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Thursday, November 28, 2013

Commission's dismissal of national parliaments' concerns over EPPO shows why a red card is needed

While all eyes are on EU free movement and EU migrant's rights to welfare access, the Commission has put out its response to the 'yellow card' shown by national parliaments with respect to its proposal for a European Public Prosecutor's Office (EPPO) - a body which would "investigate and prosecute EU-fraud and other crimes affecting the Union's financial interests".

To re-cap, national parliaments in eleven member states - the UK, Czech Republic, Cyprus, France, Hungary, Ireland, Malta, Netherlands, Sweden, Romania and Slovenia - complained that the plans breached the subsidiarity principle - i.e. the principle that the EU should not act where member states are just as able to act on their own. This is only the second occasion on which the yellow card has been deployed.

The weakness in the current system is that a yellow card only compels the Commission to consider whether to "maintain, amend or withdraw the proposal", meaning that if the Commission is determined to push ahead regardless, it can do so. This is is exactly what has happened in this case, with the Commission concluding that the "proposal complies with the principle of subsidiarity... and that a withdrawal or an amendment of that proposal is not required."

The actual document is very detailed, and while its good that the Commission has properly engaged with concerns raised by national parliaments, it is clear that the Commission's mind is already made up as per the following section:
"the drafters of the Treaty have expressly provided for the possibility of establishing the European Public Prosecutor's Office in Article 86 TFEU... This provision gives a strong indication that the establishment of the European Public Prosecutor’s Office cannot be considered per se and in the abstract to be in breach of the principle of subsidiarity."
Very tellingly, the Commission has also appointed itself as the arbiter of what constitutes an 'acceptable' complaint on subsidiarity grounds, arguing that:
"In analysing the reasoned opinions, the Commission has distinguished between arguments relating to the principle of subsidiarity, or that could be interpreted as subsidiarity concerns, and other arguments relating to the principle of proportionality, to policy choices unrelated to subsidiarity, or to other policy or legal issues."
Although the Treaty states the decision has to be reached by unanimity (so no danger of the UK being vetoed), this episode highlights the need to turn the 'yellow card' into an outright 'red card' - i.e. a definite veto. This could apply to existing as well as proposed EU legislation.

In addition, national parliaments should be given more than the existing 8 week period to respond. The scope for national parliaments to object to EU proposals should also be widened from the narrowly defined principle of subsidiarity to prevent the Commission from being able to undermine their validity. As we've argued, in order for national parliaments to have a real impact in the EU they need real powers - otherwise this widely shared objective will not come to much.


Jim Kemeny said...

This is exactly the kind of Doublespeak that the Commissars of Brussels use to increase their power at the expense of the member states.

Freedom Lover said...

8 weeks for national parliaments to decide on EU Commission proposals always was a quislings' concession! Why the individual member nations' negotiators of the Lisbon Treaty accepted this always astonished me. Especially the British government of the time - firstly Blair in his last few months & then Brown in his first few days. Anyone could see that the EU Commission could easily wait until all the national parliaments were on holiday & then push through all sorts of horror-show directives, decisions, & regulations. And even if some parliaments were actually sitting, 8 weeks (& in practice it would often be much less) would provide very little time to review any new Commission initiatives before the 8 week time period was in theory up. Truly those, who we have elected & pay to protect our interests in EU matters, have proved to be greater traitors than any who passed through Traitors' Gate in Tudor times!

Jesper said...

This is why EU-institutions cannot be part of any negotiations regarding their power.

Any and all benefits for nations will come at the expense of EU-institutions -> No deal is always better for EU-institutions.

If EU-institutions understand power, and they most certainly do, then they'll do whatever they can to derail and disrupt any and all discussions/negotiations regarding their power:
-Divide and conquer is currently being used.
-Sidetracking by moving discussions into unproductive areas is being done and it will be done even more.

In this case the commission is no longer acting as a servant of the nations, it is going rogue. But since their actions are not illegal then it might possibly be argued they are not going rogue...

The situation is not sustainable.

Average Englishman said...

This is just another example of the massive democratic deficite at the black heart of the EU. The Commission continually riles against self seeking Nationalism that it perceives in the individual nation states, whereas it is continually promoting a new nation state called The EU, complete with flag and national anthem and with the Commission in charge and which is effectively unaccountable and undemocratic. The term 'EUSSR' is not just a word used by Eurosceptics to slur the EU, it is a literal description of the state the Commission is trying to create. The original unbeloved USSR did not exactly work out too well and the world does not need a new cloned version based in Brussels!


In 1997/98 following Torquil Dick Erikson's exposure of the EU "Corpus Juris" plan for a single legal system for the whole EU, including replacing the whole of the British adversarial common law system with the Continental Napoleonic system - no habeas corpus, no jury trial, etc etc. I accumulated a great deal of information on that plan, including its Public Prosecutor, able to give orders to our own.

One report from the EP asked the rhetorical question "Why is this intended to relate only to fraud against EU finances?". The answer was "Because people will more readily understand the need for it. But once we have it in place we can extend it to all other laws".

That is, the usual softlee softlee catchee monkey method - be in no doubt, Corpus Juris remains the plan, our legal system is to be removed, it is all being implemented piece-meal, as and when opportunities arise and the EPP is intended have control over national prosecutors.

So to Open Europe and others -if you still think that a free trade in the EU justifies living in a EU State under a Naoleinic legal system and EPP, devoid of Magna Carta, habeas coropus, jury trial (the last ditch defence of ordinary people against an overmighty executive, I certainly do not - nor will future generations if you have your way, nor will they ever forgive those who betray them now

Denis Cooper said...

Whether it's a "yellow card" as in the present treaties, or a hypothetical "red card" as NOT in the present treaties, it's still just another form of transnational majority voting and therefore not good enough.

We need our government and Parliament to be able to exercise a national veto on each and every EU proposal, and nothing less than that would do.

That was after all what we were promised in the official pamphlet delivered to all households at the time of the 1975 referendum:


"The Minister representing Britain can veto any proposal for a new law or a new tax if he considers it to be against British interests."

Anonymous said...

It's simply another undemocratic action by the unelected political failures called the commission, just when are the weak politicians going to get it that we don't want this form of government and that they have the power to stop it dead no matter what the illegally imposed constitution says.

Rollo said...

On the contrary: it shows that the commission is not needed. No-one wants unelected power crazed overpaid imbeciles telling elected parliaments what they should do.

Unknown said...

The UK government together with the other 27 member states, signed the rules in the treaty and the relevant protocols that give the Commission the powers to act as i did. Westminster passed a bill accepting these rules. What is not democratic in this process?

Jesper said...

It might be worth looking into how parliaments are dealing with the subsidiarity principle also in practice. I'd say that there is a difference between the use of the subsidiarity in theory and how it is done practice (at least in Sweden) and this difference seems to indicate that politicians are short-sighted and ignoring serious implications.

If the national parliament agrees with what EU institutions decide then it seems that the subsidiarity principle is being ignored. The reasoning appears to be that if the current decision is liked then the national parliament will not raise a subsidiarity principle objection. Who wants to be labelled as a trouble-maker on a point of principle?
In effect that results in not blocking decisions that should be taken nationally. The danger with this short-sighted approach is that once the competence has been surrendered to EU-institutions then that national competence is under current treaties gone forever and national parliaments will have lost power.

The subsidiarity principle is currently being incrementally hollowed out and if nothing is done it will eventually be completely irrelevant.