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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