Monday, 14 April 2008

EU TFEU: Directives on specific services

The EU’s Treaty of Lisbon strengthens the role of the directly elected European Parliament by the extended use of the ‘ordinary legislative procedure’ (co-decision).

Article 52 of the Treaty establishing the European Community is one example of this, in the context of specific services. In practice, though, there are a number of reasons why the practical change is less than it seems in this specific case.

We follow the route of the current treaty, the draft Constitution, the Constitutional Treaty and the Lisbon Treaty to end up with a consolidated version of the Article as part of the Treaty on the Functioning of the European Union, although our progress is not chronological.


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The Treaty of Lisbon (ToL) makes an amendment to Article 52 of the Treaty establishing the European Community (TEC). This is what the intergovernmental conference (IGC 2007) says in point 58 (OJ 17.12.2007 C 306/55):

58) In Article 52(1), the words ‘the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue’ shall be replaced by ‘the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue’.

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The surrounding words are found in the latest consolidated version of the current treaties, the TEU and the TEC, in OJ 29.12.2006 C 321 E/63:

Article 52 TEC

1. In order to achieve the liberalisation of a specific service, the Council shall, on a proposal from the Commission and after consulting the Economic and Social Committee and the European Parliament, issue directives acting by a qualified majority.

2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.

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There is one specific amendment and one horizontal amendment to be made, deleting ‘acting by a qualified majority’ according to point 2(d), but we add the renumbering of the Article and the location of the provision from the Tables of equivalences. This is what the Article should look like according to the Lisbon Treaty, where it forms part of the Treaty on the Functioning of the European Union (TFEU):

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 3 ‘Services’

Article 52 TFEU (ToL), renumbered Article 59 TFEU

1. In order to achieve the liberalisation of a specific service, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee, shall issue directives.

2. As regards the directives referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.

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The corresponding provision in the draft Treaty establishing a Constitution for Europe was Article III-32 (OJ 18.7.2003 C 169/33):

Article III-32 Draft Constitution

1. A European framework law shall establish the measures in order to achieve the liberalisation of a specific service. It shall be adopted after consultation of the Economic and Social Committee.

2. As regards the European framework law referred to in paragraph 1, priority shall as a general rule be given to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.

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The IGC 2004 took over the draft text with minor retouches in Article III-147 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/64):

Article III-147 Constitution

1. European framework laws shall establish measures to achieve the liberalisation of a specific
service. They shall be adopted after consultation of the Economic and Social Committee.

2. European framework laws referred to in paragraph 1 shall as a general rule give priority to those services which directly affect production costs or the liberalisation of which helps to promote trade in goods.

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Between the current TEC and the proposed Lisbon Treaty there is one substantial amendment, namely that the ordinary legislative procedure (co-decision) shall apply to directives issued on this legal base. This change was introduced by the European Convention.

The UK Foreign and Commonwealth Office (FCO) correctly describes Article 59 TFEU (Article 52 ToL) in ‘A comparative table of the current EC and EU Treaties as amended by the Treaty of Lisbon’ (Command paper 7311; page 9):

“Draws on Article 52 TEC. QMV already applies, decision-making moves to co-decision.”

Because the new names for the legal instruments were scrapped by the IGC 2007 as part of the ‘constitutional concept’, the efforts by the European Convention and the IGC 2004 to introduce plainer language fell by the wayside.

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In practice, the victory for the European Parliament is more numerical than actual, since most EC (EU) legislation on services has been based on other provisions. Thus, co-decision has been the norm.

The direct effect of treaty provisions on free movement and the limited scope of Article 52 TEC (specific services) have also diminished its importance as a legal base.

The loosely accorded priority given by Article 52(2) TEC to services affecting production costs or helping to promote trade in goods have been of minor significance.


Ralf Grahn