"The Doctrine of Union Preemption in the EU Single Market: Between Sein and Sollen"

Under a global system of governance, all people must live under the same laws. Which laws rule supreme is what determines the character of the global system.

From the Jean Monet Working Paper Series:
Amedeo Arena, "The Doctrine of Union Preemption in the EU Single Market:Between Sein and Sollen" (JMWP no. 03/10)

"The introduction of a competence catalogue in the TFEU by the Treaty of Lisbon eliminated the overlap between the preclusion of national lawmaking powers attributable to the exclusive character of EU competences and that stemming from the enactment of EU legislation, thus opening the doors to scholarly investigation of Union Preemption as a general theory of the effects of EU legislation in non-exclusive competence areas. The first aim of this work is to describe what Union Preemption is ("Sein") in the context of the EU single market, thus allowing, given an item of EU legislation, to determine its preemptive scope by reference to certain "markers", such as its legal form and the harmonization model it embodies. Against the background of the existing application uncertainties, this work further seeks to suggest what Union Preemption ought to be ("Sollen") to meet the current needs of European integration, taking into account the diversity of situations where preemption issues arise and the changes in the legal, political, and economic context that have occurred in the single market since 1957."

What is preemtion? It's the decision over WHICH law holds more weight. In the U.S. that would be federal law over a conflicting state law:

"The doctrine of federal preemption declares that federal law displaces overlapping or potentially conflicting state law.1" http://www.willamette.edu/wucl/pdf/review/41-3/rice.pdf

In the EU, that would be Community Law over a conflicting national law:
http://eulaw.typepad.com/eulawblog/2005/10/gmos_preemption.html

Article on the relationship between the UK and the EU
http://eulaw.typepad.com/eulawblog/2006/01/article_on_the_.html?no_prefetch=1

The relationship between the United Kingdom and the EU is one of those fascinating topics that just seems to get more complex the more you look into it. So it is good to point to a refreshingly original and carefully researched article by a British academic, Richard Mullender of the Newcastle Law School. The article is entitled "Two Nomoi and a Clash of Narratives: The Story of the United Kingdom and the European Union". You can download it here (you may need to register, but it's free to do so for just the odd download).

This is what the abstract states :

"Robert Cover’s argument in Nomos and Narrative applies to a system of municipal law (that of the U.S.A.). This article seeks to demonstrate that Cover’s claims concerning nomoi and narratives have relevance to relations between the United Kingdom and the European Union (a non-municipal context, in which the concept of supranationalism figures prominently). While making this move from a municipal to a non-municipal setting, central strands in Cover’s argument are explained or developed by reference to the literary theory of Mikhail Bakhtin, communitarian political philosophy, and the writings of Isaiah Berlin and Joseph Raz on value incommensurability. Along with Cover, these writers are used to analyse a clash between a narrative of redemption (associated with the pursuit of European integration) and British narratives of insularity (which run on, among other things, the themes of independence and sovereignty). This essay concludes by identifying these two types of narratives as standing in a relationship of ineliminable tension."

Really, it rewards reading.

(emphasis in the first graph and eternal links in the abstract added by Niki)

See also:
http://nafcucomplianceblog.typepad.com/nafcu_weblog/preemption/

Propaganda for the Third Way - it's back!

From Peter Myer's elist an "American" tells us how backwards and insane Americans are to not embrace their spiritual evolution into the Communitarian Third Way. Isn't it fitting that Tony Blair, the UK's Third Way candidate from the 90s is slated to be the First President of the EU as soon as the Irish get over themselves and vote YES on the Lisbon Treaty? And what great news to hear the Czech High Court's decision to hear the case against the EU. President Vaclav Klaus is one of the few leaders I've found who identify the EU as "bad" communitarian. As the Wall Street Journal writes, "Klaus argues that the Treaty infringes on the sovereignty of E.U. member states."

(6) America's Failed Model - not looking so Super anymore

From: IHR News <news@ihr.org> Date: 01.10.2009 04:40 PM

Steven Hill -- The Guardian (Britain)

http://www.guardian.co.uk/commentisfree/cifamerica/2009/sep/15/europe-us-healthcare-economy

America's failed model for the world

Europeans keep asking me, has America lost its mind? From healthcare to its economy, the US is looking merely average

o Steven Hill
o guardian.co.uk, Wednesday 16 September 2009 16.00 BST

Europeans are shaking their heads over their American friends again. Whether talking to people in the street, in the cafés or to journalists or political leaders, everyone here asks me the same question: Has America lost its mind? Town halls filled with angry citizens, shouting at their elected leaders, some of them armed with guns and threatening signs? Besides the media spectacle of these neo-1776 revolutionaries, what is doubly perplexing to Europeans is the focus of the protests: healthcare.

What's strange to a European is that everyone here already has healthcare. The place that Donald Rumsdfeld once sneeringly called "old Europe" long ago solved this dilemma, producing quality healthcare for a fraction of the price that Americans pay. Many Europeans are astonished when they find out that 47 million Americans – larger than the populations of most European nations – don't have any healthcare at all except a hospital emergency room.

Contrary to stereotype, most of Europe doesn't use single payer, with France, Germany and others having evolved a "third way" that combines individual choice with private, nonprofit insurance companies and Medicare-like cost controls. Even countries like Croatia, Hungary and Slovenia, with per capita incomes only a fraction of that in the United States, have healthcare for all their people. Europeans simply don't understand how a wealthy United States could remain the last advanced nation that does not have universal healthcare.

Lounging one evening in one of Budapest's elegant thermal baths larger than an Olympic swimming pool, with Europeans of all ages and nationalities soaking their limbs in relaxed leisure, I was treated to a dose of the common wisdom that is taking hold here. Introducing myself as an American evinced a swift reaction from one sweating sauna companion:

"I don't understand you Americans. You blow billions on a useless war in Afghanistan and Iraq, and billions more to bail out banks that nearly bankrupted the world economy, but you don't ensure healthcare for your own people. Even Obama can't make a difference. It's as if your democracy doesn't work anymore."

He was Austrian but spoke in a near-perfect English that was as good grammatically as that spoken by some of my relatives.

And his reaction was typical. As Europeans watch the United States flailing about over something as basic as healthcare, they are reminded once again of the impotent US response following Hurricane Katrina. TV images of stranded, poor, black people in New Orleans have been melded to those of this new healthcare insurgency with pitch forks, leaving an indelible impression. The last remaining superpower is not looking so super anymore, whether in Iraq, Afghanistan, healthcare, the economy – not anywhere.

The global economic collapse, largely blamed on out-of-control Wall Street capitalism, is stinging here as well, though in most regions Europe has not suffered as much as America has. In my informal polling of small business and shop owners, they said the downtown had hurt, but only a little bit. Since the crisis, Europe has employed clever strategies – some of them since copied by the Obama administration, such as the popular "cash for clunkers" auto rebate programme – that have prevented it from suffering the doubling of unemployment that the US is enduring.

Indeed, Europe, once looked down upon by American pundits as the land of double-digit unemployment, currently has lower unemployment than the United States. Contrary to Europe's reputation as having a sick, sclerotic economy, its per capita economic growth rate actually was slightly higher than America's in the 10 years leading up to the economic crisis.

Still, a number of people fear that the worst is yet to come. And so Europeans appear both angry and perplexed by America's deregulated capitalism run amok, which has further served to undermine the American brand. As one Slovenian acquaintance, a representative of a consortium of small businesses said to me: "The US used to lecture us in Europe about just about everything, but what does America have to teach now? Maybe America should learn something from Europe."

Indeed, with Germany and France becoming the first major western economies to emerge from recession into positive growth, perhaps the US should learn something from our transatlantic cousins. But what might we learn?

Here's a clue, say some Europeans. German chancellor Angela Merkel once was asked by then-British prime minister Tony Blair what the secret was of her country's economic success, which includes being the world's largest exporter nation and running substantial trade surpluses. She famously replied: "Mr Blair, we still make things."

Werner Abelshauser, an economic historian at the University of Bielefeld in Germany, says the European way of running the economy "is fundamentally about firms that emphasise high-quality products and long-term relationships between suppliers and customers". Company managers set long-term policies, while market pressures for short-term profits are held in check. Gunter Verheugen, vice-president of the European Commission, echoed the virtues of Europe's strong, competitive industrial base, succinctly stating Europe's recipe for success: "Don't try to be cheaper. Try to be better."

But in the United States, for decades under the sway of the Reagan revolution's economic philosophy, which favoured corporate finance over manufacturing, the economy has seen a stark decline in manufacturing. Since the second world war, the financial sector in the United States has tripled in size as a percentage of the overall economy and of corporate profits. That increase accelerated during the eight years of the Bush administration, even as the US lost 5.5 million manufacturing jobs.

European capitalism for the most part didn't succumb to the financialisation that swept the United States in the 1980s, and which paved the way for the speculative bubbles that have now caused economic collapses in both 2001 and in 2008 (with notable exceptions in Britain, Spain and Ireland, similarly plagued by a collapsed housing bubble).

So from the other side of the pond, the city on the hill is looking pretty average these days. America is still a leader, but not the leader. That's a post-post-cold war concept that the world is still getting used to, and that Americans don't want to admit. But the evidence is everywhere, and especially obvious when you step outside the American bubble.

As one Viennese politician told me: "If the American model no longer is the blueprint for the world, what comes next?" Some Europeans think they have the answer, and much of the world is paying attention, even if most Americans still are not.

"What comes next?" We need a blueprint for where the world is heading? How about UN Local Agenda 21 Programme for Sustainable Development? There's a blueprint European elitists can sink their fangs into... it's a perfectly crafted bureaucratic system based on constantly changing norms and vague but nice supranational sentiments. Besides, every nation in the world already follows the UN blueprint...the only thing left is asking people to vote YES to adopt it.. and if they vote NO... well, just ask them again until they say yes.

What happens IF the Irish vote NO! again today?????

The Lisbon Agenda and 'Neoliberal Communitarian' Citizenship

Several people have sent me links to Philip Jone's latest article on the "Communitarian EU." I admit I was less than thrilled to see things I wrote years ago at the ACL were rewritten as if they were Jone's original thoughts and words. And he's a former London cop. Go figure. UPDATE: Jones apologised and will change the paragraph to a quote by me, at rense,com anyway. I'm really happy about that because otherwise it was a fantastic overview of the communitarian agenda in Europe. Now I can heartily recommend it!

Robert Coones sent me an email about a youtube video called "Chicken Run in the EU Parliament" (20.02.2008) http://www.youtube.com/watch?v=pw7XwexR2ec
and he added this:

"LET THE PEOPLE DECIDE!

"Go to http://X09.eu and demand for a REFERENDUM in your country on the Lisbon Treaty, the rejected EU Constitution in disguise.

"Note on EU Constitution and Lisbon Treaty:

"The people of France and the Netherlands rejected the proposed EU constitution in the 2005 referendums. After this, 5 countries that had promised a referendum cancelled it and the EU Constitution was re-written as an "amending treaty" or a "reform treaty" and named "Treaty of Lisbon". On the basis of this deceit, they now maintain that no more referendums are necessary. Only Ireland is holding a referendum. All other countries are ratifying the disguised EU Constitution without asking the people.

"The EU Constitution establishes a new "European Union" with joint citizenship - an EU "federal" State that is technically and politically empowered to further centralize power in Brussels; a European State comprising of 27 nation-states ruled by a triumvirate of European institutions led by the unelected EU Commission, which serves as the governing body of the Union. With co-decision powers to block legislation, but never to initiate it, the European Council comprises of representatives of the governments of member states. This ineffectual co-decision process is shared with the European Parliament, which is the only directly elected institution and the only channel for European citizens to possibly reverse the totalitarian trend and preserve freedom and democracy in Europe."

This all got me poking around google looking at "communitarian eu" information and I found this:

The Lisbon Agenda and 'Neoliberal Communitarian' Citizenship
http://www.migrationonline.cz/e-library/?x=1975779
Sandy Brian Hager | 16. 3. 07
Source: migrationonline.cz ("A specialised website of the Multicultural Centre Prague focusing on migration issues in Central and Eastern Europe. It maps migration reality, research and policy, offers a range of articles, interviews and reports and promotes debate among experts, public administrators, NGOs and the wider public.")
Theme: Economic Development, Social Welfare & Citizenship

The Lisbon Agenda and Citizenship: Neoliberal Communitarianism

"How do we then go on to make sense of the Lisbon Agenda and its relation to citizenship, especially since the shift to ‘jobs and growth’ under the Barroso Commission? In many ways, it appears as though the European Union is navigating towards what can best be described as a ‘neoliberal communitarian’ citizenship model. ‘Neoliberal communitarianism’ (an arguably more accurate term for the ‘Third Way’) implies a fusion of neoliberalism with a communitarian element that attempts to countervail the most harmful effects of neoliberal restructuring not by re-invigorating the Keynesian welfare state but through attempting to ‘activate the state’ in strengthening (private) community networks (Bieling 2003: 53).

"As a model of citizenship, neoliberal communitarianism signifies a movement away from the social rights of citizenship (considered to hamper global competitiveness), towards an emphasis on providing opportunities for skill upgrading and life-long learning so that citizens will be ‘willing to accept more public duties and social responsibilities’ (Bieling 2003: 65; emphasis in original). The citizens’ role is thus contained within the mantra of ‘no rights without responsibilities’ forming the basis of its citizenship conception, as opposed to ‘‘unconditional’ social citizenship entitlements’ of social democracy which advocate ‘positive welfare intervention by a ‘social investment state’(Ryner 2002: 15). Making the argument that ‘the relationship between individual rights and responsibilities was thrown out of balance from the late 1960s onwards’, advocates of neoliberal communitarianism suggest that a situation of ‘moral hazard’ has arisen amongst EU citizens, and that problems of social instability can be solved by fostering a society which gives more responsibilities and duties to individual citizens (Bieling 2003: 63, 65)." {emphasis added}

Here's a youtube video JAdams sent of Barroso calling for a New World Governance:
http://www.youtube.com/watch?v=a7D21rPpBrk
How much you want to bet Etzioni's books were used to explain the new EU "citizen's role?" No wonder he calls the EU "a beautiful idea." He must be a guru there too.

As they say at Puertos del Estado under Financials Aids (FONDIP) » EU Programmes:

"The programmes are the financing mechanism through which the European Community support the actions and measures of implementation of the different policies. Due to the wide variety of programmes financed by the EU, it is very difficult to give a precise definition of the communitarian programme.

"The programmes gather a general framework of proceeding, that includes the clear definition of objectives in the short and mid term, the justification of the adoption of the measure, a financial proceeding calendar, the financing mechanims and actions.

"Common characteristics identified for all the programmes:

"* Pluriannual: Although the duration of these programmes can be variable, all the programmes last during certain period of time, in order to optimize the impact of the financed actions and to facilitate the evaluation.
"* Transnational: this is a key feature. The communitarian programmes are different from similar actions carried out at a national level. This European scope is materialized normally by the collaboration of partners of different communitarian countries, that interchange research elements and work jointly in the search of results for problems of communitarian scope.
"* Demonstrative effect: Since the programmes search the solution for problems of European scope, the contribution to the diffusion of the results by all the communitarian territory is evaluated positively. Thus, the celebration of seminaries and conferences constitutes an important part within the communitarian programmes."
http://www.puertos.es/en/ayudas_financieras/programas_comunitarios.html

And again, in case you missed it elsewhere on my blog, in my articles or at the ACL, here's the law behind EU integration and ALL other regional unions, including the NAU:

Application of the Andean Communitarian Law in Bolivia, Ecuador, Peru, and Venezuela in Comparison with the European Union Experience. Jean Monnet/Robert Schuman Paper Series Vol. 6 No. 3 January 2006 http://aei.pitt.edu/8169/

The EU's Treaty of Lisbon -- constitution or not?

Many thanks to Pete for forwarding this blog post from the Belmont Club.

I remember feeling so inspired by the successful French and Dutch referendums against the EU constitution that it was most depressing to learn the EU leaders simply went behind their backs and wrote a new "treaty" that essentially establishes a EU constitution anyway. Like they say, why should offificals have to deal with the bothersome referendum process?

I think the part that's hardest for Americans to grasp is that creating a communitarian system totally eliminates a seat at the table for the people who are to be governed. In the U.S., we believe we ARE the government and that our system is one of self-governance. It makes no sense to us why our commoners need to ask (beg) for representation at the global parliment.

Regional integration with Canada and Mexico and communitarian harmonization under the global courts is an expansion of the British-Zionist-USA Imperial mandate. This is what British constitutional historians claim is their "endless adventure of governing men." Yet, interestingly enough, some British subjects are convinced (just like some Americans, some Dutch, some French, some Canadians, some African leaders, and you could probably say some Iraqis and Afghanis too) that they somehow have the natural right to "vote" on this most serious issue of giving up their national sovereignty to a regional global government (controlled by liars).

Even in the free USA, our leaders have made ALL these preliminary treaty negotiations (and the list only grows longer every year) behind closed doors. They HAVE to do it like this. We the people cannot vote to give away that which no man can ever claim to own: another man's freedom. Our constitution is clear about where men's rights come from, and it isn't from the British monarchy. We haven't the power to make our neighbors and their children into slaves, so integration has to be accomplished without ever addressing core constitutional barriers.

The U.S. and all state constitutions prohibit violations of its principles. Changing the law and adapting our political structure under the supremacy of international communtarian law is not an "issue" in this phony presidential election. McCain, Hillary and Obama ALL support NAFTA and UN LA21, but it's not even a topic of public debate in the U.S., let alone a referendum.

Yes, Obama met with Canadian officials... but we all just misunderstood his purpose. Silly us.

"I lied"
http://fallbackbelmont.blogspot.com/2008/03/i-lied.html

Gordon Brown successfully prevented a British referendum on its relationship with the European Union despite an earlier undertaking by Tony Blair to do so. The Times reports that Brown insisted that the Treaty of Lisbon, which is substantially the same as the rejected EU constitution is technically not the same thing:

"The result means that Parliament will decide whether to ratify the treaty, signed by EU leaders last December. ... Mr Brown insisted that Labour’s manifesto pledge to hold a referendum applied to Europe’s previous proposed constitution, not to the Lisbon treaty, and accused Mr Cameron of appeasing sceptics within the Conservative Party."

An opposition shadow minister, William Hague, "poured scorn on claims that the Lisbon treaty was fundamentally different from the constitutional treaty rejected in referendums in France and the Netherlands in 2005, calling such arguments 'weasel words to wriggle out of a commitment'. Mr Hague said the two were substantially the same."

The Independent claimed that even if the Treaty of Lisbon and the EU Constitution were one and the same there was no need to submit its contents to something as vulgar as a referendum.

"The argument over whether the treaty is substantially different from the European Union constitution rejected by French and Dutch voters three years ago is never likely to be settled. But it should be quite clear to the objective observer that this treaty does not represent a shift in Britain's relationship with the European Union worthy of a referendum, no matter what the die-hard Eurosceptic lobby maintains.

And, even if that were the case, in Britain we have a parliamentary system. Our MPs are charged with voting on legislation and treaties. Those who complain loudly that refusing a referendum is a betrayal of democracy confuse democracy with the mere process of holding a public vote."

The Independent disposes of the fact that the Labor party promised to hold a referendum on the question of the British relationship with Europe by simply saying, "we lied".

"An epic catalogue of folly, arrogance and cynicism brought us to this pass. It began with the vanity of various European ministers and the former French President, Valéry Giscard d'Estaing, who insisted on making necessary reform of the EU's decision-making processes post-enlargement into a grandiose and overblown "constitution" project.

This was followed by Tony Blair's cowardly decision to promise a UK referendum before the last general election to appease the Eurosceptic press. This, in turn, resulted in Labour MPs going into the last election committed to a referendum on the constitution. There can have been few more obvious hostages to fortune in recent political history."

In other words the Independent thinks it unfortunate that the former French President called the public's attention to the fact that a political superstructure was being constructed over the nations of Europe and thinks Tony Blair was "cowardly" to promise he would consult the voters on it when the whole thing could have been handled so much more quietly in backrooms.

One of the sentiments Barack Obama has successfully tapped into is the long simmering popular suspicion that the political and media classes have morphed into a class apart, accountable to no one and answerable only to itself. And while Obama's motives for tapping into that discontent may be debatable, the discontent itself is probably quite real. The public disaffection with politicians of both parties with an unlimited capacity for making concessions to illegal immigrant lobbies, identity politics, oil sheiks, corporate interests and foreign bagmen is bottled up only by the lack of a clear alternative.

But recent events in Britain underscore just how powerful the backroom has become and how little words to the public mean. Despite Tony Blair's promises not to give up British sovereignty without asking Britons, the "fix" was in. Recently Barack Obama himself was accused of privately telling the Canadian government one thing about NAFTA while the public yet another. Although Obama denies talking out of both sides of his mouth, saying his staffers were misunderstood, the shadow of the backroom looms large over every public pronouncement. Maybe politicians don't represent the "people" any more. Just themselves.