Saturday, 29 March 2008

EU TFEU: Agricultural legislation and decisions

The Treaty of Lisbon enhances the powers of the European Parliament to co-legislate on the fundamental aspects of the common agricultural policy (CAP) of the European Union, but the Commission proposes and the Council disposes in all concrete matters concerning agriculture and fisheries even when the Lisbon Treaty has entered into force.

Once again we see a provision where the real originator of the amending Lisbon Treaty is the European Convention, chaired by Valéry Giscard d’Estaing.

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Point 49 of the Treaty of Lisbon (ToL) takes on Article 37 of the Treaty establishing the European Community. Here is what the intergovernmental conference (IGC 20007) had to say about the provision, which becomes part of the renamed Treaty on the Functioning of the European Union (TFEU). See Official Journal (OJ) 17.12.2007 C 306/53-54:

49) Article 37 shall be amended as follows:

(a) paragraph 1 shall be deleted;

(b) paragraph 2 shall be renumbered 1; the words ‘Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of the Treaty, the Commission shall submit proposals’ shall be replaced by ‘The Commission shall submit proposals’, and the third subparagraph shall be deleted;

(c) the following paragraphs shall be inserted as new paragraphs 2 and 3, and the remaining paragraphs shall be renumbered accordingly:

‘2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy;

3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.’;

(d) in the introductory words to paragraph 3 renumbered 4, the words ‘The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation’ shall be replaced by ‘In accordance with paragraph 2, the national market organisations may be replaced by the common organisation’;

(e) at the beginning of paragraph 4 renumbered 5, a change shall be made to the French which does not concern the English version.

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Because nobody can be sure that the Lisbon Treaty will survive the ratification gauntlet, the IGC 2007 shows its paternal concern by stimulating our reading of the current treaties. The latest consolidated version of the treaties and, more precisely, the provision is found in OJ 29.12.2006 C 321 E/56, where it fills the whole page:

Article 37 TEC

1. In order to evolve the broad lines of a common agricultural policy, the Commission shall, immediately this Treaty enters into force, convene a conference of the Member States with a view to making a comparison of their agricultural policies, in particular by producing a statement of their resources and needs.

2. Having taken into account the work of the Conference provided for in paragraph 1, after consulting the Economic and Social Committee and within two years of the entry into force of this Treaty, the Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1), and for implementing the measures specified in this title.

These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.

The Council shall, on a proposal from the Commission and after consulting the European Parliament, acting by a qualified majority, make regulations, issue directives, or take decisions, without prejudice to any recommendations it may also make.

3. The Council may, acting by a qualified majority and in accordance with paragraph 2, replace the national market organisations by the common organisation provided for in Article 34(1) if:

(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;

(b) such an organisation ensures conditions for trade within the Community similar to those existing in a national market.

4. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Community.

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Acquainted with the situation ‘de lege lata’ we have to consider the chance that an EU treaty reform could actually enter into force this time around. Express amendments, horizontal amendments and renumbering (including referrals) have to be joined to achieve the wording ‘de lege ferenda’, and we superimpose the context of the Article:

Part Three Policies and internal actions of the Union

Title II (renumbered Title III) Agriculture and fisheries

Article 37 TFEU (ToL), renumbered Article 43 TFEU


1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU], and for implementing the measures specified in this title.

These proposals shall take account of the interdependence of the agricultural matters mentioned in this title.

2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall establish the common organisation of agricultural markets provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] and the other provisions necessary for the pursuit of the objectives of the common agricultural policy and the common fisheries policy.

3. The Council, on a proposal from the Commission, shall adopt measures on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.

4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article 34(1) [ToL, renumbered Article 40(1) TFEU] if:

(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;

(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.

5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.

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Even a short consolidation exercise easily leads to error, so I use the opportunity to check my result against some of those who have gone before me, namely the IIEA, FCO, Statewatch and Fischer consolidations.

More exact references to these and other existing as well as coming consolidated language versions are to be found in today’s earlier post ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, including the Post Scriptum:

http://grahnlaw.blogspot.com/2008/03/consolidated-eu-lisbon-treaty-update-29.html

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You are now offered the following piece in the jigsaw puzzle. The European Convention proposed the following Article III-127 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/52):

Article III-127 Draft Constitution

1. The Commission shall submit proposals for working out and implementing the common agricultural policy, including the replacement of the national organisations by one of the forms of common organisation provided for in Article III- 124(1), and for implementing the measures referred to in this Section.

These proposals shall take account of the interdependence of the agricultural matters mentioned in this Section.

2. European laws or framework laws shall establish the common organisation of the market provided for in Article III- 124(1) and the other provisions necessary for the achievement of the objectives of the common agricultural policy and the common fisheries policy. They shall be adopted after consultation of the Economic and Social Committee.

3. The Council of Ministers, on a proposal from the Commission, shall adopt the European regulations or decisions on fixing prices, levies, aid and quantitative limitations and on the fixing and allocation of fishing opportunities.

4. In accordance with paragraph 2, the national market organisations may be replaced by the common organisation provided for in Article III-124(1) if:

(a) the common organisation offers Member States which are opposed to this measure and which have an organisation of their own for the production in question equivalent safeguards for the employment and standard of living of the producers concerned, account being taken of the adjustments that will be possible and the specialisation that will be needed with the passage of time;

(b) such an organisation ensures conditions for trade within the Union similar to those existing in a national market.

5. If a common organisation for certain raw materials is established before a common organisation exists for the corresponding processed products, such raw materials as are used for processed products intended for export to third countries may be imported from outside the Union.

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You can draw your own conclusions, but I would say that once more what little change there is between the current TEC and the ToL can essentially be credited to the European Convention.

Terminology and referrals apart, the structure of draft Constitution and the ToL provision is identical and the wording almost so. The visible or substantial amendments were the following:

Article 37(1) and the beginning of paragraph 2 had become obsolete by the Conference of Stresa (1958) and the subsequent decisions, at the beginning of the 1960’s, to launch the common agricultural policy (CAP). Deleting these references was a tidying up exercise.

The European Parliament was strengthened by giving it co-decision powers concerning the upper level of secondary norms, instead of mere consultative powers.

Although acting on proposals by the Commission, the Council retained its extensive powers to make the concrete CAP decisions.

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There is not that much to add about the corresponding Article III-231 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/101-102). I counted four instances of different wording, but without material effect.

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Curiosity has been a noteworthy human trait, at least from the Garden of Eden, so let us take a look at one change of no concern to us, as the IGC 2007 told us in point 49(e).

What happens to the French version without touching upon the English one?

Point 49(e) offers us the beginning of an answer (JO 17.12.2007 C 306/55):

e) dans le premier membre de phrase du paragraphe 4 renuméroté 5, le mot «existe» est remplacé par «n'existe».

Perhaps the rest will be evident if we look at the French version of Article 37 TEC (JO 29.12.2006 C 321 E/56):

4. S’il est créé une organisation commune pour certaines matières premières, sans qu’il existe encore une organisation commune pour les produits de transformation correspondants, les matières premières en cause utilisées pour les produits de transformation destinés à l’exportation vers les pays tiers peuvent être importées de l’extérieur de la Communauté.

So, we have been confronted with one of the wonders of French grammar; by the way, an error uncorrected in the draft Constitution but remedied in the Constitutional Treaty. The IGC 2004 did some good, after all. Now the ungrateful French have to wait at least until the beginning of 2009 to enjoy the fruits of its labours.


Ralf Grahn