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Nosemonkey's EUtopia

In search of a European identity

Why regulating and legislating at an EU level is almost always a good thing

Just to be provocative, like (I obviously don’t entirely believe this headline – I’m a big fan of the subsidiarity principle, after all, and am an advocate of greater localism in politics – but still)… This taken from a reply to a comment on my last post.

First point, worth repeating constantly:

“The EU” doesn’t tell ANY member state what to do. Because “the EU” IS those member states.

If “the EU” introduces new legislation, and the UK has to adopt that legislation, this is ONLY because the UK has already agreed that this legislation is a good idea.

On every substantive issue – even after Lisbon – member states retain vetoes. All major decisions are confirmed either in the European Council or the Council of the European Union – which are made up by the heads and ministers of the governments of the member states.

So instead of “the EU tells”, a more honest phrase would be “the governments of the EU member states agree”.

And then, on to why EU-level legislation and regulation is a good thing.

EU legislation and regulations do affect a sizable chunk of everyday life. And a good thing too – for wherever you have one bit of EU legislation or one EU regulation, that means that you are saving millions of pounds/euros/dollars across the continent – which no matter how much you think the UK economy is reliant on the EU can only be a good thing, because all savings mean the European economy will be healthier.

Why does EU legislation = savings? Because for ANY regulation or legislation to come into force at EU level necessarily implies that ALL 27 member states have agreed that this legislation/regulation is necessary.

It’s not an immense leap of logic to therefore suggest that all 27 member states may well have introduced such legislation/regulations at a national level. And this would cost money in each member state, as each government works out what it wants to do entirely independently, each civil service checks the practicalities and costs entirley independently, and each country implements the legislation/regulation entirely independently. And this would necessarily lead to subtle variations between the legislation/regulations member state to member state.

By doing it at an EU level, the member states can pool their resources to cut down on research costs prior to passing the legislation/regulation, and also ensure harmonisation – increasing ease of trade between member states (as manufacturers don’t have to produce 27 subtly different versions of the same product to comply with 27 different national rulebooks).

All of this leads to savings – both in terms of bureaucratic costs at a national level, and in terms of economic efficiency.

So EU legislation/regulation is, as a general rule, a good thing.

There are of course examples of bad EU legislation and bad EU regulations, but as member states are generally given a good deal of flexibility on the implementation – while still having to stick to the general principle that they’ve all agreed at EU level – there are normally ways to get around it. This flexibility also allows member states to adapt EU rules to fit their own local needs, while still maintaining pan-EU harmony and the consequent efficiency savings – that’s the whole point.

34 Comments

  1. The question is whether many decisions taken at the level of the EU Council are really the decision of the member states and not rather agreements between bureaucrats and diplomats, heavily influenced by the administration of the Council and particular dynamics in Brussels that are beyond the control of elected parliaments.

    So I’d be more hesitant in calling decisions taken at the Council (e.g. at COREPER level), even at consensus, democratic decision-making by and with the member states. But I have hope that with the new procedures under the Lisbon Treaty we might see a little improvement in the involvement of national legislators – and they, our parliaments, have the duty to control what our representatives do on the European level!

  2. Nosemonkey,

    Even if you the traditions of the Council build on consensus seeking, qualified majority voting (QMV) is in place in many areas of legislation, so a few governments may actually be outvoted from time to time, with the blocking minorities remaining fairly small.

    Still, most of what you say is true in a general sense. In addition the EU offers the national administrations lots of learning opportunities through the intense contacts between officials from the different member states, as well as monitoring by the Commission.

    Even more than the public administrations, I would look for gains by businesses:

    In principle, huge efficiency gains are possible for those who trade with the customs union, if the standards are the same in the internal market. The same holds true for the many companies, which do business within Europe (“interstate commerce”, as the Americans say).

    Naturally, these principles do not address the question how well the EU has achieved “better regulation” – adequate and cost-efficient rules, although there are ongoing efforts to improve the assessment of consequences for all new legal acts.

  3. Adding to Ralf’s comment: it is, of course up to each member nation to adopt any new legislation into their own national law via their own, normal processes: which can lead to some variation. eg Prime Minister John major of the UK complained of UK civil servants “gold-plating” (over-egging?) legislation passed down from the EU, thus making that legislation much more rigorous in the UK than elsewhere.

    EU regulation on many issues is poor. But that is the fault of member nations: they insist that many of the areas that should be regulated (eg grant expenditure) should be carried out by the member nations themselves; they also refuse to allocate sufficient budget to the EU Commission to hire more EU regulatory staff. Governmental heads have big egos.

  4. Julien – yep, a lot of decisions are taken by civil servants and diplomats. But it’s really no different to the domestic situation where the general principle is decided by elected officials and then the civil servants work out the details. It’s certainly not perfect – but it’d be impossible to have elected voices from all 27 member states involved in all stages of the process. That’s why the European Parliament is meant to scrutinise everything once it’s done, and why (after Lisbon) national parliaments should get more involved too.

    Ralf – of course QMV can lead to governments being overruled, but not in any particularly important areas. And I can’t recall this having happened much (if at all?) so far anyway. I doubt that it would ever end up a regular occurrence – it would be too risky to annoy member states on a regular basis.

    On the gains to business point I very much agree. It’s impossible to work out the precise benefits in monetary terms (as I’ve noted before), but simple logic would suggest that there are huger efficiency savings being made anywhere that rationalises 27 different regulations into one. (Especially when reports like that one from the British Chambers of Commerce from May this year (PDF) come along and estimate that only 0/1% of regulatory business costs in the UK stem from EU regulations.)

    french derek – Indeed. Part of the reason for the lack of effort made by member state governments to control the implementation of EU legislation/regulation is, I reckon, because they all see the EU as a money-saver. Do things at EU level, they reckon, it should cost less than doing it at national level (for all the reasons I’ve outlined above). Anything that’s meant to save you money, you’ll object to having to throw more money at it than you already are – even if you’re still making a net saving. Even though a little bit more scrutiny at the national level could make EU legislation/regulation much, much better, the member state governments are rarely prepared to make the effort – even though they were the ones that wanted it in the first place…

  5. If this is the level of information being disseminated on the EU under the Lisbon Treaty by the well-intentioned, as 2009 fades into 2010, all involved need to make a new year resolution: read the treaties!

    Most decisions in relation to regulation impacting on business are taken in the context of the articles dealing with the internal market, where decision-making is by QMV (double majority from 2014) in co-decision with the European Parliament. Decisions are NOT taken by consensus. When legislation is finally adopted, Member States that have been in in the minority may well join a “consensus”, subject to various explanatory declarations, to hide their blushes. But no Member State has a veto. That is the entire point.

    The Lisbon Treaty states specifically that the European Council shall have no legislative functions (Article 15.1 TEU).

    A distinction has also to be drawn between the instrument of a Regulation (not be confused with the generic term of regulation) which is directly applicable in the law of Member States (i.e. it requires no measures of transposition by Member States) and Directives, which do, and which are often gold-plated in terms of giving advantage to Member States, i.e. not to water them down or make them more restrictive.

    The Lisbon Treaty contains many instances where the form of instrument to be adopted will, in future, be confined to Regulations. The proposals nearing completion in the area of financial supervision, agreed by ECOFIN in early December, provide a good example. The three European Supervisory Authorities (ESAs) are being established on the basis of Regulations.

    The proposals are to be agreed on the basis of a first reading by the European Parliament. This means that the Council must “approve” the amendments made by the Euuropean Parliament (Article 294.4 TFEU). Article 16.3 TEU stipulates that, where the method of decision-making is not specified, the Council shall act by QMV. Watch this space!

    The contention that regulation at an EU level is by definition better than regulation at a national level, or none at all, is also very dubious. Indeed, the EU is involved in a major exercise in unwinding some unnecessary regulation under a task force guided by no less a luminary than Herr Stoiber, former Premier of Bavaria. Check out the Commission website!

    Happy Christmas and New Year! Keep up the good work. Better some explanation than none at all.

  6. DOCM,

    As far as I see, the distinction between a Regulation and a Directive remains exactly the same in the Lisbon Treaty (Article 288 TFEU) as under the Treaty of Nice (Article 249 TEC).

    The Council has a long tradition of consensus-seeking, but in my view there are severe limits to what is a achievable under a system of unanimity (liberum veto).

    Take the hypothetical situation that 26 member states want European level regulation of European (or global) markets.

    Do you automatically suppose that the one member state defends the position which leads to the greater common good? If so, shouldn’t it be able to communicate clearly to the European Parliament, the Commission and EU citizens its superior arguments?

    You are quite right in that qualified majority voting (QMV) in the Council is possible under the ordinary legislative procedure, but in the hypothetical case I mentioned, do you automatically suppose that the 26 (or something) other member states are wrong?

    I would support Nosemonkey’s general assertion that European level regulation is better than 30 (EEA) national sets of “red tape”, not only for the governments, but for businesses as well.

    In addition, without qualified majority voting the aim to create a common market would have remained a noble objective. Only through QMV was it possible to achieve the internal market we have today, incomplete and patchy as it is.

    The blocking minorities remain quite small, which means that the quality of EU regulation is not always the highest, but better a limping system than none at all.

  7. If you look at the actual voting records of the Council, you will see that even though there is the QMV in many areas, the number of No-Votes is actually very low.

    According to the data linked above, the UK has voted just 4 times against Council draft laws between July 2006 and October 2009 – out of 435 votes. Two of these decisions concerned migration funds, one was passenger vehicle emissions and the fourth concerned plant protecting products (source).

    And the country with most No-Votes was Austria with 7 (!) – which shows that overruling of member states actually happens in very rare cases, and I suppose that this will continue in the future, as we have seen with the election of van Rompuy who could have been elected by QMV but member states put much weight in retaining the classical diplomatic consensus rule.

  8. Nosemonkey,

    I didn’t know where to answer your previous comments and wasn’t sure whether to divide my post. Anyway, I hope it’s ok to post my comments here. If not, feel free to move it or do whatever you want.

    Let’s start from the legal personality of the EU. You said that it has always had it and Lisbon doesn’t bring anything new here. I wonder what you know that I don’t know? You haven’t answered my question – do you know what’s the difference between organizations having and not having the legal personality?

    You wrote:

    To use an analogy that should appeal to a Eurosceptic, think of the Lisbon referendum as a vote on whether or not to jump over a cliff. Once you’ve voted to jump and gone over the edge, it’s too late to change your mind.

    Well, and you dare to convince people that democracy is respected in the European Union? Your above analogy simply says: your voice was important to us but after voting ‘yes’, it’s all over, we don’t need your opinion any more. This does not have anything in common with democracy. You simply stated that once people agreed on something, they have to agree on everything resulting from their previous ‘yes’, even if it is of the highest importance and brings big changes, the mob has to respect it because of previous ‘yes’. That’s how the europhiles were explaining the lack of referendums on Lisbon Treaty, espacially in new states – “You already voted for joining the EU, so automatically accepted all the results of that”. That’s classic. EU charges know that had they given people the opportunity to vote, their dreams of one nation, one Europe, one Brussels would have been over. If this can be called a democracy then this has to be a democracy indirect to the point of absurdity.

    You also mentioned that Euroelections, especially after the Lisbon Treaty, are meant to help with the deficit of democracy. Even though the Europarliament has more power, it still is far away from being the most importan EU institution. This is another example of indirect democracy. So what that you can choose people to Europarliament when they hardly have any power. Allowing people to vote on really crucial position could change things but this is never going to happen, I guess.

    I am also increasingly of the opinion that the EU has plenty of democracy, if you compare it to other democratic systems – and significantly more than any other supranational organisation (when did you last vote for anyone to represent you at the UN, NATO or the WTO?)

    Sir, the UN, NATO or WTO do not have so big impact on my state, therefore I don’t expect to vote on something that relates to me, in most cases, in a very indirect way. You yourself admitted that the EU influences “a big chunk of everyday life” and now compare it to other organizations? The European Union is a whole different story and the weight carried by the decisions taken by non-elected people do influence me much, much more – on almost every field of everyday life. It’s completely inaccurate to compare these organisations since their nature and infleunce on member states is completely different. I hope we’re clear on that.

    You keep repeating about increased power of the Europarliament as if it was a sign of decentralisation while you fail to notice new, extremely important and powerful positions and institutions introduced by the Lisbon Treaty which centralise power in a few hands only. The Lisbon Treaty made a very small step forward towards decentralisation (good) and big step backward towards centralisation. Eurofans seem to notice only the first one.

    Now regarding your latest post:

    ‘So instead of “the EU tells”, a more honest phrase would be “the governments of the EU member states agree”.’

    You must have forgotten about the qualified majority votings, Sir. The government may be against something but it can be outvoted. That makes your modern speech dissertations about EU not telling anyone what to do simply false. Unless you think that since that given government already agreed that there are qmv, so it has automatically accepted that it can be outvoted? However, if that’s how you see things then we have to come back to the part when I was writing about the europhiles “You accepted one thing so you automatically accept all the results” slogans.

    As to your wishful story about good regulations. Sir, it would be better to look at them from a bit more realistic perspective which would mean stating the obvious – European districts of the European Union are in huge majority run by socialists (Keynes fans at best). Therefore, the fact that 27 states accepted somethning does not mean that it is good. Simple as that. It’s quite surprising to read that though, because you automatically assumed that when all states agree on something, it has to be good. Means you applied democracy rules here – majority is right. While the EU we see has very little in common with democracy.

    The whole argument about the European Union is a pure left wing vs right wing debate. It’s about the shape of Europe – should it be a bureaucratic moloch full of EU propaganda, regulating everything on the market, destroying the tradition, making all the states as similar to each other as possible and being controlled by few people from Brussels or can it be Europe of nations, with free market, respect for tradition, huge diversity in all areas, and power lying in hands of national leaders elected directly by people. That’s the question. Unfortunately, we found ourselves in times when anarchists & communists in their younger days and nowadays socialists took the power and can introduce their plans of one big Europe. They are not pioneers, their latest predecessor was destroyed during II WW.

    Merry Christmas everyone,
    D3tocqueville

  9. The criticism over QMV always makes me think of the analogy with members of Parliament in the UK.

    Supposing, on a particular issue, the overwhelming majority of constituents wanted their MP to vote a certain way but most of MPs want to vote the other way. If their MP does indeed vote the way they want but is outvoted by all the others, couldn’t you argue that its undemocratic? Someone pundits seem to argue it is at the EU level but not at the national level (even if the issue was something that would have a significant, direct impact of the constituents in question).

  10. D3tocqueville: I hope you enjoyed your Christmas, untroubled by worries over the extent of EU power over your festivities?

    If you received book tokens or Amazon gift tokens then I suggest you spend them on buying some more informative books, et cetera. You seem to rely too much on deliberately-skewed anti-EU news sources for your reading on the EU; or expect bloggers such as Nosemonkey to do all your researches for you.

    If you want to criticise the EU with real arguments (rather than poorly disguised caricatures), then at least do it from a sound factual basis, please.

    If you don’t want to spend your money on such items, why not visit the EU official website, or the European Parliament site. No, they’re not “full of EU propaganda”: they have to be written impartially.

  11. French Derek,

    We seem to agree on the salutary effect of basic studies, and even without buying a single book there is enough material on the web sites of the EU institutions to last a lifetime.

    I have thought about EU communications, and I would venture that much of it is the objective truth. The backbone is actually primary and secondary legislation, which is what it says it is (treaties, regulations, directives).

    Even proposals are usually reasonably well argued, based on detailed studies and impact assessments, and they have to undergo detailed scrutiny by national governments, national parliaments, the European Parliament and organised stakeholders, as well as some interest from civil society.

    Then there is a lot of explanatory material, usually fairly straightforward, but without questioning the EU as it is. (One has to look towards researchers etc. to find out of the box thinking.)

    Press releases can sometimes be a bit self-congratulatory in tone, but in my experience the institutions are not worse than national public administrations. Corporate communications by enterprises do not necessarily come off better than either, so I agree that general allegations of EU propaganda are mostly distorted, especially when marketed by lobby groups little concerned with promoting balanced arguments.

  12. French Derek,

    thank you, I did enjoy Christmas. Hope the same can be said about you.

    I take it that cynism and irony is the only way you can debate through. However, take a friendly advice – if someone doesn’t have anything to say on topic, it is better to remain silent than to speak up and dispell the doubts. You seem to enjoy debates, if we can take your cynical posts as ‘debates’, only with those who think that the European Union is fantastic/very good/good. Kind of self adoration circle. Keep in mind though that you won’t learn too much that way, unless, of course, you think that you already know enough.

    Thank you for suggesting me to visit Europarliament, impartial, of course, site. You couldn’t figure out anything better to convince me about your delusional approach to reality.

    For future, if you don’t have anything to say apart from cynical remarks, save your time. I’m sure you can make a much better use of it.

    Regards,
    D3tocqueville

  13. http://www.parliament.uk/parliamentary_committees/lords_eu_select_committee.cfm

    A very useful report from the House of Lords on co-decision and worth reading, together with UK government reply.

    The Council Secretariat has revamped the Council’s website to take account of the Lisbon Treaty changes. Unfortunately, it does not give sufficient weight to the ordinary legislative procedure (aka Community method). This promotes the perennial misunderstanding about QMV viz that, because the voting record at the point of adoption of a legislative act usually shows consensus, QMV does not play a decisive role.

  14. By the way, I am with D3tocqueville in the matter of retaining balance in any debate. Many EU blogs are peopled by self-appointed pundits who frankly do not know what they are talking about. There are arguments for and against the EU. Let us all respect that!

  15. @ D3tocqueville: I apologise for my cynical remark re your Christmas enjoyment.

    The essence of my post is still valid, though, I believe – on the basis of a reading of your posts.

    First, you have complained about references to other material on the web and/or previous posts of Nosemokey’s: and have asked him to provide the detail for you. I was proposing (OK, cynically) that maybe you should do what I have had to do – and still continue to do – ie do my own researches (via books, the web, conversations, etc). I try to read a balance of newspapers available to me in France.

    Second, I have found that your posts do tend to repeat the same views as others on various EU blogs: which are either ill-informed (eg factually incorrect), or skewed (eg by selective use of source material that reflects the poster’s point of view – occasionally guilty myself).

    I am a citizen of the EU. I don’t like the way the EU is organised nor a lot of what it does – it’s a long list, I assure you. However, two things keep me from joining the EU sceptics. First, I believe the EU overall is “a good thing”.

    Second, many of the faults lie with the member governments themselves. Their Ministers or Presidents are the ones who agree the big decisions (thank you again, Ralf, for your clarification on this): indeed they are the ones who suggest most of the areas of EU intervention. Member governments use the EU as a “whipping dog” when legislation is passed at EU level (even though instigated by one of their number); yet claim personal success when the legislation is positive. But, as I worked with politicians of all varieties at many levels, I have learned to accept this as “normale” (ie to be expected) – cynical?

  16. It may be instructive to consider the fact that the EU has been acting in six distinctive ways for many years.

    The six methods of acting (now under the Lisbon Treaty) are as follows:

    i. ‘soft law’ e.g. conclusions of the European Council, Lisbon Strategy, open method of coordination etc. etc.

    ii. intergovernmental action in the context of the CFSP/CSDP using the instrument of a decision but subject to circumscribed and specific procedures (Article 24 TEU) with no role for the ECJ.

    iii. non-legislative action by the Council in various areas based on treaty articles (economic coordination etc.)

    iv. supranational action under the ordinary legislative procedure (by far the most extensive and important and based on the original Community method i.e. sole right of proposal for Commission, decision-making by QMV and joint adoption by the Council and the EP, and which makes the Commission a active negotiating partner as its proposal can only be amended by the Council acting unanimously)

    v. ditto under a special legislative procedure which may or may not require a Commission proposal, consultation with the EP, but invariably requires unanimity (covers sensitive areas, notably those affecting fiscal sovereignty of Member States)

    vi. ditto, but on the basis of a proposal by a quarter of Member States (police and judicial cooperation cf. Article 76 TFEU).

    It is not possible to speak in generalised terms of the EU “adopting legislation” except in relation to the last three categories and one has to refer to the basic treaty article to learn on which basis it is to be, or was, adopted and the nature of the instrument being used. No single Member State can “initiate legislation” (the unwelcome exception being vi. above).

    Leaving aside the non-binding forms of opinions and recommendations, the toolbox of binding legal instruments now consists of regulations, directives and decisions (Article 288 TFEU). These can only be used by the nine institutions listed in Article 13 TEU (now including the European Council and the ECB). Some may be adopted as legislative instruments, usually jointly by the Council and Parliament acting as the legislature (standardised ordinary legislative procedure) or by the Council (using a varying special legislative procedure) cf. Article 289 TFEU.

    The TFEU neatly defines – in a rather circular fashion – the distinction between legislative and other forms of legally-binding acts by simply stating that legal acts adopted by a legislative procedure shall be legislative acts (Article 289.3 TFEU).

    It may also be noted that Articles 290 and 291 TFEU create new forms of delegated and implementing acts governing the powers of the Commission (other than those, such as competition, which it derives directly from the treaties). These changes confirm that the executive of the EU is, indeed, the Member States except in limited and precise circumstances in which the Commission is needed as an executive. These circumstances include agencies acting with the treaty authority of the Commission e.g. the European Supervisory Authorities being set up in the area of financial supervision.

    This structure of decision-making is not new. However, what the Lisbon Treaty does is make it much clearer, getting rid of the ersatz instruments previously used, for example, in the CFSP/CSDP and JHA area.

    If one gets one’s mind around the above, it makes reading the Consolidated Treaties a doddle. It is a question of grasping the new institutional architecture of the EU. The institutions concerned are making a very bad job of explaining it, each being concerned with puffing its own role.

    If the perceived problem of a ‘democratic deficit’ is to be overcome, there can hardly be an issue of greater importance confronting the EU than to get across a wider understanding of how the new arrangements will work. The House of Lords is making a valiant effort but it also seems unwilling to confront the fact that its role must be to participate in the control what the UK government does in the Council not to try and second-guess it throughout an EU decision-making procedure (cf. views of Lord Teverson at page 71 of the evidence in its codecision report).

    P.S. The debate about the Lisbon Treaty is so last year. As David Cameron has pointed out, it is now the law.

  17. French Dekek @Dec 23 5.29pm,

    You make the point why Britian should not be in the EU . Our civil servants are useless about it.

    DOCM,

    How did the debate about the Lisbon Treaty end then? Did everyone say it was all straight and above board, no tricks ?

  18. French Derek,

    I came here to hear something new, something that would question my opinions. What I see, hear and read in medias are in most cases paeans about the EU. Unfortunately though, what I read here so far can be divided into two categories:

    1) The same paeans and the same pro-EU arguments – rationally questioned by eurosceptics many times in the past.
    2) Debates about details of EU functioning which assume that the general idea is right. To use an analogy, it is like discussing about changing windows in a house and not noticing that this house is going to collapse because of shitty foundations.

    I’ve asked a few questions to Nosemonkey. Why did he write that the EU had legal personality all the time, while the Lisbon Treaty introduced it? Lack of knowledge or lie? I explained why his ‘jumping over th cliff’ analogy about second Irish referendum does not have anything in common with what EU leaders’ mouths are full of – slogans about democracy. I even read that Nosemonkey’s post about second Irish vote and I find it ridiculous to question the first result because of 0.17% (or something, I don’t remember) people in Europe voting ‘no’.

    What else, I reminded him about QMV which he must have forgotten when writing that the EU tells no state what to do. His current post about good regulations just reflects the approach to political reality we found ourselves in today.

    In your last two posts you haven’t reffered to single point I made. Additionaly, the last paragraph you wrote, as Robin mentioned, is not an argument for the EU.

    Regards,
    D3tocqueville

  19. D3tocqueville,

    Few people have made the distinction between the European Community and the European Union in daily parlance for a long time, but technically you are correct. The European Community had legal personality for ages, but the EC disappeared, subsumed under the heading European Union. At the same time legal personality expanded to the EU.

  20. D3tocqueville – how much of this blog have you read, exactly?

    There’s six years’ worth of material here. More than 2,000 posts. Well over a million words. You’ve been knocking around in the comments here for what? A couple of weeks? During which time I’ve posted, what? Two articles?

    You only seem to have started your blog this month, so I’m guessing you haven’t been a regular at this place for long. If you had been, you’d know that I’ve covered all kinds of topics here – including pretty much everything you’ve mentioned so far. If the comments sections keep getting dragged back to the same old arguments, that’s more because of newcomers like you turning up and pulling the debate back to the same old first principles time and again than to any lack of effort on my part to explore new ground over the years. Most of what you’re after has already been covered dozens of times (including your QMV point, as explained by other commenters above – albeit this is open to debate, as DOCM has noted).

    I’m sorry, but I’m not prepared to go over everything again just for your benefit. If I did that every time a new eurosceptic turned up at this place, I’d be repeating myself constantly.

    However, on the legal personality issue, it’s really very simple (and can be found in two seconds on the search engine of your choice):

    “The two Communities (European Community and Euratom) making up the European Union each have legal personality. However, the Treaty on European Union does not contain any provisions on the Union’s legal personality even though the Union comprises the two Communities… The European Community has the power to conclude and negotiate agreements in line with its external powers, to become a member of an international organisation and to have delegations in non-member countries.”

    In practical terms (though – obviously – not strict legal terms), this mean that the EU was capable of operating as if it had a legal personality, as its constituent parts had legal personalities. The “legal personality = radical new step” meme that’s been doing the rounds on the eurosceptic blogs over the last couple of years is a nonsense. In real terms it changes nothing. The European Union didn’t technically have a legal personality? No. It didn’t. But the European Community – which is more or less synonymous – *did*.

    As for what I write having nothing in common with what EU leaders say, so what? Am I an EU leader? Am I in the pay of the EU? No. I couldn’t care less what EU bigwigs have to say about anything – and if you bother to go through the archives of this blog, you’ll find I’m critical of them far more often than I have anything nice to say. The opinions and views expressed here are entirely my own – and tend more towards euroscepticism than you seem to think.

    I’m always happy for new people to come along and debate here – but please do try to get a slightly better grasp of how this place functions, and what this blog is about, before you start accusing me of things based on nothing more than your own assumptions. I am not, nor ever have been a europhile. If you’d read more than a couple of things I’ve written, that would be painfully obvious.

    (Oh, and I hope everyone had a nice Christmas…)

  21. All still concerned about the (now decided) issue of the legal personality of the European Union may find the attached link of interest.

    http://www.egmontinstitute.be/papers/07/eu/Legal.Personality.EU-PDS-SA.pdf

    The issue of legal personality is a non-problem, and this has always been the case as the Egmont Institute paper confirms. The EU has been acting legally at all times, whether as the Union or through the European Community. Could we now move on?

    As to QMV, as some commentators have put it, “negotiations take place in the shadow of the vote”, and it is a long shadow. For those who wish to dispute this, I suggest that they plough through the House of Lords report on co-decision first.

    A lot of the material posted in relation to regulation, broadly defined, and in relation to the use of the legal instrument of a Regulation, has been imprecise, if not erroneous. The issue is not some arcane legal point about the difference/similarities between a Regulation and a Directive but the institutional adaptation taking place to enable the EU of 30+ members to cope. A Regulation becomes part of the domestic law of the Members States. There is no need for a long and often misused period of transposition as is the case with Directives or ratification by all Member States as often was the case with Decisions (and the now defunct instrument of the Convention). The same concern governed the changes to the international trade provisions which got rid of the final sentence of Article 136.6 TEC inserted by the Treaty of Nice which stipulated that agreements in relation to services “be concluded jointly by the Community and the Member States”. Cf. also the Multiannual Financial Framework which will be based on a Regulation (Article 312.2)rather than a Decision as hitherto. There are numerous other examples.

    My general point is that the debate should now move to the implementation of the Lisbon Treaty. Any other basis for discussion is a waste of everybody’s time (as would a discussion now of the more intricate points of the Treaty of Amsterdam, or whatever).

    As I said in a previous post, there could hardly be a more important topic. The fact that the Lisbon Treaty has come into force does not dispense with the need to create a greater and more accurate perception of how “Brussels” functions. This blog has been doing a good job hitherto and there is no reason why it should not continue to do so.

  22. @ Robin. The debate on the Lisbon Treaty ended in a compromise, for the most part between the UK and the rest of the EU. That there were tricks involved, I have no doubt.

    By and large, it seems to me that the UK did rather well. Member States ended up with two treaties when one would have been enough. This was because of UK insistence on differentiating clearly between the intergovernmental and supranational aspects of the activities of the EU. You will note that all the procedural aspects in relation to the conduct of the CFSP/CSDP are in the TEU when all the procedural aspects in relation to everything else are, logically, in the Treaty on the Functioning of the EU.

    The CFSP/CSDP is the second of the six methods of action that I have identified in an earlier post.

    The UK has a permanent opt-out from the euro and the abolition of controls of persons at internal EU borders (Schengen). It has also negotiated a blanket opt-out from the entire area of freedom, security and justice. The arrangements negotiated in respect of the last-mentioned are complicated beyond the capacity of any individual to explain, even among those that negotiated them. The key point is that there is a five-year transition period and a sudden death clause for the UK – in relation to police and judicial cooperation – at the end of it i.e. either the UK decides to opt in or the measures in question will no longer apply to it.

  23. @Nosemonkey,

    People who refuse to accept any facts or arguments, but keep returning to pester you are trolls. Don’t waste your time on them.

    Write for your own enjoyment, and explore new ground. That is what most of your readers want, as well.

    @DOCM,

    Thank you for a number of knowledgeable comments. You are absolutely right. There is no sense in staying with the behind-the-curve-crowd, watching the old cauldrons simmering with outdated protest.

    At least the rest of Europe has advanced to a new stage, with the modest but new Lisbon Treaty in force. This has shifted the pan-EU debate in two novel aspects, both looking forward: 1) remaining measures to implement the Lisbon Treaty (in a narrow sense), and 2) continued action to develop the EU in all policy areas under partly new, but mainly unreformed treaty rules.

    Even if the EU as a whole has advanced to a life under a new treaty, there is the special UK scene, where the discussion about the direction, even most presentation of the European Union constantly gets mixed up by the acrid exchanges on the relationship of Britain in or with Europe: a constructive and fully participating member state, or half in, half out as now, or set to negotiate further opt-outs (under the Tories), or the various relationships imaginable after secession.

    The contested views on membership seems to detract from a constructive debate in Britain (and as a consequence, partly in English).

    Influential parts of British mainstream media and the local blogosphere depict the EU as an evil empire, with language reminiscent of war time propaganda, but there should be two clearly distinct debates:

    1) Pan-EU debate: The politics, policies and future of the European Union.

    2) A British problem: Britain’s role in and relationship with Europe.

    By the way, as far as I remember the real Alexis de Tocqueville was fairly appreciative of the democracy on a continental scale in the United States he saw in the 1830s.

  24. @Ralf Grahn

    I would not disagree with your general assessment but there are a number of points which need to be reconsidered or expanded.

    The Lisbon Treaty is not a modest achievement. Quite the opposite, in fact. While it is a consolidation of existing EU practices, it represents, nevertheless, the rulebook for the EU for the foreseeable future: its constitutional charter. It builds on existing structures, avoids problems of legal continuity, has detailed tables of equivalences with previous treaties and integrates the disparate decision-making procedures into a coherent whole cf. the six methods of action that I have outlined in an earlier post.

    I agree that the UK presents particular difficulties but there is nothing really new in that. What is of interest is that the situation must come to some kind of denouement as the rest of the EU is now satisfied with the refurbishment, for want of a better word, that has taken place. Charles Grant of the CER has done an outstanding analysis of the path ahead based on Cameron’s major speech after the entry into force of the Lisbon Treaty.

    http://www.cer.org.uk/pdf/essay_936_dec09.pdf

    I think it would be a major error to equate euro scepticism solely with the British variety. As the experience with popular consultations in France, the Netherlands and Ireland has shown, popular disenchantment with the EU is widespread across Europe and the situation is likely to further deteriorate if the economic situation does not improve. This is why it is so important to continue the exercise of explanation. The EU may not be a panacea but it is still the best available option.

    Germany is a special case as no mainstream political party is, or can afford to be, openly sceptical of the future development of Europe. However, the German constitutional court has shown no such inhibitions in its Lisbon judgement. Indeed, there are two cases before it at the moment, with a judgement on one imminent (on data protection), which could see it challenging directly the authority of the ECJ.

    Finally, all strands of opinion on Europe, as long as they stay within the bounds of democratic constitutional politics, are legitimate, up to, and including, promoting a policy of quitting the EU. However, the borrow a phrase from the 50’s, European rock ‘n roll is here to stay and leaving the dance hall may not be the best option.

  25. @Ralf Grahn

    ‘the’ in the last sentence should, of course, read ‘to’.

    Incidentally, Katinka Barysch in the CER paper deals with the German Constitutional Court judgement. I think the attached assessment in the German Law Journal (issue 8 2009) by Professor Schoenberger is nearer the mark.

    http://www.germanlawjournal.com/pdfs/Vol10No08/PDF_Vol_10_No_08_1201-1218_Lisbon%20Special_Schonberger.pdf

    He describes the judgement as a pale imitation (epigone) of the earlier Maastricht judgement. The issue boils down to the question that has exercised constitutional courts across Europe: do they or the ECJ have the authority to decide if a paricular piece of EU legislation exceeds the competences conferred by the treaties? The answer is clearly the ECJ. Apart from the fact that Article 256 TFEU is rather unambiguous in the matter, any other conclusion would lead to another viz. that every EU constitutional court could do the same.

    The only way around the problem is for constitutional courts to have a cooperative relationship with the ECJ with each staying off the other’s flower beds. It remains to be seen if the German Constitutional Court is in the mood to do so.

  26. Nosemonkey,

    no problem, it’s your choice and way to turn down the arguments, I guess. I take it that you welcome here only people who either already read most of your posts and agreed with them or those who share your opinion that in general the EU is a good idea and therefore are interested in discussing very detailed aspects of EU functioning only. That’s a very one-sided approach because you do not wish to debate the past as, in your opinion, you have already explained that hundreds times – the problem though is that judging from around 10 of your posts I read so far you’ve covered nothing but just repeated old europhiles’ arguments that I can hear every day in most medias. Of course, maybe your other 1900 posts are extremely accurate and crush eurosceptics’ arguments but I haven’t read them so can’t say. My fault.

    Anyway, let’s take that post about second referendum in Ireland. You are not fine with 500k (or something) Irish people from first referendum voting ‘no’ and destroying the Lisbon Treaty so I assume it would be better to have a small elite, or rather “elite” politicians in Brussles making decision for all Europeans instead, right? Better them than the Irish?

    Post entitled “Why it’s hard to take eurosceptics seriously” is another example of you trying to argue with the facts and solid arguments proved already hundreds of times by people understanding that the EU is not the best way of development for European states, at least not the EU in current shape. I especially liked Tim Worstall way of debate but from yours and others responses I judge that he made a right decision of not replying back. It’s just pointless to do that with people seeing only one side of the coin.

    As to your doubts and critics towards the EU and its leaders, which you underline many times to prove you’re not europhile. Well, Nosemonkey, everyone knows that in order to sound credible when glorifying something, one has to add some critics as well, showing that he takes both for and against arguments into consideration. For instance, to not be critical towards two political pigmeys in charge of the EU or Barroso, one would have to be blind so these are rather poor examples showing you’re not europhile.

    As I already wrote the EU topic is a clash between right and left wing. Maybe in 1900 posts you sound like an extreme rightist, I don’t know, it may be, but in 10 I read you do sound like a leftist.

    I came to your blog because it looked good to me at first glance. It still looks good even though usually I don’t agree with your views. 6 years efforts can not be questioned though. It’s a pity that you don’t have forums here because it would be a much better way of dicsussing things that, in your opinion, were covered dozens of times in the past. That’s why people who are in general against the EU have no other place to make comments but in your posts – which usually relate to small area of EU reality, so that could be problematic for you and I understand that. However, keeping in mind that ‘obviousness’ depends on the point of view, would help.

    Ralf Grahn,

    I assume that your parts about trolls was targeted at me. Sir, if you really think I’m wasting my time writing here in order to pester someone, then it draws me to conclusion that you must be getting paid for the EU peaens you write. Getting paid is more than fine, of course. However, getting paid from taxpayers’ money is not that fine any more. Anyway, it is surely only my imagination saying that you’re getting paid for your europhilia, just as yours is saying that I could be sitting here to pester people.

    Regards,
    D3tocqueville

  27. No, D3tocqueville, I welcome anybody here who can be civil, no matter what their views – and you have kept civil, for which I thank you. In fact, I positively welcome eurosceptics who are capable of forming coherent arguments, as all too often I get proper trolls turning up here to accuse me of being a Commission stooge or a traitor to my country. Having read my other stuff is by no means a prerequisite – I’m simply suggesting that if you did, you’d see that you’re largely mistaken about my views.

    Case in point. The Lisbon Treaty. You’ve read one recent post? Great. That’s one of hundreds on the thing, mostly coming at it from slightly different angles each time – . e.g. from a post published the day of the first Irish referendum: “The European project was started by political elites as a trade association with delusions of grandeur. It is now much, much more than that, with competence creep after competence creep. It is too unwieldy and unaccountable for the people of a continent with more than its fair experience of despotism and dictatorship not to start taking offence if it continues down the route of “what we say goes, and there’s not much you can do about it”.”

    Likewise, you’ve read that post attacking the more fervent eurosceptics (note – not ALL eurosceptics, just the madder ones)? How about this post praising eurosceptics as vital critics of a flawed political project whose views should be given greater credence by those in power?

    But to be honest, I couldn’t care less if you want to label me a europhile. That just shows that you’re very much mistaken about my views. Because my views are not coherent, and cannot be as simply summed up as you seem to think. Even after six years, they are sometimes (often?) contradictory. I retain elements of my past anti-EU outlook, which sometimes (often?) threaten to overturn my current loosely pro-EU stance. As such, I’ve been described as europhile, eurosceptic, Tory, Labour, Lib Dem, Marxist, Whig – you name it.

    If you’re interested, the basis for my political outlook was described in detail here (with a follow-up, including responses from various other bloggers, here). It’s moved on a bit since then (that was written three years ago, after all), but most of it more or less still stands.

    You’re right about a forum, though. I’ve been pondering introducing them for a while. Just haven’t yet found an easy way of doing so that won’t lead to ridiculous levels of spam and/or a need for me to spend several hours a week moderating the thing.

  28. @ Nosemonkey: having followed your blog for quite a while (OK, not 6 years), I can vouch for your extensive criticism of the EU as it is. But, as DOCM notes, it’s better than nothing. I share your occasional scepticism, and DOCM’s view. Personally, I think we need to differentiate between genuine sceptics and phobics. (Topic for a future blog?).

    I still come to your blog, to Ralf’s and to others, for education and enlightenment – and for the disagreements. I don’t find the idea of a forum appealing: surely, in a blog you raise items openly for discussion? Isn’t the blog debate then a “forum”?

  29. Years ago, when I was a member of a camera club, I subscribed to its magazine. I quickly learned that the magazine was devoted almost entirely to camera tests and the like. In other words, it (and the club) discussed everything other than the purpose that the camera was designed for and how best to fill it i.e. take esthetically high quality photographs.

    Which type of club do contributors wish this blog to be?

    I personally have no interest whatever in what motivates others and they can have whatever view under the sun about the EU as far as I am concerned. What I find of interest is the system of European governance that has been developed for those – limited – areas of competence that have been transferred by the Member States.

    The topic under discussion on this thread was the question of regulation and how to get a good picture of it. Could we not return to the topic? If, on the other hand, some wish to discuss the EU as an unworthy undertaking from which the UK should withdraw, or at least change the terms of its membership, why not read the excellent analysis of the possibilities by Charles Grant and come up with some suggestions? Or Nosemonkey might start a thread on the subject.

    A final point on QMV which I forgot to mention and it is this. In the Council, it is polticians that are negotiating with one another on behalf of their countries. They try to avoid backing any country into a minority corner not for any altruistic reason but because they are aware that it may be their turn next on another dossier or, indeed, the dossier under discussion if there is a risk that the Commission may change its proposal and they find themselves suddenly with the minority rather than the majority. It is this political dynamic that makes the system work and which has been central to the development of the EU.

    Some may view this favourably, others not. But the objective situation can still be described.

  30. Under the Lisbon treaty pretty much everything other than foreign and security policies and taxation become a matter of majority voting in the Council(at least after a transition period). Nosemonkey you said, majority voting will not affect a lot of important issues.

    Is your opinionn that the EU handles few issues of importance other than Foreign, defense and taxation policies? If so, I dare to disagree strongly.

    My own two cents: A Union of 27 member states (or even more) can not afford to uphold the need for unanimity anymore apart from few exceptions maybe. Majority decision is the only alternative to paralysis or compromising to death. As such I welcome it as the democratic safeguards have been created somewhat by making the EP an equal legislative partner in these areas.

  31. DOCM: thanks for the reference to the Charles Grant CER Paper. Having now read it I think I have a better understanding of the UK position on the EU (tho Grant debates Cameron’s speech he covers other ground in doing so). There are several issues raised in the paper, concerning the EU post-Lisbon, that are worthy of discussion.

    One problem he raises concerning regulating and legislating at the EU level (this thread) is the question of implementation. This is necessarily carried out at local (ie national government- level; however, it is carried out very unevenly (sometimes the minimum required to show an attempt, sometimes over-gilded). Too often regulation, etc lack “teeth” – ie targets.

    To this I would add that auditing and reporting of outcomes or results of regulations, etc, is either non-existent, or is carried out by member states themselves (as unevenly as implementation). The EU Budget is a prime case in point: is there any member state that comes out of the EU Auditors’ report uncriticised?

    Personally, I cannot see state heads allowing an increased EU intervention into areas such as this. But that does not lessen the problem.

  32. @ french derek

    To misquote Dr. Johnson, what is surprising about the EU is not that it works well, but that it works at all. 27 disparate countries, some with major internal divisions, with the only cement binding them together being the respect for the rule of law! As Regulations become part of the domestic law of the Member States directly, the question of correct and uniform implementation is a matter for the Commission in the first instance and for the ECJ and national courts in the second.

    As to the annual budget, the UK is not in the best position to lead any clamour, as it has negotiated a very advantageous deal reducing its net budgetary contribution. But, certainly, there is huge room for improvement with regard to implementation although, as far as I know, the Court of Auditors attributes most of the problems to administrative incompetence at a national level rather than fraud.

    I do not agree with the contention that the Member States and the EU are one and the same thing. As the debate on the issue of legal personality reveals, the EU has its own existence but the Member State have most of the implementing responsibility for its decisions, which is a different thing. Politicians have been adept at misusing this confusion, finding it easy to blame ‘Brussels’ for everything that goes wrong and claiming personal credit for everything that goes right.

    The Lisbon Treaty creates a clearer and more easily understood paradigm. Unfortunately, many commentators and, what is worse, many of the direct participants, seem to be unaware of this fact. The first are still fighting the battle of the Lisbon Treaty, which ended on 1 December, 2009, while the second wish to forget how they got here which is hardly surprising given the fact that the past 10 years have been a series of mishaps.

    ‘Better regulation’ is the catchphrase for the future and the bigger the EU becomes, the more important it is as an issue. From a UK point of view, as the CER study points out, it seems that Cameron is a realist. In sum, his view appears to be: better inside the tent etc. A decision on which way to go is the central political problem confronting the UK.

  33. DOCM: I agree with your response. What I hoped I had put across was that – because of the Court of Auditors’ repeated complaints about national governments accounting failures – the EU needs some more stringent means of accounting by member nations. How can they expect Regulation of the finance, etc markets to work if normal EU-member accountancy continues to fail?

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