as far as national minorities
are concerned. This apparently
laudable principle of ‘non-
discrimination’ is worded in such a
way as to brush aside the principle of
equality before the law without
distinction, and now concerns not
only gender but also skin colour,
religion, opinions...genetic features,
disability, age and sexual
orientation.

One can imagine what a Pandora’s

Box this is opening: ‘communities’ of
all kinds will now be able to go to
court to call into question national
structures and laws under the
pretext of an attack on this or that
specific feature. What is more, the
Charter no longer protects ‘national
or social origin’, as the European
Convention on Human Rights did, but
rather ‘ethnic or social origin’.
Communautairisms rather than
political Nation, the origin of
individuals rather than the wish of
those individuals to live together:
that appears to be the ideological
matrix of this Charter. It is a budding
challenge to the traditional concept
of the nation state, the defining
feature of which is that, on the
contrary, it unites citizens who are
equal before the law, with no
distinction of race, origin, gender or
religion, around that which they
have in common, viz., a political
project and a desire to live together,
over and beyond any kind of specific
characteristic, which is a matter for
private life.
In spite of the activism of the lobbies
which act in their name, let us
remember that these so-called
communities do not really want
different treatment, but on the
contrary, want a right to equality in
indifference. Let us take the
example of the famous ‘Proposition
227’, through which the Latin
American immigrants of California
had to fight to obtain, by
referendum, the abolition of the
bilingual education imposed on their
children. In their view, such
education delayed their children’s
integration into US society by
depriving them of equal
opportunities… What an ironic
backlash for the champions of
communautairism!
CONCLUSION
Democracy and republican values
are therefore at the dawn of a silent
and unprecedented legal revolution.
But does the Union really have the
means to fulfil its ambitions?
Nineteen out of 54 articles are taken
almost word for word from the 1950
European Convention on Human
Rights. This Convention was drawn
up not by the European Union but by
the Council of Europe, which has
some 40 Member States and its own
The apparently
laudable principle of
‘non-discrimination’
is worded in such a
way as to brush
aside the principle
of equality before
the law without
distinction
court, the European Court of Human
Rights in Strasbourg (ECHR). In order
to try to avert the risks of
differences in interpretation
between the courts of Luxembourg
and Strasbourg, each court has been
asked to bring its case-law into line
with that of the other, so that the
Member States of the two
organisations are not split between
the Charter and the Convention in a
case of jurisprudential
schizophrenia. The Union’s accession
to the Convention is therefore the
solution that has been found to
remedy this risk. But this accession
will inevitably place the CJEC under
the authority of the ECHR, since the
Luxembourg Court’s interpretation
of the Charter will thus be subject,
as far as these 19 ‘common’ articles
are concerned, to the Strasbourg
Court’s interpretation of the
Convention. Does that mean that
with regard to fundamental rights
the EU will be dependent on another
organisation? Is it not capable of
inventing its own values, on which
its political legitimacy should be
founded? Does the Union not have
any plausible justification that is not
purely economic?
________________________________
Christophe Beaudouin, a French lawyer,
works for the IND/DEM Group as Staff Co-
ordinator for the EP Committee on Con-
stitutional Affairs
 25

THE IMPACT OF THE CHARTER OF FUNDAMENTAL RIGHTS

An interview with Professor Huber
1. EUWatch: Professor Huber, the Lisbon Treaty is
scheduled to enter into force in 2009. Do you think this is
cause for celebration?
Huber: Yes, in my opinion. The treaty of Lisbon brings
primary law, the EU constitution, closer to reality. It puts
an end to the never-ending process of centralisation and
entails new procedures which seem more democratic than
the rules presently applied.

2. In your opinion, should the ratification process be

accompanied by as many referenda as possible? If so, why?
If not, why not?
Huber: Yes. Although referenda make the ratification
process more difficult and entail the risk of failure,
experience shows that they guarantee a better acceptance
of European institutions and European integration itself.
Even if the ‘output’ of European legislation and
administration may contribute to legitimating the EU in the
long run, it is rather hazardous to rely on it. European
citizens want to be taken seriously, they want to take
responsibility and do not want to be treated as underage
children whom politicians take care of.

3. EUWatch: Would you advise opponents of the Lisbon

Treaty to lodge a complaint for breach of the Basic Law
[German Constitution]? If so, why? If not, why not?
Huber: No. I think that the limits the Basic Law sets up for
European integration are not violated. The precedence of
European law over national constitutional law, one key
issue, is not fixed as the Constitutional treaty originally
wanted. The so called ‘passerelle’-clause is a problem,
because it diminishes the role of Member States as
‘masters of the treaty’; but it doesn’t end this role,
especially as every Member State will also be free to leave
the EU.
4. EUWatch: Under Article 6 of the new EU Treaty, the
Charter of Fundamental Rights is to have the same legal
value as the Treaties. What does that mean in real terms
for the Union, the Member States and citizens of the EU?
Huber: I’m not sure whether Art. 6 of the new Treaty has
an immediate effect on EU-law. The European Court of
Justice has recognized Fundamental Rights since 1969, and
the present Art. 6(2) EU says that they are part of the EU´s
constitutional order as far as they are guaranteed in the
common heritage of the Member States and the European
Convention on Human Rights. Nevertheless, it has not been
settled, in the ECJ´s case law so far, whether those
Fundamental rights provide individual rights or only
general principles. The Charter will have some effect in
this direction and it might also deepen the judicial control
of EU legislation. Both issues are of some importance for
European citizens.
5. EUWatch: What has changed as compared with the
Constitution which was brought down by the French and
Dutch referenda?
Huber: This question is difficult to answer. The
constitutional treaty has been maintained in its substance,
Prof.Peter M. Huber
but all the declamatory provisions have been omitted. As
the referenda were not required by constitutional
provisions either in France or in the Netherlands, it is up to
those governments and to the political debate in those
Member States to decide whether the people can be left
outside this time.
6. EUWatch: One of the arguments used by those who
favour the ‘juridification’ of the Charter is that a
‘plethora’ of rights can never do any harm. Do you
nevertheless have reservations, particularly as to possible
competence and demarcation issues concerning the scope
of the Charter, its relationship to the individual Member
States’ constitutions and the European Convention on
Human Rights, and the case law relevant to the
interpretation of the Charter?
Huber: Fundamental rights foster ‘unitarisation’ if judged
by a constitutional court. We know this fact from the
American as well as from German constitutional history,
and there are quite a few judgements of the ECJ which
show that similar things will happen at EU level. As we do
have quite a solid regime of fundamental rights guaranteed
by the European Court of Human Rights (ECHR) and the
European Convention on Human Rights, and as most of the
EU Member States have sophisticated guarantees also at
national and regional level, my perspective is a little bit
ambivalent. There are especially doubts as far as the
binding effect regarding the Member States is concerned,
a problem which Art. 51(1) deals with.
Continues on page 26
26
THE IMPACT OF THE CHARTER OF FUNDAMENTAL RIGHTS
Continues from page 25
7.EUWatch: Is it not possible that this
will lead to a lack of legal certainty
and hence to a confusion of law and/or
powers which will tend to detract
from the notion of improving
protection of fundamental rights?
Huber: Yes, definitely.
8. EUWatch: How, precisely, will
relations between the Charter and the
European Convention on Human
Rights, and between the judicial
powers of the ECJ and those of the
Court of Human Rights regarding case
law, develop? Do you see any
difficulties in determining the legal
status, and in predicting the legal
consequences, of the EU’s accession to
the European Human Rights
Convention?
Huber: Until now, the ECJ sticks
closely to the case law of the ECHR. It
is doubtful, however, whether this line
can be maintained if the Court has to
find its own approach concerning the
Charter.
9. EUWatch: The first sentence of
Article 51(1) of the Charter seeks to
clarify that the Charter applies only to
‘the institutions and bodies of the
Union with due regard for the
principle of subsidiarity and to the
Member States only when they are
implementing Union law’.
- Should the Charter thus be binding
only on those who make and enforce
European law?
- Could the monitoring of compliance
with the Charter thus be regarded as
an exclusively C o m m u n i t y
competence?
- If so, how can this be reconciled with
the non-applicability of the
subsidiarity principle in fields where
the Community has sole competence?
Huber: Art. 51(1) codifies the case law
which the ECJ has developed since the
ERT case in 1991. But, at least in the
German version, it also entails an
amendment to this case law which can
be traced back to the influence of the
Bundesrat´s representative in the
Convention. Until then the ECJ ruled
that Member States were also bound
by European fundamental rights
‘within the scope of Union law’. Art.
51(1) now states that the Charter
applies: ‘only when they are
implementing Union law’. It thus
reduces the scope of application. This
is subsidiarity put into practice.
As far as the ultra vires problem is
concerned: not only the German
constitutional court, but the majority
of Member States, claim that they
have the last say over whether the EU
stays within its competences or not.
According to the dogmatic
construction of the Basic Law, it is the
German Constitutional Court which
watches over the lawful application of
the treaty.
10. EUWatch: How can the
restriction prescribed by the first
sentence of Article 51(1) of the
Charter be guaranteed if:
- the Member States not only have to
implement and comply with Union law
but also have to apply domestic law
‘in accordance with Union law’ (i.e.
they have to disregard domestic law
which is not in compliance with Union
law),
- the Charter contains fundamental
rights applicable in areas in which the
Union has no competence, or in which
its competences are limited (e.g. the
right to life and the ban on the death
penalty, given that the Union has no
competence in the field of criminal
law),
- some areas fall within the area of
responsibility both of the Union and
of the Member States, or alternate
between the two?
Huber: There are plenty of
possibilities to misuse the
competences. It is therefore up to the
cooperation between the ECJ and
national courts to provide that the
Charter will not be applied in a
manner that fosters centralisation.
11. EUWatch: Will national courts,
administrations and legislatures not
find it impossible in the long term to
‘resist the temptation’ to refer to the
Charter?
Huber: This will be inevitable in all
those cases where European law has to
be applied by national courts and
administrations or where national
parliaments have to implement EU-
directives.
12. EUWatch: Will the requirement
for a uniform and universally
applicable Union law which has
absolute precedence over domestic
legislation, and for which - in respect
of its interpretation and the
determination of its scope - the ECJ is
ultimately responsible, not also lead
in the medium to long term to greater
uniformity of the fundamental rights
enshrined in the Charter at all levels,
including national and local?
There is no such requirement. The
legal order of the EU is an order of
mutual influence, coherence and
cooperation and an order in which the
Member States remain the ‘masters of
the treaty’. National constitutions will
therefore keep their present
significance as basis for the EU-law, as
sources of legal inspiration and as
boundaries.
13. EUWatch: In your opinion, what
will the EU be like when the Lisbon
Treaty is in place?
Huber: The development of the EU
under the Treaty of Lisbon will
continue organically as before. I think
that there is much more space for
democratic participation and
subsidiarity. Just think of the stronger
role national parliaments will play in
the new legal order, or of the initiative
European citizens will be entitled to.
Via the ‘double majority’ the Treaty of
Lisbon will realise the principle of
equality better than the present
treaty does and it entails the chance
that the institutional reforms will slow
down. This will give citizens the
opportunity to get accustomed to the
EU and its institutions and to accept
them on the basis of good experiences
they hopefully will have made in the
time to come.
___________________________________
Prof. Peter M. Huber is Professor of Public
Law and Constitutional Philosophy as well
as Member of the Senate [governing body]
of the Ludwig-Maximilians-Universität,
Munich. He is Member of the State
Constitutional Court of the Free and
Hanseatic City of Bremen and chairing the
Conference of German Law Faculties.
Professor Huber was a member of the
German Bundestag’s Commission of
Inquiry on ‘Coming to terms with the
consequences of the [East German] SED
dictatorship in the process of German
unity’ (1995-1998) and expert on the
Bundestag/Bundesrat Commission on
modernising the federal constitutional
system (2003-2004).
In 1999 he was awarded the Research Prize
for Primary Research by the Ministry of
Science, Research and the Arts of the Land
of Thuringia.

AN UNSETTLED REFERENDUM DEBATE
BY PETER
HENSELER
This article aims at differentiating
the referendum debate between
the necessity of a national
referendum and the legitimisation
of the Lisbon Treaty by direct
democracy at pan-European level.
The first aspect has to be assessed
according to the respective
national constitutional orders. For
the following framework of
arguments this is, however, only of
secondary importance. Yet the
latter is considerably more
important from the democratic
point of view and the question of
whether a European ‘demos’ exists
and its role as a constituent power
(‘pouvoir constituant’). This
should have been discussed with
higher priority than the question
of national referendums. It is not
surprising that under present
political conditions this may now
seem utopian. In more real terms,
however, it appears as a wasted
opportunity which the political
class deliberately let happen. In
substance (except for the
explanatory footnotes) this article
is based on a letter (17.12.2007)
from the author to the Austrian
Federal President Heinz Fischer
which was answered by the
President’s legal adviser on
11.1.2008. As indicated in the
following text the President took a
very positive position to some
essential arguments.
During the course of an interview
with the Austrian Television ORF on
15.12.2007 on the issue of a
referendum on the EU Lisbon Treaty
the Austrian Federal President Heinz
Fischer came out against the idea of
a referendum at national level that
would be binding throughout Europe.
However, in the editorial context of
the interview he was quoted as being
of the opinion that the necessary
preconditions for a Europe-wide
referendum could be created.
In a letter of reply the President’s
legal adviser1 confirmed that the
President has constantly stood up in
favour of a European referendum
without neglecting the complexity
being connected with the setting-up
of the prerequisites of such a Europe-
wide referendum. ‘This would be
linked with the principal question of
how far Member State sovereignty
would be transferred to the Union.’
However, according to the President,
the idea of European unification - not
only economically, but also politically
– would be questioned if only a single
Member State could impede achieving
an important change of primary
community law.
According to the above mentioned
letter of his legal adviser the
President agrees with my opinion,
that there is a need to make a clear
distinction between the question of
27
the need for a referendum under the
national constitution and the question
of legitimisation of the Treaty through
direct consultation with the citizens
at a pan-European level.
As far as the first question is
concerned, according to the Austrian
constitution there has to be a
differentiation between a mandatory
and an optional referendum. A
referendum is mandatory if the
Federal Constitution is to be affected
by a ‘total revision’.2
It is however a purely political
question whether a referendum
should be held in the case of (only) a
‘partial revision’ of the constitution.3
With respect to the Lisbon Treaty this
question does not arise for the
present Grand Coalition government
in office.4 The Austrian constitutional
main stream doctrine rejects the
necessity of a (mandatory)
referendum for the Lisbon Treaty
(nearly) unanimously because in its
view the Treaty would not imply a
total constitutional revision. So there
is a (virtual) consensus amongst
Austrian constitutional experts that
the first question can be answered in
the negative.
Continues on page 28
28
AN UNSETTLED REFERENDUM DEBATE
Continues from page 27
Of course the two parties of the
present Grand Coalition share this
position.5 To my mind, this view is not
entirely clear-cut, inasmuch as I
would say that the so-called
Baugesetz-doctrine – unlike the
rulings of the German Federal
Constitutional Court6 – has now
become a very blunt instrument to
serve as an effective yardstick for
measuring the constitutionality of
transfers of sovereignty to the EU.
Even in this view of lacking
consistency I would regard this
question as basically of secondary
importance. The second question,
however, strikes me as being of
primary relevance.
It cannot be denied that the current
stage of European integration calls for
a new constitutional order. This was
originally to be created by the
Constitutional Treaty and is now
supposed to be achieved by the Lisbon
Treaty, which is virtually identical in
terms of substance. It is also
indisputable that the EU is
increasingly taking on the character
of a ‘state’ (by achieving more and
more ‘statehood’). To put it briefly
(following Anthony Coughlan7) and
with only slight overstatement: the
Lisbon Treaty will, in principle, furnish
the EU with all the main
characteristics of a fully-fledged state
– with the exception of the power to
raise taxes, to borrow in order to fund
its activities and to force Member
States against their will to participate
in acts of war.
Logically enough, the Lisbon Treaty
therefore includes all those elements
of the failed constitution that display
constitutional traits according to the
usual national constitutional
standards because they either contain
fundamental changes in EU
institutions or entail (de facto)
irreversible transfers of sovereignty
from the Member States to the Union.
Firstly, these elements consist of the
confirmation of the presidential
structure of the European Council by
having the President elected for a
longer period (like the president of a
nation-state) and the streamlining of
the EU’s foreign policy representation
The Lisbon Treaty
includes all those
elements of the
failed constitution
that display
constitutional traits
according to the
usual national
constitutional
standards because
they either contain
fundamental changes
in EU institutions or
entail (de facto)
irreversible transfers
of sovereignty from
the Member States
to the Union
by creating a ‘High Representative of
the Union for Foreign Affairs and
Security Policy’ who will also be Vice-
President of the Commission and Chair
of the General Affairs and External
Relations Council – thus overcoming
the current split between the Council
and the Commission in terms of
foreign representation.
Secondly, they involve extending the
powers of the European Parliament
and putting it on an equal footing with
the Council in legislative procedures
on virtually all matters.
Thirdly, they involve the provision of
mutual military assistance in the case
of a military attack on a Member
State, even though the principle of
unanimity (still) applies to common
foreign and security policy (albeit
combined with the possibility of
shifting to qualified majority
decisions, except in the case of issues
related to military or defence policy).
The special nature of national
security and defence policies (i.e.
permanent neutrality of individual
Member States) is to remain
unaffected – whatever this means and
however this contradiction is
supposed to be resolved.
And last but certainly not least comes
the enshrinement of the Charter of
Fundamental Rights in law. Even if
this does not form the basis for
justifying any new competences for
the European Union, the
incorporation of social rights in
particular has raised expectations not
only of significant social progress but
also of a new momentum that will
face the Union with new challenges
and tasks and will also bring
additional financial requirements, not
least in order to cushion and mitigate
the negative social consequences of a
one-sided stability-oriented currency
policy. Here, too, only the future will
tell how this contradiction will be
resolved, particularly as in the case of
fundamental rights that go beyond
the classic protection offered by a
liberal state governed by the rule of
law (for example protection against
arbitrary acts by the state) and
establish rights to specific services,
the EU does not (yet) have any
responsibility in many of the areas
involved.
The Austrian Federal President did not
misjudge the existence of significant
tendencies of the EU’s future
development towards more
‘statehood’. On the other hand, in his
opinion one should take note that
there exists no consensus between
Member States to create a state out
of the ‘special structure’ named
‘European Union’. On the contrary:
quite a few Member States, including
Austria, strictly opposed this idea.
‘The transformation of the EU into a
federal state would be a total revision
of the Austrian Federal Constitution
which would have to be subjected to
a mandatory referendum.’ In the
President’s view the Lisbon Treaty,
however, definitely can not be
understood in the sense that such a
transformation is intended.
It cannot be denied that the matters
regulated by the Treaty have become
so complex and the Treaty itself so
complicated – in some cases
contradictory and even (virtually)
unreadable – that it would seem
unreasonable to force the public to
shoulder the final responsibility for
putting it into effect by holding a
referendum.
Continues on page 29

AN UNSETTLED REFERENDUM DEBATE
Continues from page 28
A case can be made – as the
President said in the above-
mentioned ORF interview – that it
would be ‘justifiable’ to realise this
responsibility by means of the
particular form of political and
democratic legitimisation that is
customary in each Member State –
i.e. parliamentary ratification. In
other words – slightly overstated – by
realising one’s political/moral
obligation towards the citizens
concerned according to the tried-
and-tested 18th century Austrian
tradition (established by the
Empress Maria Theresia and the
Emperor Joseph II) that the political
class knows best (or rather, should
know best) what is good for the
people.
On the other hand, this does not, in
my opinion, change the fact that – as
I have already said – it cannot be
ignored that the European Union has
now reached a stage of ‘statehood’
that would seem to call for direct
democratic legitimisation of the
result – in other words for it to be
put to a referendum. However, this
would not only call for a massive
programme to inform the public –
which, to my mind, has not yet taken
place or only to an inadequate
extent – but would also require the
various peoples within the Union to
have matured into a European
‘demos’ that would justify being
given a central role as ‘pouvoir
constituant’ in Europe’s process of
becoming a state and developing a
constitution. Mere parliamentary
ratification of the Treaty, as
happened in almost all Member
States with earlier revisions
(including the rejected
Constitutional Treaty), would not
meet this democratic requirement. I
would therefore regard the slogan
‘Parliament is the People’ (Johannes
Voggenbuber), quoted in this context
by proponents of a constitution and
former (supposedly) unimpeachable
grass-roots democrats, as
inadequate in itself (if not a
downright insult to the people).
Apart from anything else, they fail to
explain the contradiction that, on
the one hand they regard the Treaty
as bad and therefore apparently
believe the people to be too stupid
It cannot be denied
that the matters
regulated by the
Treaty have become
so complex and the
Treaty itself so
complicated – in some
cases contradictory
and even (virtually)
unreadable – that it
would seem
unreasonable to force
the public to shoulder
the final responsibility
for putting it into
effect by holding a
referendum. It could
thus be “justifiable”
that this responsibility
is shouldered by the
political class through
parliamentary
ratification. In other
words – slightly
overstated – by
realising one’s
political/moral
obligation towards the
citizens concerned
according to the tried-
and-tested 18th
century Austrian
tradition that the
political class knows
best (or rather, should
know best) what is
good for the people
to understand it – which is why they
would prefer to ratify it themselves –
but at the same time they defame all
those who are in favour of direct
democratic legitimisation because
this supposedly only serves the
interests of those who wish to make
the Treaty fail or are even in favour
of leaving the EU.
Now of course one first has to
acknowledge that at the present
time there is (as yet) no legal
29
provision for holding a Europe-wide
referendum. As I have already said,
the political class can be criticised
for the fact that – apart from
apparent Austrian attempts8 that
appear, however, not to have
received any support or have
remained unknown – this instrument
has not been promoted with the
necessary political pressure. It is
probably now too late to do so. And
it would be difficult and from a
logical point of view even bizarre to
insert the provisions for a
referendum into a Lisbon Treaty that
is itself to be subject to a
referendum.
It would, however, in my opinion
have been possible and realistic to
take a ‘pragmatic’ approach and
agree, on the basis of a politically
binding declaration at the Lisbon
Summit, to carry out a referendum
simultaneously in all Member States,
the result of which would only have
indicative character in those states
in which the instrument is unknown
or not regarded as necessary for the
Lisbon Treaty, but which externally
and vis-à-vis all the other states
would acquire legal status inasmuch
as it would be included in the overall
European result, which itself would
be legally binding. The result of this
referendum should, therefore –
provided a certain quorum is
reached (at least half of those
entitled to vote, see below) – be
binding, irrespective of whether in
individual Member States such a
referendum is required by the
constitution, is only carried out on
an optional basis or for historical
reasons is not provided for at all,
and also irrespective of the fact that
the instrument of a Europe-wide
referendum should legally first be
separately provided for in a treaty
between the Member States.
As far as the requirements for
acceptance are concerned, it cannot
be the case that a negative result in
an individual state condemns the
entire project to failure. This would
be inappropriate and also unfair vis-
à-vis those who were willing to ratify
the Treaty. That was also the
President’s – justifiable – concern in
the above-mentioned interview.
Continues on page 30
30
AN UNSETTLED REFERENDUM DEBATE
Continues from page 29
On the other hand, one could assume
that the European Union has now
reached a certain degree of
‘statehood’ but cannot (yet) be
compared with a traditional state,
especially as all the ideas discussed
(e.g. on the periphery of the
constitutional discussion in the then
Constitutional Convention, or by
Germany and France on the
objectives of Europe (Finalität
Europas) along the lines of
democratic, constitutional and
federal statehood of the EU) had been
concluded in advance by more or less
setting in stone the existing triangle
of power between the Council,
Commission and Parliament. The time
would therefore appear not to be ripe
for regarding a Treaty as having been
legally approved in a referendum if,
as in the case of referenda in
individual states, a simple majority of
the European population voted in
favour, independently of the
particular results in individual states.
I would therefore regard it as
appropriate, at the current stage of
integration, to provide for national
referendum results to carry a
significant weight when it comes to
the overall result.
The voting model used should,
therefore, represent a compromise
between these two extremes and
achieve a balance between the
plebiscitary interests of individual
states and those of Europe as a whole,
in line with the degree of ‘statehood’
currently achieved by the EU and at
the same time giving considerable
weight to the expression of will at
national level – in other words: a
balance or compromise between both
the will of the people as a European
demos and their will as a national
electorate.9 One guiding principle
could be the new qualified majority
voting system that the Lisbon Treaty
It would have been
possible and realistic
to take a ‘pragmatic’
approach and agree,
on the basis of a
politically binding
declaration at the
Lisbon Summit, to
carry out a
referendum
simultaneously in all
Member States
proposes for the Council from 2014
onwards. This introduces a ‘double
majority’ system, with a threshold of
55% of members of the Council
representing 65% of the EU
population.
If this were applied to a Europe-wide
referendum it would set both a
majority threshold for Member States
(i.e. a majority of states whose
populations would have to vote in
favour) and also a threshold consisting
of a majority of the EU population.
However, in order to match the
plebiscitary nature of the vote, it
would seem to me to be appropriate
to set the required state majority
higher than in the case of majority
decisions in the Council – in other
words to set stricter requirements for
approval and to call for a two-thirds
majority of Member States. The
threshold set for the population could
also be two-thirds (in other words,
roughly the same as in the Council),
but – unlike the qualified majority
decisions in the Council – it should be
enough for this majority of the
population to be calculated on a
Europe-wide basis, in other words it
would not just be the proportion of
votes in those states voting in favour
that would be taken into account in
calculating the overall result.
Continues on page 31

AN UNSETTLED REFERENDUM DEBATE
Continues from page 30
To sum up: the Treaty would be
passed if the national electorate of
18 Member States voted in favour (by
simple majority in each of these 18
states) and two thirds of the EU
population also gave its approval.
To my mind, this would represent
significant progress for democracy.
If, however, as happens in the
European elections, less than half
the electorate were to vote, then
one would have to seriously consider
whether a result on such a weak
basis could be regarded as
sufficiently democratically
legitimised and therefore binding. In
this case, the logical democratic
conclusion would be that politicians
taking on their political
responsibility within the various
Member States would have to face
up to their national sovereign,
represented by the national
parliament, in the context of the
parliamentary ratification process
that would then come into play for
the Treaty.
I am aware that this may all appear
rather utopian. However, one should
never give up hope, even when the
Zeitgeist – which no-one, as we
know, has ever actually seen –
suggests to the contrary. I am happy
to see that my opinion is shared by a
much more thorough thinker – who, I
imagine, had also played a guiding
role in President Fischer’s process of
political/academic socialisation –
namely Jürgen Habermas, who
recently (in Die Zeit on 29.11.2007)
said that European integration policy
had ‘always seen itself as an elitist
project, above the heads of the
population’ and especially at
present, as the Lisbon Treaty comes
into existence, ‘has never been
pursued in such a blatantly elitist
and bureaucratic fashion’. ‘The
pained silence being maintained by
governments on the question of the
future of Europe’, therefore calls, in
the opinion of Habermas, for
governments to ‘force themselves to
give their own citizens an
opportunity to decide in a
referendum on the future of
Europe.’
Jürgen Habermas:
European integration
policy had ‘always
seen itself as an
elitist project, above
the heads of the
population’ and
especially at
present, as the
Lisbon Treaty comes
into existence,
‘has never been
pursued in such a
blatantly elitist and
bureaucratic fashion’
I have little to add to that, apart
from, perhaps, the sad conclusion
that the political class (especially in
Austria) appears to be doing the very
opposite.
____________________________________
Peter Henseler is an independent consult-
ant and lecturer in public economics, Eu-
ropean economic policy and European
law. Until 2002 he was the Austrian dele-
gate to the Budget Committee of the
Council. He holds degrees in law (Vienna
University), Economics (Linz University
and Vienna Institute for Advanced Stud-
ies), Public Finance (Vienna Technical Uni-
versity) and European Law (Saarbrucken
University)
Footnotes:
1
Ludwig Adamovich, former president of the
Austrian Federal Constitutional Court and
former General Director of the Federal
Chancellory’s Legal Service
(Verfassungsdienst).
2
Total revision means substantial alteration of
(even only) one single principle of the so-called
‘fundamental’ or ‘structural’ principles
(‘Baugesetze’) of the Federal Constitution,
i.e., according to the Austrian doctrine, the
democratic, the republican, the federal, the
separation of powers, the liberal, and the rule
of law principles.
3
Partial revision means that by any
constitutional amendment none of the above
mentioned fundamental principles is affected.
4
According to the Austrian constitution,
principally a (simple) majority of the first
31
parliamentary chamber (‘Nationalrat’) could
decide to submit any law to a national
referendum. This includes also those
constitutional laws affecting a partial revision
of the constitution (but not a total one) and
thus it could fit also to the Lisbon Treaty. Apart
from this, in the case of a partial revision at
least one third of the members of either the
first parliamentary chamber (Nationalrat) or
the second chamber (‘Bundesrat’) may bring a
motion to initiate an optional referendum.
Under the given political conditions this is
really unlikely because the present coalition
government in office is based on a 73.2%
majority of deputies in the first chamber.
5
The two right-wing opposition parties,
however, postulate a national referendum – as
far as the greater party (Freiheitliche Partei –
FPÖ – ‘Freedom Party’) is concerned inasmuch
with a Europe-wide legally binding effect as a
negative result should impede the Treaty’s
entry into force, otherwise Austria should even
call on the option to leave the Union. This is
claimed partly in the context of campaigns
accompanied by right-wing populist polemics.
The green opposition party finds itself in
agreement with the government in rejecting to
hold a national referendum. However, more or
less significantly it pleads for a pan-European
referendum. Only isolated voices in favour of
such a European referendum could be heard
from some officials of the two coalition parties.
There is no doubt that a European referendum
had been repeatedly the subject of internal
talks of the Federal President and had been
also discussed in the Austrian parliament.
6
One of the most important questions that had
to be judged by the German constitutional
court was whether Germany will lose her
constitutional identity (‘statehood’ –
Staatlichkeit) by the Maastricht Treaty, in
particular by significant tendencies of
Entparlamentarisierung (removal of power
from the German parliament) and
Entföderalisierung of the German federal
institutions. Although the action was rejected
the judgement (BVerfG 89, 12.10.1993) stated
a reservation reviewing the ratification law of
the Treaty according to German constitutional
standards saying explicitly that future changes
of the Treaty’s ‘integration program’ would not
be covered by its present ratification law.
Former German Federal President (and former
president of the German Federal Constitutional
Court and president of the then first
Convention drafting the Charter of
Fundamental Rights as well) Roman Herzog
argued in the same direction saying (in Welt am
Sonntag on 13.01.2007) that ‘the question has
to be raised of whether Germany can still
unreservedly be called a parliamentary
democracy’ under the ongoing constitutional
efforts of the EU in not solving its democratic
deficits.
7
EUWatch October/November 2007, Issue 8, p. 7.
8
So the Austrian Minister for Foreign Affairs
(the ministry meanwhile was relabelled into
‘Federal Ministry for European and
International Affairs’) Ursula Plassnik
mentioned in an interview with an Austrian
newspaper (ÖSTERREICH on 18.11.2007) that
Austria did support the idea of a Europe-wide
referendum.
9
This ‘both-and-principle’ goes back to Ulrich
Beck’s vision of a Cosmopolitan Europe, to
which I referred in my EUWatch article on the
existence of a European demos (Issue 6, April
2007).
32

THE BEST DISCIPLE HUNGARY?

Two questions to two Hungarian MPs
HUNGARY WAS THE FIRST COUNTRY TO RATIFY THE LISBON TREATY. EUROPEAN COMMISSION
CHIEF JOSE MANUEL BARROSO HAILED HUNGARY’S SWIFT RATIFICATION OF THE EU’S LISBON
TREATY AS THE FIRST STEP TOWARD BRINGING ITS “CONCRETE BENEFITS” INTO EFFECT. ‘THIS
VOTE WAS AN EXPRESSION OF HUNGARIAN SUPPORT FOR A MORE EFFECTIVE, DEMOCRATIC,
TRANSPARENT AND STRONGER EUROPEAN UNION,’ – SAID BARROSO, PRAISING HUNGARY’S
QUICK MOVE. EUWATCH ASKED TWO HUNGARIAN MPS WHAT THEY THINK OF THIS HASTE.

important for Hungary, like national
minorities or language diversity. I
think the Hungarian government and
the Hungarian parliament should
have paid much more attention to
the new Treaty especially as regards
the sovereignty of the national
states.
bill relating to the approval of the
Treaty in our hands only on the
previous weekend without any
attachment of the Lisbon Treaty
itself. Neither the MPs nor the
experts had the possibility to be
acquainted with the text of the
Treaty. We had only some imagination
of it from the press. We think that
this kind of procedure is
undemocratic and is unacceptable for
us. This was the reason that five MPs
from our faction voted against and
the remaining part abstained.

Ékes, József (57), a Hungarian MP

with the FIDESZ Group.

The government shouldn’t have

forced the Lisbon Treaty through the
parliament since even in Germany,
whose leader Angela Merkel was one
of the builders of the new treaty, the
MPs and citizens were given enough
time to learn the content and discuss
its benefits and disadvantages. I think
this Treaty did not get through yet. In
Ireland the citizens will decide and I
can imagine that in several countries,
where the people realise that the
Treaty might contain dangers too, a
referendum will be demanded.
Unfortunately the Hungarian
government is drifting with the
events and is unable to carry new
ideas into the European common
knowledge. In the course of the
convention to draft the rejected EU
Constitution in 2002-3 the situation
was better since the Hungarian
members were able to draw the
attention to some issues which were
Salamon, László (60), a Hungarian
MP with the group of the Christian
Democratic People’s Party (KDNP)
The Lisbon Treaty was approved by
the Hungarian parliament with an
exceptional procedure so as to be the
first to ratify it. I, in the name of my
faction, the KDNP, rejected this
exceptional procedure pointing to
the fact that the Lisbon Treaty
touches the sovereignty of the
country and its status within the
European Union and it therefore
needs much more serious
consideration. The vote was on 17
December on Monday and we got the
A Hungarian lawyer, Jozsef Halász
(pictured above), has filed a
complaint against the Parliament of
Hungary at the European Court of
Justice in which he points out the
unconstitutional aspects of ratifying
a constitutional treaty without a
prior public vote. He also states that
the act of ratification was illegal
both according to Hungarian law and
international law.
 33

OPINION
FREEDOM IN THE ‘UNITED STATES OF EUROPE’
An exercise in the suppression of dissent?
“TRUTH IS TREASON IN THE EMPIRE OF LIES,” WRITES RON
PAUL IN THE PREFACE TO HIS FORTHCOMING BOOK, THE
REVOLUTION: A MANIFESTO. THE MESSAGE IS PRIMARILY FOR
AMERICANS, YET IT IS NOT JUST AMERICANS THAT CAN
BENEFIT FROM IT. IF EUROPEANS WANT A GLIMPSE OF THE
FUTURE OF THE EUROPEAN UNION, THEY HAD BETTER
RECOGNIZE WHAT IS OCCURRING IN THE UNITED STATES – THE
CURRENT LEADERS OF THE WESTERN WORLD. EUROPEANS
BY KEVIN SHOULD ALSO LOOK INTO THE PAST AND IDENTIFY EUROPE’S
ELLUL-BONICI POLITICAL TRADITIONS – THE VARIOUS ‘EMPIRES OF LIES’
WHERE TRUTH BECAME TREASON.

“FREEDOM IS POPULAR” and the economy, and steer foreign

But first, who is Ron Paul? Ron Paul is
a ten-term Congressman seeking the
Republican nomination for the US
presidential election in November
2008. His campaign has come to be
known as the ‘Ron Paul Revolution’
and his message of ‘freedom, peace
and prosperity’ has caught on across
the United States, especially among
the younger generations and
particularly on the Internet where he
overtakes all other candidates,
especially in online fundraising.
Ostracized by his own pro-war party,
marginalised by the mainstream
media and perennially plagued by
single-digit land-phone polls, Ron
Paul supporters have been
relentlessly active. This grassroots
movement has been so passionate in
promoting its cause it has often been
described as ‘a phenomenon’ in US
elections. Ron Paul himself has
maintained that ‘something big is
going on’ because people are ‘sick
and tired of bureaucrats in
Washington running their lives’ –
‘Freedom is popular,’ he says.
Ron Paul’s results in ongoing primary
elections do not confirm that
freedom is popular, especially as
mass voters flock to the media-spun
frontrunners, not wanting to ‘waste
Centralized power in
Brussels is not a
phrase spun by
“eurosceptics” but a
reality we all need
to face
their vote’. Yet 2007 has marked a
crucial political victory for the
freedom movement: Ron Paul’s
message has resonated with and
woken up millions of people. The
seeds have been sown, the
movement is growing exponentially
and the message keeps seeping
through – even in Europe.
The central theme of Ron Paul’s
freedom message concerns the
consequences of centralized power.
It relates to the role of the federal
government and the need to re-
establish the US Constitution. This
message asserts that federal power
in Washington DC has created a
monolithic centralized government
that has empowered the military
industrial complex and other large
industries (banking, oil,
pharmaceutical) to join an inflated
federal executive to regulate society
policy towards military
interventionism. Meanwhile, multi-
million funded lobbying in
Washington continues to ensure that
big government empowers big
corporations to the detriment of the
people; it continues to determine
where most of the taxpayers’ money
goes, while the Federal Reserve
steals the people’s money through
inflation by printing more dollars to
help sustain a world empire and a
trillion-dollar war, precipitating the
collapse of the dollar.
The masses have so far consented to
this federal takeover of their lives
and money. It is a form of consent,
as Noam Chomsky famously argued,
that is “manufactured” by the major
media networks, which promulgate
the lies and half-truths emanating
from Washington, while blacking
out, ridiculing or attacking dissent.
In the light of this modern-day
tyranny, this budding American
revolution demands a return to the
long-abandoned US constitution. It
also demands: i) the revocation of
the tyrannical laws enacted after
the 2001 attacks, which have eroded
civil liberties to worrying extents;
Continues on page 34
34
OPINION - FREEDOM IN THE ‘UNITED STATES OF EUROPE’
Continues from page 33
ii) a change in foreign policy and the
withdrawal of troops from across the
globe, iii) the decentralization of
power by returning to the states the
constitutional powers they lost to
the federal bureaucracy in
Washington.
AN END TO A BEGINNING
This last point resonates soundly
with critical voices in the European
Union – voices that call for power to
be restored to the people in their
respective parliaments. Centralized
power in Brussels is not a phrase
spun by “eurosceptics” but a reality
we all need to face.
In essence, the process of
decentralization demanded by the
Ron Paul Revolution is an idea whose
time has come, even if it would
ultimately entail the collapse of the
dollar to truly bring it into motion.
This process is the complete reversal
of the process of federalization that
is today establishing the new
European Union – which for clarity’s
sake we may call the “United States
of Europe”, as Belgian prime
So whereas in the USA we are
In Europe we’re just witnessing only the beginning of the
end of centralized federal power, in
seeing the end of Europe we’re just seeing the end of
the beginning of the construction of
the beginning of the the “United States of Europe”. Since
construction of the this is a process that centralizes more
power from the European democracies
“United States of to the Brussels bureaucracy, it is also a
Europe”, a process process of de-subsidiarization and de-
democratization.
that centralizes
In the fight to regain freedom, the US
more power from constitution provides Americans with
the European guidance. For the US constitution was
designed to restrain the federal
democracies to the government; it was meant to disallow
Brussels the federal government from seizing
powers from the states and to prevent
bureaucracy. This is the establishment of a centralized
bureaucratic government. The EU
a process of de- Constitution, however, provides the
subsidiarization and mechanisms that empower the Union
to effectively seize (and create) more
de-democratization powers.
The US constitutional mechanisms to
minister Guy Verhofstadt called it – safeguard the states’ rights have
or even an “empire”, as Commission long failed (which is why it entails
president Barroso famously another “revolution” to regain
described it last July (Watch video them).
clip at http://www.youtube.com/
watch?v=c2Ralocq9uE). Continues on page 35

OPINION - FREEDOM IN THE ‘UNITED STATES OF EUROPE’
December 12, 2007
marked a sad day for
democracy in
Europe. Not because
some 80 Members of
the European
Parliament (MEPs)
protested inside the
Strasbourg
hemicycle while in
plenary. It was a sad
day because that
protest was
considered
treacherous by the
conventional wisdom
of the day
Continues from page 34
They failed because at a federal
level the Senate and Congress
betrayed their electorates,
preferring to play the Left vs. Right
partisan games while consenting in
their vast majorities to the
incremental federal seizure of power
over time. If this is what happened
in the US there is no reason why it
should not happen in the EU. The US
constitution does not provide for
Washington to govern and regulate
the states the way it does today, but
the EU Constitution will. The
budding American “revolution” may
be described as a constitutional act,
in Europe it will be
“unconstitutional”, or, as the EU
Court of Justice would decree, not
‘in the spirit of the Union’.
Moreover, the EU centre requires
more gravitational force than in the
US since it needs to deal with at
least 22 languages, various cultures
and 27 mainstream-media
configurations. This force is being
sought through centralized
regulatory measures, rather than by
allowing the “four freedoms of
movement” to organically harmonize
life across the 27-member-state
Single Market – an organic
transformation that would come
from the people through each of
their national parliaments, whose
sovereignty is subject to no supra-
power, but only to treaties and
human rights conventions.
The road to centralized power is
paved. With the EU Constitution,
rejected in two referendums and
eventually re-invented as the
“Treaty of Lisbon”, the people are
being deceived into relinquishing
their constitutional powers to a new
political entity.
And the Charter of Fundamental
Rights, you might ask? I would say
this Charter has to do with
everything except human rights. For
other than there being nothing
unmanageable with the European
Convention on Human Rights, which
it replaces, what the Charter
essentially does is place our rights
squarely within the realm of the EU
Court of Justice – a jurisdiction
where the ‘spirit of the Union’ reigns
35
supreme.
And within this realm, it seems, one
should rather not protest against
centralized power.
WHEN DISSENT IS
DENOUNCED
Protest, if not revolution, is evident
across the European Union – not only
in the minds and in the streets, but
even in the European Parliament. In
a democracy the right to non-violent
protest is a sine qua non. But the
spirit of the times does not look
kindly on protest.
December 12, 2007 marked a sad day
for democracy in Europe. Not
because some 80 Members of the
European Parliament (MEPs)
protested inside the Strasbourg
hemicycle. It was a sad day because
that protest was considered
treacherous by the conventional
wisdom of the day. That day the
protesting MEPs were calling for a
referendum on the Lisbon Treaty.
Continues on page 36
36
OPINION - FREEDOM IN THE ‘UNITED STATES OF EUROPE’
Continues from page 35
Their call is justified since the Lisbon
Treaty performs the same functions as
the Constitutional Treaty, a fact
emphatically demonstrated, among
others, by the ‘Father of the
Constitution’ himself, Valéry Giscard
d’Estaing. The reinvention of the
rejected Constitution into the Lisbon
treaty was performed with the sole
purpose of deceiving the people into
believing that the Lisbon Treaty is just
a minor amending treaty that requires
no referendum. In effect, on the basis
of this lie the French and Dutch No
votes were ignored and five promised
referendums were cancelled. The
responsibility of deciding the future of
Europe now lies squarely with the
Irish for only Ireland is holding a
referendum.
So today we witness the rest of the
member states’ governments ratifying
in the national parliaments the
disguised Constitutional Treaty with
hardly a brave voice uttering an
objection. But if brave voices in most
national parliaments are sparse,
those in the European Parliament
stand united behind their call for
freedom.
Their watershed manifestation in the
Strasbourg Hemicycle brought on
them the ire of the majority in the
House, not least the president of the
European Parliament himself, who
eventually called for a handpicked 13
MEPs (of around 80 MEPs taking part)
for disciplinary proceedings (Watch
YouTube video, at 05:15 - Nigel
Farage:
h t t p : / / w w w. y o u t u b e . c o m /
watch?v=qkHK_EFfTCM). There is
hardly the need to emphasize that
this “headmaster’s reprimand” of
elected officials goes against the
grain of democracy.
More was to come. When the
dissenting MEPs, applying rules of
procedure, asked for roll call votes,
explanations of vote and points of
order, the president sought
discretionary powers to arbitrarily
stop whatever action he considers
obstructive to the House, even if such
action is according to procedure and
therefore legitimate.
The democratic
tradition is only one
of Europe’s various
political traditions.
On dissecting
Europe’s past
traditions one is
confronted by the
same pattern of
intolerant
institutional thought.
There is this
recurring
occurrence, this
Inquisitionist
persistence against
dissent
“A DARK DAY FOR
DEMOCRACY”
There was never any doubt that the
president’s request for arbitrary
powers. And there should be less
doubt as to the implications of this
new power.
“Today is a dark day for democracy”,
said Nigel Farage MEP (IND/DEM)
after the decision (24.01.2008).
“From now on the President of the
Parliament has the power to
interpret the rules as he sees fit. He
can rule out of order any action that
opposes the status quo in any area
of policy. In practical terms this
means that if there were another
massive fraud case in the
Commission debate could be
quashed on the word of the
President”.
It was in this storm of authoritarian
self-righteousness that Daniel
Hannan MEP (EPP-ED) tested the
waters by half-comparing this
empowerment to the majority rule
that approved the 1933 Enabling Act
in Germany. It is no surprise that the
call to banish Daniel Hannan from
the European People’s
Party/European Democrats (EPP-ED)
commenced in earnest. This is how
he puts it in his Telegraph blog
(31.01.2008):
“I repeated the point I made in this
blog last week: that the 1933
Enabling Act had had a technical
majority in the Reichstag, but that
it opened the door to
unconstitutional rule. Whatever else
MEPs are, they are not Nazis: many
of them have proud records of
fighting totalitarianism throughout
the world. That is why it was so
disappointing to see them resorting
to this appalling measure in order to
silence dissent.
“As I sat down, the EPP leader,
Joseph Daul, sprang to his feet and
announced that he wanted me
thrown out of the group. He had lost
patience with my filibustering, he
said. Enough was enough.
“I spoke to him afterwards. I hoped,
I said, that he wasn’t taking any of
this personally. But I understood
why he wanted to exclude me. There
was, I suggested, an ideological
difference between us. “Not a
difference, an incompatibility”, he
snapped, adding: “I don’t care if you
call for a referendum in the United
Kingdom. But I won’t have you doing
it from the floor of the European
Parliament as a member of my
Group.”1
And yet, after all that’s said and
done, it was okay for Martin Schulz,
head of the Socialist group, to
compare the manifestation in
parliament to the “shouting
strategy” of “Adolf Hitler” in the
“Weimar Republic”; and it was okay
for Liberal Group leader Graham
Watson to compare the protest to
the actions of “communists in the
Russian Diet” and the “National
Socialists in the German Reichstag”;
and it was also okay for Daniel Cohn-
Bendit to call the dissenting MEPs
“idiots”, “mentally weak” and
“mad” (Watch YouTube video from
01:55 – Schulz, Watson and Cohn-
Bendit:
http://www.youtube.com/watch?v=
qkHK_EFfTCM).
Continues on page 37
 37

OPINION - FREEDOM IN THE ‘UNITED STATES OF EUROPE’

Continues from page 36

WHEN TRUTH IS TREASON

This is the state of the Union at the
end of the beginning of the ‘United
States of Europe’. Not exactly the
‘beacon of democracy’ one would
have hoped for. But then, it is no
surprise. The democratic tradition is
only one of Europe’s various political
traditions. On dissecting Europe’s
past traditions one is confronted by
the same pattern of intolerant
institutional thought. There is this
recurring occurrence, this
Inquisitionist persistence against
dissent. It transgresses all eras. We
had the old pontifical powers that
burned heretics, the collectivized
Hegelian nation state that perfected
the art of war and established the
Fatherland, the Soviet Motherland
that suppressed expression and
locked dissenters in gulags; one can
go on and on. These are all European
traditions and they all suppressed
freedom.

The American tradition is an

offspring of the European tradition
(even if many Americans think the US
is a planet in its own right). The
American tradition is indeed an
extension and a direct development
of the European Enlightenment. If
we, as Europeans, are trying to
emulate the US federal system, we
should at least critically observe
what goes on in the US and recognize
the direction it is heading. For if the
“Violent Radicalization and
Homegrown Terrorism Prevention Act
of 2007” and the notorious FEMA
camps in the US are the precursors
of another round of the gulag
experience, then freedom in the
West is in a bad shape indeed.
The ‘Ron Paul Revolution’ is the
effect of a deteriorating republic
whose surging empire it can ill
afford. It is the effect of a
centralized “federal” state where
the people have long been directed
by the mainstream media within an
illusion of partisan political games.
The Ron Paul Revolution is made up
of a minority that is dissenting
against Washington, where
representatives bow in consent to
political correctness.
One cannot fail to recognize how
important freedom of expression is
in the European Parliament,
especially at a time when the people
are being continuously deceived by
their own governments. Within the
triumvirate of institutions that rules
the Union, the European Parliament
is the only one that is directly
elected by the people. There can be
no restrictions on expression here,
let alone tactics which cannot be
described without transgressing the
‘code of political correctness’.
Political correctness and
denunciation of dissent are
symptoms. They appear whenever
freedom is obscured. Totalitarianism
is the malady, where intolerance to
opposing ideas is the germ. The
democratic process can itself be
used to denounce freedom. If
allowed to happen, a majority can
decide to suppress freedom forever.
That is why constitutional safeguards
exist to protect the minority. That is
why the voice of the minority must
be heard above that of the majority.
For it is the minority that signals
peril ahead, not the bandwagon
majority. The minority’s weapon is
its voice, for its vote hardly counts
at all.
So here are some questions. How will
the Charter of Fundamental Rights,
annexed to the Lisbon Treaty,
safeguard the rights of the political
minority at the European level? Does
the ideology of the new European
Union only allow dissent inasmuch as
the Left-(Centre)-Right partisan
game is concerned?
Beyond Left and Right, is there not
Up and Down, where Up is toward
freedom and Down is toward
totalitarianism?
____________________________________
Kevin Ellul-Bonici is a political analyst
and criminal justice specialist with the
Independence/Democracy Group in the
European Parliament.
Footnote:
1
http://blogs.telegraph.co.uk/politics/danielhan
nan/jan08/eepthrowingmeout.htm
38

EUROPE IN NUMBERS
CENTRALISATION – THE DECLINE OF THE WEST?
CHART 1

BY KARLOY
LORANT

The reasoning behind the Lisbon

Treaty as well as in the cases of the
Maastricht and Amsterdam Treaties
earlier, was the higher efficiency of
the functioning of the European
Source: Eurostat
Union. The greatest power
concentration actually happened with
the approval of the Maastricht Treaty, TABLE 1
which scheduled the introduction of
the euro. With the introduction of the
common currency twelve member
states lost their sovereignty over their
monetary policy – one of the most
important means of economic control.
Advocators of the euro, for instance
Professor Dr Hans Tietmeyer President
of the Deutsche Bundesbank, when
delivering a lecture at the City
University Business School in London
on May 18, 1998 said that the single
currency makes it possible to fully a satisfactory substitute for flexible sovereignty, and formed a monetary
exploit the economic benefits of exchange rates. The likely result is union, and that is the first step
integration by encouraging that the euro will exacerbate political towards a federation.”
competition, by the transparency of tensions by converting divergent
prices, by minimising transaction shocks that could have been readily Romano Prodi, the Commission
costs, etc. The possible problems – accommodated by exchange rate president at the time, shared his
other than what is related to price changes into divisive political issues,” opinion: “The euro was not just a
stability – were either not addressed, he said. “Political unity can pave the bankers’ decision or a technical
or there was just a pale reference to way for monetary unity. Monetary decision. It was a decision, which
possible structural problems that can unity imposed under unfavourable completely changed the nature of the
be handled easily. conditions will prove a barrier to the nation states. The pillars of the nation
achievement of political unity,” he state are the sword and the currency,
However not everybody was so concluded. and we changed that. The euro
enthusiastic about the euro. Milton decision changed the concept of the
Friedman, for instance, in an Others admitted that the main goal is nation state and we have to go beyond
interview to the Wall Street Journal in not economic efficiency. For instance that,” he said.
1997 foresaw that the losses will German Foreign Minister Joschka
outweigh the gains. “The potential Fischer in an interview to the Financial We can rightfully suppose that the
members of the EMU do not have Times (7 July 2000) stated: “We overall indicator of economic
sufficiently flexible wages and prices, already have a federation. The 11, efficiency in the long run is economic
or sufficiently mobile workers, or a soon to be 12, Member States adopting growth.
sufficiently effective fiscal the euro have already given up part of
compensatory mechanism, to serve as their sovereignty, monetary Continues on page 39

CENTRALISATION – THE DECLINE OF THE WEST?
TABLE 2
The difference between the actual and
potential GDP Billon of 2001 euro
Continues from page 38
So we can get some information about
the efficiency of the European Union
and the eurozone if we make a
comparison between the economic
growth of – let us say – the European
Union and the United States, or the
eurozone and the non-eurozone
countries.
As can be seen from Chart 1, the
economic growth in the EU-15 in the
1950s and 1960s up to 1973 was much
higher than in the United States. The
difference during this 24-year period
reached 1.4 percentage points on
average. However it is understandable
and can be explained by the post war
reconstruction period in Europe and
with the catching-up process of the
less developed southern countries like
Italy or Spain, and also by the fast
modernisation of Germany and
France. The two oil price explosions in
the 1970s put an end to the fast
growth in the Western World. In both
regions the growth potential
decreased considerably from 5.3 to
2.3 in the EU and from 3.9 to 2.5 in the
USA in the 1974-1990 period. During
these 17 years economic growth was
almost the same in both places. Later,
with the declining oil prices, the US
economy accelerated, while the
CHART 2
European economy further slowed
down. In the 1990-2007 period, the
difference to the advantage of the US
reached almost 1 percentage points,
which can be explained by nothing
else than the tight fiscal policy in the
European Union aiming at the
introduction of the common currency,
the euro. This opinion can be
underpinned by the fact that since the
introduction of the euro, the non-euro
counties are growing considerably
faster than in Eurozone, the
difference being 0.7 percentage
points (see Table 1).
International statistics prove that the
less developed countries can reach
much higher economic growth than
the developed countries, because
(within certain circumstances) they
can overtake the advanced technology
invented already in the most
developed countries. With the
decreasing technological gap,
economic growth decreases. From this
one can surmise that the European
Union – being less developed than the
United States – would have reached
higher economic growth than the USA.
If that is not the case the only feasible
explanation is that the weaker
performance of the EU can be
attributed to the tighter monetary
policy needed to introduce the
common currency since the Maastricht
Treaty set this goal as from 1993.
If we accept this explanation, the cost
of the centralised and unified
monetary policy can be calculated.
Let us suppose that without the tight
39
monetary policy the EU-15 could have
reached the same growth rate of the
United States in the 1990-2007 period,
i.e. 2.9% yearly. The difference
between the actual and potential
(possible) growth of the EU-15 can be
seen in Chart 2, expressed in 2001
euro. The accumulated difference
between the actual GDP and what is
potentially possible from 1990 to 2007
amounts to some € 14 trillion (14
thousand billion) which is equal to 140
years of the EU budget. Each EU-15
citizen has paid during this time-frame
some € 38 000 for the introduction of
the common currency.
Without questioning the benefits of
the euro put forward by Professor Dr
Hans Tietmeyer and others, statistical
evidence suggests that Milton
Friedman’s worries proved to be right:
the price of the common currency can
be higher than its indisputable
benefits.
The recent debate between Nicolas
Sarkozy and Angela Merkel about the
policy of the European Central Bank
indicates that the “one size fits all”
principle can be questioned and the
centralised monetary policy, instead
of strengthening the community, can
lead to severe discontent among
member states.
_____________________________________
Karoly Lorant is an electrical engineer and
an economist. He has been working as an
economic researcher for the IND/DEM
Group of the European Parliament since
2003
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