Right to privacy

This post will be shorter, because I became aware that I had written in the opening text of this section about human rights that I would publish thirteen post on this theme, but I noticed already that I joined the first two themes together; this post will not be long but I will not join it with another one.

As in the previous themes, the text of the Universal Declaration will be my basis here. It thinks of the right to privacy but it mentions it only with one provision: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.“ It is a relatively brief provision and it is therefore necessary to develop it.

Most constitutions ensure the right to preserving messages transferred by mail and telephone. Because valid texts of many constitutions were created before decades, they often ensure also privacy of messages transferred by telegraph, a device being used only seldom today, on the contrary, the constitutions say nothing about privacy of messages transferred by computer networks and other modern methods of communication though these ones allow greater risk of violation of privacy; on the other hand, some constitutions ensure only privacy of messages transferred by mail or by telegraph. I enlarged therefore the provision about privacy of sent messages by a mention about computer networks, I omitted the telegraph a added the words “or by any other method” to the provision. Besides, I added also other words according to the constitution of the Czech Republic, namely the right to protection of secrecy of the messages kept in the privacy. It maybe can seem a superfluous provision because I wrote about protection against willful intrusion into the dwelling in the previous post. But in spite of that, it has its meaning because the right to privacy of kept data ought to be the same as privacy of the transferred data, regardless of the fact that the private information need not to be stored only in dwellings. The European states' constitutions (the Charter of Fundamental Rights not explicitly) ensure not only the right to secrecy of transferred data, they mention on the other hand also a possibility to break this right for significant reasons. It is therefore obvious that necessity to investigate crimes and illegal action requires a right to break secrecy of private data from time to time and it has to be included in the European federal constitution. A possibility to intervene in private data must therefore be restricted to cases beforehand given by the law and determined by the judge's permission. I enlarged further this letter of the section of the right to privacy by a sentence that is present (as I know) in no constitution and no international treaty knows it: everybody ought to have a right to secure his preserved or transferred messages in every available way in order that nobody violates their privacy. It means above all a possibility to encode data carriers. If everybody has the right to protect his private data, he must also automatically have a possibility to practically enforce it. If the citizens are allowed to lock their houses, they must be allowed also to technically secure secrecy of their data. The citizens cannot be urged, on whatever pretence (the fight against terrorism and against pedophilia are very popular pretexts today), to keep their data unsecured on account of possible investigation from the side of the public authority (or whoever else). By the way, necessity to provide one's private data unwillingly could at least in some cases be inconsistent with the provision that nobody can be forced to give evidence against himself, as I wrote about it in the previous post.

The provision of the letter (c) is based as the only one on the provisions of the Charter of Fundamental Rights and refers to data collected about the individual. Various data about us are known not only to the relatives, neighbours and friends, but also to several public bodies and private firms. These institutions have thus some power over the individual and abuse of private data from their side would have weighty consequences for him. That is the reason why collecting data about the individual has to be restricted and controlled. All the words of the Charter of Fundamental Rights about collecting personal data for certain purposes and with permission of the respective person must be contained in the text of the European federal constitution as well as the provision that everybody has the right to access to data that were collected about him and the provision that he has the right to rectification of wrong data. But if the Charter of Fundamental Rights speaks about rectification of wrong data, a right to removing data acquired without justification should there be too and therefore I added it to the text. I consider as necessary to specially mention genetic informations. They are relatively new informations, until recently not being used and international conventions think not of them; in spite of that, danger of their abuse is extensive. On that ground the text of the European federal constitutions should restrict collection of genetic informations about persons only to limited and urgent cases and should demand their exceptionally strict protection.

The Charter of Fundamental Rights does not expressly know a right to inviolability of dwelling, although it speaks about respect of home. Those however are too indefinite words and therefore I added a separate provision about the right to privacy of dwelling as it is known to constitutions of the European states. That provision contains a brief sentence that the dwelling is inviolable, from a pattern of the European states' constitutions also a possibility to do domiciliary searches, but only in that cases when the court orders it. I adopted a respective provision of the Belgian constitution because it is the most appropriate in my opinion (it speaks also about the method how to carry out the domiciliary searches).

Rights of judicial protection

In a fair society, it is essential to give to its individual members certain inalienable rights. But it is equally important to guarantee that the members can really demand them, that the given rights are not only in the paper. That is the reason why to establish some rules is necessary how every member of the society can demand his rights. For courts most frequently serve to this purpose, I entitled the whole post “Rights of judicial protection“. It is however equally necessary to determine rules of activity of courts and related state authorities toward citizens because the judicial proceedings can be abused also to stifling individuals what all dictatorships pointed that were in Europe of modern times.

As I wrote earlier, if more documents phrase some right, I am to prefer the formulation of the Universal Declaration. That is also the case of the first provision of this post which says that all persons are equal before the law and and have right to the same protection (“All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against all types of discrimination in violation of this Declaration and against any incitement to any form of discrimination.“) I only added into the text after the words “protection of the law“ also some words about judicial protection and this way I incorporate into the text also substance of the article 8 of the Universal Declaration („Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.“) The Charter of Fundamental Right of the EU contains also a statement that all are equal before the law but I mentioned that in the previous post. The Charter of Rights speaks also about prohibition of discrimination whose kinds it enumerates but I cannot repeat it here because I wrote about prohibition of discrimination in the previous post that dealt about equity of people.

The next provision relates to a possibility to detain somebody and to prohibition to do it. There is no sense to write that a person committing a crime or being suspected of it can be detained, it is however necessary to determine when a person cannot be detained and what conditions of detention have to be observed. The text of the Universal Declaration is again a basis for me, it reads: “No one shall be subjected to arbitrary arrest, detention or exile.“ I have slightly completed and amended it, namely I added the words saying that nobody may willfully be subjected to personal inspection (usual part of harassment of inconvenient persons in dictatorships) which I took over from the Italian constitution and changed the words “expulsion in exile” to “expulsion from the residence location” (it seems more precise to me - for example, prohibition to stay in own municipality or obligation to stay in an ordered place maybe cannot be described by the word “exile”). From the Austrian and Portuguese constitution I took over the provision that everybody detained in accordance with the law has the right to dignified treatment. Significance of this provision is obvious.

If somebody is legitimately detained, he must know why he was detained and the charter of rights must ensure the right (how actual this right is the present method of “fight against terrorism“ shows). The detained one may not be held in detention for an unlimited period of time because imprisonment is a penalty whereas detention, sometimes necessary in the course of investigation, cannot be considered as a penalty. I hold to be necessary that the constitution explicitly determines a term during that a person can be detained before it is either accused or set free. The question is how long this term should be. If we have a look at the European state's constitutions, we can find various terms: the constitution of Denmark determines to bring the detained one before the court within 24 hours and then the judge should to decide up to three days, according to the Portuguese constitution the judge has to decide within 48 hours about justifiability of the detention, the constitution of Austria demands to bring the detained before the judge up to 48 hours, the Greek constitution says that the detained one must be be brought up to 24 hours before the judge which has to decree on releasing or custody, according the constitution of Spain the detained one has to be released or handed over to the judicial authority within 72 hours, the constitution of Poland prescribes at most 48 hours before handing the detained one over to the court which has to decide up to 24 hours, the constitution of Lithuania demands to bring the detained one before the court within 48 hours, according to the Czech constitution the detained one has to get before the court up to 48 hours and the court has to decide within 24 hours (the same terms determines the constitution of Montenegro), according to the Romanian constitution detention must not exceed the term of 24 hours, the constitution of Bulgaria says that the judicial authorities have to decide about legitimacy of detention up to 24 hours, according to the Serbian constitution the court has to decide about the detained one up to 48 hours. We can see then various terms, there are however no too great differences among them. I consider as the best for the European federal constitution the term of 48 hours within them the detained one has to be brought before the judge and the term of 24 hours within them the court has to decide about custody or release. There is also a part of this provision saying that the detained one has to be informed about reasons of his detention and in a way which is understandable to him (this the Convention for the Protection of Human Rights and Fundamental Freedoms determines among others).

I took over the provision of the letter (d) from the constitution of the Czech republic (but there is a similar provision also in other constitutions) and it is undoubtedly a provision that arose from recognizing of practice of the dictatorships of the 20th century. It says that only the law determines which activity is punishable and that only the law can determine the punishment that can be inflicted for a punishable activity. I add to that also a provision contained in the Charter of right saying that severity of the punishment shall not be inadequate to the committed act (the contrary was a usual practice of dictatorships in Europe).

The provision of the next letter is based on the very important provision of the Universal declaration that says that nobody can be punished for a deed that was not punishable in the time when it was done and that a punishment cannot be inflicted more severe than which one could be inflicted in the time of committing the dead. I added a provision of the Charter of Fundamental Rights concerning again severity of an inflicted punishment: if the law prescribes a milder punishment after committing the deed, the milder punishment is given.

The whole text of the following letter (f) consists of my suggestion of the classical provision that every person is considered as innocent till convicted to be guilty, in wording of the Universal declaration. The provision has to be present in the European federal constitution, nothing is needed to be added to it.

I took over the article 50 of the Charter of Fundamental Rights to the next letter (nobody can be punished twice) but I changed its wording so that it is more brief in the constitutional text. Especially, I take for needless that the text explicitly mentions release in the Union (it must be valid generally).

The next provision that I suggest to insert into the text of the European federal constitution is present neither in the Universal declaration nor in the Charter of Fundamental Rights of the EU. It is a provision saying that nobody must be compelled to give evidence against himself or against a close person. It is an old principle, of Roman law already („nemo tenetur se ipsum accusare“) and it is a part of present international conventions too (for example, of the International Covenant on Economic, Social and Cultural Rights from the year 1966) and also some constitutions of the states of Europe. It would be therefore odd, if the European constitution passed this provision away (like the Charter of Rights that knows it not).

The provision of the letter (i) of my proposal is seldom present in constitutional texts, I consider it however as important. It says that the proofs cannot be used against an accused one that were collected in a manner that disagrees with the law. I have first and foremost in mind naturally torture that was usually used to forced obtaining proofs, especially against the accused one himself, but it is unfortunately not rare also today though chiefly outside Europe. But there is not necessary to speak only about torture, we can mention also illegal violation of private life or other methods.

The next important right I took over from the article 47 of the Charter of Rights that grants a right to access to judicial protection without regard to financial means.

The suggestion of the letter (k) has very similar contents. They are the only one that I took over from the European Convention on Human Rights where it is present in the article 6 and that says that everybody has the right to an interpreter if he does not understand the language used in the respective court. Everybody comprehends that absence of this provision could easily be abused, especially in the case of foreign (extra-European) workers who often stay in the European countries in not very sufficient conditions and who rarely speak the language of the country that they work in, due to that they can easily be manipulated (if it happens, it usually happens from their employers' part who rob them, but also a pressure of the public authorities' side cannot be excluded, especially if it is politically advantageous). But due to plurilingualism of Europe it is however a provision guaranteeing equality to every European citizen before any court in Europe.

In the following letter (l), I resumed two related provisions that cannot be found in any international convention but that are known to some European constitutions. The provision says that nobody can be taken away from his legal judge (it determines this way the constitution of Belgium or of the Czech republic) and that exceptional courts are inadmissible. What is common to both provisions is that they prevent a possibility to get round the normal judicial system and the guarantees given in it. We link exceptional courts together with the period of the World War II, those who lived in some European dictatorship know the exceptional courts also from other periods of time but these provisions are important also for the time of today as we can see in the case of persons detained in the prison of the USA in Guantánamo in Cuba where they are imprisoned without any rights that would belong to them if they got before any ordinary court in the United States. Justification for this all is that it is about dangerous criminals (this assumption was however not proved by an ordinary court) or persons that committed a heavy crime but it does not come through in similar cases for to deny rights of a detained one is always possible to justify somehow and especially dictatorships were (and are) very imaginative in this matter.

These are all provisions concerning protecting individual rights, particularly before the court. The next post will deal with rights to privacy.

Equality among people and the most basic personal freedoms

The first article dedicated directly to the constitution's text about the human rights must logically concern what has to be fulfilled in the first place – namely life and personal freedom of every individual human.

Every charter of human rights has to begin with a statement that all right that itself enumerates are valid for all people without any exception. If it was not, if all human rights were not valid for all, it would mean that only some people could enjoy them; but it would be needless to draw up whatever charters of rights in that case because rights would be employed only by them who would be enough strong to be able to fight them out for themselves. And Roman poet Ovid already (and certainly somebody before him) asserted that “Laws were made lest the stronger might become all-powerful.” The text of the Chapter two of the European federation's constitution (Chapter one – Preamble, Chapter two – Basic rights, Chapter three – Competencies) must therefore begin with corroboration of equality of all humans. In conformity with my previous assertion that I will follow in particular the Universal Declaration's text, I consider as the best to completely take over its first statement which grants, except of equity of all humans, also innate freedom to everybody and asks that all humans act to each other as brothers (“All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”). The Charter of Fundamental Rights of the EU (further sometimes denoted by me as the Charter of (Fundamental) Rights) which would come into consideration as a main pattern in case of creating the European federation's constitution contains a similar statement but more brief and weaker in particular, namely that all are equal before the law – but it is not wholly the same, just because the Universal Declaration mentions the equality before the law too; for equality before the law relates to political rights, people however should be equal to one another not only by political rights but in all condition (except of individual skills and qualities, naturally). The Charter of Rights considers not equality of all humans as its most significant provision because it begins with another one (which puts stress on human dignity and which however is mentioned in the Universal Declaration too).

I consider entirely appropriate also to take over the first paragraph of the article two of the Declaration which specifies how the mentioned equality among humans is meant, namely what circumstances have not to impede its applying. I added sexual orientation to the text of the Universal Declaration (that reads in the original wording “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”) among inadmissible obstacles for human's equality because it was perceived just as a matter of morality in the year 1945 and therefore it could not appear in the Declaration; similarly I added physical handicap and nationality for these two conditions are used as a reason to violate human rights also today and they were neglected after the World War II (the nationality is however indicated in the article two of the Declaration).

The article two was entitled by me “Right to life, personal freedom and security” and it is actually just slight paraphrase of the article three of the Universal Declaration which grants to the man just these three attributes and which I take over in the text of proposal of the European federal constitution: “Everyone has the right to life, liberty and security of person.” The Charter of Rights expresses the same right but it splits it in two provisions – the article two of the first chapter and the article six of the second chapter.

The next my provision of the article two concerns inadmissibility of the death penalty that proceeds from the European view on this matter; it concurs with the article two of the first head of the Charter of Rights.

The following provision is taken over by me again from the Universal Declaration where it reads: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” I replaced only the slave trade with trade in people that is a more general idea and I incorporated thus the provision of the article five of the Charter of Rights (“Trafficking in human beings is prohibited.”) in the text of my proposal. A add also the provision prohibiting compulsory labour of the same article of the Charter to the same letter of the article two of the European constitution's proposal.

I placed two provisions that are present neither in the Universal Declaration nor in the Charter of Rights under the letter (d). These provisions speak that obligations can be inflicted on anybody only by the law and (which is similar) that nobody may be compelled to do anything which is not imposed upon him by the law. These are very important rights protecting against wanton intrusion on acting of persons and I took them over from the constitutions of the Czech republic and Poland.

The basis of the other constitutional provision was for me the following provision of the Universal Declaration: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (This is a classical provision that as a rule has been cited in state constitutions and various international conventions.) I made it only more concrete by the words saying that the torture is allowed to be neither psychical nor physical (the text of the Italian constitution speaking about prohibition of psychical and physical violence against persons (article 13)).

The last provision of the article two of my proposal corresponds to the article three of the Charter of Rights where psychical and physical integrity of a human is discussed and it is manifest from the text of the article that prohibition of medical operations made without approval of the respective person has been meant with it. It without any doubt refers above all to medical crimes committed by the Nazi dictatorship as well as communist dictatorships and therefore also some other documents (among European constitutions for example the Polish constitution or the constitution of Portugal) mention prohibition of interfering in human integrity and I have used them for formulation of the constitutional proposition. The article three of the Charter of Rights has served to me only in its first paragraph that I used, its remaining parts (those about eugenic practices and cloning) will be used by me in another text later (treating freedom of scientific research).

In the next post, I will discuss rights to judicial protection, the whole wording of this part of the proposed federal constitution will not be presented until a last article dealing with human rights will be published by me here.

Equality among people and the most basic personal freedoms

Selection of the rights – Sources

Whereas there are not any previous federalist documents that could be directly taken over in the chapters of a European federal constitution dealing with competencies of the federation (and actually, it applies also in the case of the preamble and the opening provisions), the contrary seems to be valid in the case of the section dealing with basic human rights. The Charter of Fundamental Rights of the European Union exists and is even in force already. It would be therefore sufficient seemingly to take it simply over in a proposal of a European federal constitution (omitting its non-federalist opening and final solemn sections or solemn statements at all). But I do not believe that it is possible. The Charter of Fundamental Rights of the European Union contains not some important rights which can be found in the constitutions of the European states, some provisions seem peculiar to me, wording of some of them rather ensures not than ensures and some provisions belong not to the section dedicated to the basic rights (it is before all due to the fact that the EU is an international organization and has therefore not a state constitution). For this reason, the Charter of Fundamental Rights has to be (much) modified and completed to a usual part of a (federal) constitution. (Strictly speaking, I will not base the federal constitution's section about basic rights upon the EU basic rights charter which I am to explain below.)

It is a time now when I can ask a question what other sources of rights enumerated in the European federal constitution should be taken into consideration. One of the sources of the Charter of Fundamental Rights of the European Union is without any doubt the Universal Declaration of Human Rights adopted in the year 1945 which can be distinguished not only by contents correspondences but also by some literal quotations. In fact, I believe that just this declaration should be a base of the chapter of the European constitution dealing with the basic right, not only from the viewpoint of its content but also from the viewpoint of its internal structure (I must admit that I have not comprehended fully the structure of the Charter of Fundamental Rights of the European Union). But the declaration has to be completed with other provisions because it is only general and not in every case enough specific. Then, I will use a third source of basic rights in the European federal constitution beside the two mentioned ones already – constitutions of the European states, naturally. For they contain many additional useful provisions and more concrete ones than in the Charter of Human Rights of the EU and ind the Universal Declaration of Human Rights too. Then, there is also another document that I will take into account – it is the the Convention for the Protection of Human Rights and Fundamental Freedoms adopted in the year 1953 by the Council of Europe. And last but not least, I have to point out that I will add also my own provisions because it seems to me that challenges of the present epoch in which Europe is require in my opinion some additional provisions that are absent in above mentioned documents (or more precise wording of the existing ones).

I have divided all rights for the European federal constitution in thirteen articles and I will discuss them gradually. The thirteen articles will be:

Equality among people,
Right to life, personal freedom and security,
Right to judicial protection,
Right to privacy,
Freedom of expression and opinion,
Right of assembly,
Political rights,
Right of free movement and residence,
Social rights,
Family rights,
Rights of property,
Cultural rights,
Exercise of rights.

(I followed generally the structure of the Universal Declaration of Human Rights with some modifications trying to well convey importance and urgency of individual groups of rights though the order that I have chosen may be discussed as subjective. I omitted the theory of “three generations of human rights” that is allegedly reflected in the Charter of Fundamental Rights of the European Union, it is not important in my opinion but somebody may see something from it in my order too.)

Basic rights - Introduction

I dedicated previous fourteen posts to the topic of relations between a European federation and its member states. But another section dedicated to basic rights labeled as chapter two should precede this section of the constitution (the section dedicated to the federation's competencies should be denoted as chapter three). I discussed the federation's competencies after the post about the preamble because I considered it as more important as the Europeans are certainly more interested in this if a European federation has been considered but the basic rights laid down in the constitution are as well as important for the future federation's functioning and for lives of its people. I should maybe analyze in this post on the basis of what the basic rights should be assembled but I will start with another thing. I was surprised myself when I finished writing about the federation’s competencies that only few provisions from the social sphere was present. But the reason was that I assumed that the chapter of the constitution about the basic rights would concentrate on the social sphere.
Today, I bring two text which emphasize significance of the social sphere for united Europe; for social issues stand not at center of present unification process. The texts are translated two chapters from the book “Soumrak sociálního státu” [The Decline of the Welfare State] written by the Moravian sociologist Jan Keller (in the year 2005). I stressed the last sentence of the second part by a bold-faced text for the sake of its great importance.


Are we tending towards sympathetic Europe?

The voices about establishing united, socially responsible Europe sound surprisingly in the situation when various forms of loss of solidarity destruct social insurance systems in the level of individual states. This demand unfortunately left not yet the only absolutely superficial level of phrase declarations somehow more significantly. Europe is establishing a united welfare state non yet in minimal measure. It only recommends minimal social standards to individual states from time to time which cost nobody anything and which are restricted only to cover some few social hazards of selected social groups (e. g. the foreign workers).
Nobody of them who use the slogan of socially sympathetic Europe in their political campaigns, occupies unfortunately itself seriously not with a question how to achieve sympathetic Europe if solidarity in scope of individual states of Europe has been endangered and its decay has been intensified.
Who actually should be a bearer of sympathetic Europe? Great businessmen and industrialists should be who will make an effort to establish strong and vigorous Europe-wide regulation after they got rid of much more weaker regulation in nation states' level? Should they be young people who are ever less willing to contribute to the old-growing population in their own countries but instead they will like more to raise money for pensioners Europe-widely? People who still have full-time jobs will contribute to social insurance of great number of people in countries like Great Britain, Spain or the Netherlands who staked on partial and time-limited work contracts?
If the politicians who speak about socially responsible Europe meant it really, they would have to start occupying themselves with two absolutely fundamental questions:
In what level the social securing systems can be harmonized on an all Europe scale? It would not definitely be able founded on the base of Scandinavian pattern because it would require heavy increase of taxes in most European countries. If the relatively rich Scandinavian states themselves have ever greater problems to finance their social securing systems, one can hardly imagine that the considerably poorer states which prevail in Europe could join this system.
The Europe-wide social system however could be established not even according to the “continental” pattern. That has been deeply undermined by crisis of employment society. If rich Germany is not capable of paying its social system after unemployment went to some point, how the countries where unemployment is ever higher and productivity of their economy is considerably lower than in Germany could be capable of paying it? (To extend the German social securing system only to the European 15 (EU before 2004) would cost 500 000 000 000 000 euros yearly in addition (Schmid, J,: Wohlfaartsstaaten im Vergleich, Opladen 2002, p. 65)).
Nor the pattern of southern Europe comes into consideration because it assumes that much services of social securing have been accomplished by the relatively cohesive and stable family. Increasing fragility of the family in the southern Europe countries can be expected rather than growing its cohesion in the countries of the northern Europe. The most likely is therefore takeover the liberal pattern which however would mean decline of social securing in a level of the lowest common factor. Also it could be preserved in the present level only in the case that also the following question will be answered satisfactorily.
How united Europe without taxes unification, without tax system harmonization could be established? Competition for taxes reduction that should serve to individual states to attract foreign investors does non admit the idea of social sympathetic Europe, it brings it into disrepute on the contrary. Such a country which reduces taxes below the level of other ones acts similarly to a family that chooses childlessness and makes use of pension system. This country has two advantages in comparison with other countries. On the one hand it can detract some investors from the countries that joined not the tax reduction competition by promising lower taxes. Such country reduces expenditures on its own unemployed ones but these expenditures will increase in the countries which the investors were detracted from.
A country with lower taxes will have lower amount of financial resources at its disposal for public purposes as a rule. Although it saves maybe expenditures on unemployment, it will ask for subsidies at other public spheres from the European Union. These subsidies will be covered especially from the means of that countries which have not reduced their taxes. Such countries will therefore be afflicted twice: they will have to subsidize their poorer neighbours which detract foreign investors from them by tax dumping, which extend in addition unemployment and so they lessen extent of resources that the richer countries could distribute for purposes of subsidies.
The attractive talks about building up sympathetic Europe have a form of utopia the in present arrangement. This utopia serves however also as a specific ideology. Especially the social democratic politicians use the promise of socially responsible Europe so that they sweeten a retreat from social responsibility in their own countries to their voters. A system of social securing has been better streamlined, cut off, reduced, simply “modernized” if the voters can be calmed by an idea of social Europe which will supposedly be much more generous, magnanimous and socially secure (and paradoxically also certainly more modern at the same time) than the present nation states are.
There is a relevant danger that only or predominant form of solidarity that opportunity comes for is solidarity inside all-European power elite. “A danger grows and becomes more intensive in Europe-wide level that economic and political elite will prefer solidarity in the scope of its class to solidarity with them who they should represent” (Döring, D.: Sozialstaat in der Globalisierung, Frankfurt am Main 1999, p. 83).

Horst Afheldt – The strong state Europe

The German analyst Horst Afheldt (Wirtschaft, die arm macht. Vom Sozialstaat zur gespaltenen Gesellschaft, München 2003) presents the hitherto most radical project for saving a welfare state. He is aiming at correction of relation between the state power and the market where former balance has been deflected to state institutions' disadvantage as a consequence of globalization.
Savage violation of this former balance has been manifested itself in weakening of labour because pays are at a standstill whereas employees have been more and more burdened by taxes and charges. On the contrary, businessmen and firms which have growing proportion in incomes of the GDP have descending proportion in taxpaying. So, redistribution proceeds from below to upwards.
Nothing of that what neoliberals have been promising for already thirty years has come true. According to them, the economic growth was to create enough jobs. But growth has been achieved saving jobs and just the firms that export most and that are the most successful in the global economy are the ones that dismiss most. Next promise of neoliberals was that people which will work will have enough money. But in particular non full-time jobs increase and loss of incomes from labour makes to maintain the welfare state not possible. The result is still richer and still less numerous upper class, stagnating middle class at which all expenses has been transferred though they profit still less from the growth and finally rapidly increasing numbers of socially needy ones in lower classes. To continue further according to neoliberal directions then is only to move on a way forward more rapidly towards splitting society.
According to Afheldt, the only solution of deepening crisis is rehabilitation of state's control over economy. But it cannot be realized in the nation states' level because the states became too weak opponents of supranational powers of economic globalization. It is necessary to unite Europe as closely as possible and to create a political unit from it which will able to regulate effectively its economic and social politics.
Whatever effort to remedy things putting correction into effect from initiative of individual states is condemned to failure. If an individual state refused to provide firms with tax allowances, had reluctant to attract them through still more generous investment incentives and permitted not pressures in favour of reduction of employees pays, the firms would leave in another, more “competitive” country. A defence can only be collective and who must proceed to it is Europe as a whole.
Afheldt suggests to levy uniform customs duties on import in Europe, namely to the extent of 20 to 30% for example; then to double taxes for firms and for the highest income groups and to reduce the taxation of employees by half. Particularly in German conditions, the proportion between taxation of firms and employees would thus come back to the level of beginning of the seventies of the 20th century. The for thirty years lasting transfer of tax burden from the strong ones to the weak ones would be so upset. The firms would have also considerable possibility of tax rebates in favour of non-profit organizations.
Afheldt discusses the most likely consequences of these arrangement. The firms that would leave Europe protesting against heavier tax burden would have to overcome the import tax of 30%. They would transfer it in the prices of their products. It would make possible to raise prices of their products to the approximately same level also for the firms which would remain in Europe. The prices increase of products and services would lead in some extent to increase of profit of the firms that would remain in Europe and would make it possible to pay requested higher taxes from their side and to pay higher pays. It would come to higher incomes of the state from taxes and thus a possibility to reduce state debts and tax burden of their citizens. Employees would be able to buy goods raised in prices either by the income tax (in case of the firms that would leave) or by higher income tax (in case of the firms that would remain in Europe) due to reduction of their tax burden.
Afheldt adds that one thing can be expected at the same time: to introduce high import duties would cause similar reaction also outside Europe where duties against our import would be introduced. It would not however be an obstacle because the European export has to be reduced in every case. Purchasing power is a scarce commodity in the world of today and the Europeans should leave a place also to less developed ones in foreign markets. To restrict our export would actually be a kind of development aid because we would not occupy markets to developing countries' disadvantage and would leave something from their demand. Beside that, drop of transportation over whole continents would have significant contribution to the environment's protection.
It is obvious that Afheldt's project has not even a minimal chance to be realized in present neoliberal atmosphere which rules over economics and politics. It is obvious however at the same time that two fundamental priorities of the project remain substantially decisive. These priorities are at one hand to secure incomes from labour in the developed countries against fall of labour price in the world markets, on the other hands to prevent financially starving states and their public sector.
If pressure on cutting subsidiary wages expenses grows stronger, if stagnation or fall of employees' incomes and competition among states for taxes reduction for firms and investors continues, “united Europe” becomes only an empty idea if not just an instrument for surrender of politics to economy. If uniting Europe leads not to reestablishing balance between the democratic institutions and the powers of the market, it is actually needless to build Europe so laboriously.

Relations of the Union and the member states 12 – Constitution's text

In this post, I bring the constitutional text of the section Competencies of the European federation according to the articles of the section that I wrote in previous months. The text hereafter corresponds basically to the posts which I have written about it, I only added some words or sentences that had crossed my mind. In the article 1, I added the paragraph (b) considering that all the powers of the federation have not to be exercised by the federation itself but its member states can do it in some cases (it is common in “normal” federations) – and in that cases the federation must have a competence to exercise supervision over the member states because the states do it for the federation, not for themselves. In the article 2, I added the paragraph (f) emulating the German constitution's example in order that the matter is more clear though the basic provision about foreign relations may be sufficient. In the article 3, I anticipate a name of a European federation's parliament and its composition as well as about a name of a supreme judicial institution of the federation; I will express my opinion of it in the respective post in the future. Further, I changed my opinion about social condition of working people in the single market to a certain extent in favour of regulation from the federation's side (article 7 about economy) in comparison with it what I had written in the respective post earlier; because I assume that it is necessary for protection of working people in the single market. But it concerns only social conditions of working people, not other social activities of states – I have connected no mention about health and old-age pension systems with the European federation's constitutional text yet. I consider it likely nonetheless that I will add an article about social matters. In the article 3 about associated states I refer to a chapter two of the constitutional text by which I mean a chapter about basic rights (that I am to write).

Chapter 3 – Relations between the Union and the states

Article 1. General relations

(a) All competencies that are not explicitly delegated to the Union by this constitution belong to the member states.
(b) The Union keeps a watch on activity of the member states if they execute decisions of the Union.
(c) The laws of the Union are in force equally in all member states and other territories of the Union.
(d) The Union protects democratic arrangement and the rule of law in the member states.
(e) The Union and the member states provide assistance to each other in their activity.
(f) The member states reciprocally recognize judgments and other decisions of administrative authorities of each other. They can request cooperation of the Union in case of necessity.

Article 2. Foreign relations

(a) Foreign relations are a matter of the Union.
(b) Exploration and exploitation of the international waters and the cosmos is a matter of the Union.
(c) The member states can act independently outside the Union in matters of culture, science and sport; they observe interests of the Union and act in conformity with the laws of the Union. They must inform the Union about their acting outside the Union. The Union has a right to temporarily restrict the independent acting of the member state in cases of necessity.
(d) Protection of the borders of the Union is a matter of the Union.
(e) The Union determines rules about entrance in the territory of the Union and leaving it.
(f) Extradition of persons out of the territory of the Union is a matter of the Union.

Article 3. Associated states

(a) The European Union establishes close relations with other states in the form of association. The rules of association are determined by the European Union; they can be different for each state. The European Union can terminate the association in case of its violation.
(b) The associated state cannot act in contradiction with interests of the European Union and against the provisions of the Chapter Two of the constitution of the European Union. It does not permit to deploy foreign forces in its territory.
(c) The associated state cannot prevent free movement of goods and services between itself and the European Union.
(d) Disputes between the associated state and the European Union and persons subjected to their authority are resolved by the Supreme Court of the European Union.
(e) The citizens of the associated states are not citizens of the European Union.
(f) Every associated state has one representative in the House of States of the Assembly of the Union without the right to vote.

Article 4. Military affairs

(a) Military affairs are a matter of the Union. No member state is allowed to arm and maintain its forces.
(b) To join military alliances and to leave them requires approval of the citizens of the Union.
(c) The Union respects opinion of the member states when deploying forces in their territory.

Article 5. Free movement, internal security

(a) No member state is allowed to restrict a right of inhabitants of other member states to enter freely its territory and leave it freely.
(b) To issue laws about free movement of persons in the territory of the Union and to execute them is a matter of the Union.
(c) The Union is competent to establish investigative bodies for investigation of organized and cross-border crime with sphere of authority over the whole territory of the Union.

Article 6. Citizenship of the Union

(a) Naturalization in the Union is a matter of the Union.
(b) No member state is allowed to naturalize anybody who is not the citizen of the Union.

Article 7. Economy, currency

(a) The territory of the Union is a united economic space.
(b) No member state is allowed to prevent free movement of goods, services and capital over the territory of the Union. Customs borders inside the Union are inadmissible.
(c) Regulation of economic competition is a matter of the Union.
(d) Commercial law is a matter of the Union.
(e) The Union issues rules about consumer protection.
(f) The Union issues laws about relationships between employers and employees, about health and security conditions at work, about association of employees, about reward for work, about unemployment protection and about working time.
(g) The Union is an exclusive issuer of the currency valid in all territory of the Union. No member state is allowed to introduce its currency.
(h) The Union determines conditions for creation and operation of banks, stock exchanges, insurance companies, investment corporations and other financial institutions and supervises their operation.
(i) The Union issues security, ecological and technical regulations for goods and services provided in the territory of the Union.
(j) Unified measures and weights determined by the Union are valid in all territory of the Union.
(k) Copyright law and intellectual property law is a matter of the Union.

Article 8. Finances

(a) The Union is authorized to impose and collect direct and indirect taxes for its needs. The right of the member states to impose and collect own taxes is not aggrieved by it.
(b) A federal tax can be imposed only under the rule of a federal law.
(c) The Union can determine that revenue of some taxes imposed by itself belongs partially to the member states.
(d) The Union has regard for tax systems of the member states, that taxpayers are not overburdened and that the member states have sufficient income resources for their activities.
(e) The Union levies import and export duties; the revenue of them belongs to the Union.
(f) The Union impose capital gains taxes; the revenue of them belongs to the Union.
(g) The size of the taxes imposed by the Union has to be equal in all member states and other territories of the Union.
(h) The tax system of the Union conforms to the principle of progressivity.

Article 9. Culture, science, education

(a) The Union supports the European culture and its propagation outside the borders of the Union.
(b) The Union can establish and run mass media with sphere of activity in all territory of the Union.
(c) The Union can establish and run colleges. The educational systems of the member states are not aggrieved by it.
(d) The Union supports scientific research. It can establish and run its scientific institutes.
(e) The Union issues laws regulating modifications of the genetic code of humans and other living creatures, treating genetically modified beings and research in this sphere.
(f) The Union issues laws about development, testing and distribution of medicines and medicinal preparations.

Article 10. Internal matters of the Union

(a) Engaging employees of the Union, their working conditions and social security is a matter of the Union.
(b) The Union sees to it that citizens of all member states and other territories of the Union are employed in the bodies of the Union evenly. The bodies of the Union located in the member states shall be preferentially staffed with the citizens of respective states.
(c) The Union pursues statistics for its needs in all member states.

Article 11. Transport, telecommunications

(a) The Union issues and executes laws about ground, river and pipeline transport among the member states.
(b) The Union issues and executes laws about aerial transport in the territory of the Union and about maritime transport in the territorial waters of the Union.
(c) The Union issues and executes laws about electronic communication in the territory of the Union.

Article 12. Environment, agriculture

(a) The Union issues laws about air protection in the territory of the Union.
(b) The Union issues laws about protection of surface water and groundwater in the territory of the Union and about protection of seas.
(c) The Union issues laws concerning free movement of animals in the landscape.
(d) The Union cooperates with the member states in protection of endangered animal and plant species and in preserving natural landscape.
(e) The Union issues laws about treating farm animals, their transport and slaughter. It respects the principle of avoiding cruelty.
(f) The Union issues laws about treating free-living animals, conditions of breeding them in captivity and about trading in them and products from them. It respects the principle of avoiding cruelty.
(g) The Union issues laws about animal testing having respect for the principle of avoiding cruelty and exercises supervision over it.
(h) To issue regulations about protection of animals and plants against contagious diseases and to execute them is a matter of the Union.
(i) The Union issues laws about utilization of nuclear energy and treating radioactive waste.