Friday, 22 February 2008

EU TFEU: Consistency

Today we start to look at a new Title in the Treaty of Lisbon, with Provisions having general application, meaning that they apply across the Treaty on the Functioning of the European Union (TFEU).

Out of academic interest, we run a genetics test on a newborn provision.


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In the Treaty of Lisbon (ToL) the Treaty establishing the European Community (TEC), under its new name, the Treaty on the Functioning of the European Union (TFEU), Part One of the treaty introduces a Title II Provisions having general application.

At the beginning of Title II, the intergovernmental conference (IGC 2007) inserted a new Article 2f into the Treaty of Lisbon, under (OJ 17.12.2007 C 306/47):

Article 2f TFEU (ToL), to be renumbered Article 7 TFEU

The Union shall ensure consistency between its policies and activities, taking all of its objectives
into account and in accordance with the principle of conferral of powers.

***

When we turn to the corresponding Article III-115 in the Treaty establishing a Constitution for Europe, we notice that it stands at the beginning of Part III The policies and functioning of the Union and its Title I Provisions of general application.

We have often looked at the similarities between corresponding Articles in the Lisbon Treaty, the Constitution and the draft Constitution, but here we have an opportunity to notice how much in common the different versions have structurally. Part III on the … functioning of the Union reminds us of the Treaty on the Functioning of the European Union.

And the Title level headings are almost identical between the Lisbon Treaty and the Constitution.

The likeness does not end there, as you see if you read Article III-115 of the Constitutional Treaty and notice only a small change of style (OJ 16.12.2004 C 310/55):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
PROVISIONS OF GENERAL APPLICATION

Article III-115

The Union shall ensure consistency between the policies and activities referred to in this Part, taking all of its objectives into account and in accordance with the principle of conferral of powers.

***

Next, our Time Machine takes us to the draft Treaty establishing a Constitution for Europe. We look at both the structure and the wording (OJ 18.7.2003 C 169/29):

PART III
THE POLICIES AND FUNCTIONING OF THE UNION

TITLE I
CLAUSES OF GENERAL APPLICATION

Article III-1

The Union shall ensure consistency between the different policies and activities referred to in this Part, taking all of the Union's objectives into account and in accordance with the principle of conferring of powers.

***

As you can see, there is not much between the three versions, and since the provision is new, it leads to the conclusion that after a few years of stagnation we might actually be allowed to benefit from the work of the European Convention.

***

The origins of Article 2f TFEU (ToL) have been attributed differently. The UK Foreign and Commonwealth Office (FCO) rounds up the widest circle of suspects, four different Articles:

“Draws on Articles 1 and 3 TEU, and Articles 5 and 7 TEC.”

The number of paternity candidates does not matter that much, although it is intriguing how a short Article like 2f TFEU can draw on such an extensive gene pool, but each of them gives us an opportunity to get acquainted with the TEU and TEC, the treaties in force. For the latest consolidated version of the current treaties we go to OJ 29.12.2006 C 321 E/1.

So, out of academic interest, let us see what Article 1 TEU has to offer:

Article 1 TEU

By this Treaty, the HIGH CONTRACTING PARTIES establish among themselves a EUROPEAN
UNION, hereinafter called ‘the Union’.

This Treaty marks a new stage in the process of creating an ever closer union among the peoples
of Europe, in which decisions are taken as openly as possible and as closely as possible to the
citizen.

The Union shall be founded on the European Communities, supplemented by the policies and
forms of cooperation established by this Treaty. Its task shall be to organise, in a manner
demonstrating consistency and solidarity, relations between the Member States and between their
peoples.

***

Article 1 TEU at least gave us ‘policies’ and ’consistency’, and Article 3 TEU mentions ‘activies’ and ‘consistency’ (thrice):

Article 3 TEU

The Union shall be served by a single institutional framework which shall ensure the consistency
and the continuity of the activities carried out in order to attain its objectives while respecting and building upon the acquis communautaire.

The Union shall in particular ensure the consistency of its external activities as a whole in the
context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.

***

Article 5 TEC seems to contribute with ’powers conferred’ and ‘objectives’:

Article 5 TEC

The Community shall act within the limits of the powers conferred upon it by this Treaty and of
the objectives assigned to it therein.

In areas which do not fall within its exclusive competence, the Community shall take action, in
accordance with the principle of subsidiarity, only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale or effects of the proposed action, be better achieved by the Community.

Any action by the Community shall not go beyond what is necessary to achieve the objectives of
this Treaty.

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Beaming with pride, Article 7 TEC lays claim to the striking family resemblance with its ‘powers conferred’:

Article 7 TEC

1. The tasks entrusted to the Community shall be carried out by the following institutions:
— a EUROPEAN PARLIAMENT,
— a COUNCIL,
— a COMMISSION,
— a COURT OF JUSTICE,
— a COURT OF AUDITORS.

Each institution shall act within the limits of the powers conferred upon it by this Treaty.

2. The Council and the Commission shall be assisted by an Economic and Social Committee
and a Committee of the Regions acting in an advisory capacity.

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We do not know if Article 2f TFEU is going to survive the perilous times of infant mortality that EU treaties are prone to before ratification, but we know that newborn has inherited a number of its noble traits from its elders.


Ralf Grahn


Source:

Foreign and Commonwealth Office: A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon; Command Paper (Cm) 7311; 21 January 2008;
http://www.official-documents.gov.uk/document/cm73/7311/7311.asp