Wednesday, 16 April 2008

EU TFEU: Remaining restrictions on services

In many cases the Treaty of Lisbon does little else than renumbering existing treaty provisions for coming consolidated versions of the revised Treaty on European Union and the renamed Treaty on the Functioning of the European Union.


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The Treaty of Lisbon (ToL) presents no specific amendments concerning Article 54 of the Treaty establishing the European Community (TEC). Cf. points 59 and 60 in OJ 17.12.2007 C 306/55.

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The latest consolidated version of the existing treaties gives us the wording of Article 54 TEC in force (OJ 29.12.2006 C 321 E/63):

Article 54 TEC

As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49.

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There seem to be no horizontal amendments, but the renumbering of the provision has to be checked, and we add the location of the Article within the Treaty on the Functioning of the European Union (TFEU):

Part Three ‘Policies and internal actions of the Union’

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

Chapter 3 ‘Services’

Article 54 TFEU (ToL), renumbered Article 61 TFEU

As long as restrictions on freedom to provide services have not been abolished, each Member State shall apply such restrictions without distinction on grounds of nationality or residence to all persons providing services within the meaning of the first paragraph of Article 49 [ToL, renumbered Article 56 TFEU].

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Article III-34 of the draft Treaty establishing a Constitution for Europe added an ‘of’, and the referral was different, but otherwise it was a clone of the current TEC Article (OJ 18.7.2003 C 169/33).

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In Article III-149 of the Treaty establishing a Constitution for Europe ‘each Member State’ became ‘the Member States’ but the IGC 2004 accepted the ‘of’ added by the European Convention before ‘residence’. Naturally, the referral was different.

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We can conclude that, from the TEC to the Lisbon Treaty, no substantial change has been proposed to the provision.

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We see that restrictions on grounds of nationality or of residence are forbidden, which narrows the scope of legitimate remaining restrictions considerably. In addition, new restrictions would seem to go against the aim to achieve free movement of services.

The ‘sunset feeling’ evoked by Article 54 TEC has not inspired writers unduly, which a quick look at a number of textbooks validated. Müller-Graff explains why, in Streinz, EUV/EGV Vertrag über die Europäische Union und Vertrag zur Gründung der Europäischen Gemeinschaft (Verlag C.H.Beck, München 2003; page 742):

„Sein Regelungsgehalt wird von Art. 49 EGV mitumfasst, so dass er gestrichen werden könnte.“

In other words, Article 54 ToL (and 61 TFEU) is redundant, due to Article 49 TEC (and ToL, renumbered Article 56 TFEU).

This serves as a reminder, if one is needed, of how focused on institutional questions the later cycles of treaty reform have been and of how technical most of the modifications of the ‘Community’ policy areas have been, or to use the term preferred for the future ‘policies and internal actions of the Union’.


Ralf Grahn