Downside Up: (EU) Citizenship and its Discontents, with the Bonus Feature of Explaining Why Germany is a Banana Republic

An enquiry into how EU citizenship came into existence, how popular sovereignty is subverted by treasonous politicians in all EU member states, and how the 'rules-based order' renders us all serfs

This is a follow-up post to my recent piece entitled ‘Woe to the Vanquished’ on (German sovereignty after 1945. The topics are ‘citizenship’, rights, and the slow-motion power-grab by the EUrocrats.

Let’s Talk About Citizenship

Let us begin with a definition, shall we? Let’s see what M-W has to offer:

In the sense of 1 (a) and (b), yes, we are ‘citizens’, yet I find these offers rather troubling, if only from my anarcho-libertarian point of view. I personally take offence at ‘owing allegiance to a government’ and to the ‘entitlement to protection from [government]’, as explained in (a).

Note further that 2 holds that ‘citizenship’ means being ‘entitled to the rights and privileges of a freeman’.

I call BS on this one, too, in particular because I’m a strong proponent of natural rights: we’re born free, and there’s nothing a government can do about this, as well as there cannot be any ‘authority’ claiming to confer such natural rights on anyone, let alone ‘privileges’.

You know, I’m a historian working on what used to be called ‘feudalism’, and notion of ‘privileges of a freeman’ is not only historically inaccurate, but it is fundamentally wrong. I don’t even need to cite anything from the literature on this one, but I’d like to point to the Jewish and Christian traditions of ‘man’ (meaning: human) being dignified with free will.

Privileges and rights don’t mix, and if they are existent at-all: the former are clearly derivative of the latter, i.e., there must be certain rights which confer certain privileges, such as citizenship of any one country affording representation or protection by the government of said state or the like.

How does Citizenship Come into Existence?

Well, to wrap up this meandering column, I invite you to consider the ex nihilo (out of nothing) creation of EU Citizenship, by virtue of the Treaty on European Union, colloquially known as the Treaty of Maastricht (1992), and the subsequent amendments via the Treaty of Amsterdam (1997/99). See here for the EU Parliament’s account.

Note that, contrary to time-honoured practices and norms (such as ius sanguinis, i.e., citizenship deriving from being born to parents with citizenship rights, and/or ius solis, by which is meant citizenship derives from being born in a specific territory, as practices in most of the Americas), EU citizenship is something else entirely (my emphases):

[EU Citizenship] does not require the existence of a people, but is founded on the existence of a European political area from which rights and duties emerge. In so far as it does not imply the existence of a European people, citizenship is conceptually the product of a decoupling from nationality. As one author has observed, the radically innovative character of the concept of European citizenship lies in the fact that ‘the Union belongs to, is composed of, citizens who by definition do not share the same nationality’…[EU citizenship] constitutes recognition of the fact that there can exist (in fact, does exist) a citizenship which is not determined by nationality…

the miracle of Union citizenship: it strengthens the ties between us and our States (in so far as we are European citizens precisely because we are nationals of our States) and, at the same time, it emancipates us from them (in so far as we are now citizens beyond our States). Access to European citizenship is gained through nationality of a Member State, which is regulated by national law, but, like any form of citizenship, it forms the basis of a new political area from which rights and duties emerge, which are laid down by Community law and do not depend on the State…nationality of a Member State is a precondition for access to Union citizenship, it is equally true that the body of rights and obligations associated with the latter cannot be limited in an unjustified manner by the former.

So, as you can see, we’re rapidly moving towards a moment when ‘citizenship’ will mean something else. It remains to be seen whether or not the EU and its institutions may, at some point, institute common requirements of EU citizenship entirely decoupled from any territorial boundaries and the like.

The foundations were laid in the late 1980s and 1990s, but it was significantly expanded upon in the Treaty of Lisbon of 2007/09 (which is basically the revamped EU Constitution, which was voted down by the people). You can find the consolidated version here, and if you’d scroll down to Art. 20, we’ll find an answer to the questions revolving around the creation of citizenship:

See, it’s quite easy: it was created out of nothing.

Implications

Note that—so far—there exist no duties deriving from EU citizenship, but, as Wolfgang Schäuble, former Germany Finance Minister under Merkel, currently serving as President of the Bundestag (German parliament), and convicted felon explained in 2011 (my emphases):

European unification is to create a new form of governance, where there is not one level that is responsible for everything and which then, in case of doubt, confers onto others certain policy areas through international treaties. I am firmly convinced that this is a much more forward-looking approach for the 21st century than a relapse into the regulatory monopoly of the classical national state of past centuries...

I would like to make it quite clear to you that I am quite convinced that in a period of less than 24 months we will be able to change the European regulatory framework in this way. We just need to amend Protocol 14—whoever wants to read it, in general, in the Lisbon Treaty—in such a way that we create on it the broad outlines of a fiscal union for the eurozone....

What is Protocol 14 of the Lisbon Treaty, by the way?

Well, I’m glad you asked. Please follow this link for the official version, reproduced below (emphases mine):

THE HIGH CONTRACTING PARTIES,

DESIRING to promote conditions for stronger economic growth in the European Union and, to that end, to develop ever-closer coordination of economic policies within the euro area,

CONSCIOUS of the need to lay down special provisions for enhanced dialogue between the Member States whose currency is the euro, pending the euro becoming the currency of all Member States of the Union,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Article 1

The Ministers of the Member States whose currency is the euro shall meet informally. Such meetings shall take place, when necessary, to discuss questions related to the specific responsibilities they share with regard to the single currency. The Commission shall take part in the meetings. The European Central Bank shall be invited to take part in such meetings, which shall be prepared by the representatives of the Ministers with responsibility for finance of the Member States whose currency is the euro and of the Commission.

Article 2

The Ministers of the Member States whose currency is the euro shall elect a president for two and a half years, by a majority of those Member States.

By the time you’re reading this paragraph, we note, therefore, that the hierarchy established by the Lisbon Treaty’s Protocol Nr. 14 involves informal meetings are prepared by staffers and advisors of the Eurozone’s finance ministers, i.e., by political appointees of the cabinet-level ministers, i.e., even further removed from anything even remotely resembling transparency and accountability vs. the sovereign people and their fundamental, inalienable rights.

In other words: Mr. Schäuble said: even though he—and every other politician of any EU member state—can, ‘in a period of less than 24 months’, do away with state sovereignty (which is, at least in republican states, deriving from the people, i.e., popular sovereignty), and EU leaders may do so via procedural shenanigans.

All politicians of EU member states swore an oath to uphold their respective national-constitutional laws, yet there is clear evidence of intentional circumvention, if not outright subversion, by Mr. Schäuble and his ilk everywhere to sabotage said order.

In my book, this is the textbook definition of treason, that is,

the offense of attempting by overt acts to overthrow the government of the state to which the offender owes allegiance or to kill or personally injure the sovereign or the sovereign’s family

Under the rule of law, such openly admitted acts would trigger criminal proceedings, with charges of high treason.

Speaking of the Sorry State of the Rule of Law…

…we shall, however briefly, mention what the EU’s own Court of Justice (sic) has determined not that long ago, with reference to specifics to the state of affairs in Germany, of all places. All following quotes are from the judgement in Joined Cases C‑508/18 and C‑82/19 PPU (see here; all emphases mine) do not relate exclusively to Germany. I encourage you all to click on this particular link to learn about the shenanigans alluded to by Mr. Schäuble and how the EUrocrats are working, day in and day out, on remaking our societies through secrecy and backroom dealings.

With respect to German law, the EU Court held that

Under Paragraph 146 of the Gerichtsverfassungsgesetz (Law on the Judicial System; ‘the GVG’):

‘The officials of the public prosecutor’s office must comply with service-related instructions of their superiors.’

Paragraph 147 of the GVG provides:

‘The power of supervision and direction shall lie with:

1. the Bundesminister der Justiz und für Verbraucherschutz [(Federal Minister for Justice and Consumer Protection)] in respect of the Federal Prosecutor General and the federal prosecutors;

2. the Landesjustizverwaltung [(Land authority for the administration of justice)] in respect of all the officials of the public prosecutor’s office of the Land concerned;

3. the highest-ranking official of the public prosecutor’s office at the Higher Regional Courts and the Regional Courts in respect of all the officials of the public prosecutor’s office of the given court’s area of jurisdiction.’

The case in question was about whether or not the German Judiciary could issue European arrest warrants. According to the EU Court of Justice, though, the ruling, reproduced below, determined that, no, German state prosecutors cannot issue such European arrest warrants because the existing constitutional and legal framework does not provide sufficient independence from political interference. As an example of how things should be done, the Court cites Lithuania’s constitutional and legal framework that does just that: provide for an independent judiciary.

Let’s hear from the EU Court now, whose officials (all emphases mine; OG refers to Case C-508/18)

relied on a legal opinion of a German lawyer which stated, inter alia, that under German law the public prosecutor’s office does not enjoy the autonomous or independent status of a court of law, but is subject to an administrative hierarchy headed by the Minister for Justice, so that there is a risk of political involvement in surrender proceedings. Furthermore, the public prosecutor’s office is not a judicial authority with competence to order detention or arrest of any person except in exceptional circumstances. Only a judge or court has those powers. It is the public prosecutor’s office which is responsible for executing a national arrest warrant issued by a judge or court, where appropriate, by issuing a European arrest warrant. Accordingly, no ‘judicial authority’, within the meaning of Article 6(1) of Framework Decision 2002/584, was involved in the issuing of the European arrest warrant in respect of OG.

Of course, the EU Court ‘sought further information from the Public Prosecutor’s Office in Lübeck, via the Central Authority for Ireland, in relation to the evidence presented by OG as to whether that public prosecutor’s office is a “judicial authority”’, and you probably don’t expect the following findings:

On 8 December 2016 the Public Prosecutor’s Office in Lübeck replied to that request and stated that under German law the public prosecutor’s office is a body within the criminal justice system (as are the national courts) which is responsible for the prosecution of criminal offences, and also participation in criminal proceedings. Its role is, inter alia, to ensure the legality, objectivity and proper conduct of investigations. The public prosecutor’s office prepares the ground for the exercise of judicial power and enforces judicial decisions. It has the right to initiate investigations, which the courts do not.

As regards its relationship to the Schleswig-Holsteinischer Minister für Justiz (Minister for Justice of the Land of Schleswig-Holstein, Germany), the Public Prosecutor’s Office in Lübeck stated that that minister has no power to issue instructions to it. It added that under national law only the Staatsanwaltschaft beim Schleswig-Holsteinischen Oberlandesgericht (Public Prosecutor General’s Office at the Higher Regional Court of the Land of Schleswig-Holstein, Germany) (‘the Public Prosecutor General’s Office’), at the head of the public prosecutor’s office of that Land, can issue instructions to the Leitender Oberstaatsanwalt der Staatsanwaltschaft Lübeck (Senior Public Prosecutor of the Public Prosecutor’s Office in Lübeck, Germany).

[line break added] In addition, the power to issue instructions is circumscribed by the Basic Law of the Federal Republic of Germany and by the principle of legality, which governs criminal proceedings, that principle being itself derived from the principle of the rule of law. Although that minister could, where relevant, exercise an ‘external’ power to issue instructions in respect of the Public Prosecutor General’s Office, he would be bound to comply with those principles. In addition, in the Land of Schleswig-Holstein, the minister is required to inform the President of the Landtag (State Parliament) whenever instructions have been issued to the Public Prosecutor General’s Office. In the present case, as regards OG, no instructions were issued by that minister to the Public Prosecutor General’s Office or by the Public Prosecutor General’s Office to the Public Prosecutor’s Office in Lübeck.

Let’s unpack this briefly, shall we?

This ruling holds—and this has been upheld in spite of an appeal—that the state prosecutorial services are subordinate, and thus subject to ‘instructions’ from, the supraordinate instance, namely the Senior Prosecutor.

Furthermore, while (perfunctorily, I’d say) this is ‘circumscribed’ by Germany’s de facto constitution, the Grundgesetz (Basic Law), the Minister of Justice ‘could…exercise an “external” power to issue instructions’. This is a fancy, if not very elaborate, way of saying that a politician has the ability to interfere with—some might say ‘pervert’ or ‘obstruct’—the course of justice.

All that’s required is, in fact, that the minister ‘informs’ the president of the state parliament that such ‘instructions have been issued’. There’s no mention whether or not a one-liner suffices, or whether this ‘information’ would also entail, you know, details and particulars.

Thus, ‘on the evidence before it, the referring court is uncertain whether the Public Prosecutor’s Office in Lübeck meets the test of independence or the test of administering criminal justice’, the EU Court holds that,

as regards the institutional status of the public prosecutor’s office in Germany, the Public Prosecutor’s Office in Lübeck appears to be subordinate to the authority and to the instructions of the executive…therefore [it is] uncertain whether the principles identified in the abovementioned case-law can be met by such a public prosecutor’s office and whether the independence of the latter, in the case before the referring court, can be established solely on the ground that no direction or instruction was given by the executive in relation to the European arrest warrant

Translation from EU legalese: Absence of evidence (that no instruction was given by political appointees) is not evidence of absence (of political influence).

Thus, and

in addition, the [EU] court states that, although the public prosecutor’s office in Germany has an essential role in relation to the administration of justice, its responsibilities are distinct from those of the courts or the judges. Thus, even if the independence test is met, it is unclear whether that public prosecutor’s office meets the test of administering justice or participating in the administration of justice in order that it may be classified as a ‘judicial authority’ within the meaning of Article 6(1) of Framework Decision 2002/584.

Translation: Germany is a banana republic, for the simple reason that the judiciary isn’t independent from political shenanigans.

Also, please read the rest of the ruling (see here).

Bottom Lines

It’s almost hilarious, esp. in light of Germany’s desires to be the shining role-model for all of Europe, if not the world (ahem), that the EU Court actually cites Lithuania—you know, of of those pesky Easterners of course ‘worthy’ of contempt, and subject to many meaningful instructions on how to Europeanise—as a paragon of an independent judiciary, relative to Germany.

What’s even more hilarious, in my opinion, is the factual background: this entire ruling only arose because two Lithuanian and one Romanian citizen were arrested in Ireland—based on, which you guessed correctly, an EU warrant issued by German and Lithuanian state prosecutors.

It’s a sad fact that the wanted individuals were actually sought for ‘murder, grievous bodily injury’, grand larceny and armed robbery, and organised crime. Certainly, the plaintiffs weren’t innocent angels, but they certainly had quite excellent lawyers (which, to me at least, lends credence to the racketeering charges) who—this must be said not without admiration for this course of action—trolled the EU: according to the case files, the three accused complained that neither the German nor the Lithuanian prosecutors were actually ‘judicial authorities’ due to the potential of political interference.

The Irish judiciary eventually appealed to the EU for clarification, whose Court ruled that the plaintiff’s motion was true in the German case, but it wasn’t in the Lithuanian. Why? Because the German prosecutors are, in fact, subservient to the executive branch, which is the key issue.

Why does this matter?

The president of the German Bundestag, one Wolfgang Schäuble, is both a convicted felon (illegal campaign financing, i.e., he accepted bribes) and the guy who, as noted a few days ago, all but bragged that, if so desired, the entire façade of the rule of law could be done away with ‘in less than 24 months’ by simply amending a ‘protocol’ (no. 14) of the Lisbon Treaty.

This means—whatever the legalities and such, the power-brokers in Berlin, Brussels, and wherever else in the EU, including the bureaucrats and appointees can change the rules of the game without telling anyone about it, without caring about popular sovereignty, and without us, the people, ever finding out about it.

It is hard to avoid the impression that this is but the latest iteration of the tried and abominable notion that ‘the public doesn’t need to know’. As I’ve emphasised before, with respect to Carl Schmitt who held, about a century ago, the following:

Sovereign is he who decides on the exception.

Clearly, we the peoples of the European nations, don’t decide on these matters anymore.

Don’t weep for ‘Europe’ or your country.

Roll up your sleeves and start working to make it your country again.