Why David Cameron must lead a New Model Conservative Government

I feel compelled to endorse a new publication, The Plan, Twelve Months to Renew Britain, by Douglas Carswell MP and Daniel Hannan MEP, released today and I would suggest that David Cameron give serious consideration to its key proposals. It is targeted at a generation who have not yet given up with politics, but instead have given up with MPs, lying politicians, a cynical political elite, false Westminster promises and empty political initiatives. Thus, in the worst cases, those voters have ceased to believe in the ballot box. The election turnout figures have said it all – so the point does not need to be reiterated here.

Carswell and Hannan bat out some honest and very real plans for a 12 month term in Parliament, which can help bring about a true restoration of faith in Westminster and our national political system. Their ambitious aim, inherent in the Tory localist agenda, amounts to “nothing less than the restoration of liberty to the individual, dignity to the legislature and purpose to the ballot box.” (The Plan, page 44). The Conservatives must be responsible for rejecting the Big Government-knows-best approach and ensure that decisions should be taken as closely as possible to the people who are affected by them, decision-makers should be directly accountable and that the citizens should be as free as possible from state coercion (The Plan, page 42). It is a template for how many people would probably like their country to be run, given the completely disastrous management of Britain under New Labour and the collapse of trust in Parliament and its representatives.

It is essential that David Cameron endorses its key proposals, as specified in The Plan because it may prove essential to support important proposals from within his own Party in order to win the next General Election. In this book, there is a vast array of proposals to lend support to. Within the next two years, it may well be upon the shoulders of the Conservative leader to commit his leadership to:

• Assert direct democracy, including the right to popular legislative initiative, the right to initiate a referendum to block new laws, local referendums and referendums for proposed constitutional changes;
  
• Clean up Westminster for good by abolishing MPs’ perks, ensuring MPs are bound by the same laws as the rest of the people, shrinking the House of Commons bureaucracy, ensuring parliamentary officials are elected and therefore, accountable;
  
• Return law, order and accountability by allowing for directly elected sheriffs to act with a degree of control over local policing, sentencing and prioritising of offences;
  
• Demand the Supremacy of Parliament, so that we can scrap the destructive Human Rights Act, withdraw from the European Convention on Human Rights, pass a new Act to ensure the supremacy of Parliament over authoritarian EU Treaty requirements and appoint senior judges through a transparent parliamentary process (who currently appear to be running the country on behalf of some ancient Islamic fundamentalist sect);
  
• Ensure the independence of state schools, so that central Government does not dictate administrative and teaching policies to every local school in the land;
  
• Initiate a true localism to make local councils self-financing and abolish regional development agencies and the regional governmental bodies we have already voted against;
  
• Put patients in control of health choices so that they can opt out of the NHS if they choose – and opt in to their own health accounts with their own contributions;
  
• Allow neighbourhoods to take care of their own welfare by allowing counties/cities to determine eligibility for benefits and allocation of funds for social security;
  
• Repeal the Acts that provide the basis for costly UK regulations, including the worst of all, the necessary amendment/repeal of sections 2 and 3 of the European Communities Act 1972;
  
• Create an independent Britain which will be achieved by scrapping Crown Prerogative Powers and replace the existing terms of EU membership with a Swiss-style bilateral free trade agreement.

If Cameron did speak up on behalf of these well established ideas, it would make his position resolute and boldly Conservative because there would be less of a concern from the people about what our troubled Conservative Party will actually stand for, if they do ever decide to vote for it over the next two years. Carswell and Hannan have laid down the framework – all it needs now is a little debate and in my view, a whole lot of support.

Jim McConalogue

EU Council split over maritime law

Margarida Vasconcelos reports: The “Third Maritime Safety Package” or the so called Erika III was proposed by the European Commission in 2005. Several Member States, including the UK, believe that EU legislation on those issues will jeopardize their maritime interests. In April 2007 the European Parliament adopted this package however the European Parliament position was not consistent with the Council general approach. On 6 June 2008 the Council adopted six common positions on the basis of the Commission proposals of the third maritime safety package which were forwarded to the European Parliament for a second reading under the codecision procedure.

At the informal meeting of the EU Transport ministers which took place on 1 and 2 September the Member States expressed their doubts on the European Parliament’s eagerness to incorporate into its second reading reports part of the Council amendments to the Erika package. And, on 4 September the European Parliament’s Transport Committee has confirmed the Council’s fears. It has voted unanimously on the Erika III package reintroducing all the amendments from the first reading which the Council has not taken on board. The MEPs have stressed that they “did not want the Council to water down important suggestions on port state control, a Community vessel traffic monitoring system, accident investigation, the liability boat passenger carriers and ship inspection and survey organisations.”

The draft directive amending directive 2002/59/EC establishing a Community vessel traffic monitoring and information system is intending to create an independent competent authority for the accommodation of ships in distress. The Commission proposal requires Member States to notify the Commission of refuge places to welcome ships in distress and equip them. According to the European Commission, as well as the European Parliament, the decision of whether to harbour ships in distress should be left to independent authorities. The European Parliament rapporteur, Dirk Sterckx, has said “that there should be no margin of discretion for Member States in applying this decision on places of refuge and that an independent authority should be set up to designate ports of refuge for vessels in distress.” The EU Member States do not want to be under the obligation to harbour ships. The Council, taking into account several Member States fear of financial risks, has rejected the possibility of establishment of an independent authority in charge of providing assistance when accidents happened and with the capability of imposing independent decisions on where ships should be taken for rescue as well as repair operations. Moreover, the MEPs believe that the lack of evidence of financial security must not be taken into account when deciding whether to accommodate a ship in distress and that the accommodation in a place of refuge should not be limited to insured ships. However, Member States want to have the possibility of refusing assistance to ships that lack sufficient financial guarantees.

The European Parliament vote on the draft directive for port state control has tightened up the inspection regime, the criteria for selecting ships for inspection and the parameters for calculating a ship's risk profile.

The Commission has proposed a permanent ban from Community waters of ships which have been detained three times following inspections at a Community port. However, the Council believes that a permanent ban is not proportional therefore, as regards to substandard ships it agreed that access of these ships to Member States' ports will be indefinitely refused. But, this indefinite access refusal might be lifted after 36 months. In what concerns ship inspection regimes, several Member States believe that the Commission and MEPs proposals would create too many additional costs for their administrations. The Council has therefore agreed on a new inspection regime for ships coming to the European ports which gives more flexibility to the Member States. Hence, Member States would be allowed to skip inspections on 5 per cent of ships with a high risk profile and on 10 per cent of other ships whilst the Commission and the European Parliament have demanded that 100 per cent of individual ships must be inspected. Member states have been arguing that this measure will be very expensive and very difficult to control.

The draft regulation on the liability of carriers of passengers by sea and inland waterways in the event of accidents is aimed at creating a Community regime of uniform liability for the carriage of passengers by sea and inland waterways. It incorporates the 2002 Athens Convention relating to the carriage of passengers and their luggage by sea into Community legislation. The draft directive would introduce a compulsory insurance to cover passengers in the event of shipping accidents. The right for an advance payment in the event of death or injury of a passenger is also included in the proposal. The Council has modified the Commission proposal in its scope, the relation between the regulation and other international conventions on global limitation of liability and advance payments. The Council has rejected the Commission's proposal to extend the application of the Athens Convention to international and domestic carriage by inland waterways. However, the European Parliament Transport Committee has also introduced amendments on broadening the scope of this regulation. According to the MEPs the text should apply to all international and national maritime transport. This contrasts to the Council which has rejected the Committee Members readopted amendments to step up the mechanisms proposed to harmonise compensation levels on the amounts to be paid to passengers in case of accidents.

The draft directive establishing fundamental principles governing the investigation of accidents in the maritime transport sector which amends directives 1999/35/EC and 2002/59/EC is intending to improve maritime safety by establishing Community guidelines on technical investigations to be taken following maritime casualties and incidents. The Council introduced changes to the Commission proposal as it agrees that mandatory investigations should take place only in case of very serious casualties and incidents. The members of the European Parliament Transport Committee have stressed that safety investigation must concern serious accidents, and not merely, as the Council has proposed, “very serious” accidents.

It should be recalled that Member States have been unable to reach an agreement on the other two proposals: the proposal concerning the obligations of flag states and the proposal on civil liability and the financial guarantees of shipowners. These proposals are blocked in the Council and in fact several Member States would like to shelve them. Under the proposal for a directive on compliance with flag state requirements the International Maritime Organisation conventions on flag state obligations would be turned into Community law and consequently it would transfer the Member States competence in these areas to the Community.

Dr Stephen Ladyman said to the European Scrutiny Committee (ESC) that the “Government is keen to see this proposal substantially amended if not dropped altogether.”

The European Parliament adopted several amendments to the draft proposal at first reading which amount to further requirements on flag states. The draft directive on civil liability and the financial guarantees of shipowners is aimed at introducing a Community civil liability regime. Under the draft directive ship operators would be fully liable for damage to third parties and a compulsory insurance scheme to ensure that shipowners are able to compensate third parties in the event of accidents would be introduced. It would also introduce a system of mandatory state certification for all ships. Member States would therefore be obliged to validate the insurance of every ship on its register and issue a certificate attesting that insurance is in place. Several Member States including the UK are already parties to the Convention on Limitation of Liability for Maritime Claims (LLMC) – therefore Jim Fitzpatrick has recently explained to the ESC that the Government believes that “greater Member State ratification of this Convention would extend the coverage of the higher limits of liability.” Last April the majority of the Member States agreed at the Transport Council that there was no need for Community legislation in this area. Several Member States are not in favour of transferring International Maritime Organisation (IMO) conventions into Community law.

In general, Member States believe that the flag state and civil liability proposals contain provisions which would entail additional costs for the shipping industry and would increase the administrative burden. However, at the informal meeting of the EU Transport ministers which took place on 1 and 2 September France made clear that it wants to reopen the negotiations on both the draft directive on flag state requirements and the draft directive on civil liability. France is willing to negotiate with the European Parliament rather than shelve the two texts. It will try to reach a compromise solution between the Member States and the Commission and the European Parliament.

European Court authority precedes United Nations Charter, says ECJ

Margarida Vaconcelos reports: On 3 September, the European Court of Justice annulled the Council regulation freezing the assets of Yassin Abdullah Kadi and the Al Barakaat International Foundation. In its ruling the ECJ affirmed the jurisdiction of the EU Courts to review the implementation of UN Security Council Resolutions and to guarantee their compliance with human rights. The ECJ ruled that the Council of Ministers must provide for a fair hearing and adequate judicial remedy for those which are on the list of persons considered to be associated to Usama bin Laden, Al-Qaeda or the Taleban of the Sanctions Committee of the United Nations Security Council.

According to several resolutions adopted by the UN Security Council, all members of the United Nations must freeze the funds and other financial resources controlled directly or indirectly by members of the Al-Qaeda network and the Taliban and other associated individuals, groups, undertakings and entities. In May 2002 the Council adopted a Common Position and the regulation (EC) No 881/2002, the contested regulation, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban. The regulation was adopted on the basis of Article 60, 301 and 308 EC. The names of persons, groups and entities affected by the freezing of funds are listed in Annex I of the contested regulation. The Commission was given the power to amend such annex, taking into account the Security Council Sanctions Committee determinations. In 2001, the Sanctions Committee included the claimants, Yassin Abdullah Kadi and Al Barakaat International Foundation in the list of persons and bodies associated with Usama bin Laden, Al-Qaeda or the Taliban. The Commission therefore added Mr Kadi and Al Barakaat to Annex I. Consequently, Mr Kadi and Al Barakaat brought actions before the Court of First Instance (CFI) seeking annulment of the Council regulations giving effect to the UN Sanctions Committee decision since those measures concerned them. The claimants argue that the Council was not competent to adopt the regulation and that it infringed their fundamental rights, the right to property and the rights of defence such as the right to be heard and the right to effective judicial review.

In September 2005 the Court of First Instance gave its judgments rejecting all the pleas in law raised by Mr Kadi and Al Barakaat and confirmed the validity of the Council regulation. Then, Mr Kadi and Al Barakaat brought appeals against those judgments before the Court of Justice. They asked the ECJ to set aside the judgments of the Court of First Instance and declare the contested regulation null and void. The appellants challenged the judgment on the grounds of lack of legal basis for the contested regulation, breach of several rules of international law by the Court of First Instance and infringement of their fundamental rights. The UK has brought a cross-appeal contending that the ECJ should dismiss the appeals.

The CFI has dismissed the applicants’ claim alleging that there was no legal basis for the contested regulation rejecting the argument that the Council regulation affected individuals while Articles 60 EC and 301 EC only allow the Council to take measures against third countries. In fact, Article 60 EC concerns measures against third countries with regard to capital movements and payments. This Article is amended by the Lisbon Treaty which would provide the Union with a clear legal base to impose financial sanctions such as freezing of funds, financial assets or economic gains against “natural or legal persons, groups or non-State entities” considered to be terrorists.

The ECJ upheld the CFI conclusion that there is no specific provision in the EC Treaty providing for the adoption of measures such as the ones provide in the contested regulation relating to the imposition of economic and financial sanctions to individuals and entities suspected of funding international terrorism, where no link has been established with the governing regime of a third State.

The ECJ has stressed that the conclusion reached by the Court of First Instance that the Council was competent to adopt that regulation on the joint basis of Articles 60 EC, 301 EC and 308 EC is justified but on other legal grounds. The aim of Article 308 EC is to confer on the Community institutions express or implied powers to act, if there are no specific provisions on the Treaty conferring such powers and they are necessary to enable the Community to carry out its functions with a view to attaining one of the objectives laid down by the Treaty.

According to the Court of First Instance, Articles 60 EC and 301 EC are special provisions of the EC Treaty and they contemplate situations in which action by the Community may prove to be necessary in order to achieve one of the objectives assigned to the European Union, i.e., the implementation of a common foreign and security policy.

The ECJ has held that the resource to Article 308 EC cannot be justified by the fact that that measure pursued a CFSP objective but that provision could be used as a legal basis because that regulation could be regarded as intended to attain an objective of the Community and as, in addition, linked to the operation of the common market within the meaning of Article 308 EC.

As regards the applicants allegation that the Council regulation infringes their fundamental rights the CFI has decided to first consider “the relationship between the international legal order under the United Nations and the domestic or Community legal order.” The CFI has stressed that the applicants’ challenging of the internal lawfulness of the contested regulation implied that it should review, directly or indirectly, the lawfulness of the resolutions put into effect by that regulation in the light of fundamental rights as protected by the Community legal order. The Court of First Instance has stressed that resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations are binding on all the Member States of the Community. It has held that under international law the Member States, as Members of the United Nations, are bound to respect the principle of the primacy of their obligations under the Charter of the United Nations, therefore, the obligation to carry out the decisions of the Security Council prevails over any other obligation they may have entered into under an international agreement. However, according to the Court of First Instance, the EC Treaty does not affect the Member States obligation to respect the principle of the primacy of obligations undertaken by virtue of the Charter of the United Nations as such obligation arises from an agreement concluded before the Treaty. The CFI concluded that the Community is bound by the Treaty to adopt all the measures necessary to allow its Member States to fulfil those obligations. The Court of First Instance recalled that the contested regulation constitutes the implementation at Community level of the EU Member States obligation, as Members of the United Nations, to give effect to the sanctions against Usama bin Laden, members of the Al-Qaeda network and other associated individuals or entities, which have been decided by several resolutions of the Security Council adopted under Chapter VII of the Charter of the United Nations.

According to the CFI, the Community Courts in principle had no jurisdiction to review the validity of the regulation at issue. The Court of First Instance held that the contested regulation, since it is intended to give effect to a resolution adopted by the Security Council under Chapter VII of the Charter of the United Nations could not be subject to judicial review of its internal lawfulness, with the exception of its compatibility with the norms of jus cogens, and then to that extent enjoyed immunity from jurisdiction.

The CFI has stressed that it is not for the Court to review whether the Security Council’s resolutions are compatible with fundamental rights as protected by the Community legal order as in doing so it would trespass the Security Council’s prerogatives under Chapter VII of the Charter of the United Nations in relation to determining if there is a threat to international peace and security and the appropriate measures for confronting such a threat.

However, the ECJ, unsurprisingly, has not agreed with this ruling. The CFI also held that the freezing of funds did not constitute an inappropriate interference with the right to private property of the persons concerned and therefore could not be considered as contrary to jus cogens. Moreover, according to the CFI “(…) the limitation of the applicant’s right of access to a court, as a result of the immunity from jurisdiction enjoyed as a rule, in the domestic legal order of the Member States of the United Nations, by resolutions of the Security Council adopted under Chapter VII of the Charter of the United Nations, in accordance with the relevant principles of international law (…), is inherent in that right as it is guaranteed by jus cogens.” The CFI has pointed out that the nonexistence of an international court with jurisdiction to determine whether acts of the Security Council are lawful is sorted by the creation of the Sanctions Committee as the opportunity of applying to that committee in order to have any individual case re-examined guarantees adequate protection of the applicant’s fundamental rights as recognised by jus cogens.’ Thus the Court of First Instance dismissed the pleas alleging breach of the right to effective judicial review and the actions in their entirety.

Although France, the Netherlands, the United Kingdom and the Council have endorsed the CFI conclusion that the contested regulation in principle escapes all review by the Community judicature, even concerning observance of fundamental rights, those Member States believe that no review of the internal lawfulness of resolutions of the Security Council may be pursued by the Community judicature.

In fact, the UK has brought a cross-appeal on a single ground related to the error of law allegedly committed by the Court of First Instance in concluding that it was competent to consider whether the Security Council’s resolutions at issue were compatible with the rules of jus cogens. The UK took the view that the resolutions of the Security Council at issue were adopted under Chapter VII of the Charter of the United Nations therefore defining what constitutes a threat to international peace and security and the measures required to maintain them is the responsibility of the Security Council alone therefore escapes the jurisdiction of national or Community authorities and courts. According to the UK the resolutions of the Security Council in question do not fall within the ambit of the Court’s judicial review therefore the Court has no authority to analyse, even indirectly, their lawfulness in the light of Community law. In fact, the Court is bound to interpret and apply Community law in a manner compatible with the obligations of the Member States under the Charter of the United Nations.

It is clear, the ECJ has not upheld these arguments. The ECJ has stressed “… that the obligations imposed by an international agreement cannot have the effect of prejudicing the constitutional principles of the EC Treaty, which include the principle that all Community acts must respect fundamental rights, that respect constituting a condition of their lawfulness which it is for the Court to review in the framework of the complete system of legal remedies established by the Treaty.” The ECJ made a distinction between reviewing the lawfulness of an international agreement and reviewing an EC measure intended to give effect to the international agreement at issue. The Court has stressed that the review of lawfulness ensured by the Community courts applies to the Community act intended to give effect to the international agreement at issue and not to the international agreement itself. Moreover, the Court held that a judgment given by the Community Courts deciding that a Community measure aimed at giving effect to a resolution of the UN Security Council is contrary to a higher rule of law in the Community legal order that would not entail any challenge to the primacy of that resolution in international law. The Court has held that “the review by the Court of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system which is not to be prejudiced by an international agreement.”

Moreover, the ECJ stressed that the UN system, of the re-examination procedure before the Sanctions Committee cannot justify a generalised immunity from jurisdiction within the internal legal order of the Community. In fact, according to the ECJ “such immunity, constituting a significant derogation from the scheme of judicial protection of fundamental rights laid down by the EC Treaty, appears unjustified, for clearly that re-examination procedure does not offer the guarantees of judicial protection.” The ECJ has concluded that the Community courts have jurisdiction, under the EC Treaty, to review the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, such as the contested regulation, are intended to give effect to resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations. Consequently, the Court ruled that the judgments under appeal must be set aside in this regard. The ECJ found that there was no need to examine the UK cross-appeal on the review of the contested regulation on the basis of the rules of international law falling within the ambit of jus cogens. But it has decided to examine the claims made by Mr Kadi and Al Barakaat concerning the breach of the rights of the defence, particularly the right to be heard, and the right to effective judicial review, created by the measures for the freezing of funds as they were imposed on the appellants by the contested regulation. The ECJ held that the rights of the defence and the right to effective judicial review were clearly not respected. The Court has pointed out that in order to enable the persons subject to restrictive measures to defend their rights the Community authorities are bound to communicate the grounds of the restrictive measures to the persons or entities concerned. The ECJ has acknowledged that the Community authorities cannot be required to communicate the grounds of restrictive measures imposed by the contested regulation before the name of a person or entity is entered in that list for the first time as this would jeopardise the effectiveness of the freezing of funds and resources imposed by that regulation.

For the same reasons, the Court also stressed that the Community authorities were not bound to hear the appellants before their names were added to the list set out in Annex I of that regulation. Nevertheless, the Court has stressed “that does not mean, with regard to the principle of effective judicial protection, that restrictive measures such as those imposed by the contested regulation escape all review by the Community judicature once it has been claimed that the act laying them down concerns national security and terrorism.” The ECJ concluded that the Common Position 2002/402 as well as the contested regulation do not provide for a procedure for communicating the evidence justifying the inclusion of the names of the persons concerned in Annex I to that regulation and for hearing those persons therefore the contested regulation was adopted under a procedure in which the rights of defence of the appellants were not observed. The Court held that because the Council failed to communicate to the appellants the evidence used against them to justify the restrictive measures imposed on them the appellants’ rights of defence and the right to an effective legal remedy have been infringed. Moreover, the ECJ also held that the imposition of the restrictive measures established in the contested regulation such as freezing of funds constitutes an unjustified restriction of Mr Kadi’s right to property.

The ECJ has held that the EU implementation of UN Security Council’s Resolutions at issue breaches fundamental rights. Hence, the Court ruled that the contested regulation, so far as it concerns the appellants, must be annulled on the grounds of breach of principles applicable in the procedure pursue when the restrictive measures introduced by that regulation were adopted. However the Court has not excluded the possibility that, on the merits of the case, the imposition of such measures on the appellants may be justified. The Court acknowledged that an annulment with immediate effect would seriously prejudice the effectiveness of the restrictive measures imposed on the applicants as they might take steps in order to prevent measures freezing funds from being applied to them again. Hence, the Court order to the effects of regulation No 881/2002 to be maintained, so far as concerns Mr Kadi and the Al Barakaat International Foundation, for a period that may not exceed three months running from the date of delivery of this judgment in order to allow the Council to remedy the infringements found. According to EUobserver the Commission has said that it would “work together with other [European] community institutions to find a general framework on how to establish sufficient mechanisms, in which targeted persons can be heard and effective judicial review can be exercised by [European] Community courts.”

For every pound of petrol, 14.29p is controlled by EU’s VAT Directives

All the key industry experts agree that there is a massive injustice in the UK Government’s extortionate taxes on fuel: the UK now pays the most duty and VAT on fuel in Europe. The main fuel taxes (duty and VAT) account for around 55% of the pump price, but it is often the VAT cost which the decision-makers have ceased to question. Whilst the Treasury continues to generate an extra £123million a month in VAT compared to this time last year from drivers, already suffering under the burdens of taxes on petrol, it has agreed to maintain European Union VAT levels which it cannot now renegotiate. The explanation of why decision-makers cease to question the Chancellor’s maintenance of VAT on petrol, even as drivers continue to suffer in paying huge prices at the pumps, is because the root of its control lies with the European Commission. For every pound of petrol, 14.29p [1] is deemed unarguable because the UK Government is locked into deals it has made with the Commission:

• The French President, Nicolas Sarkozy, who has been at the helm of the EU’s French Presidency, already suggested to the European Commission in May 2008 a cut in VAT on fuel. The Commission warned of the use of tax cuts on fuel and assured, under EU law, that Member States could not apply a VAT rate of less than 15% unless they were able to obtain an exemption, which requires the unlikely unanimous backing from the 27 Member States.
  
• The United Kingdom Parliament does not have full control over VAT; the tax system and its levy standards are derived from the European Union.
  
• The UK adopted VAT in 1973 as a condition of joining the European Economic Community and it became a replacement for the Purchase Tax and Selective Employment Tax;
  The requirement to harmonise EU Member States’ systems of indirect taxation, through a VAT system, has long been embodied in Directive 77/388/EC, the Sixth VAT Directive, setting standard rate (still a minimum 15%), reduced rates, zero rate and exemptions;
  
• Through negotiations, the UK achieved important derogations, particularly its mush disputed right to put some goods into a Zero Rate category under the condition it takes the matters up with the European Commission, who has overall say on the derogations;
  
• The European impetus pushing for the modern transfer of taxation systems from transparent direct taxes to indirect taxes are pursued on the basis that the individual can not trace their own costs of contribution.

Worse still, for VAT payments on fuel is that the current view on taxation in the European Commission is that it would prefer Member States to adopt a completely harmonized VAT system with a “more uniform application” and asserts that the maintenance of existing reduced rates are “complicated by a multitude of derogations granted to certain Member States” and so it is working on legislation to harmonize systems in the near future. This would only lead to further fuel rate rises, absorbed through price increases.

Any tax cuts for VAT on fuel have therefore been deemed inappropriate at the European Union level, even during the petrol crisis periods. Does this, then, not convince the existing Prime Minister that we need to renegotiate our position with Europe so that it is clear that Westminster (and not Brussels) controls the taxes which are imposed upon the British people? Put aside the greedy £123million a month Treasury fortune and think about who controls the taxes that are levied upon the people of this country – Brussels or Westminster?

[1] As a % of price of Unleaded petrol, based on approximate VAT cost provided by: www.petrolprices.com

Fundamental cornerstone of British justice surrendered

Last June, the Justice and Home Affairs Council reached a general approach on a draft framework decision supporting the application of the principle of mutual recognition in respect of decisions rendered in the absence of the person at the trial. Such framework decision will jeopardise fundamental principles of British justice such as the right to a fair trial.

Trials in absentia are allowed in the British law since 2001 but only in rare circumstances, nevertheless the Government has not only backed such proposal but in fact it co-sponsored it. Under the proposal a British citizen might be sentenced in a court of another EU Member State without his/her presence and then extradited to that Member State to face a prison sentence without having chance to exercise their right to defence – which does not respect the principles of a fair trial.

On 14 January, EU countries Slovenia, France, the Czech Republic, Sweden, Slovakia, the United Kingdom and Germany put forward a proposal for a Council framework decision on the enforcement of decisions rendered in absentia aiming at harmonising recognition of trials in absentia within the EU. This framework decision would amend the four existing pieces of legislation which provided for the recognition and enforcement of several judicial decisions in criminal matters: the framework decision on the European Arrest Warrant, the framework decision on the mutual recognition of financial penalties, the framework decision on the mutual recognition of confiscation orders and the draft framework decision on the mutual recognition of judgments in criminal matters imposing custodial sentences or measures involving the deprivation of liberty.

The aim of the proposal is to determine the circumstances that must be present for the enforcing country to implement a decision even though the defendant is absent at the trial. The draft framework decision introduces a criterion which, if it is not met, would allow judicial authorities of the executing country to refuse to recognise and enforce a judgment received from another Member State made in absentia. Hence, under the draft framework decision the defendants must be notified in their own language about the trial, have access to legal representation and have a right to apply for a retrial. In this case the recognition and execution of a decision rendered following a trial in absentia should not be refused.

For instance, the execution of a European Arrest Warrant (EAW) may be refused when the defendant has not appeared personally in the trial – however, the EAW states that one of four cases applies: the defendant has received an official information of date and place of trial in due time in order to be allowed to exercise his rights of defence; the defendant had appointed a legal representative and was represented by this person at the trial; the defendant has been served with the decision and, having been informed about the right to a retrial has stated that he did not contest the decision or did not request a retrial. However, the right to a retrial following judgements in absentia is an inadequate safeguard.

The draft proposal is to be adopted through the consultation procedure with unanimity required at the Council. The European Parliament has issued its opinion on this proposal on 2 September 2008. The European Parliament approved the proposal for a framework decision on enforcement of decisions rendered in absentia by 609 votes in favour, 60 against and 14 with amendments. Under the consultation procedure the Council is not bound by the Parliament’s position but only under the obligation to consult it. The European Parliament wants to strengthen the rights of persons judged in absentia but it also wants to ease the application of the principle of mutual recognition. The European Parliament has called for the adoption of the framework decision on procedural rights in criminal proceedings as soon as possible.

The MEPs have defined cases in which the enforcement of the decision rendered following a trial at which the person concerned did not appear in person can be refused. The European Parliament has stressed that it must be “unequivocally established that the person was aware of the trial.” Moreover, according to the European Parliament, the system of a retrial does not exist in all Member States. Hence, it has proposed that the person concerned has the right to participate in the retrial or appeal.

According to the European Voice, the European Criminal Bar Association (ECBA) and the German Federal Bar have criticised this framework decision as they believe it would be difficult for member states to refuse requests which are not properly justified to extradite their nationals to other EU Member States. According to the ECBA, the proposal “simply facilitates the execution of in absentia judgements.” There are also concerns over violation of the procedural rights of the defendant. Under the system of mutual recognition, the UK is prevented from challenging any judgment from a court of another member state and is required to execute it. Philip Bradbourn, MEP, Conservative justice and home affairs spokesman in the European Parliament has said “This proposal goes against one of the most fundamental cornerstones of British justice – that the accused has a right to defend himself at trial. … Not content with eroding our liberties in Westminster, Labour is also undermining them in Brussels.” The proposal will go back to the Council to be formally adopted and it will not take long to be implemented as EU law.

Margarida Vasconcelos, The European Foundation

EU wants détente with Belarus

Poland and some other EU states have called for the EU to adopt a more positive attitude towards Belarus. The Polish Foreign Minister, Radek Sikorski, has said that he wants to give “democratic forces” a chance there. He was supported in this by Carl Bildt, the Swedish Foreign Minister. Both men are known for their strongly pro-American politics. The EU commissar for foreign affairs, Benita Ferrero-Waldner, said that the Belarusian Foreign Minister should be invited to the next meeting of the European Council in Brussels in order to discuss reforms. Following the presidential elections in March 2006, the EU froze the foreign assets of the Belarusian President and 35 other senior officials. Radio and TV stations were given for the support of the opposition. The President, Alexander Lukashenko, has been in power since 1994 and is widely decried in the West as a dictator. But even his worst enemies in Belarus admit that he enjoys huge support in the population and that the pro-Western opposition is regarded with suspicion. [Handelsblatt, 6 September 2008]

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Cheeky Czechs

The Czech government has produced a short advertisement for its upcoming presidency of the European Union which has raised a few eyebrows. To the tune of Beethoven’s Ode to Joy, the clip shows an apparently anodyne meeting, as if between euro-officials, but on closer inspection it turns out that all the characters are famous Czechs – a conductor, a football player, a dancer, a cancer research specialist, a model etc. They play with sugar cubes around the table and then finally one of them drops a cube into a small cup of espresso. The slogan comes up, which apparently is to be the slogan for the presidency as a whole – Evropĕ to Osladíme. The slogan means either “We will sweeten Europe”, “We will give Europe a rough time” or “We will give Europe a sweet taste of its own medicine.” One assumes that the double-entendre is deliberate and that it is intended to reach out to the relatively Eurosceptic Czech population. [The clip can be seen on YouTube]

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Yes, we have no more straight cucumbers

Fed up with decades of hostile propaganda about its rules on the shape and size of cucumbers (propaganda which has always been attacked as unfounded by the EU defenders) the EU commission has decided to abandon its rules on straight cucumbers and on 25 other types of fruit and vegetables. The Chairman of the Anti-Bureaucracy Group in the EU commission, Edmund Stoiber (the former Bavarian Prime Minister) says, “Everyone knows what a cucumber is.” Yet there are rules on the EU on everything from cucumbers to hazel nuts, garlic and watermelons. Some people, however, think that the rules should stay. The man responsible for fruit and vegetable affairs in the German farmers’ union, Hans-Dieter Stallknecht, says that no one in the industry has called for these rules to be abolished and that the move now is being itself driven by pure politics. Stallknecht (which means “Stable Boy” in German) says that the Commission is going to damage a system which functions well just in order to show that it is acting against bureaucracy. Other EU states seem to agree: when the matter was put to a vote, only 8 states voted in favour and all the major agrarian states including Germany, France and Italy voted against. Indeed, the national bureaucracies are likely to fight against the EU bureaucracy’s attempt to reduce bureaucracy. In any case, the Commission wants to abolish only 26 out of its 36 rules on fruit and veg: it wants to keep the rules on the 10 most important products, including apples and tomatoes, which in any case form 75 per cent of the market. In any case, the EU’s rules are in fact 99 per cent identical to those of the United Nations’ Economic Commission for Europe in Geneva, where they indeed have their origin. The origin of the straight cucumber, indeed, lies not in Brussels but in Geneva. So even if EU directive 1677/88 is abolished, which provides for the straightness of “extra” class cucumbers, then the cucumbers themselves will remain unchanged since their shape is regulated by a UNECE rule which says they cannot bend by more than 10mm for every 10cm of length. [Hendrik Kafsack, Handelsblatt, 2 September 2008]

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EU wants to control national economic policies

Jean-Claude Juncker having been reappointed (as predicted in the Digest in August) to a third term as the head of the Eurogroup, the Council of Finance Ministers which oversees economic policy in the euro zone has now said that it needs to have more control over the economic policy in order to manage the economy better. Calls are growing in the euro zone for more “early warning systems” to be introduced so that the policies of the euro states can be better controlled. The commissar for economic policy, Joaquín Almunia, told the German business daily, Handelsblatt, “In the Eurogroup and in the EU-wide Council of Finance Ministers, we must have more discussions about how to solve the structural problems in our economies, for instance excessive labour costs, inflation rates or budget deficits. We must talk about these things regularly in future, not sporadically as at present.” Almunia said that the euro zone had suffered brutally from the credit crunch, especially Spain, Italy, Portugal, Ireland and Greece. In these countries, he said, wage costs had risen far faster than the average euro zone rate. As a result, the international competitivity of these states had suffered and the effects of this were now clear.

The German Finance Minister, Peer Steinbrück, is also worried about the lack of coordination between euro zone states. At the last meeting of the EU Council of Finance Ministers, he called for a fundamental debate about the above-inflation rises in wages. Steinbrück said that his fear was that the weaker euro states would soon start to blame the European Central Bank for their woes, for instance presumably by demanding an inflationary increase in the money supply in order to counter the effects of the credit crunch. In other words, the old German fear that its economic policy would be determined by laxist “Club Med” states has returned, spurred on no doubt by the difficult economic times.

Germany, therefore, like the European Commission, wants the euro zone states to work more closely together on economic policy – or, to be more precise, that they follow Germany’s lead. However, the Germans naturally do not want to be seen to be pressurising the smaller states and so they want Jean-Claude Juncker, who is Prime Minister of the EU’s smallest state, to front the show. [Handelsblatt, 3 September 2008]

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German army official says his country “at war”

The Chairman of the German Army Association, Bernhard Gertz, has attacked the German government for downplaying the military situation in Afghanistan. He said that his country was “at war against an all too determined, fanatical enemy.” Gertz said that it was wrong for the government to have said that a 29 year old German soldier killed in Afghanistan had “died”. “The truth is that he gave his life for the Federal Republic of Germany”, he said. He said that the language of the press release was obscuring the true nature of the combat.

Germany’s participation in the NATO mission to Afghanistan has always been controversial. Yet the opposition Green Party, which used to be known for its pacifism, continues to support it. A Green politician, Jürgen Trittin, has recently said that he opposes an early withdrawal of German troops from Afghanistan in spite of the fact that the situation on the ground is deteriorating there. [Die Welt, 3 September 2008]

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Kosovo recognition runs into the sands

According to the Albanian daily, Koha Ditore, Kosovo’s campaign to become a member of the United Nations by the end of this year has run into the sands. Although the majority of the EU states and the USA have recognised the independence of Kosovo from Serbia, only 45 states in the world have followed them in this. This is less than a quarter of the existing Member States of the UN (there are nearly 200 states in the world now) and therefore there is little chance that the organisation will admit Kosovo as a member. [www.b92.net, August 2008]

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Dutch resist pressure to bring in Serbia

The Dutch government is resisting pressure to accelerate Serbia’s entry to the EU. Following a meeting between the Serbian President, Boris Tadic, and the President of the European Commission, which led to strong hints that Serbia might become a candidate country by 2009, The Hague has said that any progress towards EU membership must be strictly linked to the arrest of General Ratko Mladic, wanted by the International Criminal Tribunal for the former Yugoslavia and still at large. The Dutch Foreign Minister, Maxime Verhagen, said, “We are absolutely clear about Serbia: we have taken a decision, united, that there is a need for full cooperation' with war-crimes prosecutors. Full cooperation does mean the arrests of those who are still not put before the tribunal.” The attitude of the Netherlands stands in contrast to that of nearly all other EU states, who want to move ahead faster with Serbian accession following the recent arrest of Radovan Karadzic. [Bloomberg, 6 September 2008]

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Serbia applies to UN over Kosovo

Serbia has submitted its request to the General Committee of the General Assembly of the United Nations asking for it to seek an advisory opinion from the International Court of Justice on the legality of Kosovo’s unilateral proclamation of independence, which has been recognised by most EU states and by the USA. A decision by the General Committee is expected around the middle of September but even if the case goes to the ICJ, it could be several years before the court rules. [Beta, Belgrade, 29 August 2008]

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Revolution devours children

The International Criminal Tribunal for the former Yugoslavia in The Hague has issued an indictment for contempt of court against the former spokesman for the Prosecution, Florence Hartmann. Hartmann, a former journalist for Le Monde, is one of the attack dogs of modern international justice and she has always taken a very partisan line on the Balkans. In her kiss-and-tell book recounting her experiences, Hartmann attacks the judges of the tribunal, as well as her former boss, for allegedly accepting a deal with Belgrade whereby certain minutes of the country’s Supreme Defence Council could be submitted only in part.

According to her, these documents in fact contained information which could have been used to prove Serbia’s complicity in atrocities committed by the Bosnian Serbs in Bosnia if they had been submitted in their entirety. Serbia would then have been condemned for genocide as a state before the International Court of Justice, where a case had been brought by Bosnia. Now the judges have exacted their own revenge by indicting Hartmann for allegedly revealing confidential information in her book, and in an article published online by the Bosnia Institute.

It is ironic that Hartmann herself was still the Prosecutor’s spokeswoman when two Croatian journalists, Domagoj Margetic and Josip Jovic, were themselves indicted for contempt of court although in fact they had only republished information which was already in the public domain. (Their indictment was eventually withdrawn.) The full text of the Hartmann’s indictment can be found on the web site of the ICTY under the section dealing with the Milosevic trial. [www.un.org.icty]. If convicted, she faces a maximum sentence of seven years in prison and a fine of $150,000 although to date no one convicted of contempt has received such a punishment.

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Mosque gets go-ahead in Cologne

The city authorities in Cologne, a town known mainly for its great cathedral, have given the go-ahead for the construction of a large mosque with two 55 metre high minarets. The construction of the mosque has been very controversial, with one German Holocaust survivor attacking the project as “a demonstration of the power of Islam”. Cologne is home to the main Islamic organisation in Germany and there has in fact been a Muslim house of prayer on the site which is now going to be used for the mosque. German language courses and course in citizenship and integration are to be taught there, and sermons are to be translated. A large demonstration against the project is planned for 19 September. [Die Welt, 29 August 2008]

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Child migrants flood into Europe

As the European Union has started to send back illegal immigrants when they are caught without papers, ever more children are trying illegally to cross the Mediterranean in order to enter Europe. The ports of Morocco are full of hundreds of children as young as nine who live there, begging and sniffing glue (from which they occasionally die). They are sent, of course, by their own families, as the local UNICEF officials admit. Often whole villages club together to pay the 3,000 – 5,000 euros which are needed to pay the people traffickers. (The OSCE estimates that people trafficking now earns more money than drug running.) The children then work in Europe and send money home; because of the laws against repatriating children, they generally can stay even if they are caught by the police. In 2006 alone, more than one thousand children were stranded on the beaches of the Canaries (a favourite destination for illegal immigrants) and Spain, like many countries, has signed a UN convention which requires them to be housed, not sent back. There are now therefore some 7,000 child refugees living in Spain without their families. They try to survive until they are 18 at which time they can become legal residents. The children employ ever more inventive ruses to overcome the security measures which the port authorities use in order to try to prevent them reaching the boats. For instance, after the introduction of guard dogs, many of the children were bitten when they climbed over the fences to get to the quayside. But then they caught a bitch and lowered her down behind the fence on a rope: the guard dogs’ attention was sufficiently distracted in order to give them free passage. One of the children told a journalist he had hidden in the spare wheel box of a caravan – he eventually got caught in Spain and was nonetheless sent back to Morocco, from whence he is again trying to enter Europe. The children are completely fearless and they regularly take such risks that many of them do die. Ever smaller boats are being used to carry the illegals across the Mediterranean, often exclusively children. Of the 3,500 who drowned at sea last year trying to cross to Europe, therefore, many were children. Many accidents occur in the ports themselves, as children are run over by lorries, for instance: there are child casualties in the local hospital every day. [Die Welt, 26 August 2008]

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Change of guard in German SPD

In an extraordinary meeting of the presidium of the Social Democratic Party of Germany, the party leader, Kurt Beck, suddenly resigned. The new strong man in the party is the Foreign Minister, Frank-Walter Steinmeier, who is also one of the country’s strongest ministers. His profile has been raised by the crisis with Russia, where he has taken a strong line in favour of a cool reaction to the conflict in Georgia. Steinmeier, indeed, is a disciple of the pro-Russian former Chancellor, Gerhard Schröder. Following Beck’s unexpected resignation, Steinmeier suggested that Frank Müntefering, currently Vice Chancellor and Labour Minister, become party leader and that he, Steinmeier, be the party’s next candidate for Chancellor. Both decisions were accepted. (It is typical in Germany for the party leader not to be the candidate for the head of the government.) This means that Steinmeier is now in fact Angela Merkel’s rival, since he wants her job at the same time as serving in her government. Naturally this will increase tensions within the Grand Coalition government. Some voices in the CDU have attacked the SPD, with which they govern in a grand coalition, for its internal instability. They no doubt also fear the return of the influence of Schröder: the CDU leader, Angela Merkel, has taken a virulently anti-Russian line over the Georgian crisis and has been reined in only by Steinmeier. [Süddeutsche Zeitung, 8 September 2008]

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Lithuania caught between a rock and a hard place

One of the conditions imposed on Lithuania by the EU before it could become a member was that it had to agree to close down its nuclear power station at Ignalina. It has agreed to do this by 2010. However, since the power station produces 90 per cent of Lithuania’s electricity, it will become even more dependent on Russian energy exports than before once it is closed. Moreover, Russia has just announced that it is building a new nuclear power station in Kaliningrad region, the Russian exclave between Poland and Lithuania, and that it will use this station to export electricity to those states and elsewhere in the EU. The Estonians are also claiming to be afraid of a newly resurgent Russia: their secret services claim that a lot of new Russian passports have been given out recently. About one-third of Estonia’s inhabitants are Russians but the Estonian state, like the Latvian, has done everything to make them feel unwelcome, especially by refusing to give them citizenship. Many of them are therefore stateless. But, the Estonian authorities claim, if they now have Russian passports then Russia will claim the right to defend them just as it defended the South Ossetian Russian passport holders in Georgia. [Handelsblatt, 28 August 2008]

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Russia tests inter-continental missile

In the middle of the Georgia crisis, Russia has tested an inter-continental ballistic missile. The 45 tonne Topol missile was launched from the North-Western Russian town of Plessezk and landed some 6,000 km away on target in Kamchatka in the Pacific Ocean. The Russian authorities stated that the missile was capable of avoiding anti-missile technologies like the one which is to be stationed in Poland. According to the Russian army, this was a routine test which had nothing to do with the deteriorating situation between East and West.

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EU-Russia: Schröder strikes again

The former German Chancellor, Gerhard Schröder, has again supported Russia and attacked the West over the Georgia crisis. In a speech to a group promoting workers’ welfare, the former Chancellor said that the West had committed “serious mistakes” in its relations with Russia and that these mistakes were seen as “intolerable” in Moscow. He said that Russia had to react to the policy of “encirclement” being pursued by the West, with encroachments in the Caucasus and Europe (where the new anti-missile shield is being stationed). He conceded that Russia’s reaction may have been exaggerated but that “it depends who started it”. He said that the recognition of Kosovo was a mistake (even though he was Chancellor when NATO, including Germany, attacked Yugoslavia over Kosovo) and that he hoped for “more cooperation” after the US Presidential elections in November. He said that the Social Democratic Party could be proud of the efforts of the current Foreign Minister of Germany, Frank Walter Steinmeier, who has indeed pursued a very Schröderian line. His speech was roundly attacked by members of the Christian Democratic Party, one of whom accused him of aligning his foreign policy positions according to his personal interests. Schröder, indeed, is head of the consortium building the trans-Baltic pipeline which will transport Russian gas directly to Germany. [Die Welt, 1 September 2008]

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EU Council condemns Russia

Following its extraordinary meeting in Brussels, held to discuss the conflict between Russia and Georgia, EU heads of state and government have issued a statement condemning the Russian intervention but have stopped short of imposing any sanctions. They expressed their desire to continue developing strong relations with Russia but suspended any further meetings to discuss the partnership agreement with Russia. Given that the EU had been unable to reach an agreement on access to the Russian oil and gas network anyway, this was hardly a strong gesture. The EU leaders called on other states in the world not to recognise South Ossetia and Abkhazia and indeed there are probably few that will. But Turkish recognition of Northern Cyprus (the only country in the world to do so) has not prevented the EU from inviting Turkey to become a Member State and so Moscow is unlikely to be very peturbed by this. [Statement of European Council, 1 September 2008] It seems likely that the refusal to apply any sanctions against Russia (and still less to use military force) is thanks to France and Germany. Leaks in the French and German press before the summit indicated that there would be no sanctions. These leaks came from the Elysée Palace and from the German government. The German Foreign Minister, for instance, Frank Walter Steinmeier, was vocal in his insistence that there should be no sanctions and he specifically attacked statements coming from Paris (he undoubtedly meant his opposite number, Bernard Kouchner). Steinmeier said, “Even in this serious political situation, it is important that we allow a trace of common sense to prevail. Russia is going to continue to be our neighbour and it is in our own interest to return to a normal relationship with her.” Steinmeier has for long adopted a pro-Russian profile, in striking contrast to the Chancellor, Angela Merkel, who although a Russian speaker and a former Communist, has now adopted a very anti-Russian line. Following the leaks from Berlin, source in Paris said that Mr. Kouchner had never meant to call for sanctions but instead only that the French presidency would strive to reach a common position. The Russian Foreign Minister, meanwhile, was very forthright in his denunciation of the EU and its initial threat of sanctions. He said that Kouchner’s suggestion that Russia would soon attack Moldova or Ukraine or the Crimea were the product of “a sick fantasy” and that calls for sanctions were “a demonstration of complete confusion”. [Frankfurter Allgemeine Zeitung, 28 August 2008]

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EU: Pöttering shakes his fist

The President of the European Parliament, Hans-Gert Pöttering, has strenuously denied that the EU is powerless to act against the Russian intervention in Georgia. In an interview with an Italian newspaper, he insisted that Europe was strong and united. As an example, he cited the fact that the European extraordinary summit meeting in Brussels – as if a meeting were enough to undo a military act. In spite of all of his bluster and insistence on the need for Russia to respect international law, therefore, it is obvious that the EU will in fact do nothing. Indeed, its own position is of course weakened by the fact that most EU states have themselves recognised the unilateral proclamation of independence by Kosovo, while the EU as such has set up an administration in Kosovo (EULEX) whose status is nowhere to be found in the relevant UN resolutions which of course put the territory under UN (not EU) administration.

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Kouchner attacks ‘Russian threat’

As the EU tried to profile itself in the Georgian crisis – Presidency Sarkozy has been to both Georgia and Russia twice now, the calculation presumably being that the Americans are too busy with their election campaigns – the French Foreign Minister, Bernard Kouchner, issued a dire warning about future Russian aggression. Following Moscow’s military intervention in Georgia, Kouchner said that Russia may have “other goals” such as “the Crimea, Ukraine and Moldova” following Moscow’s controversial decision to recognise the secessionist territories of South Ossetia and Georgia. “It is very dangerous,” Kouchner said. His tone differed slightly from that of President Sarkozy, who – at least at the beginning of the conflict – tried to present himself as a broker between Georgia and Russia. [Le Monde, 27 August 2008]

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Russia threatens retaliation over Georgia

The Russian ambassador to NATO, Dmitry Rogozin, has explained in an interview with Le Monde what Russia will do if Georgia is now fast-tracked into NATO. “We will terminate all contact with NATO because we cannot cooperate with an organisation which supports an aggressor against us. If NATO makes another mistake in its relations with the East, we will be unable to continue our relations. Our people will not understand. For us, it is a “red line”. Rogozin said that NATO had multiplied its hostile acts towards Russia and that the accession of the Baltic States had only strengthened the alliance’s anti-Russian attitude. Asked if the crisis would strengthen the resolve of NATO to admit Georgia, Rogozin said that such a decision would mean that the Europeans were supporting “a war criminal” – Mikheil Saakashvili, the Georgian President – who was “a puppet of the United States”. “Saakashvili tried to smash the barrier preventing his country’s accesion to NATO by trying physically to eliminate the inhabitants of South Ossetia and Abkazia.” Rogozin confirmed that Russian troops would soon leave Georgian territory but that they would stay in South Ossetia and Abkazia if asked to by their respective governments. Asked if cooperation with NATO could re-start, Rogozin replied, “If the Americans send their fleet into the Black Sea, if they rearm Saakashvili, if they continue to call the aggressor a victim and the victim an aggressor, then what cooperation can one talk about?” [Interview in Le Monde, 7 November 2008]

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Russia attacks Cheney

After the fighting had died down, a rather tired-looking Dick Cheney travelled to Tbilisi to show support for Georgia and its prospects for joining NATO. Russia immediately attacked the American Vice-President for supporting Georgian aggression. A spokesman for the Russian Foreign Ministry said that Cheney’s gesture would strengthen “the dangerous feeling of impunity” and “dangerous ambition” in Georgia. Cheney told his Georgian host, President Mikheil Saakashvili, that the flagship of the US 6th Fleet in the Mediterranean had been despatched to the Georgian port of Poti. Cheney said that this ship, which is equipped with the most modern surveillance equipment, was delivering baby food to the people of Georgia. The Russian Foreign Ministry spokesman questioned whether indeed the ship was being used for this purpose. “Navy ships of this class are ill suited to the transport of large quantities of aid,” he said. “They have plenty of space for the crew’s supplies but do they have room for dozens of tons of aid?” Cheney then travelled to Ukraine, where the pro-Western President, Victor Yushchenko, is increasingly beleaguered as his own government has turned against him and is trying to take away his powers. [Süddeutsche Zeitung, 5 September 2008]

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Ukraine asks for strong sign from Europe

Ukraine has asked the EU to give it a strong signal that it will be accepted as a candidate state. It has asked for this to be given at the EU summit in Evian on 9 September. The Ukrainian authorities are trying to profit from Europe’s need to be seen to be doing something about Georgia and they evidently hope that EU leaders will react by offering the country swift membership. [Le Monde, 29 August 2008] However, the crisis in the government will make it extremely difficult for the EU to fast-track the country, when EU membership (and even more so NATO membership) enjoys only controversial support in the country.

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Ukraine coalition collapses

The Georgian crisis has had an immediate effect on the politics of another Black Sea state which wants to join NATO and the EU – Ukraine. As discussed in the last Digest, there has been a bitter falling-out between the President of Ukraine, Viktor Yushchenko, and the country’s Prime Minister, Julia Timoshenko. Now that falling out has translated into a collapse in the coalition between the two leaders respective parties. The cause of the crisis was the failure of Timoshenko’s government to criticise Russia over Georgia. Yushchenko immediately turned with even greater fury on his former ally, accusing her of mounting a “coup” against him because her party voted with Viktor Yanukovich’s Party of the Regions to reduce the powers of the presidency. (Much Ukrainian politics in recent years has consisted in a struggle for power between the Presidency and the government.) Now there is talk of a parliamentary coalition and government being formed by Timoshenko and Yanukovich, the man who lost the presidential election to Yushchenko in 2004. [Handelsblatt & other papers, 3 September 2008]

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Georgia: Saakashvili feels the heat

The Georgian President, Mikheil Saakashvili, is facing increasing pressure from the opposition following Georgia’s defeat over South Ossetia and Abkhazia. Independent media are calling for an end to the current censorship rules so that the truth can be established about who is responsible for the crisis. The temporary alliance between the government and the opposition, which came into being during the hostilities, has now begun to break down. Eighty members of the opposition have written an open letter demanding to know whether and why Saakashvili ignored warnings from the USA when he attacked South Ossetia. The letter attacks the government censorship and says that the “extreme propaganda” in the Georgian media blames everyone – “aggressive Russia, the ignorant West, the opposition, Russian spies, etc. etc. but never the government itself”. But, the authors go on, it is the government itself, and its “unprofessional and undemocratic attitude” which bears responsibility for the “catastrophic consequences” of the conflict. The leader of the opposition Christian Democratic party, Georgiy Targamadze, has also said, “It will be difficult to prove that Georgia did not begin this war.” Commentators say that the pressure on Saakashvili is likely to increase, as there are thousands of homeless people now in Georgia as a result of the war. [Die Welt, 5 September 2008]

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Gordon Brown’s £1 billion household energy package – a result of bungled EU climate change policy

Jim McConalogue of The European Foundation said:

“Gordon Brown’s £1 billion household energy package is not only naïve, unprincipled and cosmetic, but marks a failure of the Labour Government after adopting a botched EU climate change policy. His attempt to offer £910 million to pay for all low-income and pensioner families to get free loft and cavity insulation, with six million others offered half-price deals, is a short term fix. Basic economics will prove that those energy companies will now be forced to hit the consumers in the long-term with increased prices. Those are the terms of Brown’s daylight robbery of the Big Six power companies.

“This is not merely a national failure – it is a failure of its European Union climate change policy. Brown’s national energy package has been presented as a ‘better alternative’ to a windfall tax. The windfall tax was itself debated by the Labour Party because the Government signed itself up to a European climate change initiative and got its figures completely wrong. The EU Emissions Trading Scheme (ETS), which was designed to tackle climate change through anti-pollution measures, ended up awarding large and substantial funds to energy companies. Labour has already realized the extent of the losses but will do nothing. It is already reported to have cost the UK economy up to £530 million a year. To rob the cash he lost on his bungled EU anti-pollution climate change policy, Brown is now pumping grand sums of money, £1 billion in fact, to prop up consumer energy and home bills.

“To cover his mistakes on a massively destructive EU policy, Brown has decided to give away the money to cover himself. It will not rub off on the voters and the Prime Minister has already been rumbled. But it is on Europe, not merely his failed economic recovery plan, where he got the sums wrong.”

‘No’ means ‘No’: French lunacy in Brussels is no cure for Irish ‘No’ vote

In response to the discovery of an internal EU briefing paper group written by French European officials, demanding a second referendum in Ireland on the Lisbon Treaty, rather than comprehend the original Irish ‘No’ vote, Jim McConalogue of the European Foundation has said:

“The internal EU briefing paper, ‘The Solution to the Irish Problem’ ensuring that Dublin must have a second referendum, is wholly anti-democratic. Whether its contents come to fruition will confirm once and for all, who governs Ireland – the Irish or the European Union?

“How odd it is that the French President wants Europe to assert democracy in Russia yet his countrymen’s own EU officials cannot assert democracy in Europe. Talk about defecating on one's own doorstep.

“The attempts by ‘Le Amis du Traite de Lisbonne’ and EU officials to circumvent the will of the Irish people in ratifying the Lisbon Treaty are proof of the stupendous but forceful idealism in the European Union. There is no democratic method or process which justifies senior European official’s asserting that the EU will instruct a national parliament to hold another referendum until they get their ‘yes’ – as if its rejection by a nation has meant nothing.

“To carry on this manner and without principle is an attack first on the Irish people who said ‘No’ to this Treaty and second it is an assault on the reasoned and right-minded 500 million citizens within the European Union whose national governments must not allow this abuse of democracy to go on.”
“It couldn’t be clearer. This latest development shows the anti-democratic lunacy of EU thinking in bulldozing over the Irish ‘No’ vote. ”

Is CAP “designed to kill Europeans” through heart disease?

As if it were not enough that CAP imposes substantial costs on developing countries as well on EU consumers and taxpayers, according to a new study published in the July Bulletin of the World Health Organization, CAP is also to blame for cardiovascular mortality (www.who.int). The study pointed out that CAP has increased availability and consumption of products which contain saturated fats and that the EU spends €16 billion a year in supporting the dairy industry.

The study stressed that “These full-fat dairy products are a significant source of saturated fat to the population, potentially increasing coronary heart disease (CHD) and obesity.” Consequently the authors of the study argued that CAP has now become “a hazard to public health throughout the EU and may be promoting inequalities in health through the types of food consumed.”

CAP itself has been described as “a system designed to kill Europeans through CHD.” The objective of the study was to estimate the burden of cardiovascular disease (CVDs) as a result of excess dietary saturated fats attributable to CAP in 15 EU Member States before the 2004 enlargement. The authors quantified the CAP subsidies for dairy and meat products through impact on cardiovascular mortality, making several calculations based on population mortality rates and dietary information.

They concluded that “The estimated mortality contribution attributable to CAP was approximately 9800 additional CHD deaths and 3000 additional stroke deaths within the EU ….” The authors believe that “Reducing saturated fat consumption by 1 per cent and increasing monounsaturated and polyunsaturated fat by 0.5 per cent each would lower blood cholesterol levels by approximately 0.06 mmol/l, resulting in approximately 9800 fewer coronary heart disease deaths and 3000 fewer stroke deaths each year.” CAP is to blame for cardiovascular diseases and stroke deaths. The authors believe that “changes in CAP subsides would particularly benefit France, Germany, Italy, Spain and the UK.”

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We have a “two speed” Europe for cross border divorce law

News @ The Justice and Home Affairs Council. Raising concerns of a “two speed” Europe, a group of EU Member States has decided to proceed with further EU integration having decided to go ahead with enhanced cooperation to by-pass the veto of other Member States in order to adopt common rules to designate the law applicable to cross border divorce cases. The Council Regulation 2201/2003, the so called Brussels II Regulation, provides for rules on jurisdiction and on recognition and enforcement of judgments in matrimonial matters but the applicable law is determined according to the domestic conflict of laws rules. In 2006, the European Commission presented a proposal for a regulation on Applicable law and Jurisdiction in Matrimonial Matters, amending the Brussels II Regulation. The so called Rome III proposal introduces the possibility for the spouses to determine by common agreement the competent court in proceedings concerning divorce and legal separation. The choice of the party is not unrestricted – there must be a “substantial connection” with the Member State in question, hence the Member State chosen must be the place of the last common habitual residence of the parties or the Member State of nationality of one of the spouses. The Commission has pointed out that Brussels II Article 7 refers to the national rules on international jurisdiction in cases where the spouses are not habitually resident in the territory of a Member State and do not have common nationality. The national rules have different criteria and according to the Commission there may be cases where no EU Member State or a third State has jurisdiction to deal with an application for divorce.

The Commission has therefore decided to introduce a uniform rule on residual jurisdiction aimed at ensuring access to court for spouses who live in a third countries but would like to bring proceedings in a Member State with which they have a close connections: they are nationals or live in a country in which they have resided for a certain period. The draft regulation also introduces harmonised conflict-of-law rules to decide which law applies to the divorce and legal separation proceedings based, firstly, on the choice of the spouses. It introduces the possibility for the spouses to choose the applicable law to divorce and legal separation.

Such choice is limited to laws of countries with which the parties have a connection taking into account their last common habitual residence if one of them still resides there, the nationality of one of the spouses, the law of the State of their previous habitual residence, or the law of the forum. The draft regulation also sets up criteria to determine the applicable law in cross-border divorces in case of absence of choice by the spouses. The draft proposal defines several connecting factors hence a cross border divorce is to be ruled by the law of the country of the spouses common habitual residence, or failing that, by the law of the country of their last common habitual residence if one of them still resides there, or failing that, the law of the state of common nationality of the parties or failing that, by the law of the forum. The Commission has stressed that the draft proposal is meant to be of universal application – hence the conflict-of-law rule can designate the law of a Member State of the European Union or the law of a third state.

The Rome III Regulation would not harmonise Member States substantive divorce laws but will rule on conflict of laws. Nevertheless, the application of non-national law in domestic courts is a very controversial issue. The Justice and Home Affairs Council have failed to reach an agreement on the draft proposal. As abovementioned, the Rome III aims to set up rules for determining which law is applicable in divorce cases when the court is in a different member state from the country of at least one of the spouses. There are different opinions, especially between those Member States which apply lex fori and those which apply conflict of law rules to determine applicable law and apply foreign law within their systems. The UK as well as Cyprus, Denmark, Finland, Ireland, and Sweden apply the lex fori – hence, once jurisdiction is determined the courts apply domestic rules to a divorce case. Obviously, the Commission proposal entails substantial changes in the laws of several Member States especially in those which apply lex fori. Consequently, the UK has decided not opted in to such proposal. Moreover, Rome III could apply to cases with no connection with the internal market as it extends applicable law to non-Member State law. The Commission’s draft proposal raises subsidiarity issues. Several Member States could not support the measure on the grounds of subsidiarity and proportionality principles. Family and marriage are very sensitive issues and they are at the core of Member States’ traditions. Member States substantive domestic divorce laws vary substantially, so it is little wonder that the draft proposal could not achieve unanimous support. The draft proposal on Applicable law and Jurisdiction in Matrimonial Matters has been blocked, mainly by Sweden. Sweden could not accept the application of foreign divorce laws in its courts. At a recent Justice and Home Affairs Council meeting, member states came to the conclusion that the required unanimity to adopt the proposal on the law applicable in matrimonial matters (Rome III Regulation) could not be obtained. The solution found at the Council meeting was to proceed through enhanced cooperation. Consequently some member states would be allowed to proceed with the legislation whereas others would not participate.

So, in order to by-pass Sweden’s veto, a group of nine EU Member States Austria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain having indicated that they support the aims of the draft regulation and that it is not possible to reach an agreement. Therefore, they want to adopt it through the enhanced cooperation method. Those Member States have written to the European Commission formally requesting it to prepare a legislative proposal for enhanced cooperation, and for the first time activated this mechanism. The Commission will submit a proposal based on the request before the end of the year. The Commission has said that it would like to see, in order to prevent legal fragmentation, as many member states as possible involved in the enhanced cooperation. But that should not be a problem as several other Member States, Germany, Belgium, Portugal and Lithuania are already considering joining the initiative. Authorisation to establish enhanced cooperation would be granted by the Council, acting by a qualified majority on a proposal from the Commission and after consulting the European Parliament. Hence, other member states are not able to veto and prevent other member states to press ahead with further integration. Such a move will eventually lead to a “two-speed Europe.” The provisions on enhanced cooperation had never been put into effect – therefore, their possible outcome is still being debated. But, one thing is for sure, enhance cooperation reinforces the integration process.

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Commission’s eco proposal will damage small businesses

News @ European Commission. In aiming to achieve sustainable production, the European Commission has recently proposed a package of measures which are likely to have a severe impact on small business. According to the European Association of Craft, Small and Medium-sized Enterprises, UEAPME, the European Commission Action Plan “might put small businesses at a competitive disadvantage and in some cases price them out of the market, (…).” The Commission, on 16 July, adopted a communication on the Sustainable Consumption and Production and Sustainable Industrial Policy which presents an Action Plan aiming at improving the energy and environmental performance of products. Among the measures proposed by the Commission is the review of the Directive on the Ecodesign of energy-using products. The Commission has been promising to reduce bureaucracy and introduce measures to encourage small and medium sized enterprises however the review of the Ecodesign Directive will put on regulatory burdens and increase costs therefore it will discourage small businesses.

The 2005 Ecodesign Directive introduced rules establishing ecodesign requirements for energy-using products. It set ups a framework under which producers of energy using products are obliged, at the design stage, to reduce energy consumption which occurs throughout the product life. The directive determines the conditions and criteria to the Commission to adopt requirements for products through the comitology procedure. Manufacturers who are marketing an energy using a product covered by an implementing measure adopted by the Commission are obliged to ensure that their product observes the energy and environmental standards put forward by that measure.

The energy-using products which comply with implementing measures possess a CE marking and are placed on the internal market. However, it is not clear yet if such measures will make improvements in energy efficiency.

The Ecodesign Directive only currently applies to energy-using products such as heating, water heaters, electric motor systems, lighting, domestic appliances. The Commission has proposed, as part of its Action Plan, to extend the scope of the Ecodesign Directive to cover all energy-related products, keeping the exception to means of transport.

The Commission wants to put in place a single Community framework establishing ecodesign requirements and therefore wants to harmonise national laws on those requirements for all significant energy related products. Energy-related products are defined in the draft directive as “any good having an impact on energy consumption during use which is placed on the market and/or put into service in the European Union” such as window frames, water-using devices and insulating materials. The revised Ecodesign Directive would cover all energy-related products and set compulsory minimum requirements to put the products on the market. However, the definition of such products is far from precise.

Obviously, since the Commission has proposed to extend the scope of the Directive there will be a widened choice of product groups for which implementing measures can be adopted. The Commission urges industry to develop benchmarks and standards for several products that would be affected by the proposal otherwise the Commission will regulate specific standards when it deems the industry initiatives to be insufficient. The Commission has stressed that “Legislative measures may be needed where market forces fail to evolve in the right direction or at an acceptable speed.” The Commission will develop implementing measures for products with significant environmental impact, and consider potential room for improvement in its environmental impact. The products which will be targeted by the so-called implementing measures still need to be determined. The Commission will put forward a working plan setting out an indicative list of product groups considered to be as priorities meaning those which have a significant environmental impact for the adoption of implementing measures. The implementing measures will take into account the lifecycle of products, environmental aspects and the energy and resource use of products. There is no indication of which products will be targeted in any implementing measures; therefore it is very difficult to make an accurate business impact assessment.

The existing Ecodesign Directive sets minimum requirements for products to be placed on the market as well as environmental performance benchmarks referring to the best performing products on the market. Therefore, this will, under the Commission’s draft proposal, be extended to all energy related products. Member States would be required to take all the necessary measures to guarantee that energy related products affected by implementing measures may be placed on the internal market solely if they comply with such measures and bear the CE marking. In case of noncompliance, the Member State would be required to prohibit the product’s placing on the market or withdrawing it from the market. A manufacturer would be required to ensure that an assessment of such products conforms with the applicable implementing measure requirements are made before placing that product (covered by those measures) on the market or putting it into service.

Professionals in the industry are not pleased with the Commission’s plan to extend the scope of the Ecodesign directive. The Commission is once again over-regulating the industry. Manufacturers would have to change their production methods in order to comply with the Commission rules which would have serious financial implications for them. The SME would have to comply with extra eco-design criteria for a CE mark, further administrative requirements and testing procedures. The conformity assessment will introduce further bureaucracy and red tape and some SMEs will not be able to implement it. Guido Lena, UEAPME Director for Sustainable Development has pointed out that there is a risk of a large number of SMEs not being able to comply with minimum requirements and, therefore, such enterprises will not be allowed to place their products on the market. According to Euractiv, Alexandre Affre, Business Europe’s Advisor on Environmental Affairs, has said “If there are higher standards in the EU as regards the environment than in non-EU countries, this could impact seriously on the cost of EU products.”

The Commission is expecting that its proposal will be adopted by the European Parliament and the Council at first reading before the end of the European Parliament legislature.

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Commission: Member States must pay for health tourism of patients

News @ European Scrutiny Committee. The Commission has recently adopted a proposal for a Directive on the application of patient’s rights in cross-border healthcare as part of the ‘Renewed Social Agenda’ which has been considered to promote “health tourism.” The Commission proposal will interfere with Member States’ responsibilities in organising and delivering health services and medical care and will put the financial stability of the NHS at risk.

The European Court of Justice (ECJ) has been ruling that patients have the right, under the EC Treaty, to seek healthcare within the EU and be reimbursed with healthcare costs received abroad that they would have been entitled to receive at the Member State of affiliation (country where the patient is an insured person). According to the ECJ, the requirement of prior authorisation for reimbursement of a patient’s costs for treatment received in another Member State represents a barrier to the freedom to provide services. The Commission has been inspired by ECJ case law. The Commission has pointed out that “the uncertainty about the general application of rights to reimbursement for healthcare provided in other Member States is creating obstacles to the free movement of patients and of health services more generally in practice.”

Consequently, the Commission has addressed the issue of reimbursement of the cost of healthcare provided in other Member States in its draft proposal. The Commission’s proposal would allow patients to seek healthcare in another Member State which would have been provided at home and then be reimbursed the costs of anything up to the full amount that would have been paid if they have had received that treatment at home. Under Article 6 (1) of the draft proposal, the Member States of affiliation would be required to ensure that their patients seeking to receive healthcare provided in another Member State would not be prevented from receiving it. However, it is not clear what it would be the scope of such duty of the home state or whether it is enforceable. According to the European Scrutiny Committee (ESC) “… it is not apparent that the duty is limited to events within the home State, or that the home State has any power to require healthcare providers in another State to treat a patient.” The ESC has expressed doubts over home State ability to ensure that the patient is not prevented from receiving the treatment in question.

The Commission has asserted that a prior authorisation requirement on cross-border non-hospital care represents an obstacle to the free movement of health services which is not justified. The Commission has pointed out that the absence of a prior authorisation requirement will not undermine the financial equilibrium of social security systems or the organisation, planning and delivery of health services if the reimbursement of cross-border non-hospital care is within the limits of the cover guaranteed by the sickness insurance scheme of the Member State of affiliation.

Under the Commission draft proposal, patients would be allowed to seek non-hospital care in another Member State and Member States would no longer be able to require prior authorisation. A Member State would not be obliged to reimburse treatment provided in another Member State which is not offered by its own national health system. In concerns over hospital care, Member States would be allowed to introduce a prior authorisation scheme for reimbursement. However, Member States must provide evidence that due to the implementation of the Directive, the outflow of patients is likely or that it seriously undermines the financial balance of the social security system or the planning of hospital capacity. Nevertheless, if a Member State has established a system of prior authorisation for assumption of costs of hospital care provided in another Member State, the costs of such care should also be reimbursed by the home Member State up to the level of costs that would have been taken had the same treatment been provided at home. Moreover, the Commission believes that the absence of a common definition of what constitutes hospital care throughout the different health systems in the EU represents an obstacle to the freedom for patients to obtain healthcare services. Hence, unsurprisingly, the Commission has introduced a Community definition of hospital care which is “treatment that requires at least one night of stay in a hospital or clinic” and treatment that requires the use of highly specialised and cost-intensive medical infrastructure or medical equipment. The Commission will, through the comitology procedure, define a regularly updated technical list of such treatments. In fact, under the draft proposal a lot of room is left to comitology, a process which will diminish Member State control over the content of such measures.

It is clear that the Draft Directive would make it much more difficult for the Member States to require prior authorisation for reimbursement of hospital treatment provided in another Member State. Dawn Primarolo, the Minister of State at the Department of Health, has said to the European Scrutiny Committee “The current proposal allows Member States to put in place a system of prior authorisation for hospital care … However, the Directive tries to limit the circumstances in which prior authorisation for treatment abroad will be permitted.” According to the Government, “it is imperative that the home Member State retains responsibility for deciding entitlement to healthcare and that Member States can put in place a system of prior authorisation where necessary for their system.” Hence, the Government “will be seeking to protect this principle during negotiations.”

Through the proced ure of prior authorization, healthcare systems can supervise their finances and organize their delivery of services so that the Commission proposal will have a negative impact on the right of a Member State to organise and finance their health services.

Under the draft proposal, the home state is entitled to impose on a patient seeking healthcare provided in another Member State its general requirements, criteria for eligibility and administrative formalities for receipt of healthcare and reimbursement of healthcare costs, as it would impose if the same treatment was provided at home – providing that such conditions are necessary, proportionate and are not discretionary and discriminatory. Member States would be required to establish national contact points for cross-border healthcare to provide patients information on their right to seek care within the EU. The draft Directive creates further bureaucratic and administrative burdens for health systems. According to Euractiv a Member State representative has said “It is justifiable to ask how big the administrative burden will be compared to the number of people actually crossing borders to seek care and to calculate how much tax payers' money is spent on maintaining an administration to serve those few.” It remains to be seen what will come out from the negotiations but it is noteworthy that the UK cannot veto the proposal as QMV is required at the Council. The draft Directive would be adopted through the co-decision procedure. It has been foreseen that long and fierce discussions at the Council and with the European Parliament will ensue.

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