Article 9 and the new loyalties of the European Council

The Economist takes Christopher Booker to task for claiming that via Article the new treaty subordinates the European Council to EU objectives and alters it fundamentally.

Mr Booker makes a second big assertion, in which he falls into the wood-for-trees trap of so many Eurosceptics, of seizing on some arcane detail of wording, and assuming that it has legal force of a nature to trump the political realities of Europe. He writes:

Christopher Booker: “But only now is the council being formally incorporated into the EU's structure. This is not least significant since, as the new treaty makes clear, when the heads of government meet in council they are no longer to represent their own countries. Like the members of all other "Union institutions", their first loyalty will now be to the EU. To "promote its values, advance its objectives, serve its interests" takes precedence over any national loyalty."

Economist European Correspondent: “Oh, come on. To believe that, you have to believe seriously that the likes of Mr Sarkozy, Mrs Merkel, the new British PM, Gordon Brown, the Polish twins, the Czechs and the Dutch are all going to abandon their national interests at the first summit governed by the new treaty.”

If the real politik of National interests will always trump the obligations of the new treaty then why have this treaty provision at all? If the wording is merely so much “arcane detail” then why is it there? Why incorporate the European Council into the formal structure of European institutions if it can never be made to dance to an EU tune?

Probably because, as Booker rightly says, via this article the Council can and will be made to dance to a “European” rather than a “Nationalist” tune.

All of the powers exercised by EU institutions were hitherto secondary powers delegated from the member states and the only mantle of democratic accountability these institutions have ever had rests absolutely on the primary authority of National democratic legitimacy. EU institutions were subordinate to the council precisely because their authority proceeded entirely from the consent of the democratically legitimate intergovernmental Council of nation states.

As Christopher Booker points out, the Council was not itself an EU institution but an independent supervisory board which governed the subordinate EU institutions (notably the unelected Commission). This means that although the Council has been the dominant force throughout the history of the EU the council itself was never an institution of the EU. Richard North on his blog EU Referendum notes that the Council first received legal notice under EU treaty law at the time of Nice ( in ’01) where under article 4 it’s mandate was defined as providing

".. the Union with the necessary impetus for its development" and to "define the general political guidelines thereof".

The European Council has always governed the EU institutions and has thereby provided the EU with its “democratic cover”. In the both the failed constitution and the current “reform” treaty this relationship is reversed.

The supervision of EU institutions by an independent Council is now to be changed with the incorporation of the council as just another EU institution now made itself the subject of the rulings of the ECJ. Its primary objectives are now redefined as being the promotion and support of EU policies and its fellow EU institutions. It is no longer tasked with supervision but with support.

If, for example, an electricity supplier in the UK could effect an exercise in “vertical integration” that would permit it to absorb the regulatory body Ofgen into its own management structure with a remit to support other departments within the company and make it primarily answerable to the company’s shareholders then clearly Ofgen would no longer be what it was before – namely an independent supervisory body answerable to the public.

This is precisely what has happened to the European Council.

It is a sad comment on the state of our debate that what would be universally condemned as an unprincipled power grab by an electricity company is seen as a perfectly acceptable “reform” of our national government. How has it come to pass that our standards for the governance of our electricity industry are higher than our standards for the governance of our country?

So – the current “reform” treaty transforms the ministers in Council from being the agents of the Nation states tasked with governing the EU institutions into agents of the EU institutions tasked with governing the nation states.

In the reform treaty the Council can now only act within “the limits of the powers conferred on it in the treaties”. The terms of its incorporation specifically subordinate it to treaty law i.e. its actions are now subject to veto by the European Court of Justice. Its objectives are now to primarily support EU policy and ensure the “consistency, effectiveness and continuity of its policies and actions.” It is further obligated to practise “mutual sincere cooperation’ with the other institutions.

In future any minister who is deemed to be obstructive by the “colleagues” will, no doubt, be reminded of his paramount legal obligation to “advance the objectives of the EU” and to “ensure the consistency, effectiveness and continuity of its policies and actions”. His binding duty of “mutual sincere cooperation” with the other institutions will be gently raised.

If this doesn’t bring him or her into line the European Court of Justice, that most activist of courts, may extend it’s jurisdiction to arbitrate on whether his or her claim of National interest is a legitimate “process” given the ministers treaty obligations to the EU. I don’t think it’s hard to guess which way the Court will go – Euro Turkeys don’t vote for Nation state Xmas.

So the EU tail gets to wag the nation state dog and the accountability of ministers to their electorates via mandate has been reversed by treaty into an overriding accountability to the EU and its institutions.

National democracy is thereby rendered as obsolete as National Sovereignty.