Aberrations of the EU Eurocrats

A critical epilogue on the “democracy” chatter around the EU parliamentary elections

by Professor Dr iur. Karl Albrecht Schachtschneider, constitutional law professor, Germany

Politicians kept propagating “democracy” in “Europe” and criticised that the European Council did not nominate the victorious “front-runner candidate” who had won the “Europe elections” for the position of president of the European Union Commission.

“The democratic principle is essential as the political framework of common freedom and will not tolerate fooling around with word-games, which are disrespectful of the equality of the freedom of all citizens. The equality of political freedom is non-existent in the EU at Union level. Egalitarian election procedures of representatives are mandatory because of the equality of citizens in political freedom and are therefore essential for a parliament.”

The European Council consists of the heads of state and government of the European Union (EU) member states plus the presidents of both the European Council and the European Commission. After the EU parliamentary election there has been a lot of chattering about Manfred Weber, one of many vice-chairmen of the German party Christian Social Union (CSU). He had been the so-called front-runner candidate for the European People’s Party (EPP). The EPP is a “political party at European level” which, according to paragraph 4 of article 10 of the Treaty on European Union “… contribute to forming European political awareness and to expressing the will of citizens of the Union.” This sentence of the so-called founding treaty of European Union is already a pretension in its claim that the EU is or should be propagated to become an integral part of “European political awareness” or even the “will” of sovereign citizens of EU member states (who are engrossed as EU citizens) which is not necessarily the case. Many of these citizens still have their national consciousness as it is quite normal for citizens of sovereign nations and states. The political parties at European level consist of parties of the various member states and establish parliamentary groups in the European parliament (EP). There is no need to let the veto of the president of the French republic, the prime minister of the Italian republic and the heads of state and government of the Visegrad group against the proposal of the German Chancellor grieve us. Manfred Weber, the chairman of the EPP parliamentary group, had not shown any qualification for this powerful position of president of the EU commission.

“To further the development of democracy in Europe”?

As a guest editor in the German newspaper “Handelsblatt” Jürgen Rüttgers referred to the fact that no front-runner candidate of the EP elections was nominated for the position of president of the EU commission by the European Council as a “scandalous decision” recently (9 June 2019). He stated that “the European election had without a doubt been a positive signal for the continent”. The “citizens of the Union” had sent “… a clear signal for the future […] against enemies of Europe such as the presidents of the USA and of Russia” because “more than half of the 400 million people entitled to vote had actually voted”. “Voter turnout in the second biggest democracy of the world had increased by 8% for the first time”. He complains about the “merely national rather than European legitimacy of the European Council.” He points out that it was “high time to get rid of anti-democratic back-chamber deals.” “To further the development of democracy in Europe” was “important”, Rüttgers writes. This lawyer and former federal minister as well as prime minister of North Rhine Westphalia has little knowledge of democracy, the institutions of the EU, let alone the sovereignty of nations. He doesn’t even know what Europe is. Moreover, he is one of those who try to obscure their ignorance of state and justice by confession statements with ill-defined terminology. This seems to be the true expertise of German politicians.

The EU is not Europe

Let’s get clear on the terminology:
1.    “European election” is a euphemism at best, since it is no election in or for Europe, but in and for the EU, which constitutes the smaller part of the continent referred to as Europe. Europe is the continent at the Atlantic Ocean which is separated from Asia by the Ural mountains. The EU is a body of international law, a confederation of states (see (BVerfGE 89, 155 (184, 186, 188ff.); 123, 267, Rn. 229) consisting of (still) 28 states all situated in Europe. Russia, the biggest territory in Europe, does not belong to the EU, neither do Ukraine, Belarus, Norway, Switzerland, Liechtenstein, several Balkan states etc.

The EP is no parliament in the democratic sense

2. The EP is no parliament in the democratic sense. This “assembly” is constituted by “representatives of the people” (see Art. 137 EWGV) as referred to by the “Bundesverfassungsgericht” (German constitutional court, see sentence on the Lisbon treaty BVerfGE 123, 267, Rn. 280ff., 286) who are not democratically legitimised, therefore it is not really a parliament.1 Although, article 14(2), subpara 1 of the EU Treaty claims otherwise, the EP is no assembly of “representatives of the Union citizens”. The EP members don’t represent any people. There is no such body as the European people, not even the “people of the Union” (see BVerfGE 123, 267, Rn. 280, 346ff.), since there is no identity “Union citizens” (as referred to by Article 10(2) of the EU Treaty) would share as a people, neither institutionally, nor socially. The EP members represent the citizens of their respective states. Article 10(1) of the EU Treaty was rejected by the German constitutional court as a pretension in its sentence on the Lisbon Treaty, which states (BVerfGE 123, 267, Rn. 280): “After the amendment of Article 14(2) EU Treaty Lisbon and contrary to what article 10(1) EU Treaty Lisbon seems to claim the European parliament is still no representative body of a sovereign European people. This is reflected by the fact that the principle of equality of all Union citizens is not applied in the electoral process, but the number of representatives is fixed according to national quotas.” Because that is the case, the EP members are not elected in one single election procedure, but separately for each member state.
Although Article 10(2) EU Treaty claims, that “union citizens … [were] represented directly in the European parliament” this is by no means the case. This is a slogan of eurocratic propaganda which tries in vain to paint a picture of democratic conditions. Even worse, were this sentence to be taken seriously it would mean that people are represented by officials whom only a minority of Union citizens ever voted for. Hard to think of any situation less democratic than that. The citizens of EU member states are represented by their respective states abroad. It is legally impossible to invent an intermediary level of legitimisation between national and international law for the EU as an organisation sui generis (in its own right). That way the legal principles of both national and international law are violated, and both the sovereignty of the peoples and the freedom of citizens are disregarded, the very foundations national and international law are based upon, each in its own peculiar fashion. The democratic principle is essential as the political framework of common freedom and will not tolerate fooling around with word-games, which are disrespectful of the equality of the freedom of all citizens. The equality of political freedom is non-existent in the EU at Union level. Egalitarian election procedures of representatives are mandatory because of the equality of citizens in political freedom and are therefore essential for a parliament (see (BVerfGE 1, 208 (248f.); 16, 130 (138ff.); 95, 408 (417f.).2 But votes for the EP are weighed with extreme bias. An EP member from Germany represents 1100% more citizens than does an EP member from Malta, but also many more than EP members from any other member state. For that reason alone, the EP cannot be regarde as democratically legitimised. (see BVerfGE 123, 267, Rnn. 280ff., 286).

“Painting a false picture of democratic legitimisation violates human dignity”

The EP would be superfluous were it not in the interest of many politicians, who benefit from their financially lucrative mandates.  It is a nuisance and costs money. Painting a false picture of democratic legitimisation violates human dignity, namely the idea of justice. “Pretending to be just while being unjust is the biggest injustice.”3
Manfred Weber was the candidate on the first position of the German candidate list for the CDU/CSU. Citizens in no other EU member state voted for him nor were they allowed to. Now he is one of the representatives of the German citizens in the EP. He does not represent any other country. From a viewpoint of electoral politics, it should be added: hardly anybody outside Germany even knew this candidate. Not even in Germany were there any voters who voted for his party because of Manfred Weber as a person – with the possible exception of Bavaria.

“Decisions of the EP do not provide democratic legitimacy to any EU measures”

3. The decisions of the EP do not provide democratic legitimacy to any EU measures. The German “Bundesverfassungsgericht” (Constitutional Court) ruled in its Maastricht sentence that the EP had a “supporting role” in the legitimisation process of EU judicial acts (see BVerfGE 89, 155 (184, 186, 188ff.) and in its Lisbon sentence it states that the EP was an “independent additional source of democratic legitimisation” (see BVerfGE 123, 267, Rn. 262, 271, S. 276ff., 280ff., 289ff., insb. Rn. 262, 271) but nothing more than that.4 This phraseology was already politically biased towards EU integration. EU judicial acts can only be democratically legitimised by the national parliaments authorising the EU founding treaties. According to the principle of limited authorisation (see Article 5 TEU; BVerfGE 89, 155 (181ff., 191ff.); 123, 267, Rn. 226, 234ff., 262, 265, 272, 275, 298ff., 300ff., 326)5 these authorisations should be restricted to the extent that EU politics are predictable and therefore responsible ((BVerfGE 89, 155, Rn. 116, 122, 137, 139, 147; see also BVerfGE 58, 1 (37); 68, 1 (98f.))This dogmatics is questionable but happens to be the only sheet anchor for democratic legitimisation of EU judicial acts the German Constitutional Court has provided. These authorisations are practically always wide open and unrestricted for all political circumstances.6 By no means are the EU acts predictable, let alone responsible. The EU is a thoroughly non-democratic enterprise, a “horrible monster”, a bureaucratic dictatorship.

The EP lacks crucial parliamentary competencies

4. Not only does the EP lack crucial parliamentary competencies such as the right to judicial initiatives, it doesn’t even have the instruments parliaments can usually apply to control their respective governments, especially the right to impeach the head of the government in a destructive or constructive impeachment process. There is not even a head of government in the EU, only the president of the EU commission who at best pretends to be this head. Since the EU is a confederation of states it does not have a government. The other bodies of the EU apart from the Commission are the European Council and the so-called Councils of Ministers, the European Central Bank, the European Court of Justice and the European Court of Auditors, all institutions of international law with elements of national law but without democratic dignity7 and therefore violating the sovereignty of nations and citizens. The ministers in the council are bound to adhere to the decisions of their respective heads of state. There is a peculiar balance of its bodies within the EU. Apart from personal politics decisions are by no means always made by the national governments. Therefore, decisions about which personality gets appointed to which EU position are so important.
Since the EU is an organisation of international law but has adopted many functional and institutional features of a state, it is usually referred to as “supra-national” as opposed to international. Especially the majority decisions of its organs are questionable since international law does not know this. They do exist in dispute settlement courts, but states are not usually bound by the decisions of such courts which merely serve to clarify the legal situation. The status of supranationality is not legally defined to infer legal consequences in either national or international law.

“The step crossing the line to become a state violates the sovereignty of member states and the freedom of their citizens”

The eurocrats intend to transform the EU into a federal state with its own sovereignty in the sense of “ever increasing integration”, thereby challenging the sovereignty of the member state and their citizens. This is incompatible with the freedom of the citizens. Due to its sheer size and the heterogeneity of its nations the democracy deficit of the EU is unsurmountable. A confederation of states as a confederation of sovereign nations cannot be organised democratically. The step crossing the line to become a state violates the sovereignty of member states and the freedom of their citizens.

True parliamentarism needs a state as its precondition.

5. True parliamentarism needs a state as its precondition. A state cannot be anything else but the organisation of a people to further its common good. The EU cannot be turned into a state by democracy chatter, this would require legitimate decisions of the nations to abandon parts of their sovereignty for the sake of creating a federal superstate (see BVerfGE 123, 267, Rnn. 179, 226ff., auch Rn. 346ff.).8 This would be a dreadful scenario. It would sound the death knell to the European character of the member states, which at least have preserved some elements of democracy and rule of law up to now. These elements are crushed between global neoliberal capitalism on one side and global socialist egalitarianism on the other. Both sides join forces to create the superstate “Europe”.
Such a superstate Europe would probably develop in a similar way like China towards a socialist capitalist dictatorship. Robert Habeck, the head of the Green party, has already announced his preference for such a China-like superstate. This “politician” does not know what to make of the term “people”, therefore the same is true for the German Basic Law because “people”9, i.e. the German People, is the crucial term of the whole Basic Law. It constitutes the German people, from which all power emanates, into a state (article 20 paragraph 2 Basic Law, p. 1).

You cannot be a democrat if “people” means nothing to you

You cannot be a democrat if “people” means nothing to you. You are not capable to represent the people because you cannot even comprehend them. All the rhetoric of democracy chatter is nothing but cant. The meaning of the free democratic basic order, which all German politicians are required to defend by law, will escape those who deny the very existence of the German people. Democracy and rule of law can only be brought to life in small entities, in sufficiently homogenous nations. The German people fulfil these requirements, even though foreigners were granted citizenship without the minimal requirements of language skills and cultural knowledge. Given the evident unlawfulness, such naturalisations are invalid.

The hollow model of front-runner candidates

6. Despite the misleading phraseology of Article 17(7) subpara 2 EU Treaty, the EP doesn’t have the task to “elect” the president of the EU Commission. All it can do is to either endorse or reject the proposal of the European Council according to the majority vote of its members. There is nothing to “elect” if there is neither the right to proposals nor, for that matter, an alternative.
Only the members of the European Council have this right to choose from several candidates, and their proposal requires a qualified majority vote (see Article 17(7) subpara 1 EU Treaty). Any citizen of one of the member states may be proposed. “The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt”, as Article 17(3) EU Treaty states. What “European” means in this context, is unclear. One might argue, people should be chosen who vow to dismantle the EU in order to preserve the European character of the continent as a land of sovereign nations, preferably co-operating in a confederation of states. Otherwise the paragraph should read “pro-EU commitment”. When choosing the candidate for president of the Commission, the EP election result should be “taken into account”, as Article 17(7) subpara1 EU Treaty suggests. This means that party politicians such as Manfred Weber get a bonus, which contradicts the demand that the candidate’s “independence [should be] beyond doubt”. Party politics and independence are mutually exclusive.
The constitutional, if you will, regulations of the EU Treaty, are typical, in their being contradictory in themselves and full of compromises. Such regulations may serve to justify any politics. Propaganda for the victorious so-called front-runner candidates who should be “taken into account” stylized this regulation into a right to be proposed as president of the Commission. But firstly, as we have shown, there is no European election for the EP but only national elections in the EU member states, which would secondly violate the equality principle and therefore the principle of democracy were they to be instrumentalised as a proper election. The hypocritical verve of those who keep chattering about “democracy in Europe” grows in proportion to their ignorance of the EU Treaties and national law in democratic republics. They mistake democracy for their own interests.
The idle talk about a supposed right of the victorious front-runner candidate to be proposed as president of the EU Commission, similar to the head of a state government, and the notion that anybody denying this right was to appear anti-democratic – including Ursula von der Leyen who was proposed although she had not been a front-runner candidate – this is hollow and unconstitutional. Such a right doesn’t exist in Germany either. The German parliament (Bundestag) elects a new chancellor usually after parliamentary elections, after the Federal President made a proposal, but the parliament may choose any German citizen (article 63 basic law). He or she does not even have to be a member of the parliament. The election of the Bundestag follows the majority vote of the members of parliament, almost all of whom are party politicians, so that the constitution may be abused to promote party politics rather than election of those most fit for the office. The citizens don’t elect the chancellor, but only the members of parliament, as representatives of the people.
The term “front-runner candidate” should be erased from the democratic vocabulary.    •

1    “The supreme injustice is that one seems just without being so.” see Schachtschneider, Karl Albrecht. Souveränität. Grundlegung einer freiheitlichen Souveränitätslehre. Ein Beitrag zum deutschen Staats- und Völkerrecht, 2015, pp. 466. ders., Verfassungsbeschwerde Lissabon-Vertrag, 3. part J I; J. Ott. Das Europäische Parlament als Parlament, 2015
2    The maximally allowed variance in the weight of votes for the German parliamentary elections is 33,3% between the electoral districts.
3    Platon. Politeia/Der Staat, in: Eigler, Gunther (Ed.) Werke in acht Bänden, Greek and German, Vol. 4, translated by F. Schleiermacher and H. Müller, edited by D. Kurz, 2. ed. 1990, 361a.
4    On the other hand EGMR, EuGRZ 1999, 200 (204), which attributes to the EP to be  “the basic instrument of  demokratic and political control in the system of the European Union”, because “the democratic legitimacy of the EP is founded on direct and common elections” and the parliament was “the component of the EU structure which comes closest to the effort to secure effective political democracy”; this phraseology is euphemistic but also revealing
5    Schachtschneider, Karl Albrecht. Prinzipien des Rechtsstaates, 2006, pp. 71; ders., Souveränität, pp. 479
6    See Schachtschneider, Karl Albrecht. Verfassungsbeschwerde gegen den Lissabon-Vertrag, of 25 May 2008, BvR 1094/08. Homepage: www. KASchachtschneider.de, unter downloads, 3. part, B to H; ders., Souveränität, pp. 472
7    Dazu Schachtschneider, Karl Albrecht. Souveränität, pp. 460
8    Schachtschneider, Karl Albrecht. Souveränität, p. 177, pp 272.; ders., Die nationale Option, 2017, pp 210.
9    Jürgen Fritz Blog, accessed 5 May 2018, Habeck: “There is no people.”

(Translation Current Concerns)

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