Quote Of The Day

In an article in the Spectator regarding the Eastleigh by-election I was drawn towards this point...

On a big post-it note in Lib Dem HQ, volunteers write why they have come down to help out. One message stands out, ‘Because Eastleigh is ours’.

Not the voter's constituency, not the people's constituency but apparently it belongs to the Lib Dems. One is reminded of Republican Scott Brown's retort that "it's not Ted Kennedy's seat".

The Elephant Reveals Itself

Newspapers maybe reluctant to mention the elephant, not so RWE. Above is a scanned-in copy of the first paragraph of a letter (accompanied with a booklet), which has gone to all the residents of Didcot and surrounding area, concerning the closure of the nearby power station next month.

As is clear (click to enlarge) the reasons for the closure are laid out right from the start:

This is because we were required to limit the lifespan of the power station under the Large Combustion Plant Directive - an EU law aimed at reducing emissions across Europe.

The glossy brochure lays out some more detail on the Directive, which apart from Booker, is more than I've ever seen in the legacy media.

When people become aware that the EU is responsible for blowing up cooling towers on their doorstep, it becomes an elephant that is losing the struggle to remain hidden.

Quote Of The Day

Just seen this from a Guardian report on Friday about recreating football matches played during the Christmas truce of World War I as part of next year's centenary celebrations. Andrew Murrison, Minister for International Security Strategy, in the Ministry of Defence said (my emphasis):

...that staging a football match in Belgium on the battlefields where soldiers had briefly put down their weapons was "a no-brainer in terms of an event that is going to reach part of the community that perhaps might not get terribly entrenched into this".

One wonders if he could have worded that better...

Same Sex Marriage And Europe

Back in December of last year, I noted that while the issue of same-sex marriage didn't register very highly in terms of my interest it had an amusing side-effect of watching the Tories destroy their own party. (I'm using the term same-sex because "gay marriage" apparently offends the sensibilities of some in the LGBT community - I kid you not, Newswatch 7:15 mins in).

Aside from the serious question of democracy (Cameron has no mandate for this) I was always puzzled why the Tories seemed so determined to destroy themselves and their chances at the next election - a view echoed by Richard North in a post a couple of days later. Normally suspicions are aroused in these circumstances that there must be an element of the EU about it. However at the time I drew a blank. But as it now turns out I was looking in the wrong place.

This week in a series of highly informative posts, Richard North has nailed the European angle - its genesis lies with the Council of Europe rather than the EU - culminating in this piece by Christopher Booker in today's Sunday Times, which concludes (my emphasis):

A speech by the British judge, Sir Nicolas Bratza, then head of the European Court of Human Rights, signalled that the court was ready to declare same-sex marriage a “human right”, as soon as enough countries fell into line.

Such are the real reasons that our Government needed to rush through last week’s vote on gay marriage. We are committed to “full implementation” of the Council of Europe’s policy no later than this June (and hence the similar law now being rushed through in France). It has been a brilliant political coup by the gay lobby, aided by Featherstone, May and those shadowy European bodies that, in so many ways, now rule our lives. But why weren’t we told more honestly and openly why it has all happened?

Why indeed? And thus in one sentence sums up our relationship with all institutions European.

Sadly it comes as no surprise that the agendas of a minority of a minority can simply trample over democracy without so much as a by your leave, illustrated no better than the former 'equalities' minister Lynne Featherstone demanding that writers and editors of newspapers should be sacked for publishing an opinion.

With dreary expectation we can expect soon a challenge to the ECHR that churches will be forced against their will to marry same-sex couples.

Article 50, 2 Years And EU Law (Part 3)

Following on from parts one and two, we address the issue in this piece that should the EU find an onerous law which affects the UK only and pass it via due process all within a very unusually short space of time there then follows the problem of lack of compliance by the UK.

I’m always amused by the seemingly contradictory positions of; “why don’t we do what the French and Italians do and ignore EU laws”, yet if we invoke Article 50 “we would have no choice but to enthusiastically implement them within the two year notice period”. One wonders that if we’re unable to delay and ignore EU laws within the two year period whether we deserve, and are capable of, being free and independent from the EU at all.

Once we invoke Article 50 we shift the balance of power towards us by starting the countdown clock. The longer the clock continues ticking towards the 2 year exit the more power drains away from the EU and towards us. One is reminded of the President of the USA where the second term increasingly resembles a lame duck term due to the fact that they cannot stand again.

With this in mind, we come to EU procedures against member states who are not complying with their obligations under Community law – known as infringement proceedings. Suspected infringements of Community law are investigated by the Commission in its role of "guardian of the treaties". Article 258 of the Lisbon Treaty (page 114) grants the European Commission the right to initiate infringement proceedings against member states that have failed to fulfill a Treaty obligation.

If the Commission considers that a Member State has failed to fulfil an obligation under the Treaties, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

Proceedings can be triggered by various sources. Complaints can be lodged by EU citizens, media, corporations, and non-governmental organisations. Some complainants lodge a petition before the European Parliament or it is on the own initiatives of the Commission itself.

An infringement procedure can be initiated when a member state is suspected of breaching any of the following:

1) EU Primary law; mainly violations of the founding treaties or any amendments of the founding treaties

2) EU Secondary law; listed by Article 288 (page 125) as regulations, directives, decisions, opinions and recommendations.

3) Sources of supplementary law which allow "the Court to bridge the gaps left by primary and/or secondary law.

A consequence of Directives not being directly applicable, application is left up to the interpretation of the Member State in question to transpose them into national law. This then leaves flexibility of various means of non-compliance;

1) Complete non compliance - a total failure in passing the required national legislation.

2) Incorrect legal implementation of Directives - parts of the Directive have not been enacted and or have deviated from EU obligations.

3) The legal implementation of a Directive is correct and complete but there is a failure to uphold violations of Community law by institutions such as the Courts.

One can see that should the UK government wish to, like other member states, can act in an awkward manner indeed, exploiting various legal opportunities with the view of delaying proceedings. One can see now that even as a full member the UK currently has eleven outstanding infringement proceedings against it since 2010 regarding Taxation and the Customs Union and indeed still has three open from 2006. As we can see by the latest report by the EU Commission on application of EU law, the number of infringements across the member states are significant:

Member States had to transpose more directives in 2011 compared to the previous year (i.e. 131 in contrast to 111 directives in 2010).There has been a significant increase in late transposition in 2011 compared to the previous year. The Commission launched 1185 late transposition infringements in 2011 compared to 855 in 2010 and 531 in 2009. Compared to the end of 2010, 763 late transposition cases were open at the end of 2011, representing a 60% increase.

According to the report the three areas where the most late transposition infringements occurred were transport, the internal market & services, and health & consumers. And the trend according to the EC for late imposition has been increasing over the last three years, a problem exacerbated by the fact that many of these cases concerned a large number of Member States.

If the Commission does consider that there is a degree of non-compliance then it will begin proceedings which can be simply broken down into four stages.

First there are informal discussions between the Commission and the Member State usually conducted  by an exchange of administrative letters that seek clarifications on the issue at stake. The aim is to allow Member State to conform voluntarily with the requirements of the Treaty.

If this proves unsatisfactory the Commission will then open proceedings with a "letter of formal notice". This requests a Member State to submit formally its observations on the infringement of EU law within a given time limit (usually two months). Then, as per Article 259:

The Commission shall deliver a reasoned opinion after each of the States concerned has been given the opportunity to submit its own case and its observations on the other party's case both orally and in writing.

The "reasoned opinion" is the first official stage in the infringement proceedings. This sets out the justification for commencing legal proceedings. It gives a detailed account of how Community Law has been infringed by a member state and states a time-limit within in which the matter is to be rectified. Failure to do so within the time limit specified may result in referring the case to the European Court of Justice, as per Article 258:

If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice of the European Union.

Typically, in over 90% of infringement cases, Member States comply with their obligations under EU law before they are referred to the Court. But in the event that they are referred, then the Court of Justice acts as the ultimate adjudicator between the Commission and the member state in question. If the Court rules against a Member State, they then must then take the necessary measures to comply with the judgment.

Yet, the member state may defy the ruling, in which case the Commission would have to open a further infringement case under Article 260:

If the Commission considers that the Member State concerned has not taken the necessary measures to comply with the judgment of the Court, it may bring the case before the Court after giving that State the opportunity to submit its observations. 

In 2011 there were seventy seven such cases of non compliance of Court judgements, of which the EU Commission referred back to the Court again eleven. The Court then only passed judgement on two - C-407/09 and C-496/09. Crucially though, the increasing trend of late transpositions has inevitably resulted in a ever larger backlog:

"However, that increase in the caseload has not been completely absorbed despite record productivity," the statement said. The Court of Justice completed 1,518 cases between its three branches in 2011. There remains a total backlog of 2,335 cases pending between the three branches of the court.

This has meant that...

 Proceeding durations have risen over 2010, according to the statement. References for preliminary rulings increased to 16.4 months from 16 months in 2010. The average time in 2011 to dispense with direct actions and appeals was 20.2 months and 15.4 months respectively, compared with 16.7 months and 14.3 months in 201.

Should all these hurdles be overcome, ultimately the only sanction the Court of Justice can impose on us is one of a financial nature, based on the duration and severity of the infringement and the size of the Member State, as per Article 260:

[The Commission] shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. If the Court finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it.

Historically, before the Maastricht Treaty, the former Article 171 (EEC) only allowed for "a declaration of a failure to comply". The Maastricht Treaty introduced economic sanctions for the first time in the form of lump sums or penalty payments. Lump sums are based on the detrimental effects caused by the failure to comply with the original judgement. Conversely penalty payments are often used as means of securing compliance as quickly as possible because payment increases per day as a multiplier, which runs from the date of the Court's judgement. However both options can be used at the same time particularly if a member state is refusing to fulfill an obligation, as per point 82 of C-304/02 vs France (2002):

82...recourse to both types of penalty provided for in Article 228(2) EC is not precluded, in particular where the breach of obligations both has continued for a long period and is inclined to persist.

Yet that's all the EU can do. After a process that overall - from passing law to a ruling from the Court of Justice - is unlikely to be quicker than five years (we leave in two) financial sanctions is all it has left. By invoking Article 50 we would be long gone, demob happy and can refuse to pay because ultimately what can the EU do? Power will have drained away, and after we left we are outside its jurisdiction...

Article 50, 2 Years And EU Law (Part 2)

“Laws are like sausages — it is best not to see them being made”. Bismarck [disputed] 

In part one I argued that should the EU out of spite try to frame laws that onerously only affect the UK, and no other, those laws would be against the fundamental principles of the treaties and spirit of the EU and the Single Market.

This then leaves very limited scope for the EU to try, within the context of treaties, to find something that would only apply to the UK but would not apply as an unintended consequence to other Member States. In short, one that has to still fulfill the EU Directive “General Effect” or the EU regulation "applies to all member states" clause.

Should they however do so, they then stumble upon very significant problem number two in the form of... timescale.

As the Lisbon Treaty exit clause - Article 50 (3) - clearly states there is a two year notice period before the UK is able to remove itself from the jurisdiction of the EU. This two year period can be shortened by an agreement, signed off by both parties, which specifies this, or extended beyond the two years also by agreement by both parties. Nonetheless two years is the default requirement in absence of an agreement under the unilateral part of Article 50 should the UK choose not to negotiate or refuse EU terms.

In the event of notice by David Cameron to leave the EU, this then gives the EU the challenge to find such a law, create one, draft it, invoke it and then win any legal challenges from the UK seeking to delay such a law, all within the space of two years.

That argument not only overlooks the principles of the Single Market, but another of the defining characteristics of the EU – that it moves with glacial pace, if not slower. To illustrate how slow, this piece (and part 3) will attempt outline, if not necessarily comprehensively, the kind of timescales involved.

It’s worth noting at this point that the EU is, if nothing else, a significantly large bureaucracy - there to serve the people it employs, that is the legacy of the Monnet project. The EU absolutely loves law – the more complicated the better. By preventing the layman from getting a grip on what is being done in his name it becomes another form of unaccountable control. Nothing illustrates the characteristics of the EU better than community legislation in force.

EU law thus is bewildering complex, so as a consequence one thing is certain - the process of it eventually being implemented in member states is not fast. And this lack of speed is imbued within its culture. A complexity that is illustrated below (click to enlarge)

In the UK, Parliament cannot function in the same lackadaisical time frame as EU Institutions because on a regular basis it has to request a mandate from the electorate and any laws that are not passed before an end of a Parliamentary period are either dropped or rushed through in the ‘wash-up’ process. And ultimately it cannot bind its successor.

By contrast, the EU has the luxury of not being subjected to such inconveniences, and so by being immune from the democratic process long term plans can continue without interruption. It is revealing that during EU Parliamentary elections the process of EU law-making remains largely unaffected and continues regardless.

This can mean, for example, that from a standing start, where a completely new issue is being considered, framing a directive can take up to 20 years. This though is at the more extreme end of the time scale. But a good example of the EU's slow processes can be found with food labeling. A review was announced by the EU Commission in 2004, a regulation was issued in 2006, Yet by 2011 (2 years after an EU Parliamentary election) the regulation was still active yet to be implemented having come to a temporary standstill.

And nor can the process be significantly quickened up by taking shortcuts. EU Institutions' actions are themselves judiciable. If any one of them does try to cut legal corners or does not follow due process, the legality of the directive can be challenged – holding it up for a number of years.

The EU thus likes slow; its priority is to reach its destination eventually not necessarily to do it in a hurry.

Another culture which is embedded within the EU is another which is often overlooked, is a consequence of the project not yet being finished. Performing, as it currently does, a transition from intergovernmental structures to a supranational ones (in the vision of Monnet) has meant that since its conception it has been trapped for all of its existence between two incompatible ideologies - not fully one or the other. The idea of closer union has been true with each treaty but yet has never fully negated the intergovernmental part. This has inevitably created rival factions within EU institutions.

Nothing embodies this more than the 'mistake' in the Lisbon Treaty of making the European Council permanent, thus creating an institutional and inherent power struggle inevitable between the intergovernmental EU Council and the supranational EU Commission. Such conflicts also can be found further down the chain of the process of EU law. Though Lisbon extended Qualified Majority Voting - inline with the wishes of Monnet - removing the national veto from certain policy areas (which can be found here on page 3 onwards), the use of member state's vetoes within the Council still remain in crucial areas such as taxation and foreign affairs for example.

And it is with this in mind that we turn to the 'ordinary legislative procedure', formally known before the Lisbon Treaty as 'co-decision' - the main legislative procedure by which EU directives and regulations are adopted. Article 294 lays the procedure here on page 197. The simplest way of describing the procedure is that it has three potential stages, or readings, and eight termination or exit points, for legislative outcomes - five exit points mean the act is adopted, three mean the act is not adopted.

'Ordinary legislative procedure' begins with the EU Commission - which generally (but not exclusively) has the ability to propose new laws, but it can only do so with a legal basis that is outlined within EU treaties. The EU is only be able to exercise those powers that have been conferred on it by the Member States - willingly agreed to by those member states. The Commission proposes a draft law to both the EU Parliament and the Council. The draft law ultimately has to be approved by both bodies.

It can be approved with the text as is presented by an absolute majority vote in the Parliament and (usually) by a QMV vote in Council. However, after the first reading Parliament may vote to propose amendments to the draft law and thus follows a procedure of subsequent readings where both parties to try to adopt a joint text that they both agree on. Any failure to reach agreement between them results in failure of the proposals.

It's worth noting that while the Council largely uses QMV, Parliament acts by an absolute majority of votes cast, and since the Lisbon Treaty, by having equal say in the legislative procedure means it has the effective right of a veto. This gives it a bargaining power that it lacked previously, where it was only consulted and its views could be ignored by the Council. This then gives ample opportunity for member states if they so wish to block or delay legislation.

In addition, the Lisbon Treaty, also includes a 'braking system' for member states for certain legislative proposals such as ones which affect its criminal justice system. As per Articles 81 and 82 (page 32 onwards) a member state can refer a proposal under ordinary legislative procedure to the European Council and thereby suspend it for four months:

3. Where a member of the Council considers that a draft directive as referred to in paragraph 2 would affect fundamental aspects of its criminal justice system, it may request that the draft directive be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, and in case of a consensus, the European Council shall, within four months of this suspension, refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure.

However if no consensus is reached within four months, the ordinary legislative procedure is converted to enhanced cooperation for member states which wish to follow it and excludes those that don't.

Thus in practice from the EU Commission’s COM(final) – an example - to an agreed directive usually takes about two years but only if there is a basic consensus to start with. Plenty of examples of the time frame involved with successful Directives can found by just a cursory look at EU Legislative Observatory: here, here, here, here, here, here, here and here. This one still in progress hasn't had its first reading in Parliament after a year.

The processes of ordinary legislative procedure illustrates clearly that the EU is a mixture of member states' wishes and the wishes of itself, where it cannot arbitrarily impose laws without a degree of compliance within the system of the member states. Instead it is imbued with a culture of horse-trading rather than one of outright dictatorship.

Therefore the EU would have many hurdles to address to inflict, out of spite, a law to damage deliberately a member state should the state in question invoke Article 50. It has to find a law that is within the treaties, has a general effect, does not affect other member states in the process, has agreement of the majority of the other member states, passes due process within the EU itself, is not subject to a veto within the Council and do all this within a certain time frame.

In the very unlikely event they discover one, they will hit upon another very serious problem - non compliance by a member state - and it is that I will address in the final part.

Huhne Guilty

One shouldn't mock...in a restrained way. Let it all out, after all it's Monday. After what appears to be trying to use every legal trick in the book to get off, he faced no choice but to change his plea at the last minute. He has to be facing a jail sentence.

One has to say that with 'hell have no fury...' Huhne's ex wife has set the bar somewhat higher...

Something In The Way...

Apologies for the slight delay in blogging proceedings - life inconveniently at short notice made a habit of getting in the way. Normality set to resume very shortly - with, as promised, Article 50, 2 Years And EU Law (Part 2)