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Europe
Der Spiegel: Why the EU is Unconsitutional
2005-03-19
Long article that is very interesting. The Germans are starting to fugure out what the EU really means. Read the whole article and see that the irony is that an Islamic terrorist is showing them what's at stake. More irony than Marbury v. Madison EFL
The European Union wants to integrate law enforcement. But that means that laws passed in one country would be valid across the continent. Germany's high court believes such a provision is unconstitutional. A decision is set for April that may have serious consequences for the future of the European dream. Specifically, critics like high court justice Udo Di Fabio wonder if judicial cooperation throughout the European Union is a step in the direction of a "European super-state." In other words, could centralizing power at EU level limit member states' ability to guarantee rights currently enjoyed by their citizens? ...Now, the court, in case number 2 BvR 2236/04, intends not only to address the issue of judicial cooperation among EU member states, but also the very foundation of a united Europe.

If the judges' concerns prevail, says Federal Minister of Justice Brigitte Zypries "we would essentially be parting ways with the European Union." The list of issues Di Fabio intends to raise ranges from the implementation of the "principle of democracy" in the European Union, through the risks of "gradual elimination of the sovereign state" to the question of whether the pro-European softening of Germany's basic law four years ago was an unconstitutional amendment of the constitution. ....
Posted by:Mrs. Davis

#21  Aris, TGA,

Yep, complicated as all hell. Read the link it goes into the differences between legal sovereignty post constitution and current legalities pre-constitution.

I just scratched the surface with my quotes the whole discusstion gets into issues that I've not studied seriously for 30 years and deal with alot of specific details from the EU that I don't really understand.

Like I said, I don't care if there is a single sovereign state or 25, but, the one you seem to be headed for seems nasty.
Posted by: AlanC   2005-03-19 8:34:09 PM  

#20  If anybody says anything about Chirac,..

It's not Chirac. It's Chiroeder, Jacqhard Chiroeder.
Posted by: Bomb-a-rama   2005-03-19 7:43:51 PM  

#19  Now it makes sense. If anybody says anything about Chirac, anywhere in Europe then Chirac can make him dead meat. The recent suits by French firms against Google are just testing the waters on this...
Posted by: 3dc   2005-03-19 6:11:19 PM  

#18  Indeed, if Belgium passes a law against Belgian waffle jokes it could qualify for the EU Arrest Warrant if Belgium puts it under the covered "racism and xenophobia" clause.
Of course we're pushing the limits with our examples. But unfortunately, when you deal with the law, that's what you have to do.
Posted by: True German Ally   2005-03-19 5:23:24 PM  

#17   Strictly speaking Aris is right. If say France made a law requiring all TV programming from 8-11 at night have nothing but French spoken,that law applies only to France. France could not get an EU warrant to arrest someone in Greece that was broadcasting in Greek. BUT,if a German TV station's signal was picked up in France,it would be theoretically possible for France to get an EU warrant against the German station's managers and have them extradited w/no recourse in German courts. In reality,the Germans take the French to court,but it would be the EU Court that would decide,and that court has shown itself to firmly believe that the EU is superior to any European nation. In the US analogy,the EU Court is firmly Federalist.
This is an extreme example,but it illustrates a major problem w/much of the EUFirst mindset. They are firmly locked in the 50s and 60s,and so much of what they propose would have been fine for the 60s,but totally ignores the changes since then. W/the EU warrant,any single Eu country can decide for every other EU member what is acceptable Internet content and what is not. If Belgium passes a law making it a crime to make jokes about Belgium waffles,you can stand in Poland and make all the Belgium waffle jokes you want and nothing will happen. But if you post a joke on a Spanish website,both you and the website's operators could be extradited to Belgium under the EU warrant because that website could be accessed in Belgium.
Posted by: Stephen   2005-03-19 5:07:46 PM  

#16  What the EU Warrant says:

"European arrest warrants issued in respect of crimes or alleged crimes on this list have to be executed by the arresting state irrespective of whether or not the definition of the offence is the same, providing that the offence is serious enough and punished by at least 3 years' imprisonment in the Member State that has issued the warrant."

It says that the EU Warrant only applies to "32 categories of serious offences". So if those crimes are punishable in any member state, why would you extradite a German to Spain to have him tried there? You could do it easily in Germany. Note that one of those crimes covered by the warrant is "racism"... good luck with a common definition.
Let's say I write something that Latvia considers to be racism. Latvia could issue an European Warrant and Germany would be forced to extradite me without legal appeal, extradite me to a country with a different legal system, where I need to defend myself, hire translators etc.

And if EU law seeks to have primacy over the German Constitution, it is unconstitutional and void. This is what the German Supreme Court (and others) are waking up to. Our government cannot sign away the German constitution.
Posted by: True German Ally   2005-03-19 4:58:12 PM  

#15  AlanC> I'm a citizen of the EU already, regardless of whether I accept the Constitution or not.

I have no objection to German citizens being able to fight their extradition in German courts, and I admit that I do not know the details of the European arrest warrant. I'll have to look into them.

"The whole thing IS a complicated mess of overlapping sovereignties BECAUSE THERE IS NO EU YET THAT IS SOVEREIGN, just a mess of proto-constitutional treaties that give the EU the trappings of sovereignty without the legality."

See, this I don't understand. What's the legal difference between a constitution, and documents serving the function of a constitution? UK has no single written constitution but it has sets of laws that serve the function of one. What does this mean of UK's sovereignty? I'd say that it doesn't influence its existence.

"constitutionally and politically this new European Union would be quite different from the existing EU."

Article IV-438: Succession and legal continuity
1. The European Union established by this Treaty shall be the successor to the European Union established by the Treaty on European Union and to the European Community.

Article I-7 gives this new European Union, established now on the basis of its own Constitution, legal personality and a distinct corporate existence for the first time. Hitherto the EU has had no legal existence apart from its Members. At present the Member States, not the EU, are superior

The "European Union" itself had no legal idenity, but the "European Community" had. Since membership of the two was completely identical, this was a distinction without a difference.

Essentially the EU was composed of two different treaties -- the Treaty of Rome (first made in the 50s, as amended by every subsequent treaty)and the Treaty of Maastricht (as amended by Amsterdam and Nice).

The former created the European (Economic) Community, the second created the European Union, which is the European Community + Common Foreign Policy + Judicial & Police Cooperation

See the diagram I created: The "European Community" is now the so-called "first pillar". Not exactly (because there's also the mostly obsolete Euratom) but kinda-sorta.

It's complicated.

badanov> A "Confederation" is indeed a much closer description of what the EU is (and will still remain after the Constitution).
Posted by: Aris Katsaris   2005-03-19 4:55:34 PM  

#14  Hi TGA,

This is a semantic distinction but an important one. As I understand it there are 32 crimes covered by the EU Warrant. Those crimes are de facto EU Federal crimes and anyone can be charged and tried on them regardsless of what member state they are a citizen of or what state the prosecutor is from. Thus this is EU Federal Law.

The whole thing IS a complicated mess of overlapping sovereignties BECAUSE THERE IS NO EU YET THAT IS SOVEREIGN, just a mess of proto-constitutional treaties that give the EU the trappings of sovereignty without the legality.

This is not a semantic distinction! The creation of a real and sovereign state changes everything.

Read my link to the eureferendum site and look at the Constitutional Analysis (the head guy for the group is: The National Platform's secretary is Anthony Coughlan, who is an economist and Senior Lecturer Emeritus in Social Policy at Trinity College Dublin, and who may be contacted at 00-353-1-8305792.

Here are some extended quotes:

1) The Treaty Establishing a Constitution for Europe, to call it by its proper official name, is not just another EU treaty. This Treaty (Art.IV-437) repeals all the existing EC/EU treaties from the Treaty of Rome to the Treaty of Nice and then founds or establishes quite a new EU, based on its own Constitution. Legally, constitutionally and politically this new European Union would be quite different from the existing EU.

2)A Constitution is the fundamental law of a State, setting out its institutions of government, how it makes its laws, determines its policies and actions and relates to other States

3)Article I-7 gives this new European Union, established now on the basis of its own Constitution, legal personality and a distinct corporate existence for the first time. Hitherto the EU has had no legal existence apart from its Members. At present the Member States, not the EU, are superior.

4)Article I-6 then provides that "The Constitution and law adopted by the Institution of the Union in exercising competences conferred on it shall have primacy over the law of the Member States." (so much for you German Supreme Court's ruling)

Posted by: AlanC   2005-03-19 4:19:21 PM  

#13  Not a bad definition, yes.
Posted by: True German Ally   2005-03-19 3:43:16 PM  

#12  There is no "EU Federal Law", only the laws of the member states.

Then the EU 'Constitution' is not a true constitution; it is an article of confederation.
Posted by: badanov   2005-03-19 2:50:48 PM  

#11  No AlanC, it's not about "Federal Law" versus State Law. Federal Law is applicable ANYWHERE in the U.S., while State Law is not.
With the EU Warrant you can be extradited without legal recourse in your own country for violating a law that does not exist in your own country.
There is no "EU Federal Law", only the laws of the member states.
Posted by: True German Ally   2005-03-19 2:41:46 PM  

#10  
high court justice Udo Di Fabio wonder if judicial cooperation throughout the European Union is a step in the direction of a "European super-state."
Well, yeah. Haven't you been paying attention?

Duh.
Posted by: Barbara Skolaut   2005-03-19 2:40:11 PM  

#9  3dc,

The reason for this is that you're talking about state law as opposed to Federal Law. If you're arrested for a Federal crime there's no extradition.

As I understand it in the EU currently the European Warrant in effect makes ALL crimes Federal crimes, hence no need for extradition.
Now, since the EU has no police force nor court system for dealing at these levels, the member states forces are used.

I guess it would be similar to having Federal law enforced by state and local police and tried in state courts here. No FBI and no US District Courts.
Posted by: AlanC   2005-03-19 2:35:33 PM  

#8  3dc, which means that the U.S. states, which belong to a single nation, have more rights than European nations under the "umbrella" of the EU.

AlanC, the problem is even more complicated, as you won't get extradited to a "uberstate" called EU, but to any of the EU member states where you are suddenly subjected to a foreign legal system you had no part in creating or influencing.
Posted by: True German Ally   2005-03-19 2:35:12 PM  

#7  TGF - In the USA if state x wants you and you are in state y you can fight extradition in state y. Its sort of a common sense.
Posted by: 3dc   2005-03-19 1:53:56 PM  

#6  Hi Aris,

I just lost a long answer to you (damn two step posts 8^(

Anyway, it wasn't my analogy.

Since TGA has since dealt with that let me get to what is the main point.

The EU constitution creates a new sovereign over ALL citizens of the member states. Therefore, for all intents and purposes saying you are a Greek will have as much meaning as me saying I'm a Vermonter or Californian. You currently have a real mess of over-lapping ambiguous sovereignties (don't take my word, listen to the German Supreme Court) If you accept the EU constitution you will be a citizen of the EU and any law that comes from the EU will supercede anything that a member state has done constitutionally or otherwise.

The people that are leading this effort seem to be very cagey about saying exactly what this will mean. I think that you all should be demanding an explicit statement of which "competencies" belong to the central government and which are reserved to the member states.

I've said it before, but, you would do well to give a lot of study to the American experience in defining the meta-laws of a federation forget the specific laws, just look at what the structure means and what it has to have to work well; or not.
Posted by: AlanC   2005-03-19 1:53:18 PM  

#5  Nobody challenges the right of Spain to demand the extradition of a person wanted for terrorist acts in Spain. Blowing up people is as illegal in Germany as it is in Spain.

The problem lies with the European Warrant which, in my opinion, in its current form and application is indeed unconstitutional, because it denies the German citizen the right to fight his extradition at a German court. The European Warrant stipulates a prompt extradition without legal recourse in Germany, and this is absolutely inacceptable. Whether I actually set foot in the foreign country is besides the point, it just makes the case a bit more problematic.

I have to respect the law in the country I am. I don't have to respect laws of a foreign country about things that are not illegal in my country. Of course I better avoid stepping foot in said country.

There is no such thing as a common European Law, only the laws of 25 different member states. As a German I have no democratic influence over the making of those laws.

The German Constitutionm forbade the extradition of German nationals from German soil. This law was quietly changed to accomodate the European Warrant. Before that, Germany could not have extradited a German national to Spain against his will, but if that German national committed a crime in Spain that also was a crime in Germany, the suspect would have to face prosecution in Germany. Foreign nationals could always be extradited, but not after due legal process in Germany.

I can live with German criminals being extradited to other countries, but ONLY after due process in Germany. The analogy of jackal is valid. The analogy of Aris re Osama is not, for many reasons. First Osama was not a citizen of Afghanistan, second he had planned a crime that is a crime anywhere in the world.

If it was a crime in Greece to call Greek coffee "Turkish coffee", Greece could issue a European Warrant and Germany would be forced to extradite me without legal recourse in Germany, even if calling a coffee Turkish is not illegal in Germany.

This is blatantly unconstitutional, against all legal principles, undemocratic, even kafkaesque.
Posted by: True German Ally   2005-03-19 1:25:50 PM  

#4  I will be interested to see what Aris has to say about this

Before everyone starts dealing with false analogies about abortion or guns, let's deal first with the reality of the matter: This isn't about Spain asking an extradition of a crime that didn't affect Spain's citizens. This AFAIK is about Spain asking the extradition of a suspected accomplice of 3/11.

Can you honestly pretend that a proper analogy to that is driving legally with a gun sitting on the front seat of your car in Arizona? Can you?

Trans-border crime is a reality. If I knowingly fund or otherwise aid crimes done in Luxembourg, it seems to me that Luxembourg ought to have a right to ask my extradition, even if I never physically stepped foot there.

"never set foot in Spain" seems to me either naivety or sophistry if the person in question knowingly aided in the execution of crimes done in Spain.

When America itself demanded the extradition of Osama Bin Laden from Afghanistan or it'd start bombing them because of 9/11, then I definitely believe Spain has the right to atleast request the extradition of terrorists from Germany because of 3/11.

Did Osama bin Laden physically step foot in the United States? Mmm, AFAIK no he didn't.
Posted by: Aris Katsaris   2005-03-19 12:13:23 PM  

#3  Somehow I lost the link...
the entire document is at

http://eureferendum.blogspot.com/2004/10/constitution-analysis.html
Posted by: AlanC   2005-03-19 10:27:06 AM  

#2  BINGO!!

I will be interested to see what Aris has to say about this (no sarcasm intended).

Personally I'm agnostic vis a vis a European Sovereignty since I'm from the USA. BUT, the way it seems to be happening (sleazy, back door, mechanations)and what it seems to be working toward (non-democratic, oligarchic, dictatorship by the elite) would scare me silly if I was a Brit or Greek or German or....

A detailed analysis that I found interesting contains this..."Simultaneously the EU Constitution becomes the fundamental source of legal authority within Europe, supplanting the Constitutions of the Member States as the ultimate source of legal power."



Basically the thrust of the analysis is that there is no true sovereignty below the level of European. The EU trumps all and member state citizenship becomes moot.
Posted by: AlanC   2005-03-19 10:26:14 AM  

#1  At first, I thought this was simply a case of "If a German breaks the law in Spain, even if what he did isn't against German law, Spain can extradite him."

But reading the full article, I see that even if he never set foot in Spain, the Spanish courts could request his extradition. That's scary.

As an analogy, it's perfectly legal to have a gun sitting on the front seat of your car in Arizona. It is not legal in California. If we had EU rules, California could charge Me and request that Arizona extradite Me for trial, even though I never did such a thing in California.

Who knows how many laws of Delaware I'm breaking, even though I've never been there in My life.
Posted by: jackal   2005-03-19 10:05:15 AM  

00:00