Thursday, 21 February 2008

EU TFEU: Support, coordinate and supplement

There are at least three kinds of changes to look out for, when we try to make sense of what the Treaty of Lisbon means for the European Union (EU):

1) Where do the amended treaties, the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU) introduce substantial or material changes?

2) When do the differences aim at better methodology or presentation?

3) Which amendments, including most horizontal ones, merely result from certain choices of terminology followed throughout?

The provisions introducing EU (‘Community’) competences in the TFEU offer us examples from each group.

You are offered an opportunity to test your own thinking, based on the following presentation.


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The intergovernmental conference decided to supplement its exposition of EU competences by inserting an Article 2e TFEU in the Treaty of Lisbon (ToL). See OJ 17.12.2007 c 306/47:

Article 2e TFEU (ToL), after renumbering Article 6 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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Going backwards we can compare TFEU Article 2e of the Lisbon Treaty with its nearest antecedent, Article I-17 Areas of supporting, coordinating or complementary action of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/17):

Article I-17
Areas of supporting, coordinating or complementary action

The Union shall have competence to carry out supporting, coordinating or complementary action. 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, youth, sport and vocational training;

(f) civil protection;

(g) administrative cooperation.

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The differences between the corresponding Articles in the ToL and the Constitution are minute (supplement / complement).

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The basis for the IGC 2004 which agreed on the Constitutional Treaty was the European Convention and its draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/11):

Article I-16
Areas of supporting, coordinating or complementary action

1. The Union may take supporting, coordinating or complementary action.

2. The areas for supporting, coordinating or complementary action shall be, at European level:

— industry,

— protection and improvement of human health,

— education, vocational training, youth and sport,

— culture,

— civil protection.

3. Legally binding acts adopted by the Union on the basis of the provisions specific to these areas in Part III may not entail harmonisation of Member States' laws or regulations.

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There are some differences between the draft Constitution and the Constitution. Let us take a closer look.

If we disregard the changes which appear to be only of an editorial nature, we notice the addition of two areas between the Convention and the Constitution. The IGC 2004 added tourism and administrative cooperation.

Dropping paragraph 3 of the Convention draft does not extend EU powers to harmonise member states’ legislation, since Article 12(5) of the Constitutional Treaty (OJ 16.12.2004 C 310/15) and Article 2a(5) TFEU (ToL) already provide this restriction:

Article 2a(5) TFEU (ToL)

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have
competence to carry out actions to support, coordinate or supplement the actions of the
Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating
to these areas shall not entail harmonisation of Member States' laws or regulations.

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The Constitution and the Convention are only intermediary stages in a long reform process leading up to the Lisbon Treaty. The meaningful comparison, from a material point of view, is what the Reform Treaty changes compared to the current treaties.

Let us look briefly at the different areas. What stays the same? What is new and when was it introduced?

The general, but less systematic presentation in the existing Article 3 TEC offers us a picture of the activities of the European Community (latest consolidated version OJ 29.12.2006 C 321 E/44-45).


Article 3 TEC

1. For the purposes set out in Article 2, the activities of the Community shall include, as provided in this Treaty and in accordance with the timetable set out therein:

(a) the prohibition, as between Member States, of customs duties and quantitative restrictions on the import and export of goods, and of all other measures having equivalent effect;

(b) a common commercial policy;

(c) an internal market characterised by the abolition, as between Member States, of obstacles to the free movement of goods, persons, services and capital;

(d) measures concerning the entry and movement of persons as provided for in Title IV;

(e) a common policy in the sphere of agriculture and fisheries;

(f) a common policy in the sphere of transport;

(g) a system ensuring that competition in the internal market is not distorted;

(h) the approximation of the laws of Member States to the extent required for the functioning of the common market;

(i) the promotion of coordination between employment policies of the Member States with a view to enhancing their effectiveness by developing a coordinated strategy for employment;

(j) a policy in the social sphere comprising a European Social Fund;

(k) the strengthening of economic and social cohesion;

(l) a policy in the sphere of the environment;

(m) the strengthening of the competitiveness of Community industry;

(n) the promotion of research and technological development;

(o) encouragement for the establishment and development of trans-European networks;

(p) a contribution to the attainment of a high level of health protection;

(q) a contribution to education and training of quality and to the flowering of the cultures of the Member States;

(r) a policy in the sphere of development cooperation;

(s) the association of the overseas countries and territories in order to increase trade and promote jointly economic and social development;

(t) a contribution to the strengthening of consumer protection;

(u) measures in the spheres of energy, civil protection and tourism.

2. In all the activities referred to in this Article, the Community shall aim to eliminate
inequalities, and to promote equality, between men and women.

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Existing areas

The following areas mentioned in the TFEU (ToL) are already covered by detailed TEC provisions:

(a) Complementing member states’ activities for human health protection is elaborated in Article 152 TEC. (Article III-179 draft Constitution, Article III-278 Constitution).

(b) Actions to ensure that the conditions necessary for the competitiveness of the Community's industry exist are elaborated in Article 157 TEC. (Article III-180 draft Constitution, Article III-279 Constitution)

(c) Cultural cooperation is covered in Article 151 TEC. (Article III-181 draft Constitution, Article III-280 Constitution).

(e) Article 149 TEC takes up education, vocational training and youth. (Articles III-182 and III-183 draft Constitution, Articles III-282 and III-283 Constitution).

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“Orphans”

Civil protection and tourism, introduced by the Treaty of Maastricht, are mentioned in Article 3(1)(u) TEC, but lack material provisions. This means that action has relied on and been confined to the unanimity and other requirements of the flexibility clause, Article 308 TEC.

These “orphans” were “adopted” by giving them “parents” in the form of substantial provisions in the following way:

Civil protection (f) was taken up and given a substantial provision by the Convention, Article III-184 draft Constitution. (Article III-284 Constitution).

Tourism (d) was accorded the same treatment only by the IGC 2004, with the material Constitutional Treaty Article III-281.

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New areas

Sport (e) was introduced by the Convention, inserted into the substantial Article III-182 draft Constitution. (Article III-282 Constitution).

Administrative cooperation (g) was introduced by the Convention, with Article III-185 of the draft Constitution offering contents. (Article III-285 Constitution).

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If you want to get a closer look at EU supporting action in a certain area, your next stop would be to look up the relevant TFEU provision in the Reform Treaty (and, perhaps, trace the changes from its antecedents).

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We can see that both the Convention and the IGC 2004 contributed towards the ToL novelties concerning EU action to support, coordinate or supplement the actions of the member states, but that the IGC 2007 added nothing to what had been reached in the previous intergovernmental conference.


Ralf Grahn