Wednesday, 6 February 2008

EU Treaty of Lisbon: Protocols and Annexes

In the Treaty of Lisbon version of the Treaty on European Union (TEU), among the Final provisions, we find the new Article 49b (OJ 17.12.2007 C 306/40), slim as the lid of Pandora’s box:

59) The following Article 49 B shall be inserted:

Article 49 B

The Protocols and Annexes to the Treaties shall form an integral part thereof.


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There is no corresponding Article in the existing TEU, but Article 311 of the Treaty establishing the European Community (TEC) has the following wording (for the latest consolidated version of the TEU and TEC go to OJ 29.12.2006 C 321 E):

Article 311

The protocols annexed to this Treaty by common accord of the Member States shall form an integral part thereof.


According to the Lisbon Treaty, Article 311 TEC is repealed (OJ 17.12.2007 C 306/132, point 293).


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Since the European Convention’s draft Treaty establishing a Constitution for Europe was unified, the corresponding Article IV-6 referred to the whole Treaty (OJ 18.7.2003 C 169/92):

Article IV-6
Protocols

The protocols annexed to this Treaty shall form an integral part thereof.

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The same unified structure applied to the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/189):

Article IV-442
Protocols and Annexes

The Protocols and Annexes to this Treaty shall form an integral part thereof.

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In the law of the European Union, a new legal order, the Treaties are primary legislation. Currently the Treaties are the Treaty on European Union (TEU) and the Treaty establishing the European Community (TEC). If the Treaty of Lisbon enters into force, there would be the amended Treaty on European Union (TEU) and the amended and renamed Treaty on the Functioning of the European Union (TFEU).


The current TEC speaks of the protocols as an integral part of the Treaty, as did the draft Constitution. The Constitution added the Annexes to the Protocols (annexed to the Treaty by common accord), as does the Lisbon Treaty. The scope of the provision widens from the EC to the EU.

The Protocols form an integral part of the Treaties, and they are ratified as such. They have legal force, and they can contain detailed provisions meant not to burden the Treaty texts themselves.

The Declarations have political force, but are not to be legally binding. There have been joint Declarations, based on common accord, and unilateral Declarations made by one or more member states, but not politically binding on the whole.

The new wording ‘and Annexes’ merits attention. The UK House of Commons new Research Paper (page 75) a bit hastily says that Article 49b “like the present Article 311 TEC, states that the Protocols and Annexes will form an integral part of the Treaties”.

As we have seen, the words “and Annexes” have been added, although Article 311 TEC uses the phrase “(t)he protocols annexed to this Treaty by common accord of the Member States”. But the conclusion of the Research Paper seems sound:

“This is a new clause in the TEU, extending the application of current Article 311 TEC, which is repealed. It means the Protocols and Annexes will have the full legal effect of the Treaty articles themselves. This is not the case for Declarations attached to the Treaties.”

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We can now take a look at how the intergovernmental conference (IGC 2007) has structured its Final Act (OJ 2007/C 306/02).

As far as I understand, the legally binding parts are:

I the TEU and the TFEU

II the Protocols, namely:

A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community

B. Protocols annexed to the Treaty of Lisbon

III. Annex to the Treaty of Lisbon (tables of equivalences)

They form an integral part of the Treaties.



FINAL ACT (OJ 17.12.2007 C 306/229)

THE CONFERENCE OF THE REPRESENTATIVES OF THE GOVERNMENTS OF THE MEMBER STATES,
convened in Brussels on 23 July 2007 to adopt by common accord the amendments to be made to theTreaty on European Union, the Treaty establishing the European Community, and to the Treaty establishing the European Atomic Energy Community, has adopted the following texts:

I. The Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community

II. Protocols

A. Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community, and/or the Treaty establishing the European Atomic Energy Community:
— Protocol on the role of national Parliaments in the European Union
— Protocol on the application of the principles of subsidiarity and proportionality
— Protocol on the Euro Group
— Protocol on permanent structured cooperation established by Article 28 A of the Treaty on European Union
— Protocol relating to Article 6(2) of the Treaty on European Union on the accession of the Union to the European Convention on the Protection of Human Rights and Fundamental Freedoms
— Protocol on the internal market and competition
— Protocol on the application of the Charter of Fundamental Rights of the European Union to Poland and to the United Kingdom
— Protocol on the exercise of shared competence
— Protocol on services of general interest
— Protocol on the Decision of the Council relating to the implementation of Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union between 1 November 2014 and 31 March 2017 on the one hand, and as from 1 April 2017 on the other
— Protocol on transitional provisions

These are mainly new Protocols, some of them derived from the Constitutional Treaty and some the result of the IGC 2007 negotiations.

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B. Protocols annexed to the Treaty of Lisbon
— Protocol No 1 amending the Protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or to the Treaty establishing the European Atomic Energy Community
— Tables of equivalences referred to in Article 2 of Protocol No 1 amending the protocols annexed to the Treaty on European Union, to the Treaty establishing the European Community and/or the Treaty establishing the European Atomic Energy Community
— Protocol No 2 amending the Treaty establishing the European Atomic Energy Community

Behind Protocol 1 of this group we find adaptations to 26 existing Protocols, including rules for the Court of Justice and the European Central Bank, as well as traditional opt-outs from areas of Community (EU) law for the United Kingdom, Ireland and Denmark.

Ten redundant Protocols are repealed according to the count of the Swedish government (page 398).

Protocol number 2 is an adaptation of the Treaty establishing the European Atomic Energy Community (EAEC). – In Declaration 54 the Federal Republic of Germany, Ireland, the
Republic of Hungary, the Republic of Austria and the Kingdom of Sweden note that the core provisions of the Treaty establishing the European Atomic Energy Community have not been substantially amended since its entry into force and need to be brought up to date. They therefore support the idea of a Conference of the Representatives of the Governments of the Member States, which should be convened as soon as possible.


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III. Annex to the Treaty of Lisbon:
— Tables of equivalences referred to in Article 5 of the Treaty of Lisbon

This binding Annex contains the tables with the numbering of the current TEU, the original numbering of the Treaty of Lisbon and the numbering for the future consolidated TEU. The same goes for the TEC, the Treaty of Lisbon and the consolidated TFEU.

In addition to the current, Lisbon and future numbers of Articles, we have the Lisbon Treaty itself, divided into seven Articles. “Article 5 of the Treaty of Lisbon” refers to this numbering, under the Final Provisions in the Official Journal, page 133, where the renumbering is ordered:

Article 5(1) ToL
1. The articles, sections, chapters, titles and parts of the Treaty on European Union and of the
Treaty establishing the European Community, as amended by this Treaty, shall be renumbered in accordance with the tables of equivalences set out in the Annex to this Treaty, and which form an integral part of this Treaty.

The reader who feels slightly bewildered is excused.


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The Declarations adopted by the IGC 2007 are annexed to the Final Act, but not to the Treaty. The joint Declarations would still be politically but not legally binding on the member states as a whole. There are two groups of joint Declarations:

A. Declarations concerning provisions of the Treaties

B. Declarations concerning Protocols annexed to the Treaties


The Conference has adopted the following declarations annexed to this Final Act.

A. Declarations concerning provisions of the Treaties
1. Declaration concerning the Charter of Fundamental Rights of the European Union
2. Declaration on Article 6(2) of the Treaty on European Union
3. Declaration on Article 7a of the Treaty on European Union
4. Declaration on the composition of the European Parliament
5. Declaration on the political agreement by the European Council concerning the draft Decision on the composition of the European Parliament
6. Declaration on Articles 9 B(5) and (6), Articles 9 D(6) and (7), and Article 9 E of the Treaty on European Union
7. Declaration on Article 9 C(4) of the Treaty on European Union and Article 205(2) of the Treaty on the Functioning of the European Union
8. Declaration on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and of the Foreign Affairs Council
9. Declaration on Article 9 C(9) of the Treaty on European Union concerning the European Council decision on the exercise of the Presidency of the Council
10. Declaration on Article 9 D of the Treaty on European Union
11. Declaration on Article 9 D(6) and (7) of the Treaty on European Union
12. Declaration on Article 9 E of the Treaty on European Union
13. Declaration concerning the common foreign and security policy
14. Declaration concerning the common foreign and security policy
15. Declaration on Article 13a of the Treaty on European Union
16. Declaration on Article 53(2) of the Treaty on European Union
17. Declaration concerning primacy
18. Declaration in relation to the delimitation of competences
19. Declaration on Article 3 of the Treaty on the Functioning of the European Union
20. Declaration on Article 16 B of the Treaty on the Functioning of the European Union
21. Declaration on the protection of personal data in the fields of judicial cooperation in criminal matters and police cooperation
22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union
23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union
24. Declaration concerning the legal personality of the European Union
25. Declaration on Articles 61 H and 188 K of the Treaty on the Functioning of the European Union
26. Declaration on non-participation by a Member State in a measure based on Title IV of Part Three of the Treaty on the Functioning of the European Union
27. Declaration on Article 69 D(1), second subparagraph, of the Treaty on the Functioning of the European Union
28. Declaration on Article 78 of the Treaty on the Functioning of the European Union
29. Declaration on Article 87(2)(c) of the Treaty on the Functioning of the European Union
30. Declaration on Article 104 of the Treaty on the Functioning of the European Union
31. Declaration on Article 140 of the Treaty on the Functioning of the European Union
32. Declaration on Article 152(4)(c) of the Treaty on the Functioning of the European Union
33. Declaration on Article 158 of the Treaty on the Functioning of the European Union
34. Declaration on Article 163 of the Treaty on the Functioning of the European Union
35. Declaration on Article 176 A of the Treaty on the Functioning of the European Union
36. Declaration on Article 188 N of the Treaty on the Functioning of the European Union concerning the negotiation and conclusion of international agreements by Member States relating to the area of freedom, security and justice
37. Declaration on Article 188 R of the Treaty on the Functioning of the European Union
38. Declaration on Article 222 of the Treaty on the Functioning of the European Union regarding the number of Advocates-General in the Court of Justice
39. Declaration on Article 249 B of the Treaty on the Functioning of the European Union
40. Declaration on Article 280 D of the Treaty on the Functioning of the European Union
41. Declaration on Article 308 of the Treaty on the Functioning of the European Union
42. Declaration on Article 308 of the Treaty on the Functioning of the European Union
43. Declaration on Article 311a(6) of the Treaty on the Functioning of the European Union

B. Declarations concerning Protocols annexed to the Treaties
44. Declaration on Article 5 of the Protocol on the Schengen acquis integrated into the framework of the European Union
45. Declaration on Article 5(2) of the Protocol on the Schengen acquis integrated into the framework of the European Union
46. Declaration on Article 5(3) of the Protocol on the Schengen acquis integrated into the framework of the European Union
47. Declaration on Article 5(3), (4) and (5) of the Protocol on the Schengen acquis integrated into the framework of the European Union
48. Declaration concerning the Protocol on the position of Denmark
49. Declaration concerning Italy
50. Declaration concerning Article 10 of the Protocol on transitional provisions

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Then there are the unilateral Declarations, by one or more member states, without legal force for the whole, but expressing the political intent of the declarants.

Furthermore, the Conference has noted the declarations listed hereafter and annexed to this Final Act:
51. Declaration by the Kingdom of Belgium on national Parliaments
52. Declaration by the Kingdom of Belgium, the Republic of Bulgaria, the Federal Republic of Germany, the Hellenic Republic, the Kingdom of Spain, the Italian Republic, the Republic of Cyprus, the Republic of Lithuania, the Grand-Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta, the Republic of Austria, the Portuguese Republic, Romania, the Republic of Slovenia, and the Slovak Republic on the symbols of the European Union
53. Declaration by the Czech Republic on the Charter of Fundamental Rights of the European Union
54. Declaration by the Federal Republic of Germany, Ireland, the Republic of Hungary, the Republic of Austria and the Kingdom of Sweden
55. Declaration by the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland
56. Declaration by Ireland on Article 3 of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice
57. Declaration by the Italian Republic on the composition of the European Parliament
58. Declaration by the Republic of Latvia, the Republic of Hungary and the Republic of Malta on the spelling of the name of the single currency in the Treaties
59. Declaration by the Kingdom of the Netherlands on Article 270a of the Treaty on the Functioning of the European Union
60. Declaration by the Kingdom of the Netherlands on Article 311a of the Treaty on the Functioning of the European Union
61. Declaration by the Republic of Poland on the Charter of Fundamental Rights of the European Union
62. Declaration by the Republic of Poland concerning the Protocol on the application of the Charter of Fundamental Rights of the European Union in relation to Poland and the United Kingdom
63. Declaration by the United Kingdom of Great Britain and Northern Ireland on the definition of the term ‘nationals’
64. Declaration by the United Kingdom of Great Britain and Northern Ireland on the franchise for elections to the European Parliament
65. Declaration by the United Kingdom of Great Britain and Northern Ireland on Article 61 H of the Treaty on the Functioning of the European Union

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If my understanding is correct, the only legally binding addition to the Treaties themselves and the Protocols is the Annex containing the tables of equivalences. Thus, there is no change concerning the political nature of the Declarations annexed to the Final Act, but not to the Treaties.


Ralf Grahn


Sources:

UK House of Commons Library Research Paper 08/09, 24 January 2008: The Treaty of Lisbon: amendments to the Treaty on European Union
http://www.parliament.uk/commons/lib/research/rp2008/rp08-009.pdf


Government of Sweden, Regeringskansliet: Lissabonfördraget, Statsrådsberedningen, Departementsserien (Ds) Ds 2007:48, 20 december 2007
http://www.regeringen.se/sb/d/108/a/94981

Government of Denmark: Lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratification af Lissabon-traktaten); Lovforslag nr. L 53, Fremsat den 9. januar 2008 af udenrigsministeren (Per Stig Møller); Bind III
http://www.eu-oplysningen.dk/upload/application/pdf/c510022c/BindIII.pdf