Saturday, 26 January 2008

EU Treaty of Lisbon: Separate powers and rules

The European Community (EC) is merged into the European Union (EU), but the separate powers and procedures remain for the ‘Community’ areas and the intergovernmental common foreign and security policy (CFSP).

We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.

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In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):

45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:

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Article 25b

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.

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Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):

Article 46(f)

The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:

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(f) Articles 46 to 53.

Article 47

Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.

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We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.

The following Articles then indicate in which areas the different competences (powers) apply:

Article 2 B TFEU

1. The Union shall have exclusive competence in the following areas:

(a) customs union;

(b) the establishing of the competition rules necessary for the functioning of the internal
market;

(c) monetary policy for the Member States whose currency is the euro;

(d) the conservation of marine biological resources under the common fisheries policy;

(e) common commercial policy.

2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.


Article 2 C TFEU

1. The Union shall share competence with the Member States where the Treaties confer on
it a competence which does not relate to the areas referred to in Articles 2 B and 2 E.

2. Shared competence between the Union and the Member States applies in the following
principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have
competence to carry out activities, in particular to define and implement programmes;
however, the exercise of that competence shall not result in Member States being prevented
from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have
competence to carry out activities and conduct a common policy; however, the exercise of that
competence shall not result in Member States being prevented from exercising theirs.


Article 2 D TFEU

1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.

Specific provisions shall apply to those Member States whose currency is the euro.

2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.

3. The Union may take initiatives to ensure coordination of Member States' social policies.


Article 2 E TFEU

The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:

(a) protection and improvement of human health;

(b) industry;

(c) culture;

(d) tourism;

(e) education, vocational training, youth and sport;

(f) civil protection;

(g) administrative cooperation.

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We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):

Article III-209

The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.

The Court of Justice shall have jurisdiction to monitor compliance with this Article.

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Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):

Article III-308

The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.

Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.

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The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).

The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.

The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.

The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.

This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:

Article 240a TFEU

The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.

However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.

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Financial provisions for the CFSP are next in line.


Ralf Grahn