Wednesday, 13 February 2008

TFEU: Introduction

The European Convention never had the time to make a deep impact on the policy areas of the European Community, and in the intergovernmental conference (IGC 2004) the governments of the member states were obsessed by institutional questions, such as voting weights in the Council.

The IGC 2007 returned to the unfinished business left by the aborted ratification process of the Treaty establishing a Constitution for Europe.

Already in the context of the Convention and the Constitutional Treaty there were calls from pundits for an overhaul of the policies of the EU, and some echo from European leaders, but the national leaders seem to have been overwhelmed by the challenge to bring this stage of institutional reform to a close.

Thus, the main thrust of the Lisbon Treaty reform is institutional: to improve decision making within areas where the European Union (EU) and the European Community (EC) already exercise powers delegated by the member states.

If the Treaty of Lisbon survives the gauntlet of 27 national ratifications, the more mundane task of reforming the practical policies of the EU might raise enough of politicians’ interest to allow an overdue modernising exercise.


Article 2 of the Treaty of Lisbon contains the amendments to the Treaty establishing the European Community (TEC), which is renamed the Treaty on the Functioning of the European Union (TFEU).

Many of the changes to the TFEU are caused by the reordering of the treaties, with the Treaty on European Union (TEU) becoming home to the constitutional principles and objectives of the European Union and the fundamental provisions on the institutions. In addition, the continuing separateness of the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) is given emphasis by housing them in the TEU.

Besides the reordering, renaming of various concepts leads to a fair amount of amendments throughout the TFEU, but most of the changes are rather technical. The Treaty of Lisbon is no profound reform of EU policies, although the area of freedom, security and justice is united under normal rules for the countries without derogations and opt-outs, and some additional tinkering and tidying up occur.


Why then bother to wade through the TFEU?

The treaties are the most important documents of the European Union. They lay the foundations for common action aiming to improve the security and prosperity of the citizens of the European Union. The rule of law means that every piece of legislation and every decision has to be based on the treaties.

The great questions of foreign and security policy may attract more media attention, but businesses and citizens are affected more directly by EU legislation and the everyday workings of the institutions.

Assuming that a reasonable amount of knowledge about the European Union is in the interest of private parties, then it is better to study the latest edition of our common rules. This leads us to the Treaty on the Functioning of the European Union (TFEU), as agreed on in the Lisbon Treaty. Even if the TFEU were to be hit by an accident never to enter into force, we would have gleaned some knowledge of the unreformed European Community (European Union).


Article 2 of the Treaty of Lisbon states that the Treaty establishing the European Community (TEC) shall be amended in accordance with the provisions of this Article (OJ 17.12.2007 C 306/41).

Following from the merger of the EC into the EU and the renewed structure of the treaties, the treaty is renamed the Treaty on the Functioning of the European Union (TFEU).

The IGC 2007 then sets out a number of horizontal amendments, leading to editorial or technical adaptations throughout the TFEU. I just highlight some of the new terminology we might want to get used to:

The ‘Union’ replaces the words ‘Community’ and ‘European Community’

‘The Treaties’ replaces ‘this Treaty’ and ‘the present Treaty’

The ‘ordinary legislative procedure’ replaces the procedure referred to in Article 251

The ‘internal market’ replaces the ‘common market’

‘Euro’ replaces ‘ecu’

‘Member States whose currency is the euro’ replaces ‘Member State without derogation’

The ‘European Central Bank’ replaces the abbreviation ‘ECB’

‘Economic and Financial Committee’ replaces the Committee provided for in Article 114

‘Specialised court’ replaces ‘judicial panel’

‘Acting unanimously in accordance with a special legislative procedure’ is inserted where the existing treaty says ‘acting unanimously on a proposal from the Commission’

‘Acting by a simple majority’ is inserted into seven Articles

In two instances ‘obtaining the consent of the European Parliament’ replaces mere consultation

The ‘Court of Justice of the European Union’ becomes the official name, but sometimes the short form ‘Court’ is used


To these horizontal amendments of terminology are added the amendments concerning numbering and renumbering of the treaties, compounded by the less than reader-friendly drafting of the treaties themselves.

I salute the silent heroes who have produced the few consolidated language versions of the Treaty of Lisbon we already have. I wish that the versions still missing are produced and published soon. Brochures and web page summaries are important for the citizens of the EU, but they are far from enough.

(For the existing consolidations, as far as I know, see my latest compilation of sources, the 8 February 2008 posting ‘Lisbon Treaty: Consolidated language versions’.)

Ralf Grahn

P.S. Embarking on the long journey to explore our fundamental common rules as rendered by the Treaty on the Functioning of the European Union, I want to repeat my plea for information on the law and politics of the Lisbon reform treaty.

I am most grateful, if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions as well as books and other resources, such as official documents from the member states’ governments and parliaments, popular presentations and scholarly research literature, plus information on the ratification processes.