Complaint to the Ombudsman,    11 February  2008


 The European Ombudsman


Complainant: Name withheld

11 February 2008

2.  Institutions responsible. The Council of Ministers has created a system to make popular consultation impossible. It is therefore an abuse of administrative power. The supposedly independent European democratic institutions (Commission, European Parliament, the two consultative committees, the Economic and Social Committee and the Committee of Regions) should be demanding a clear and understandable treaty. They have yet to do so. They are co-responsible.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

3.  Complaint about draft Lisbon Treaty

On 4 February 2008, I viewed the  website to obtain a consolidated version of the Lisbon Treaty.

The document is of primary importance to all European people. It covers and modifies all institutions, all competences of previous treaties plus it makes major changes in the philosophy of governance. Defying elementary democracy, ministers in meetings closed to the public made changes to existing treaties. The proposed changes deal with transparency of legislation, human rights, the European system of Justice including the Court statutes, the European monetary policy, the security, defence policy and foreign policy plus major aspects of all European internal and external policies, the flag and anthem.

The website says:

“A consolidated version of the Treaty will be published once it enters into force.” (This text has since been moved to the less prominent FAQ section, 9 Feb 2008)

It also says:

“The treaty will not apply until and unless it is ratified by each of the EU’s 27 members. It is up to each country to choose the procedure for ratification, in line with its own national constitution.”

This bureaucratic abuse puts citizens, like myself, all civil associations and all democratic institutions in the impossible position that they have to agree to a document before it has been finalised or before it is in understandable form.

4.   What is wrong. Consultation is an essential part of all European legislation including treaties. How can the European institutions and the European people be consulted with an incomplete draft Treaty of Lisbon and secondly, with the refusal of the Council of Ministers to supply a consolidated treaty?

The Court of Justice of the EC ruled that consultation was essential for all legislation in European democracy. ‘Due consultation of the Parliament in the cases provided for by the treaty therefore constitutes an essential formality,’ It added that disregard of consultation ‘means that the measure concerned is void.’ (Case 138/79 1980) The principle applies to all consultative committees and broader consultation with the European peoples. Without real consultation the draft Lisbon Treaty cannot be ratified and therefore is void. Consultation is impossible without the relevant documents. Ratification of an unseen, unfinished draft treaty in these conditions is legally unsafe.

It should be pointed out that a number of sections of the Treaty are not complete. They include phrases such as ‘any necessary grammatical changes shall be made.’ etc.  If a second-hand car dealer made such an incomplete contract, the court would have no hesitation in throwing it out as illegal. If the car dealer demanded the client’s money and the client’s purchase of an indispensable car be irrevocably finalised before he fixed the sale contract, for which he and he alone had the final choice of words, the car salesman might be accused of extortion. Without a consolidated treaty, it is like demanding the purchase without seeing the engine to find out if it works. I have grave doubts on the new European motor because the treaty appears to violate the original, fair-minded principles of a supranational European community. It institutionalises dangerous discrimination against minorities and even majorities, in fact, anyone who declines loyalty to dominant political party machines.

The Irish Institute of European Affairs has published a Consolidated Version of the draft Treaty but the publishers caution the reader/voter:

  *DISCLAIMER* All Treaty citations are the sole responsibility of the author."

How can the voter agree to a Treaty if Governments AND private expert lawyers decline responsibility about what is the final version?

Open Europe has tried to produce a comprehensive treaty for discussion. It says in their version:

“ The official version of the new constitutional treaty {the treaty of Lisbon} is almost unreadable for non-specialists, as it takes the form of a series of amendments to the existing treaties without reproducing the existing text that it would alter."

It adds:

“The numbering of the revised treaties is a potential source of major confusion. The treaty of Lisbon refers to articles in its own text in one format, but in a later provision changes them all, meaning that the article numbering in the final consolidated texts would be different from those referred to in the Treaty of Lisbon (although the ordering of articles would be the same.)”

The Treaty of Lisbon is thus a catalogue of amendments. It is unpenetrable for the public.’ V Giscard d’Estaing, Independent 30 Oct 07

Is this inherent confusion accidental or purposeful? We have the testimony of the treaty-writers themselves that the confusion was designed to be confusing. This is an abuse of administrative of the most serious kind.

The Belgian Foreign Minister, Karel de Gucht, one of the ministers responsible for the Lisbon Treaty, is quoted as saying: ‘The aim of the Constitutional Treaty was to be more readable. … The aim of this treaty is to be unreadable. … The aim of the Constitution aimed to be clear, whereas this treaty had to be unclear. It is a success.’ (Flanders info, 23 June 2007)

This is not just the individual opinion of one minister. It was the intent of all the ministers involved in the creation of the Lisbon Treaty according to one of the architects of the Constitutional Treaty.  Former Italian Prime Minster Giuliano Amato is quoted as saying and on video:  They decided that the document should be unreadable. If it is unreadable, it is not constitutional, that is the sort of perception…

The former Irish Prime Minister, (Taoiseach) Garret Fitzgerald wrote: Virtual incomprehensibility has thus replaced simplicity as the key approach to EU reform. (Irish Times, 30 June 2007)

Writing an unreadable Treaty and designing a Treaty purposely to be unreadable are both serious administrative abuses. This document is of the highest importance for every single citizen in the European Union and millions of people outside it. It covers all the aspects of previous treaties. It covers many new areas of activity. If it is unreadable or not understandable, it is not a democratic document.

A consolidated treaty is the very least form that should be produced for a democratic debate, not only in (a) national parliaments, but in (b) all civil society collective associations and (c) for all individuals among the nearly 500 million citizens who wish to consult and understand it.  Above all it should be available as a base of discussion and analysis in (d) the European Parliament (e) the Economic and Social Committee and (f) the Committee of Regions.

Proof that this deception is ministerial Policy. The Council is obviously able to produce a consolidated version and a readable treaty immediately. Private organisations have produced unofficial versions. The fact that the Council is refusing to produce a consolidated Treaty UNTIL the treaty is ratified proves that:

(a)   they do not want democratic consultation with Europeans about the complete, unambiguous document;

(b)   this Council policy to publish the real treaty ONLY after ratification of this incomplete draft list of amendments proves they are doing everything to AVOID consultation. Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly ... All the earlier proposals will be in the new text, but will be hidden and disguised in some way.’ V.Giscard D'Estaing, Le Monde, 14 June 2007, S Telegraph, 1 July. Citizens will only know what their parliamentary institutions have decided once the ministers have forced its passage. Two referendums have already rejected what is almost exactly the same treaty. (It was by spin called a Constitution but legally it was still a treaty.) This is clearly a dishonest approach.

Consequences. This is fundamentally undemocratic. Secrecy by unreadability biases a decision in favour of the autocracy of party political machines rather than free decisions of free representatives in 27 parliaments. One of the many serious but hidden aspects seems to be that the European Commission, which should act as an impartial arbitrator of all European interest, will irrevocably become the plaything of party political machines. The Commission President will be chosen, not by unanimity of governments for the most qualified and fair-minded candidate: candidates will be elected in rotation by political majorities in Council and Parliament and are thus WEDDED to parties. The change profits only party machines. The people in general and civil society associations will be losers. It would mean that independent people like Jean Monnet, the first president of the Commission would be excluded from these lists of candidates because he was not a party political nominee. All independent people like Hallstein and Davignon, diplomats, all party-independent contributors to Europe’s culture, lawyers, academics, journalists, philosophers, theologians, scientists or futurologists, experts on energy problems and climate change will henceforth be excluded. The disinterested, too. Commissioners will all be politicians.

The Commission’s legitimacy derives not from party factionalism but on the contrary, from its impartiality and disinterested expertise in all Europe’s needs and interests. Instead, the Commission will no longer be able to aspire to be an honest broker. Despite fine words about independence, the Commission will be permanently defined as the instrument of political technocracy. AS PARLIAMENT’S CREATURE, IT WILL BE UNSACKABLE. Obedience to party will replace the founding principle of reconciliation of Europe’s diversity. Cartels will flourish. Initiatives like the single market or the Euro are likely to become impossible. Consensus on climate change and energy policy will dissipate as issues become politicised to seduce powerful interests, some covert, some undemocratic. All initiatives will become partisan. The motive is clear. Public support for party politics and party finances have both sunk, their ethics and morality are questioned and voter numbers have fallen. Diverting Commission jobs and money to parties is corrupt politics. This attempted party political take-over of the Commission will create serious divisions in Europe and inside Member States at all levels. Institutionalising the bad practice of recent years will lead to political blockages and reduced economic growth. All will suffer the consequences.

It is obviously with a great deal of cynicism, given this evidence and the testimonies of the treaty’s authors, that the website says about this treaty: “Its main objectives are to make the EU more democratic, meeting the European citizens’ expectations for high standards of accountability, openness, transparency and participation. This sentence has since been deleted. Ministers have yet to fulfil basic democracy of earlier treaties, see annex 1. 

5.  Action to be taken by the 5 bodies.   Firstly, in principle all treaties must be understandable. The public is demanding better, more readable Regulations. It is simply not acceptable for bodies that purport to be European democratic institutions (the Council of Ministers plus four other democratic bodies, EC, EP, CoR, EcoSoc) to FAIL to produce a readable draft Treaty for debate. The Ombudsman should remind the Council that it cannot present to the public a major document that is designed to be unreadable. This Treaty is to be concluded for an UNLIMITED PERIOD (Article 3). People cannot understand it to agree or disagree about its opaque governance system. This is an unconsultable treaty, defying the European Court ruling that all legislation should be subject to full, legal consultation. 

Secondly, the Council must produce a consolidated version where (a) the amendments in the proposed Treaty of Lisbon can be seen in context and understood a little better, (b) the numbering of the articles is clarified and (c) that all ambiguities of grammar and phrasing are finalized as is normal in legislation. The Council must publish a two-column version with the rejected Constitutional Treaty, side by side, because this is vital for democratic consultation and decision-making. It should describe how this system differs from the original supranational Community governance system of the 1950s.

Thirdly, timing. In June 2007, Heads of State and Government meeting in the European Council pledged that they would provide “full and comprehensive information” about the treaty before the democratic process began. It has failed to do so. The Council has acted irresponsibly by not producing a readable, consolidated Lisbon Treaty before Member States began their public debates and their parliamentary ratification process. The Council knew the ratification timetable. The Council committed a grave error in not publishing a consolidated version in all official languages before December 2007. The Hungarians voted on 17 December 2007, the same day as the Official Journal C306 first published the draft, unconsolidated Treaty, which its authors described as “aimed to be unreadable … and unclear.” The Council, in direct violation of European Council pledges, made no readable, consolidated version available, thus making democratic debate meaningless. The Ombudsman should therefore remind the Council of its obligation to publish widely a readable, consolidated treaty and a comprehensive commentary BEFORE any democratic debate can usefully take place, especially if it involves re-organizing, modifying or eliminating existing European democratic bodies or adding new presidencies and powers. The Council of Ministers should set up systems so that this error of timing cannot happen again. It should immediately produce parallel texts of Constitutional and Lisbon Treaties plus a full commentary on the changes from a supranational Community system to an EU system. This commentary would explain why Council plans to undermine the independence of the Commission by its permanent politicisation and thus damage the anti-cartel powers against the interests of some 500 million citizens.

Fourthly, the Commission, as guardian of the treaties and with its powers under article 48, Treaty of Nice, had given fair warning that a readable, consolidated official version was legally and morally required. In COM (2007) 412 final, the Commission wrote to the Council Secretary General that “The European Council emphasised that during the IGC (Intergovernmental conference) and during the process of ratification, the EU should reinforce communication with its citizens, providing them with full and comprehensive information and involving them in permanent dialogue. The approach chosen – amending the existing treaties – makes it particularly important to communicate the proposed reforms and their underlying rationale, and to make available as soon as possible an easily accessible and readable text of the Treaties.” (Emphasis added). Obviously, this full and comprehensive information and permanent dialogue would have to start by providing a consolidated version with a full commentary for each national debate. It was needed well before ratification. Mrs Wallström re-affirmed to the Ombudsman on 13 March 2008 that this was still the Commission’s position. However, the Commission did not act, nor issue warnings, that the Council had acted irresponsibly in not publishing a consolidated version with a full and comprehensive commentary. It did not alert the public. The Ombudsman should condemn this laxity and remind the Commission of its duties towards the public and the institutions in this regard. The Commission should guarantee such lapses – now involving possible illegalities in the ratification process – do not happen again. Under the Lisbon Treaty (article 1-20) the Commission President will be elected according to the ideological majority of Parliament. The list of candidates will be in the hands of political party secretariats. Impartiality is no longer assured by unanimity in Council. As part of its own dialogue responsibilities, the Commission should publish its opinion about the loss of its impartiality, the seriously reduced choice of candidates and the weakening of its anti-cartel powers implicit though often not openly stated in the Treaty.

Fifthly, the European Parliament, whose party political members will greatly benefit from the passage of the Lisbon treaty, should be reminded that some 98 per cent of the EU population are not members of a political party. If 98 per cent of the population are to be disenfranchised from becoming candidates for European institutions like the Commission and consequently for other bodies that Commission and Parliament will control, then the European Parliament has the legal and moral obligation to (a) publish the consolidated version of the treaty, (b) open a debate with the public who are not members of political parties and explain why the majority of Europeans should be eliminated as candidates and (c) as part of its dialogue responsibilities, provide a democratic mechanism, in conjunction with Council, so that the public can signal an agreement or disagreement to their disenfranchisement and the one-sided cession of power to party political members and their secretariats. 

Sixthly, the Consultative Committees, EcoSoc and CoR, are also culpable. According to the Treaty of Nice, (article 257) they have as members the democratic ‘representatives of organized civil society’ (article 257) or democratic ‘representatives of regional and local bodies’ (article 263). They failed in their duty to demand and assure that Europe’s regional bodies and European NGOs and other civil associations (consumers, labour and enterprise) have in their hands a consolidated treaty version for a debate among their democratic constituents and associations.  The Ombudsman should remind the Committees that their democratic responsibility is to serve these sectorial constituencies and not to succumb to the dishonest blandishments of the Council. They are to be “completely independent in the performance of their duties in the interest of the Community” (articles 258, 263). Their duty is to confront such political forces as the Council when it follows a self-serving and undemocratic path. It is against the interests of civil society and the regions that citizens who refuse to subscribe to party membership will largely be eliminated from consideration as candidates for the European Commission and other bodies. It is reprehensible if, because of their negligence, millions of citizens active in European civil society and regions do not know about this because the Consultative Committees have neglected their duty. That duty is to obtain information, in the form of a consolidated version with commentary, which will clearly show the implications (and even hidden manipulations) of the Treaty amendments. The Consultative Committees should therefore establish independent systems that prevent such a stifling of democracy and of public debate in the future. They should send comprehensive information about the Lisbon Treaty as outlined above to all civil society associations and all regions in the European Community that the Nice Treaty says they represent. They should also initiate a permanent dialogue about their own democratic representation in relation to the Treaty and other matters.

6. Contact with the Council. The Council position is clear and published on the website.  It is being discussed in legal, academic circles. The urgency of the action needed requires a direct approach to the Ombudsman and rapid reaction from him.  

I have written more than a hundred letters, including the Council, Member States, the Commission, European Parliament, the Economic and Social Committee and the Committee of Regions. So far I have not received a single reply.

7. The matter does not concern Staff Regulations.

8. It has not been introduced before a Court.

9. Please treat this matter publicly while withholding my name and organisation.

10. I agree the matter may be passed on to another institution, if required.

Brussels 11 February 2008



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