Sunday, 13 April 2008

EU TFEU: Transport, banking and insurance services

Important sectors of economic activity, such as transport, banking and insurance (financial services) are treated distinctly in the context of free movement of services within the European Community (European Union).

We look at the current Article 51 of the Treaty establishing the European Community and its position in the EU Treaty of Lisbon.

Further reading is suggested for readers interested in EU law and policies concerning the transport and financial services sectors.


***

The Treaty of Lisbon (ToL) makes no specific amendment to Article 51 of the Treaty establishing the European Community (TEC). Cf. point 57 and 58 in Official Journal (OJ) 17.12.2007 C 306/55.

***

The current Article 51 TEC is found in the latest consolidated version of the treaties, TEU and TEC, in OJ 29.12.2006 C 321 E/62:

Article 51 TEC

1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.

2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.

***

According to the Lisbon Treaty, the provision should look like this in the Treaty on the Functioning of the European Union (TFEU) when we add the location of the Article and the future renumbering from the Tables of equivalences (OJ 17.12.2007 C 306/207-208) and note that no horizontal amendments seem to apply (Cf. OJ 17.12.2007 C 306/41-44):

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 51 TFEU (ToL), renumbered Article 58 TFEU

1. Freedom to provide services in the field of transport shall be governed by the provisions of the title relating to transport.

2. The liberalisation of banking and insurance services connected with movements of capital shall be effected in step with the liberalisation of movement of capital.

***

The first paragraph of Article III-31 of the draft Treaty establishing a Constitution for Europe referred to the ‘Section’ instead of the ‘title’ relating to transport, but proposed no other change (OJ 18.7.2003 C 169/33).

***

Only the referral to ‘Section 7 of Chapter III’ relating to transport differed from the other versions in Article III-146 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/63).

***

In short, between Nice and Lisbon only technical adjustments have been proposed, boiling down to the renumbering effected by the Treaty of Lisbon.

***

Article 51 TEC and ToL, renumbered Article 58 TFEU, encompasses the principle of freedom to provide services in the field of transport, but excepts transport services from the scope of the general chapter on services (Chapter 3).

TEC Title V ‘Transport’ reigns as ‘lex specialis’, meaning the current Articles 70 to 80 TEC on the common transport policy.

This corresponds with Title V ‘Transport’, Articles 70 to 80 ToL, but after renumbering these provisions are found in Title VI ‘Transport’, Articles 90 to 100 TFEU.

***

Banking and insurance are treated differently. Liberalisation of these sectors is supposed to advance in step with measures to open up the capital markets.

The second paragraph refers to the current Chapter 4 ‘Capital and payments’, Articles 56 to 60 TEC.

The corresponding ToL chapter is Chapter 4 ‘Capital and payments’, Articles 56 to 59 (with Article 61h ToL being renumbered Article 75 TFEU and moved to the provisions on the area of freedom, security and justice).

In the consolidated Lisbon Treaty Chapter 4 ‘Capital and payments’ includes the Articles 63 to 66 TFEU.

***

The interested reader can move directly to the sector specific treaty provisions mentioned above. This series of blog posts is advancing one Article at a time, so we will look at these provisions in due time.

At this stage, some further reading is suggested for interested readers.

***


Transport

A general introduction to EU transport policies is offered through the links of the European Commission’s Transport home page:

http://ec.europa.eu/transport/index_en.html

The European Commission dedicates pages 76 to 83 of its ‘General Report on the Activities of the European Union 2007’ to transport with subheadings on rail transport, road transport, maritime transport, inland navigation, air transport, intermodal approach (Galileo), international developments and Trans-European transport networks (TEN-T).

The government of Sweden publishes yearly reports to the parliament (and the public) on the activities of the European institutions: the EU, the Council of Europe and the OSCE. The depth of the EU report ‘Regeringens skrivelse 2007/08: 85 Berättelse om verksamheten i Europeiska unionen under 2007’, published 6 March 2008, is fully comparable to that of the Commission.

Part 7 (Del 7 Transporter, elektroniska kommunikationer och energi) deals with transport policy from page 163 to 180.


***

Banking and insurance (financial services; capital and payments)

A starting point for EU policies on financial services is offered through the links on the Commission’s internal market web page ‘Financial Services – General Policy:

http://ec.europa.eu/internal_market/finances/index_en.htm

Under the heading ‘Freedom to provide services and freedom of establishment’ the European Commission deals with developments concerning financial services on pages 50 to 53 of its ‘General Report on the Activities of the European Union 2007’.

Part 6 on competitiveness (Del 6 Konkurrenskraftsfrågor) of the Swedish report on EU activities in 2007 includes Chapter 29 on the free movement of services and capital (29 Fri rörlighet för tjänster och kapital), from page 139 to 142.

The UK House of Lords European Union Committee’s report ‘Single Market: Wallflower of Dancing Partner? Inquiry into the European Commission’s Review of the Single Market, Volume I: Report (HL Paper 36-I, published 8 February 2008) dedicates Chapter 7 to financial services (page 32 to 37).

The starting point of this timely assessment was the Committee’s feeling of an area in which the lack of progress has been disappointing.

***

The separateness of transport services and the parallel introduction of measures concerning banking and insurance services (financial services) with liberalisation of capital markets is underlined by the fact that they are excluded from the scope of the general Services Directive, to be implemented by the member states before 28 December 2009.


See Article 1 ‘Subject matter’, Article 2 ‘Scope’ and Article 3 ‘Relationship with other provisions of Community law’ of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 27.12.2006 L 376, p. 36–68:

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:376:0036:0068:EN:PDF

The express exclusion of transport services follows from Article 2(2)(d) and of financial services, such as banking and insurance from Article 2(2)(b) of the general Services Directive.


Ralf Grahn