The Protocol and the Founding Principles of the EU…

Treaties can be as dry as dust and as boring as old rope, which is why lawyers have to be paid to read them. But sometimes it is worthwhile to scan their more important provisions.

This is how the 1957 Founding Treaty of Rome (official text not available in English), later consolidated and incorporated into The Treaty on the Functioning of The European Union describes its purpose on its very first page:

PREAMBLE

HIS MAJESTY THE KING OF THE BELGIANS, THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY, THE PRESIDENT OF THE FRENCH REPUBLIC, THE PRESIDENT OF THE ITALIAN REPUBLIC, HER ROYAL HIGHNESS THE GRAND DUCHESS OF LUXEMBOURG, HER MAJESTY THE QUEEN OF THE NETHERLANDS,

DETERMINED to lay the foundations of an ever closer union among the peoples of Europe,

RESOLVED to ensure the economic and social progress of their States by common action to eliminate the barriers which divide Europe,

AFFIRMING as the essential objective of their efforts the constant improvements of the living and working conditions of their peoples,

RECOGNISING that the removal of existing obstacles calls for concerted action in order to guarantee steady expansion, balanced trade and fair competition,

ANXIOUS to strengthen the unity of their economies and to ensure their harmonious development by reducing the differences existing between the various regions and the backwardness of the less favoured regions,

DESIRING to contribute, by means of a common commercial policy, to the progressive abolition of restrictions on international trade,

INTENDING to confirm the solidarity which binds Europe and the overseas countries and desiring to ensure the development of their prosperity, in accordance with the principles of the Charter of the United Nations,

RESOLVED by thus pooling their resources to preserve and strengthen peace and liberty, and calling upon the other peoples of Europe who share their ideal to join in their efforts,

DETERMINED to promote the development of the highest possible level of knowledge for their peoples through a wide access to education and through its continuous updating,

and to this end HAVE DESIGNATED as their Plenipotentiaries:

(List of plenipotentiaries not reproduced)

WHO, having exchanged their full powers, found in good and due form, have agreed as follows.

—-end excerpt

 

For those interested, there follow 358 Articles, organised into seven parts, with numerous Titles, Chapters and Sections, thirty seven Protocols, two Annexes, and sixty-five declarations added mostly by the member states who adopted the Treaty of Lisbon on the 13th. December 2007.

It totals 344 pages, about the length of an average novel, and I doubt many outside the legal profession involved in European litigation have read it in full. I do not suggest that you should.

My purpose in reproducing a small part of it here is to illustrate and explain that:

  1. It is written in clear and unambiguous language. You do not have to be a lawyer to get the gist of what it is about
  2. Claims by Brexiteers that the UK was hoodwinked into joining an emerging European Union, when all it wanted was to be part of a Common Market are clearly bogus – see “DETERMINED to lay the foundations of an ever-closer union among the peoples of Europe.”
  3. It is the basis for European law and clearly lays out rights and responsibilities. It is not some nebulous “unwritten constitution” which can be made up by the courts as they go along to suit the powers that be at any given time.
  4. It has been formally endorsed by each member state according to their own constitutions – in Ireland’s case that required a referendum in 1972 to agree accession to the then EEC.
  5. It is possible for the Commission or any member state to propose changes to the Treaties if they deem it necessary, provided they can get the agreement of all the Member States. (PS How can ordinary people change an unwritten constitution? Is there any formal procedure for doing so? How do you know exactly what is in it?)
  6. It provides an agenda for the Commission to work to and be judged against, as well as delimiting its powers and competencies.
  7. It provides a basis for resolving disputes between member states that does not involve going to war, waging trade wars, engaging in bellicose rhetoric, or otherwise seeking to undermine the peace and harmony between member states.
  8. It does not mean that conflicts of interests between member states won’t arise, just that there are peaceful mechanisms for resolving them.

 

The same can be said for the CHARTER OF FUNDAMENTAL RIGHTS OF THE EUROPEAN UNION, which came into force in December 2009 along with the Treaty of Lisbon and is concerned more with the rights of individual European citizens.

The business end of this document is only 14 pages long, and I very much recommend that you do read it. When I first read it I expected another turgid legal tome, and my breath was taken away with how simple, straightforward, and accessible its language was.

To give you an example, I reproduce its first page below:

CHAPTER I, DIGNITY

Article 1: Human dignity

Human dignity is inviolable. It must be respected and protected.

Article 2: Right to life

1. Everyone has the right to life.

2. No one shall be condemned to the death penalty or executed.

Article 3: Right to the integrity of the person

1. Everyone has the right to respect for his or her physical and mental integrity.

2. In the fields of medicine and biology, the following must be respected in particular:  the free and informed consent of the person concerned, according to the procedures laid down by law,  the prohibition of eugenic practices, in particular those aiming at the selection of persons,  the prohibition on making the human body and its parts as such a source of financial gain,  the prohibition of the reproductive cloning of human beings.

Article 4: Prohibition of torture and inhuman or degrading treatment or punishment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Article 5: Prohibition of slavery and forced labour.

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. Trafficking in human beings is prohibited.

CHAPTER II: FREEDOMS

Article 6: Right to liberty and security

Everyone has the right to liberty and security of person.

Article 7: Respect for private and family life

Everyone has the right to respect for his or her private and family life, home and communications.

Article 8: Protection of personal data

1. Everyone has the right to the protection of personal data concerning him or her.

2. Such data must be processed fairly for specified purposes and on the basis of the consent of the person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.

3. Compliance with these rules shall be subject to control by an independent authority.

Article 9: Right to marry and right to found a family

The right to marry and the right to found a family shall be guaranteed in accordance with the national laws governing the exercise of these rights.

Article 10: Freedom of thought, conscience and religion

1. Everyone has the right to freedom of thought, conscience and religion. This right includes freedom to change religion or belief and freedom, either alone or in community with others and in public or in private, to manifest religion or belief, in worship, teaching, practice and observance.

2. The right to conscientious objection is recognised, in accordance with the national laws governing the exercise of this right.

—– end excerpt

 

There are fifty-four articles in total, and they are worth reading in full. But you get the gist. Of course, the devil is often in the detail, but the point is that any court within the EU must have regard to the principles contained therein and you can take a legal case against your government or the Commission if you feel that your rights are being infringed.

Now that the UK is no longer in the EU those rights are no longer enforceable in the UK. There is even talk of abrogating the UK’s membership of the European Convention on human rights and renouncing the authority of the European Court of Human Rights to adjudicate on alleged breaches.

It should be noted that this latter Treaty and Court have got nothing to do with the EU and are unaffected by Brexit. But parts of the UK establishment appear to believe there should be no checks and balances on the rights of individuals, workers and consumers, unless they deem it necessary.

All of this can be dismissed as dry turgid stuff until it is your rights that are being infringed. You don’t know what you’ve lost until you need it.  Europe has a long history of authoritarian, fascist and communist rule, and so it is important to codify citizen’s rights regardless of what their current government might want them to have.

Could I suggest these rights could also become important to unionists if a united Ireland ever comes about? You may not vote for, like, or trust an Irish government, but will always have recourse to an independent European Court if you feel your fundamental rights are being abused.

You do not have that right in Northern Ireland right now. Any lingering role for the European Court is strictly limited to commercial and state aid disputes pertaining to the Single Market under the Protocol to the Withdrawal Agreement.

But you knew that. Claims that the protocol is breaching British sovereignty were always disingenuous. The UK is still signatory to numerous treaties which constrain what actions it can or must take in various areas. Operating customs controls on goods entering the Single Market on behalf of the EU is just one of many. In the modern world, all sovereigns are inter-linked.

However, the Protocol is unusual in that Article 18 para. 5 (Page 14) gives the Northern Ireland Legislative Assembly the right to decide on a regular basis whether the substantive sections of the Protocol (Articles 5 to 10) should continue to apply to Northern Ireland. This gives the Legislative Assembly power over the operation of an international treaty that would normally be a reserved matter for Westminster. And it gives the EU no say on the matter whatsoever.

This is in stark contrast to Brexit itself, where even a large majority in favour of Remain had no standing with respect to decisions on the precise form of Brexit and its impact on Northern Ireland. I wonder why the DUP is anxious not to allow the Legislative Assembly to exercise this important power?

In any case the Protocol is consistent with the founding principles of the EU, as codified into law by an international treaty which has been agreed, ratified, and endorsed by 27 Member states and the UK government, parliament, and electorate as Boris Johnson’s famous “oven ready” deal. Any change must also be endorsed by those 27 member states who have not to date given the Commission a mandate to negotiate any changes.

The EU is nothing if not an amalgam of treaties, institutions and laws, and any attempt to break those laws strikes at the very heart of the EU itself. The EU will simply cease to exist if any member state or third party can break those laws with impunity. The Commission has instituted legal proceedings against the UK for failing to implement the Protocol and taken on new powers to institute trade sanctions in the event of the ECJ finding in its favour.

The current impasse is not sustainable, and things could escalate very quickly if a resolution is not found, and the court issues its ruling. A trade war is in no one’s interest but EU member states have made it clear that their paramount concern is the protection of the integrity of the Single Market from any unauthorised or non-compliant goods entering via the Northern Ireland back door.

The UK government’s proposals to “sunset” all EU derived laws, product standards and regulations only makes the resolution of this dispute all the more urgent. As UK and EU laws, standards and regulatory agencies diverge, more and more UK products will become ineligible for export into the Single Market and will require checking at customs control points.

The Northern Ireland Protocol Bill currently wending its way through Westminster Parliament which proposes to unilaterally disapply the Northern Ireland Protocol in breach of the Withdrawal Agreement simply could not be more provocative. This is a battle the EU simply cannot afford to lose, and it will do whatever it takes to ensure international law is upheld.

The UK government may have hoped to use Northern Ireland as a Trojan Horse to gain favoured access to the Single Market for its own products from “the mainland” but that possibility has long been sealed off. For the EU, preserving the integrity of its laws and Treaties is on a par with resisting Russian aggression on its borders. Losing this battle is simply not an option. Let no one be fooled by honeyed words and warm sentiments. The mood music may have changed, but the score remains the same.

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