(press declaration by the plaintiff of
2 BvR 710/12 and 2 BvR 1445/12 on art. 136 par. 3 TFEU)
Unser Politikblog | 11.Mai 2013
 |
| Sarah Luzia Hassel-Reusing in front of the International Criminal Court (ICC) |
It has happened. At the 01.05.2013, the
insertion of art. 136 par. 3, which consists of 2 sentences, into the
Treaty on the Funtioning of the European Union has been enacted,
after Czechya as the last EU member state has ratified it. The first
sentence enables mechanisms for the strengthening of the „financial
stability“ of the financial sector (also misleadingly called
„stability of the Euro currency area as a whole“) in the euro
currency area, among them particularly those for the „European
Financial Mechaism“ („Greece Support“, EFSM, EFSF, and ESM) and
for the EU economic government (tightened Stability and Growth Pact,
Imbalance Procedure, and Budgetary Surveillance).
The second sentence obliges to connect
all „financial aids“ within these mechanisms to „strict“
conditions. How strict this is meant, can be found neither in the
wording of the article, nor in the recitals of its initiating. The
only clear statement on the extent of the strictness is included in
the conclusions of the Ecofin council (the economical and financial
ministers within the Council of Ministers of the EU) of the
10.05.2010, that the conditions shall be strict as in the „practice“
of the International Monetary Fund (IMF). Besides that, the „task
force“ (with all federal financial ministers of the EU member
states, with EU currency commissioner Olli Rehn, with the then
chairman of the Eurogroup Jean Claude Juncker, with the then ECB
President Jean-Claude
Trichet, and under the lead of the President of the European Council
Herman Van Rompuy) has recommended in no. 49 its report of the
21.10.2010, that the conditions shall be „very strict“. These
statements are the most important and most official ones from the
time of the developing of art. 136 par. 3 TFEU, which say something
on the extent of the strictness, and so they govern, according to
art. 31 Vienna Treaty Law Convention, the interpretation of the
„strictness“.
At
the 02.05.2013, now the application by the civic and human rights
activist Sarah Luzia Hassel-Reusing, to state the voidness of the
TFEU, has been filed to the Constitutional Court, because this very
obligation to a strictness as in the „practice“ of the IMF
incurably violates „ius cogens“ and has as a result, according to
the legal point of view of the civic and human rights activist,
infected the TFEU with voidness. According to art. 53 Vienna Treaty
Law Convention, international treaties, which violate „ius cogens“,
are completely void and thus ineffictive. The Vienna Treaty Law
Convention does not contain any possibility to heal this voidness.
Before
the second senat of the Constitutional Court, there are
constitutional complaints against all 3 versions of the StabMechG,
against the ESMFinG, against the law on the modification of the law
on the administrating of the public debts (BSchuWG), and against the
laws consenting to the ESM, to the Fiscal Compact, and to art. 136
par. 3 TFEU; one of them has been filed at the 29.05.2010, one at the
06.04.2012 (both today under file number 2 BvR 710/12), and six of
them at the 30.06. 2012 (under file number 2 BvR 1445/12). In
addition to that, she has, at the 21.11.2012, filed to the
International Criminal Court (ICC) at The Hague a charge against
unknown regarding the suspicion of crime against humanity by damaging
the health of the Greeks (art. 7 par. 1 lit. k Roman Statute).
To the „ius cogens“ belong
prescriptions of international law with validity in many countries of
the world, regarding whom the vast majority of the countries holds
the legal point of view, that they have a particularly high rank
above the normal rank of international law. Among the „ius cogens“
is, as its highest part, the UN Charter (art. 103 UN Charter), but
are also the universal human rights of the United Nations (art. 1 no.
3 UN Charter, art. 28 UDHR, art. 29 no. 3 UDHR, no.
279-282 of the judgement of the EU Court of 1st
Instance on T-306/01 and the ICJ expert opinion of the 08.07. 1996
mentioned there), the
universal criminal law, the Geneva and Hague Conventions of
humanitarian law, several resolutions of the UN General Assembly,
several unwritten legal principles, i. a. .
The nullity according to art. 53 Vienna
Treaty Law Convention results, in this case, from an incurable
violation of the universal human rights and possibly from
incompability with art. 7 par. 1 lit. k Roman Statute. In addition to
that, several charges have been filed to the International Criminal
Court (ICC) for the suspicion, that by the conditions, on which the
IMF has cooperated as a part of the Troika, particularly in the scope
of the Greek debt restructuring via the EFSF, the health of the
Greeks has been damaged by large scale, systematical, and intentious
damaging of the health system and of the food supply, and that this
way a crime against humanity according to art. 7 par. 1 lit. k Roman
Statute has been committed. Already at 1988, the IMF employee Davison
Budhoo has, in his written notice to the IMF on the cancellation of
his job, accused the International Monetary Fund of genocide. In the
foreword of the German edition of his written notice „Genug ist
Genug“ („Enough is Enough“), which has been published by the
Heinrich Böll foundation, Budhoo has stated in 1991, that UNICEF
has, after a diligent investigation, confirmed his accusations of
genocide, at that UNICEF, in addition to that, has found, that the
IMF and the World Bank have, since 1982 (i. e. from a current
perspective within a period between 1982 and 1991) been world-wide
responsible for the death of up to seven million children under the
age of five years. If these numbers are correct, then in the whole
history of mankind only the IG-Farben / Nazi regime has, with
Holocaust and Second World War, caused more victims than IMF and
World Bank, which however, have caused significantly more victims
than Stalin, King Leopold, Mao, or Pol Pot.
In
section VI. of the constitutional complaint of the 06.04.2012 and
again in section IV.5 of the
constitutional
complaints of the 30.06.2012, on each about 40 pages, violations by
the IMF
especially
of the universal human rights to social security incl. social
insurance (art. 9 UN Social
Pact),
to food (art. 11 UN Social Pact), and to health (art. 12 UN Social
Pact) have been
shown,
particularly referring to the book „The Globalization of Poverty
and the New World Order“
by
the economist Prof. Dr. Michel Chossudovsky (Global Research), but
also referring to many
further
sources. This way, it has been proven to the Constitutional Court
already at the 06.04.2012,
that
the „practice“, i. e. the usual behaviour of the IMF, takes
nearly no consideration at all particu-
larly
to the social universal human rights, so that an obligation to a
strictness as in the „practice“ of
the
IMF is obviously incompatible to the universal human rights, and
this, according to art. 53
Vienna
Treaty Law Convention, makes the treaty void.
Starvation
has been caused by IMF condtions by cuts into food and fuel
subventions at Bolivia,
Indonesia,
Zambia, and Venezuela, by privatization and cuts into agrarian
subventions at Somalia,
by
the prohibition of the financial redistribution between federal level
and provinces as well as by
the
abolition of the family farmer seeds network at Ethiopia, by the
enforced sale of the emergency
food
reserves at Ethiopia, Malawi, and Niger, by the enforced shift from
food cultivation to tobacco
cultivation
at Malawi and Zimbabwe, by the abolition of food and fertilizer
subventions at India,
by
the abolition of agariarian subventions as well as by trade
liberalization at Bangla Desh, by the
introduction
of minimum farm sizes and by currency devaluation at Peru, and by
currency
devalution
and price liberalization at Russia.
One
reason of the creation of hunger at Greece has been, that the
absolute poverty line related to
Greek
costs of living has not been investigated before imposing the
austerity measures.
The
damaging of the health system by IMF conditions has been shown at the
examples of Albania,
Bangla
Desh, Brazil, Peru, Romania, Ruanda, Somalia, Vietnam, and in the
name of the euro most
detailed
at Greece. In addition to that, referring to an article of
Prisonplanet on a British study, it has
been
shown that the increase of the tuberculosis in the 1990ies in the
former eastern bloc countries
presumably
also goes on the account of the imf-like strictness.
The
damaging of the pensions has been shown at the examples of Brazil,
Greece, Latvia, and
Russia.
For this purpose, Brazil has even been forced to change its
constitution.
Greece
has been forced to introduce a blocked account for the preeminent
payment to the external
creditors,
which is going to be entrenched in the Greek constitution at 2013.
The blocked account
and
drastical cuts into the health system have been imposed at February /
March 2012, even though
the
Troika has known about the over-proportionally high indebtedness of
the social insurance and
of
the hospitals at least since its memorandum of understanding of July
2011.
As
Budhoo has exposed at 1991, also the tightening of credit conditions
of the World Bank by the
IMF
and the illegal addition of further political credit conditions to
the states drafted by big banks,
additionally
to those drafted by the IMF, belong to the „strictness“ of the
IMF. This practice is now
going
to be legalized for the first time within in the state insolvency
procedure of the ESM in the
way,
that the private creditors directly impose conditions on the states
on the basis of art. 12 par. 3
ESM
Treaty, of „collective action clauses“ connected to this in all
new government bonds, and of
changes
of the national laws
on the administrating of the public debts.
It
can however, remain debatable, if the strictness of art. 136 par. 3
s. 2 TFEU goes so far, that it
systematically
or broad scale goes up to the violaton of art. 7 Roman Statute,
because already the
obligation
to make conditions, whose strictness goes up to the incompability
with the universal
human
rights, leads to the nullity according to art. 53 Vienna Treaty Law
Convention. And the
universal
human rights set much earlier limits than the universal criminal law.
Regarding
art. 136 par. 3 s. 2 TFEU, it is to be added aggravatingly, that the
TFEU even claims to
have
a rank above the universal human rights (art. 1 TEU, art. 51 TEU,
declaration 17 in the appen-
dixes
of the TEU and the TFEU).
Regarding
the Lisbon judgement of the 30.06.2009, the voidness of the TEU has
been avoided at
that
time by deciding in no. 255 + 342 of the judgement, that all
prescriptions of the Common
Foreign
and Safety Policy (CFSP), among whom art. 21, 22, 42, and 43 TEU (in
connection with
the
EU Safety Strategy) would have allowed military interventions of the
EU all over the world on
the
basis of unclear legal terms like „crisis“ or „failed states“
and would have this way made the
prohibition
of aggressive war circumvenable, had to stay at a rank of normal
international law and
so
below the UN Charter with its prohibition of aggressive war (art. 2
par. 4 UN Charter, art. 103
UN
Charter). The decisive difference is, that at that time the judicial
limitation has been done before
the
enactment of the Lisbon Treaty.
Before
the 01.05.2013, the Constitutional Court has had the possibility to
judge, that simply the
second
sentence with the obligation to the „strictness“ must not be
enacted, because for the enabling
of
the mechanisms as such only the first sentence would be enough. Or it
could have judged, that
the
extent of the strictness as in the „practice“ of the IMF only
results from an important document
of
the time of the developing of art. 136 par. 3 s. 2 TFEU, and that it
is not included in the text
itself.
The creation of a more important document, e. g. of a a reservaton of
all member states under
international
law, or even only of a declaration of the Prime Ministers, that the
„strictness“ may
only
go as far, as the universal human rights allow it, would certainly
have been more important for
the
interpretation than the statement of the economical and financial
ministers of the 10.05.2010.
This
would have been no problem before the 01.05.2013. But it is very
questionable, if this is still
possible
after the enactment.
The
second senate of the Constitutional Court has now three possibilites.
Firstly, it can ignore the
voidness
of the TFEU and so pave the way into a Europe-wide dictatorship. Its
actions at the 19.
04.2013
and the 22.04.2013 according to press declarations of the
Constitutional Court hint to this
direction.But
this has been before the 02.05.2013. Secondly, it can confirm the
voidness of the
TFEU
and so help the EU to get to a temporary inability to act and to a
relieving adjournment for a
more
human new start. Or the senate perhaps still finds a solution, how to
limit the „strictness“ even
after
the enactment of art. 136 par. 3 TFEU. According to the legal point
of view of the civic and
human
rights activist, this, however, would have to been done before the
enactment, because art. 53
Vienna
Treaty Law Convention does not provide for any later possibility of
repair.
At
the 12.09.2012, the same senate has had rejected the applications to
interim injunction of the
other
5 groups of plaintiffs, and has decided, in addition to that, that
from that judgement on the
senate
only applies the structure principle democracy and the basic right to
vote (but no other basic
rights,
structure principles, and universal human rights any more), in order
to avoid political or
economical
damages, which could arise in the case of a bankruptcy of any state
of the eurozone.
In
addition to that, it has been decided at the 12.09.2012, that Germany
has to preliminarily pay
every
capital requirement by the ESM (without any possibility to withhold
the payment for the prior
check
of the legality of the requirement). And that in combination with the
denial of any protection
by
the Constitutional Court even to life, human dignity, health, or
property.
The
preliminary judgement of the 12.09.2012 collides particularly clearly
with the state obligation
„European
integration“ (art. 23 par. 1 s. 1 Basic Law), according to which
Germany is obliged,
„for
the realization of a united Europe“ to be involved „in the
European Union“, „which is obliged
to
democratical, rule of the law, social, and federal principles and to
the principle of subsidiarity,
and
which guarantees a protection of basic rights, which is essentially
comparable to the Basic
Law.“
Incompatible
to this state obligation is letting happen, with open eyes, the
voidness of the TFEU, is
the
unequal conducting of the case in collision with rule of the law, is
the denial of the senate's
protection
for all basic rights, structure principles, and universal human
rights – except for
democracy
and the right to vote, is to let happen fait accompli before the
investigation of all
decisive
and new legal questions.
With
letter of the 12.04.2013, Sarah Luzia Hassel-Reusing has filed new
urgent applications to
interim
injunction, in order toe at least preliminary prohibit the imf-like
strictness of the conditions.
In
addition to that, she examined very concrete further direct and
indirect connections of persons of
the
fincance elitist Bilderberg network to constitutional judges and to
the group of plaintiffs using
the
NGO „Mehr Demokratie“. Finally, she also has shown presumable
militarist efforts of parts of
the
Bilderberg network in order to underline the necessity to distance
oneself from that network,
and
be it by declaring oneself as biased. At the 19.04.2013, the senate
has set the oral hearing in the
main
case for the other 5 groups of plaintiffs to the 11.+12.06.2013. The
structuring of the hearing
does
not include the re-application of the other basic rights, structure
principles, and human rights,
but
only focuses, based on the preliminary judgement of the 12.09.2012,
to further prescribe, how
that
judgement shall be implemented. And at the 22.04.2013, a delegation
of the senate under the
lead
of the President of the Constitutional Court, Prof. Dr. Voßkuhle,
has met, i. a., the President of
the
EU Commissioin (and Bilderberger) Jose Manuel Barroso. At the
02.05.2013, she has not only
applied
to state the voidness of the TFEU, but besides that, she also applied
to state the suspected
bias
of Prof. Dr. Voßkuhle with regard to his cooperation, i. a., with
Mr. Barroso and with Mr.
Minister
of Finance Dr. Wolfgang Schäuble at the new foundation for the
university of Freiburg. At
the
same university, Prof. Dr. Voßkuhle is working in his second job.
Since the enactment of the Lisbon
Treaty, the existence of the European Union is based on art. 1 TEU,
so that the EU, even though the voidness of the TFEU, further exists.
The existence of the most important institutions of the EU is based
on art. 13 TEU and also remains unaffected by the voidness of the
TFEU. Also the other contents of the TEU remain.
Also the EU Basic Rights Charter
remains unaffected as well as art. 6 TEU, which makes the EU Basic
Rights Charter binding. The protocols and declarations in the
appendixes of TEU and TFEU also remain though the cessation of the
TFEU, because the TEU still exists.
With the voidness of the TFEU at the
01.05.2013, however, the organs of the EU have, as far as their
powers are based on the TFEU, become unable to act and so are given
an adjournment. All actions, which are executed on the basis of an
international treaty, which is void according to art. 53 Vienna
Treaty Law Convention, have to be undone according to art. 71 Vienna
Treaty Law Convention, as far as they have been executed since the
beginning of the voidness. The creation of a new TFEU requires,
according to art. 46 TEU, first a new EU Convent. That means enough
time to create a new TFEU, which respects the preeminence of the
national constitutions, of the UN Charter, and of the universal human
rights.
The legal basis to initiate and to
conclude EU regulations, EU guidelines, EU recommendations, and EU
opinions (art. 288 TFEU), has vanished at the 01.05.2013. The EU
secondary law created before the 01.05.2013, however, remains
unaffected by that.
The biggest result ist, that the EU is,
until the creation of a new TFEU, unable to conclude EU regulations,
neither for obscuring (file number 2012/0011 (COD)), nor on seeds,
nor to switch off refrigerators.
The own legal personality of the EU
(art. 47 TEU) remains. The legal basis in the TFEU for the EU
Commission to conclude international treaties, however, has vanished,
so that the EU Commission, since the 01.05.2013, cannot conclude
valid international treaties any more. This is important, i. a., for
the considered transatlantical economical union and for the
cooperation of the EU Commission on memoranda of understanding within
the scopa of EFSF and ESM, because also memoranda of understanding
are international agreements.
The existence of the currency euro,
which is based on art. 3 par. 4 TEU, remains unaffected by the
voidness of the TFEU, also the existence of the ECB, which is based
on art. 13 TEU. Also protocol no. 4 on the European system of central
banks remains. The basical obligation of the EU member states to the
euro, however, has vanished with the TFEU. All powers of the ECB, as
far as they are based only on the TFEU, have fallen apart at the
01.05.2013.
The prescriptions of the TFEU on the
euro have become void at the 01.05.2013. Among them is art. 126
TFEU, so that any further steps regarding the Stability and Growth
Pact since the 01.05.2013 are illegal because of the vanished legal
basis in the EU Primary Law, even though the respective EU
regulations further exist. With the vanishing of art. 121 TFEU, also
the regualtions on the imbalance procedure and on the preventive
component of the Stability and Growth Pact have lost their basis in
the EU Primary Law. While these regulations to a large part, but not
completely, have already been ultra-vires in comparison to art. 121
TFEU and to art. 126 TFEU (sections V.2 – V.7 of the constitutional
complaints of the 30.06.2012), they may not be applied any further in
view of the vanishing of art. 121 and art. 126 TFEU, at least until
the creation of a new TFEU with respective new legal foundations in
EU Primary Law. Art. 122 TFEU as the basis in the EU Primary Law for
the „Greece Support“ and the EFSM has also vanished.
The EFSF Framework Treaty and the ESM
Treaty as such remain even though the vanishing of the TFEU. Another
question is, if the EFSF Framework Treaty and the ESM Treaty have to
be prohibi-ted for other reasons. The EU institutions (EU Commission
and ECJ), however, cannot be lent any more to these mechanisms within
the scope of enhanced cooperation (art. 20 TEU), because the
establishing of the areas of shared competence in art. 4 TFEU, for
which an enhanced cooperation according to art. 20 TEU is possible,
has vanished with the vanishing of the TFEU, so that the
authorization in art. 20 TEU points to nothing.
The far-reaching inability to act of
the organs of the EU also results from the vanishing of the
prescriptions of art. 2 TFEU to art. 6 TFEU, which contain the
distribution of powers between the EU and the member states.
The statutes of the ECJ further exit.
The powers of the ECJ, as far as they are based on the TFEU, have,
however, vanished at the 01.05.2013. Decisions of the ECJ before the
01.05.2013 remain unaffected by this.
The supranationality from the
perspective of the EU law has ceased to apply since the voidness of
the TFEU. Because declaration no. 17 to the TFEU and the TEU
prescribes, that the TFEU stands above the national constitutions.
According to art. 51 TEU, declaration no. 17 remains valid and
equal-ranking to the TEU. But with the cessation of the TFEU, there
is no TFEU any more, which could stand above the national
constitutions. And art. 1 TEU, which prescribes the equal rank
between TEU and TFEU, points into a vacuum. But this does not refer
to the existence, but only to the rank of the TEU. As a result, the
TEU and the protocols and declarations in the appendixes to it have
fallen to a rank of normal international law.
So the greed of the self-appointed
„markets“ and the ignorance of decision-makers in policy and
judiciary regarding the universal human rights have, with their
short-sightedness, destroyed the TFEU and have so unwillingly paved
the way for a possible more human new start of the EU in conformity
with the constitutions and the human rights, or even for the winding
up of the EU.
V.i.S.d.P.:
Sarah Luzia Hassel-Reusing, Thorner
Str. 7, 42283 Wuppertal (Germany)
Tel. +49/202/2502621
Links:
status
of ratification of art. 136 par. 3 TFEU
constitutional
complaints of the 30.06.2012 with file number 2 BvR 1445/12 (incl.
referral to
sources
on the human rights violations of the IMF)
constitutional
complaints and letters to the court
article
„wie ein Bannkreis der Angst“ on the draft obscuring resolution
of the EU (2012/0011(COD)
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