Can the Council and the European Council be taken to Court for illegal action on the budget? The question was raised following my last commentary. Billions of public money are involved in a time of austerity and financial crises.
The European Council, the Council of Ministers and the Parliament could all be potential offenders and taken to Court. Why? because they are raising taxes and attempting to increase taxes in secret. Further they are considering how to decide on the use of the tax money in secret. They do not only refuse to tell the public what is going on but they physically exclude the public and the press from meetings. This procedure is illegal. Right of entry or observation is involved. Legal action could be taken at this starting point.
Politically the exclusion is also neo-Gaullist. It is completely against the democratic principles of the supranational Community system where every cent could be accounted for — democratically.
A good prima facie case can be made for bringing a case for illegal action. Firstly, to exclude the public and press from the Conciliation Committee is illegal. This clearly falls foul of Article 15.2. All official institutional consideration of even draft legislation MUST MEET IN PUBLIC. The Conciliation Committee agenda describes exactly the offending action: to consider financial draft legislation. Considering draft legislation is its purpose and that exactly falls under article 15.2. The Treaty paragraph says that an institutional consideration of draft legislation by Council or Parliament must be open. It was closed. It is illegal to exclude the press and the public. The press and any member of the public has the perfect right to complain to the Court.
The European Council was also considering draft financial legislation. They claim that are not covered by 15.2. That is dubious. They are definitely covered by the article 15 as a whole. The previous line, 15.1 demands they should reform their past habits and adopt an open format. They ‘shall conduct their work as openly as possible.‘
But there is much more to take into account. The Treaty section starts with Title Two called ‘Provisions having general application‘. The first article, Article 7 demands consistency between policies and actions. Thus the institutions should have consistent rules on open sessions and open formats.
As to the European Council’s ‘consideration of draft legislation’, there is no doubt. We have also definite proof in the handout signed by the 12 government leaders that the budget increase should be held to 2.9 percent. They had a long discussion, that is, a consideration of draft financial legislation. They got deeply into details. We have the evidence of the financial discussions initiated by the President of the Parliament and the long discussion with him as further proof. He told the press afterwards he had never had such a long and detailed discussion with the European Council before. He told the press some of the details. This meeting should have been completely public as I have argued for many years based on Schuman’s statements and principles.
Thus far more than ‘General principles‘ mentioned by Mr Barroso is involved. In this case whatever the ‘general principles’ were, they were the same as a consideration of draft financial legislation. Even if they were only ‘general principles‘ it is even more important that the session be open. What if the ‘general principles’ included how we can bilk money from the public without them knowing about it? What if we later found out that all the discussants were Mafiosi or were subject to inter-State blackmail? Should not the public know what the ‘general principles‘ are and how they are arrived at? General principles mean the initial consideration of draft financial legislation. So the European Council’s case of innocence is well-cooked if not burnt to a frazzle.
Outside the raw discussion of euros and cents, the European Council also discussed matters of mega-fraud. This involves the sum of more than 500 billion euros for a rescue operation. It sparked a lot of criticism. Are the government leaders solving the problem or compounding it? Are they partners in crime? Is there a question of collusion in crime? That is not only my question but one lying before the German Constitutional Court. The topic came up because one Member State (at least) fraudulently changed national statistics. Secondly, the State then misspent public money. Thirdly, when the chickens came home to roost, other States helped out that fraudulent State. Why did the other Member States bail out this fraud and possibly those of other Member States who did the same thing. Was it legal? The German Constitutional Court is considering aspects of the matter at the moment.
That is the reason why Treaty changes are necessary — because the bailout may well be illegal as it is based on supporting and committing fraud in support of other fraud. Some governments feel that stronger measures against fraud should be written in a Treaty. No one denies Treaty changes were also discussed. As a general principle, should not the public know about this? Why should the fact be secret? The public has another reason for insisting on openness, a procedural one. That is to expose political fraud when governments do the opposite to public referendum results and put in place an unpopular, undemocratic treaty (such as the Lisbon/Constitutional Treaty).
Let us confine ourselves to the financial question of next year’s budget. It makes no sense to have lower ‘technical’ financial committees open (even if they were) and the ‘top people’s Council,’ who dictate the ‘general principles’, closed. That is like blaming bureaucrats and not the politicians who demand certain things are done. Or blaming soldiers and not the generals who order them to commit atrocities. The ‘lower’ Conciliation Committee was in fact attended by the Prime Minister of Belgium, the Parliament President, and the Budget Commissioner. Not exactly lower. That meeting of the Conciliation Committee should be open without doubt. And therefore so should the European Council on which the Belgian Prime Minister sits, and the President of Parliament comes to discuss exactly the same matter with the other 26 government leaders.
The moral argument is also important. There is case law. The public has a right to know everything about the raising of taxes and the use of its money. Representatives of the public should not close the doors on the public at any whim. This is especially the case when they are dividing up public money and deciding how much they should tax the public. It is not their pocket money.
The European Court has upheld the legal necessity of proper consultation before all legislation. Without proper consultation previously legislation was thrown out and voided. One important ruling was in the Isoglucose case in the 1970s. On the basis of this Parliament insisted that direct elections should take place. They were in the Treaties but had been refused for decades. European Parliament’s members were nominations of governments in national parliaments. Nominations were the Gaullist way to keep democracy down.
The case was won by Pierre-Henri Teitgen arguing the case in favour of the power of a democratic Parliament and its prerogatives. Pierre-Henri Teitgen was a close friend of Robert Schuman in whose government he was a key minister. He was an eminent lawyer. He was later judge in the European Court of Human Rights, an institution that he was instrumental in creating. The Court said full procedural consultation was necessary before legislation could be declared valid.
Consultation with the public in the budget discussions was denied by physically closing doors. An official had a list of those who were allowed to enter. All others were refused. The treaty says it must be OPEN TO THE PUBLIC. This exclusion of the public at 2.30 pm on 27 October 2010 was an illegal act. Any other repetition at a Conciliation Committee is also illegal.
Anyone interested in how their taxes are being collected and spent should attend what the Treaty says is a meeting that must be held IN PUBLIC. The public is therefore welcome to come in great numbers to try to attend the next Conciliation Committee meetings. The dates are the 4, 8 and 11 November.
For details journalists should contact the Parliament:
Telephone number : (+32) 2 28 34018 (BXL)
Mobile number : (+32) 498 98 13 36
E-mail address : budg-press at europarl.europa.eu
Telephone number : (+32) 2 28 44659 (BXL)
Mobile number : (+32) 498 98 35 88
E-mail address : budg-press at europarl.europa.eu
The public should contact their MEP for details or the Commission or the Council of Ministers.
The public is more than a partner in the legislation. It is the owner of the money and the boss of the people inside and running the institutions, such as European Council, Council of Ministers, Parliament and the Consultative Committees. It is therefore like paid servants plotting how much they will take from the master’s purse and deciding how they will spend it. The closing of the doors is an act equivalent to piracy, taking other people’s money by a plot and physically excluding the master from the plotting meeting discussing the heist. Then they tell the master/employer ‘It’s none of your business! Keep out!’
That is the significance of the explicit articles of the Lisbon Treaty. What is common sense about the public’s money is now written in Treaty law.
It is no small matter. Improper raising of taxes is the cause of centuries of parliamentary struggles, wars and regicide. It led eventually to much of modern governmental law and legitimacy. It is fully a question on the correct functioning of a democracy, where all decisions, according to Schuman’s definition, have to serve the people and be agreed by the people.
Legally this issue of open public access and shut doors at institutional meetings on the 2011 budget is an open and shut case.
The question only remains: Who will take up the case? WHO WILL KNOCK AT THE DOOR AND COMPLAIN TO THE COURT?