At least from a Nordic perspective, this kind of lawmaking is like a return decades back in time. It is as if they had invented an inverted open method of coordination with worst practice benchmarking.
The ‘conference of representatives of the Member States’ (IGC 2007) has been convened to impart that the territorial scope of the Treaties is to be deduced by combining parts of a current Article with a set of prescribed amendments.
The text is gibberish or Volapûk for the reader of the Treaty of Lisbon, a completely unnecessary obfuscation of the information to be imparted, when it would have been simpler to write down the complete Article as amended.
In part one we saw that the Treaties apply to the member states, and we recapitulated the enlargement process and the consequent widening territorial or geographical scope of the Treaties. In this second part of the article we can turn our attention to more arcane details of applicability in the light of the Lisbon Treaty, although naming concrete territories and the expounding the limits of applicability would require further study.
Our next stop is obvious, Article 311a of the Treaty on the Functioning of the European Union (TFEU) where we see that the IGC is back at its enlightening best (OJ 17.12.2007 C 306/132):
293) Article 311 shall be repealed. A new Article 311a shall be inserted, with the wording of Article 299(2), first subparagraph, and Article 299(3) to (6); the text shall be amended as follows:
(a) the first subparagraph of paragraph 2 and paragraphs 3 to 6 shall be renumbered 1 to 5 and the following new introductory wording shall be inserted at the beginning of the Article:
‘In addition to the provisions of Article 49 C of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:’;
(b) at the beginning of the first subparagraph of paragraph 2, renumbered 1, the words ‘the French overseas departments,’ shall be replaced by ‘Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin’ and the words ‘in accordance with Article 299’ shall be added at the end;
(c) in paragraph 3, renumbered 2, the words ‘of this Treaty’ shall be deleted;
(d) in paragraph 6, renumbered 5, the introductory words ‘Notwithstanding the preceding paragraphs:’ shall be replaced by ‘Notwithstanding Article 49 C of the Treaty on European Union and paragraphs 1 to 4 of this Article:’;
(e) the following new paragraph shall be added at the end of the Article:
‘6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.’.
We already saw the current Article 299 TEC in part one. While the application of the Treaties to the member states was elevated to the Treaty on European Union (TEU), the rest was left in the more mundane TFEU, but given a new number. Following the instructions given by our games organizers, we should end up with an Article 311a TFEU looking like this:
Article 311a TFEU
In addition to the provisions of Article 49c of the Treaty on European Union relating to the territorial scope of the Treaties, the following provisions shall apply:
1. The provisions of this Treaty shall apply to Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands in accordance with Article 299.
2. The special arrangements for association set out in Part Four shall apply to the overseas countries and territories listed in Annex II.
The Treaties shall not apply to those overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland which are not included in the aforementioned list.
3. The provisions of the Treaties shall apply to the European territories for whose external relations a Member State is responsible.
4. The provisions of the Treaties shall apply to the Åland Islands in accordance with the provisions set out in Protocol 2 to the Act concerning the conditions of accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden.
5. Notwithstanding Article 49c of the Treaty on European Union and paragraphs 1 to 4 of this Article:
(a) the Treaties shall not apply to the Faeroe Islands;
(b) this Treaty shall not apply to the United Kingdom Sovereign Base Areas of Akrotiri and Dhekelia in Cyprus except to the extent necessary to ensure the implementation of the arrangements set out in the Protocol on the Sovereign Base Areas of the United Kingdom of Great Britain and Northern Ireland in Cyprus annexed to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the European Union and in accordance with the terms of that Protocol;
(c) the Treaties shall apply to the Channel Islands and the Isle of Man only to the extent necessary to ensure the implementation of the arrangements for those islands set out in the Treaty concerning the accession of new Member States to the European Economic Community and to the European Atomic Energy Community signed on 22 January 1972.
6. The European Council may, on the initiative of the Member State concerned, adopt a decision amending the status, with regard to the Union, of a Danish, French or Netherlands country or territory referred to in paragraphs 1 and 2. The European Council shall act unanimously after consulting the Commission.
We start with the rule that the Treaties apply to the territories of the member states (Article 49c TEU).
Territories outside Europe
Article 311a(1) TFEU includes the French, Portuguese and Spanish extra-European territories: Guadeloupe, French Guiana, Martinique, Réunion, Saint-Barthélemy, Saint-Martin, the Azores, Madeira and the Canary Islands.
As territories the Treaties are applicable pursuant to the main rule, but in accordance with the amended Article 299 TFEU the structural and economic situation of these territories is taken into account.
The situation is said to be compounded by their remoteness, insularity, small size, difficult topography and climate, economic dependence on a few products, the permanence and combination of which severely restrain their development. Therefore specific measures are allowed, aimed at laying down the conditions of application of the Treaties, including common policies.
The measures may concern particularly customs and trade policies, fiscal policy, free zones, agriculture and fisheries policies, conditions for supply of raw materials and essential consumer goods, state aids and conditions of access to structural funds and to horizontal Union programmes.
Associated overseas territories
According to Article 311a(2) special arrangements for association apply to the following overseas countries and territories listed in Annex II (taken from OJ 29.12.2006 C 321 E/186):
OVERSEAS COUNTRIES AND TERRITORIES
to which the provisions of Part Four of the Treaty apply
— New Caledonia and Dependencies
— French Polynesia
— French Southern and Antarctic Territories
— Wallis and Futuna Islands
— Saint Pierre and Miquelon
— Netherlands Antilles:
— Sint Eustatius
— Sint Maarten
— Cayman Islands
— Falkland Islands
— South Georgia and the South Sandwich Islands
— Saint Helena and Dependencies
— British Antarctic Territory
— British Indian Ocean Territory
— Turks and Caicos Islands
— British Virgin Islands
The association system is described in the current Articles 182 to 186 TEC, which live on with minimal change in the TFEU.
The Treaties do not apply to overseas countries and territories having special relations with the United Kingdom of Great Britain and Northern Ireland not included in the list.
Responsibility for external relations
The Treaties apply to the European territories for whose external relations a Member State is responsible.
A European territory, the Åland Islands form an autonomous region of Finland with extended legislative powers and self-rule.
The relationship with the European Union was agreed in a protocol attached to the Accession Treaty of 1994, and one could speak of modified applicability.
European territories outside the Treaties
Although European, the territories mentioned in 311a(5) are not applicable to the Faeroe Islands and only marginally to the UK bases in Cyprus and to the Channel Islands and the Isle of Man.
While waiting for the (hopefully complete) consolidated versions of the Treaty of Lisbon, the student who wants to find general guidance on additional questions of applicability could find some useful information in Protocol (number 8) on the Treaties and Acts of Accession of the Kingdom of Denmark, Ireland and the United Kingdom of Great Britain and Northern Ireland, of the Hellenic Republic, of the Kingdom of Spain and the Portuguese Republic, and of Austria, the Republic of Finland and the Kingdom of Sweden, in the form they were attached to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/274).
There are, for instance, provisions on Gibraltar, the Faroe Islands, the Channel Islands and the Isle of Man, Ceuta and Melilla and the Åland Islands.
Protocol (number 9) to the Constitutional Treaty contains, i.a. provisions on the sovereign base areas of the UK in Cyprus (page 328) as well as the suspension of the EU and EC ‘acquis’ in the areas of Cyprus outside the effective control of the government (page 341).