Tuesday, 11 March 2008

EU TFEU: Reporting and improving citizens’ rights

We conclude our survey of existing and proposed rights for EU citizens by looking at the reporting requirements for the Commission. Under the Lisbon Treaty strengthening our citizenship rights still has to pass the proverbial eye of the needle.

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In the Treaty of Lisbon (ToL), Part Two Non-discrimination and citzenship, of the amended Treaty establishing the European Community (TEC), renamed the Treaty on the Functioning of the European Union (TFEU), the intergovernmental conference (IGC 2007) made the following change to Article 22 TEC (OJ 17.12.2007 C 306/52):

38) In Article 22, second paragraph, the words ‘the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements’ shall be replaced by ‘the rights listed in Article 17(2). These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.’.

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Still waiting for the Council to confirm that it has relented and now intends to publish the consolidated versions of the Lisbon Treaty, we go to Article 22 TEC, the one to be amended, under Part Two Citizenship (available in the latest consolidation of the TEU and the TEC, OJ 29.12.2006 C 321 E/51):

Article 22 TEC

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of this Treaty, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may adopt provisions to strengthen or to add to the rights laid down in this Part, which it shall recommend to the Member States for adoption in accordance with their respective constitutional requirements.

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We now have to insert the express amendment and watch out for changes lurking out there among the horizontal amendments (points 2(b), 3 and 5) and check the annexed Tables of equivalences to arrive at what should be the amended Article as consolidated:

Article 22 TFEU (ToL), after renumbering Article 25 TFEU

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of the provisions of this Part. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of the Treaties, the Council, acting unanimously in accordance with a special legislative procedure and after obtaining the consent of the European Parliament, may adopt provisions to strengthen or to add to the rights listed in Article 17(2) [TFEU (ToL), renumbered 20(2) TFEU]. These provisions shall enter into force after their approval by the Member States in accordance with their respective constitutional requirements.

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Arguably, the most remarkable stage of the long reform process generally was the European Convention leading to the draft Treaty establishing a Constitution for Europe. But in Non-discrimination and citizenship under Title II of Part III the Convention was far from radical. The corresponding Article III-13 looked like this (OJ 18.7.2003 C 169/30):

Article III-13 Draft Constitution

The Commission shall report to the European Parliament, to the Council of Ministers and to the Economic and Social Committee every three years on the application of the provisions of Article I-8 and of this Title. This report shall take account of the development of the Union.

On this basis, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council of Ministers may add to the rights laid down in Article I-8. The Council of Ministers shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

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The reporting requirement in paragraph 1 may look the same, but the draft Constitution widened the scope, because the Title expanded to encompass non-discrimination. (Article I-8 was the main provision on citizenship.)

Paragraph 2 of the draft Constitution cautiously retained the legal base for improving citizens’ rights, subject to unanimity in the Council and ratification by the member states. The position of the European Parliament was improved, from mere consultation to consent.

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The IGC 2004, under Title II Non-discrimination and citizenship, followed the wording of the draft with only adaptations of terminology and referral, with ‘On the basis of this report’ perhaps intended to be somewhat more restrictive than ‘On this basis’. See OJ 16.12.2004 C 310/57:

Article III-129 Constitution

The Commission shall report to the European Parliament, to the Council and to the Economic and Social Committee every three years on the application of Article I‑10 and of this Title. This report shall take account of the development of the Union.

On the basis of this report, and without prejudice to the other provisions of the Constitution, a European law or framework law of the Council may add to the rights laid down in Article I-10. The Council shall act unanimously after obtaining the consent of the European Parliament. The law or framework law concerned shall not enter into force until it is approved by the Member States in accordance with their respective constitutional requirements.

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The Lisbon Treaty took over the substance of the Constitutional Treaty, although it reverted to the TEC's and the draft Constitution’s beginning of paragraph 2, ‘On this basis’, perhaps a subtle indication of the will to mark the Council’s independence in relation to the Commission’s report.

All in all, the citizens’ initiative excepted the developments of EU citizens’ rights are hardly perceptible from the TEC through the draft Constitution and the Constitution to the Lisbon Treaty.

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Further reading is offered by the latest report by the Commission, the “Fifth Report on Citizenship of the Union (1 May 2004 – 30 June 2007)”, Brussels 15.2.2008, COM (2008) 85 final, and the accompanying Commission Staff Working Document, SEC (2008) 197.


Ralf Grahn