Surprise, surprise

So President Klaus has set a condition for his signature of the Lisbon Treaty - he wants to get an opt-out for his country from the Charter of Fundamental Rights. There's no way this concession will be granted. Is this the final curtain for the Treaty?

And am I allowed to say, "I told you so" yet?

Presidential Fantasy

Just a thought - wouldn't it be funny if Václav Klaus were appointed President of the Council?

Don't bet on Klaus caving in

The consensus out there (FT Blog, Daily Telegraph, the very interesting Seifert/Litobarski podcast, Centre for European Reform) seems to be that Czech president Václav Klaus will cave in to pressure from all quarters and complete his country's ratification of the Lisbon Treaty ahead of a general election in the UK. The election is likely to put a Conservative government into office that is deeply hostile to the treaty and has promised to hold a referendum in the UK if it has not been fully ratified.

Klaus is the last hope of the anti-Lisbon community, now that the Irish have voted Yes. But all over Europe, people are interpreting his latest pronouncement on the subject as doom for the No camp. Here it is:

"I am afraid that the British people should have been doing something really much earlier. There will never be another referendum in Europe"

Now in my book, that is pretty Delphic at best. He pointedly did NOT say that he was going to sign off on the treaty. He made a tangental allusion to a possible referendum "in Europe". Quite apart from the fact that many Brits don't consider themselves to be in "Europe" at all, this is not a clear or robust statement by any means. And don't forget that there is a court case ongoing in his country that could potentially put paid to the whole thing without his intervention. My own reading of this oracle is that he'd love to kill the treaty off himself before the UK election, so that there would be no need for a referendum.

I am no great Klaus expert, but everything I have read points to him being both a consummate maverick and a "troublemaker", always keen to be controversial. He loves the limelight.

Take my advice. Don't go out to the betting shop and put any money on Klaus signing before the Conservatives win the UK election next year. At the very least, he'll want to keep us on tenterhooks.

Open Europe is failing

I for one joyfully welcomed the creation of Open Europe, a eurosceptic think tank funded by leading UK business people. "At last", I thought, "a serious think tank, funded by serious people, taking an objective but critical approach to the EU, and challenging the more traditional Brussels think tanks like the European Policy Centre, the Centre for European Policy Studies, and others. Take a look at the vision statement. While I would criticise it in some minor respects on the substance and style, it optimistically (and I mean that positively) describes a realistic and not unattractive version of the Europe of the future.

But I have been very disappointed by Open Europe's anti-Lisbon Treaty campaign. Whereas the bulk of the organisation's research throws some light, albeit with a strong eurosceptic bent, on real issues and proposes real solutions, the pieces on the Lisbon Treaty, as well as the blog, seem to have been written by a political party and not a serious think tank. The most recent piece of research focuses on the amendments that the Irish government sought, but failed, to get included in the Lisbon Treaty. On the surface, it is detailed, well-researched, and powerfully argued. But anyone with the slightest interest in objectivity would immediately ask whether the Irish experience of treaty negotiation was so different from that of other Member States. Open Europe is a British outfit, so you would have thought that at least some UK material wouldn't be too hard to find and use. But this question does not appear anywhere in the paper. It's clearly meant more as a direct appeal to Irish voters in the context of the second Irish referendum than as a piece of research on how (un)satisfactory the process of treaty negotiation was for various countries. In fact, I can't find a single mention of any other Member State in the whole paper. In other words, this paper boldly takes the Irish experience of the negotiations out of all context, with a transparently tactical objective: getting the Irish to vote No. If Open Europe had been true to its ostensible mission, it would have provided such research for more Member States. OK, so you could argue that it was only worth investing the necessary resources in a paper on the Irish case because only Ireland was voting. But then they should at the very least have included some comparisons with other countries' positions.

In the months leading to the second Irish Lisbon referendum, the blog has plumbed the tabloid depths. Apparently the end (getting an Irish No vote) justified the means. Because I don't know how a serious think tank can take an honest look at its blog and not cringe with shame. Take a look at this piece on a Labour candidate's criticism of the UK government for failing to hold a referendum on the lisbon Treaty. It's fairly factual, but it does stray from a discussion on the merits of the Treaty into politics.

Then there's this post on the organisations that campaigned for a Yes vote in Ireland, seeking to discredit them by pointing out that they get funding from the Commission. When I questioned in a comment why funding from a body that has a treaty mandate to promote European integration should be considered improper, the Open Europe blog team was silent. Only an anonymous commenter accused me of being an "apologist". He/she obviously hasn't read this blog or my comments elsewhere.

This piece came back to the theme of the alleged "issues" with the Commission "paying organisations to come up with policy ideas to feed back into the Commission". Hang on a minute. So are they saying they would like the Commission to receive feedback only from business or from privately-funded think tanks like them? And why do they assume that the feedback the Commission is going to get is going to be "pro-EU", as if the pro- or anti-EU debate was really what people in Brussels spent their time worrying about every day? Why ignore the fact that a lot of the Commission's funding goes, for example, to environmental NGOs? The Commission does indeed get policy ideas from such organisations, and they have indeed been used in Commission policy-making. But these NGOs overwhelmingly provide input on policy, and not on an obsessive questioning of the EU's structural problems.

Here, Open Europe accused Ryanair boss Michael O'Leary of double standards for changing his mind on the Lisbon Treaty, conveniently ignoring the fact that its own white knight, Declan Ganley, had sworn he would retire from politics if snubbed at the European elections (which he was), only to return to the fray despite himself. A pretty obvious case of double standards in my book.

A really appalling example of tabloid journalism was the repetition of the claim made by the Irish Times that Commissioner Wallstrom had told Irish voters that the Lisbon Treaty was going to improve childcare. When Wallstrom's spokesman pointed out that the irish Times had got it wrong and that she had been talking about the Lisbon Agenda and not the Lisbon Treaty, did we get a retraction or an apology from Open Europe for the precipitous overreaction? Not a bit of it. We simply got more aggressive questions implying that the Commissioner deliberately sought to confuse Irish voters by making statements about the Lisbon Agenda in Ireland during run-up to a referendum on the Lisbon Treaty. Don't expect people to treat you as a serious partner for discussions if you question their good faith.

There are plenty of good reasons to reject the Lisbon Treaty. In my opinion, the worst thing about it is that it is so unreadable. The significance of the changes it makes are lost in a morass of legalistic text that no voter could ever understand. It also marks a failure by the Member States to grasp the nettle of reform as tightly as they should have. Some of the positive aspects, such as the simplification of the legislative process or greater involvement by national parliaments, seem like cosmetic changes when set in the context of grandiose new positions and the extension of QMV.

But sadly, here, Open Europe cast aside all pretence that it actually believed that the Irish should be persuaded to vote against Lisbon because it is a bad treaty. Instead, it expressed the hope that posters urging the Irish to vote No in protest against the government would be successful. Is this the message of a serious think tank taking a fresh, oprtimistic look at how the EU can be reformed? No. It's the voice of the worst sort of political cynicism. Shame on them.

A Private EU Battle

Before you get too excited, this post is not about some highly secret European Commission insider gossip. It's about the EU and privacy policy. More specifically, it takes a look at some of the existing and looming institutional battles in Brussels about who is in charge of privacy policy, or "data protection", as it is known in the Brussels jargon.



The EU already has several pieces of privacy legislation on the books. The ePrivacy Directive bans SPAM, requires an opt-in from consumers for ads over email, and obliges telecoms operators and ISPs to delete subscriber traffic data when it's no longer needed for billing purposes. The Data Retention Directive, with rather painful Brussels irony, requires telecoms operators and ISPs to retain the same traffic data for up to two years to help law enforcement authorities fight crime, depending on national legislation.



But the most important law is the Data Protection Directive of 1995. It sets out the rights of the citizen with regard to personal data, and the obligations of organisations that hold such data. Perhaps most importantly, the Directive sets up some institutions at national and European level that are supposed to help protect our privacy.



Now, almost 15 years later, as those institutions have matured and as privacy/data protection starts to become a hot topic in Europe and around the world, a turf war is brewing within and between the big players on privacy in Europe.



Like most EU policy, privacy is an area where the European Commission has the power of initiative in the "First Pillar" - i.e. the Single Market. The lead department of the Commission is the Directorate-General for Justice, Freedom, and Security ("DG JLS"). However, DG SANCO (which covers consumer protection), DG INFSO (the "information society - i.e. telecoms, Internet, and IT), and possibly some other DGs all have strong claims to at least part of the privacy portfolio.



Then you have the European Parliament, which takes a keen interest in high-profile aspects of privacy policy, like the Passenger Name Record (PNR) agreement with the USA. Although it has co-decision powers on Single Market aspects of privacy, the EP does not (yet) have formal powers in Second or Third Pillar areas (foreign and security policy, justice and home affairs).



The relative newcomers to the institutional power game are the European Data Protection Supervisor (EDPS), Peter Hustinx, and the Article 29 Working Party (A29WP). The latter body was set up by Article 29 of the Data Protection Directive, and consists of the independent data protection authorities (DPAs) from all the Member States. Interestingly, although the EDPS, DPAs, and A29WP were set up by the (First Pillar) '95 Directive, their job descriptions are sufficiently vague to have allowed them to be fairly active in justice and home affairs areas, which are "Member State competences" under the EU treaties. The EDPS has an oversight function vis-à-vis the EU institutions' own data protection practices, but the EDPS and the A29WP share an advisory role vis-à-vis the European Commission on privacy policy generally. They regularly issue non-binding, but nevertheless influential, opinions.



So what is happening? It's pretty complicated, which is why I find it so interesting. Not only is there a developing internal turf war over privacy in the European Commission, but there is also a fight (more like a mass brawl) brewing between the Commission, Parliament, Member States, EDPS, and A29WP.



Before 1995, data protection belonged to DG Internal Market, and the EU's policy debate was primarily about the tension between civil liberties (or "fundamental rights") and essentially commercial interests. But after 9/11, as governments raced to ramp up electronic surveillance of terrorist suspects, concerns about abuse of personal data by commercial entities rapidly gave way to concerns about infringement of civil liberties by governments. Data protection was hastily moved to DG JLS. The unit sits responsible for data protection sits in the Directorate for Fundamental Rights and Citizenship. Under recent Commissioners Frattini and Barrot, this part of the DG has very much been dominated by the "sexier" Directorate for Security. The data protection unit has not been able to assert itself internally so far.



But while the internal security vs. privacy battle rages in DG JLS, DG INFSO, with responsibility for the ePrivacy Directive and a range of other ICT-related policies, and under the populist leadership of Luxembourg's Commissioner Viviane Reding, has got in on the act. Reding and her staff have managed a high-profile campaign to reconcile public concerns about the privacy impacts of RFID technology with the huge potential economic and social benefits they can bring. This culminated earlier this year with a formal Recommendation on RFID, proposing that retailers carry out privacy impact assessments (PIAs) on RFID systems, and deactivate tags by default if their systems were found to pose risks to consumers. More recently, Bulgaria's Commissioner Meglena Kuneva has taken an interest in the consumer protection aspects of data protection on the Internet, such as privacy policies, consumer redress, social networking, and child protection.



It seems that the EDPS and A29WP, which work closely together, have been making the most of the absence of clear Commission leadership on data protection to project themselves as the authoritative and expert, EU institutional voice on data protection. The Commission is not helped by the fact that the data protection unit at DG JLS has about one quarter of the staff (and probably also a fraction of the multi-million euro budget) of the EDPS.



With the possibly imminent ratification of the Lisbon Treaty and the resultant disappearance of the EU's "Pillar" system, all these institutions will be able to start playing freely in a new and exciting sandbox - law enforcement. In anticipation of the treaty changes and to respond to the need to update the '95 Directive, the Commission has launched a major public consultation on the entire legislative framework for data protection.



I have no idea what will happen (and I'd be interested in any insights that readers might have) - we don't yet know who the relevant Commissioners will be or how they will regard privacy. Nor do we yet have a firm handle on the new European Parliament. Almost the only certainty is that EDPS and A29WP will continue to seek to build their profile and stature, and perhaps even their formal powers.


Watch this space!

Turnout

The problem of voter turnout at European elections is debated ad nauseam every 5 years. And every 5 years, we get the same, tired old arguments. The fundamental problem with this debate is that there is no agreement on what the problem really is. In other words, the problem is that defining the problem is problematic. This is important because we can't find solutions until we know what problem it is we are trying to solve.

Let's look at the candidates. The problem is:

1. The low level of turnout

2. The fact that turnout is falling

3. The causes of low turnout



1. The problem is the low level of turnout.

I don't really buy this. Lots of strong democracies around the world have low voter turnout at elections. Low turnout does not per se threaten democratic government. Some countries (Belgium is among them) take the view that voting is a duty as well as a right, and make voting obligatory, so turnout is always high. They are not stronger democracies for it. Indeed, there is intuitively someting to be said for the argument that high voter turnout is a negative reflection on how the voters feel they are being governed. Iran is a good example. Turnout has suddenly spiked - not because Iranian democracy is fundamentally healthier and stronger than it ever has been, but arguably for the exact opposite reason. In the French presidential election before the last one, turnout rose dramatically when it became clear that there was a risk that Jean-Marie Le Pen would be elected. Again, high turnout was associated with a problem, and not with enthusiasm for Jaques Chirac. I am not saying that high turnout is always to be seen in a negative context, but it is clearly simplistic to say that high is good and low is bad.



2. The problem is the fact that turnout is falling.

This makes more sense because there is meaning in the trend, but is not all that convincing either, because it boils down to a similar argument about low turnout being undesirable.



3. The problem is the causes of low turnout.

Ah, but what are those causes? I can think of four, or perhaps five, main lines of inquiry:

a) Are voters so satisfied with the way they are governed that they don't see the point in voting?

b) Are voters so dissatisfied with the way they are governed that they protest by not voting?

c) Are voters so ignorant of the importance of European elections that they don't see the point in voting?

d) Are voters, whether satisfied or dissatisfied or ignorant, so convinced that their vote will not make a difference that they don't see the point in voting?

e) Are voters so bored by European elections that they don't want to vote?



a) is an argument that doesn't get much in the way of media coverage, but is worth taking a look at. It does seem possible that in some countries, where support for EU membership is very high (especially new Member States), voters don't want much to change and therefore aren't motivated to vote. It must be remembered that voting is not a long-entrenched social habit in many of these countries, and that they have been through two generations of a political regime that did not encourage political activism. Voter turnout rose during the years of political strife that accompanied the fall of the system. Could it be that old Communist-era habits are returning, encouraged by the new-found comfort and stability of EU membership? I am not convinced by such arguments, because it seems to me that they boil down to d) rather than a). After all, you might just as well argue that people who are happy with the way they are governed would be expected to vote for the status quo.



b) is the argument that gets most attention in the media. Low turnout, we are constantly told, is a reflection of the poor regard in which the EU is held. As a protest against the EU, people don't vote, or vote anti-EU - hence the rise of the BNP, UKIP and Conservative vote in the UK, for example. But this argument, while intuitive, seems to me to be just as flawed as a). As shown by the Iranian and French examples, a serious crisis of government would result not in low turnout, but in a spike in turnout. People vote most when they want real change. Real change is not achieved by abstention. The political message sent by voter apathy is apt to be misunderstood and misinterpreted by politicians bent on achieving their political ends. Voters know this, and will send clear messages in times of crisis.



It is hard to deny the truth of c). Voters don't know much about the EU system. They don't understand what role the European Parliament plays in that system. This seems likely to be partly because of the complexity of that system, but partly also because of the failure of politicians and the media to explain the importance of the elections to voters. However, I am not left satisfied with this argument either. If voters voted more when they understood the system better, then why do they vote in U.S. presidential elections, with the ludicrous electoral college system? Why do they vote in Iran, with its unfathomably complex political system? In my mind, this argument is really powerful only when linked with d).



So d) also has an undeniable element of truth to it. Voters will be much more likely to vote if they believe that their vote can make a difference. This is the dynamic that drove the Chirac landslide vs Le Pen and drove Iranians to vote for change in their tens of millions. And totalitarian systems tend to produce apathetic voters, because there is no realistic prospect that the elections will change the system. But this argument is not sufficient by itself either. Firstly, the EU is clearly not a totalitarian system. Furher, why, then, did voters in Iran not vote in such great numbers in earlier elections? Indeed, does a vote for the president of Iran really make a big difference to the system? In France, why did voters not vote in the earlier round of the presidential election?



To me, e) is the most convincing argument. Voters will vote when there is something exciting going on - a change in government, an extremist to kick out of office, an exciting new Obama figure inspiring hope and promising a fresh approach. As shown by these examples, excitement is not always about supporting a popular incumbent or system. It can just as easily be a negative reaction. And excitement is not dependent on lots of information, or a realistic chance of change. Excitement is intangible and not scientifically measurable. It is emotional, human. And the failure to produce excitement lies not with the structural flaws of the EU system, or with the security that comes from EU membership, or voter ignorance. It lies with those whose functions are capable of producing excitement: politicians and the media.



In summary, if low voter turnout is a problem (and I think this is not as clear as it seems to be to many), then the cause is not one that can be easily identified. Commentators are always eager to explain the motivations of voters, but rarely take a systematic approach to analysing the problem or its causes. These will be different for different countries, and indeed, for different individuals. But I have not seen any press reports of low turnout in countries that nonetheless experienced a high degree of public excitement about the elections. Until we have politicians who can inspire us and media that are willing to break with the tradition of talking down European elections, we will doubtless continue to have low turnout, and more depressingly, the rather pointless and sterile debates that go along with it.

Coulisses de Bruxelles

Jean Quatremer's blog, Coulisses de Bruxelles is not award-winning for nothing. It's by far the highest-quality French-language EU blog that I am aware of, with insightful postings by the author and a lively, courteous, and serious debate by commentators.

M. Quatremer's recent postings have focused primarily on the new EU treaty and on the growing political and constitutional crisis in Belgium. Belgian politics is a something of a black art, and has the ability to flummox even veteran Brussels expats.

Quatermer's latest theory is that Belgium may be heading for dissolution because the Walloons and Flemings are incapable of agreeing the terms of a new coalition government. The king recently suspended negotiations for the many players to cool off and come back to the table after the Summer with a renewed commitment to power sharing. As I understand it, the key issue is how much de-centralising constitutional reform the Flemings can extract from the Walloons. Massively oversimplified, this is about the Flemish parties pushing for more independence within Belgium, at the inevitable economic expense of their poorer French-speaking countrymen.

Last year, a Belgian state-funded French-language television channel ran a spoof news item that pretended that Flanders had seceded. Quite apart from the political furore that followed, the episode was interesting because of the scenario chosen by the broadcasters - a vote by the Flemish parliament. What we are seeing today is quite a different scenario - the simple absence of a democratically mandated federal government. I have not got the faintest idea how this will all end; for all I know, it could end up strengthening the Belgian federal state. But at the moment it looks like Belgium is slowly but surely tearing itself apart.

French-speaking and Dutch-speaking Belgians have separate print and broadcast media that focus on regional and not national perspectives. They have separate political parties (the Walloon Christian Democrats are at odds with the winner of the elections, their sister party in Flanders, over constitutional reform). They have a high degree of legislative independence from each other, including on such policy areas as environment. Their education systems are different and separate - it is rare to find a native French-speaker teaching French in a Flemish school, or a native Dutch-speaker teaching Dutch in a Walloon school. And national politics have become a sort of zero-sum game between Walloons and Flemings over money - for every subsidy granted to one region, the other insists on a matching subsidy for itself.

What are the implications and lessons for the EU? Should we be concluding that dissolution à la Belge is inevitable without greater centralisation of power in Brussels? Or should we conclude, on the contrary, that the EU is the ideal home for smaller "national" communities that prefer broader associations than the ones that have bound them to non-nation-states such as the UK, Belgium, or Spain? I tend towards the latter view, but we have not yet seen the practical effects of the dissolution of an EU Member States. The closest we have come is the velvet divorce of the Czech Republic and Slovakia, but this happened some years before EU membership.

How would such a split work? Would new accession treaties be required for both Wallonia and Flanders, or Scotland and a rump England-Wales-Northern Ireland, or Catalonia and the rest of Spain? Would new calculations have to be made for votes in the Council and European Parliament seats? New allocations of Structural and other funds? How would the timing work? Would new official languages result? Would there be legal challenges to any of this? Which courts would have jurisdiction?

I'm not sure whether this post is really a review of the Coulisses de Bruxelles, or perhaps more of a collection of random thoughts about Belgian politics. At any rate, if you read French and you want to read only a half-dozen EU blogs every week, Jean Quatremer's should be one of them. Merci, Jean!

Commissioner Wallström's Blog

Communications Commissioner Margot Wallström is one of 3 (or is it now 4?) European Commissioners who publish a blog. It's by far the best of these, with the most regular postings and the best opportunity to send in comments. In fact, it gets a lot of comments. Unfortunately, they are dominated by a coterie of less than 10 annoyingly regular posters, who probably put enough other people off with their bickering to make a big difference to the numbers.



The Commissioner publishes some interesting posts on important topics, but the debate on the comments pages seems to be fated to descend into sterile discussions on the legitimacy of the EU and these days, a peculiarly British discussion on the Constitutional/Reform Treaty. I'm all in favour of freedom of speech, but I think some clever moderation could allow commentators to post say, up to once a day, leaving the field free for people who would otherwise not care enough to read through the back-and-forth of the more "enthusiastic" readers.



A big issue with the blog also seems to be the fact that it is published primarily in English. This is a cause for concern from many non-English speakers, including a dedicated band of esperantists who translate all the Commissioner's words into Esperanto and a series of European languages. I have expressed some of my thoughts on language in another post, but there is more to be said here. I think that on balance, the Commissioner could publish a higher proportion of her posts in other EU languages, but the reality is that she is a Swede who is most comfortable with English when not speaking her native tongue. If the next Communications Commissioner is Austrian, I would expect a good number of posts to be in German.



The Commissioner's most recent post attempts to bring up the subject of climate change (before being drowned out in a cacophony of "the EU is inherently evil" - "no it isn't, it's the best thing ever" comments). She tries to make a link between this Summer's extreme weather in Europe and Asia and man-made climate change. Now, between you and me, I think there may well be a link. But I think it is scientifically impossible to ascribe individual events like this to the man-made climate change phenomenon. At any rate, the scientific consensus that the trend exists is the most overwhelming there has been on any environmental issue I have ever heard of.



Which makes climate change, with its cross-border weather angle, the perfect candidate for EU-level action from the Commission's point of view. After all, here's an issue that resonates with the public in all of Europe. Following the embarrassing false start of the Kyoto targets that we aren't going to meet despite self-righteously criticising the Americans for non-participation, there seems to be a genuine desire for fresh and radical ideas in the Berlaymont. The challenge will be for the Commission to push an ambitious environmental, carbon-emission-cutting agenda without badly alienating industry. A particularly interesting challenge, given that this is the most pro-business Commission ever. The current debate on the proposals for very strict car emissions will create a hugely important precedent. Watch this space.

A good blog, Commissioner. With a few tweaks, it could be great.

Certain Ideas of Europe

The Economist is one of those publications that people either love or hate; very few who have read it are indifferent. I feel somewhat lonely as a regular reader who enjoys it but well understands the irritation and frustration of others with it.

It does at least have the virtue of providing a great deal of informed analysis on a great may issues. And its coverage of EU business, although it suffers from being too high-level and afraid to get down in the weeds, is very solid.

For those who like to look at EU affairs through the Good/Bad prism, who see any debate about the EU as being necessarily about praising it to the heavens or calling for its demise, the Economist is of little comfort. It takes a fairly middle-of-the-road stance, endorsing the idea of the EU but being critical of its workings. The Economist's excellent blog, Certain Ideas of Europe, is a good example.

I always dread the prospect of entering into a debate on the Constitutional Treaty, or the Reform Treaty, depending on the name you prefer, because it is so painfully sensitive that use of terminology has to be very precise to avoid accusations of favouring one side or the other. What the Economist does do skilfully is to expose some of the less "serious" criticisms of the Reform Treaty in one of its recent postings. I think the publication might have taken a more critical look at the treaty. But I also think that "unserious" journalism like that of British EU-sceptic Christopher Booker does nothing to aid his cause, since it is easily dismissed as ill-informed, misleading, or inaccurate.