Tuesday, June 26, 2007

Gideon Rachman

Column by Gideon Rachman in the Financial Times


Europe ditches clarity and embraces obfuscation
By Gideon Rachman

Published: June 25 2007 17:32 | Last updated: June 25 2007 17:32

At two o’clock on Saturday morning I got chatting to an official in the bar at European Union headquarters in Brussels. Several floors above us, the leaders of the 27 EU countries were still arguing about how to change the text of the Union’s ill-fated constitution. “If you want to understand what they are doing,” mused my friend, “you should look at Nabokov’s book Pale Fire”.

It struck me that I was unlikely to find a copy of the great Russian √©migr√©’s 15th novel lying around at that late hour, so I settled for the next best thing – an internet search. A short critical essay that I came across immediately brought to mind some striking similarities between Pale Fire and the draft agenda for revising the constitution.

“Pale Fire”, I read, was a “prime example of the literature of the exhaustion”. That certainly seemed right – given that it was now four in the morning. Vladimir Nabokov’s novel was a “labyrinth of dazzling complexity”. This too rang a bell. But the real clincher was the fact that in Pale Fire, the footnotes are longer and more important than the text itself. The book starts with a poem, which is “gradually co-opted by the commentary”.

That is, more or less, what happened in Brussels over the weekend. EU leaders began their meeting with a constitutional text. Then, over many hours, they added endless footnotes, protocols and “clarifications”, which became more important than the original text itself.

The result is almost impossible to read or understand. And that is entirely intentional. Many things happened at the summit. But perhaps the most important was that the EU finally abandoned the idea that it wants ordinary Europeans to understand what it is doing.

The abandonment of “transparency” brings the EU full circle to where it began when the idea of writing a constitution was dreamt up six years ago. Back then it was conventional wisdom that one of the Union’s biggest problems was that European citizens found it so hard to understand. Why not simplify the complex mess of interlocking treaties and incomprehensible language into a single, readable document?

Big mistake. It turned out that once Europeans were told what the EU was really doing, they were often horrified. The new, admirably transparent constitution was rejected by large majorities in referendums in France and the Netherlands in 2005.

It was as if a manufacturer of tinned meat had suddenly decided that it would be a good idea to put a large notice on the front of the tin, stating: “This product contains reconstituted cows’ udders.” How surprising and hurtful that sales should fall as a result.

What the EU decided to do at the summit was to put all the stuff about the repulsive ingredients that make up the Union back into tiny print on the side of the tin – or, in this case, into footnotes to the constitution.

A commitment to “undistorted competition”, which sounded alarmingly liberal to the French, was cut out of the main text – but then restored in a protocol attached to the main document. The charter of fundamental rights – which upset the British – was similarly removed from the treaty and put into a protocol, and then further qualified by a massive footnote.

Perhaps the best illustration of the process is the question of the “primacy of EU law”. It has been the case for many years that European law overrides national law. Back when the constitution was being written, it was decided that it would be admirably transparent if the document included the first explicit statement of EU legal primacy.

The problem was that while lawyers and EU officials regard legal primacy as merely a statement of the obvious, many ordinary Europeans still find the idea that foreigners should be able to overrule their national parliaments unpleasant. One opinion poll in Britain found only 10 per cent support for the idea.

So European leaders have decided to work round this problem, by removing the statement of European legal primacy from the main constitutional text – and burying it in a footnote. Footnote one of the document agreed over the weekend reads: “Whilst the article on primacy of Union law will not be reproduced in the TEU, the IGC will agree on the following declaration: ‘The conference recalls that in accordance with the settled case law of the EU Court of Justice, the Treaties and law adopted by the Union on the basis of the Treaties have primacy over the law of the member states.’ ” Is that clear? I do hope not.

This is part of a pattern. European leaders have gone through the constitution painstakingly replacing anything that is too clear with something more obscure. The word “constitution” itself has been ditched in favour of “reform treaty”. The word “law” is being dropped in favour of “regulation, directive and decision”. The mooted EU foreign minister is now to be called a “high representative”.

It is not just clear language that has been abandoned. Any procedures or decisions that were easy to understand – and therefore potentially distressing to the public – have been deliberately complicated.

Take the voting system for deciding EU laws (or rather, directives and decisions). This was the point that almost caused the summit to collapse, because the redistribution of power from Poland to Germany was too clear. So the leaders have come up with a series of baffling obfuscations. The new voting system will not come into force until 2014 – and then will run alongside an alternative voting system for a further three years. At any point, the Poles will also be able to invoke the Ioannina compromise. (Don’t ask.)

In producing a document that is stuffed with nonsense like this, the EU is reverting to its true nature. Like most of the novels of Nabokov, EU treaties have never been widely read; but they have nonetheless attracted a reputation for obscurity and immorality, alongside a faint whiff of perversion. EU officials found this upsetting – and the constitution was a brief, disastrous effort to put things to rights.

This weekend marked the end of the EU’s experiment with transparency and popularity. Like Nabokov, the Union will once again inspire interest only among a small band of specialists, devotees and deviants.

gideon.rachman@ft.com

Post and read comments at www.ft.com/rachman

Copyright The Financial Times Limited 2007

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