Wednesday, 14 May 2008

EU TFEU: Common transport policy

Modern life in general and the internal market in particular, would be unimaginable without cross-border transport. Soaring fuel prices and environmental concerns guarantee that transport policies are going to climb even higher on the EU policy agenda, even if the Treaty of Lisbon does fairly little to change the treaty basis for transport.


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Article 90 of the Treaty on the Functioning of the European Union (TFEU) starts the following Title on a hugely important economic sector: Title VI ‘Transport’. The Article is found in the consolidated version of the Treaty on European Union and the Treaty on the Functioning of the European Union, published in the Official Journal of the European Union, OJ 9.5.2008 C 115/85:

Part Three ‘Policies and internal actions of the Union’

Title VI TFEU ‘Transport’

Article 90 TFEU
(ex Article 70 TEC)

The objectives of the Treaties shall, in matters governed by this Title, be pursued within the framework of a common transport policy.

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In Article 2, point 69 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):

TRANSPORT

69) In Article 70, the words ‘of this Treaty’ shall be replaced by ‘of the Treaties’ and the words ‘by Member States’ shall be deleted.

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Article 70 of the Treaty establishing the European Community (TEC) is found under Title V ‘Transport’ in the latest consolidated version of the current treaties (OJ 29.12.2006 C 321 E/70):

Title V
Transport

Article 70 TEC

The objectives of this Treaty shall, in matters governed by this title, be pursued by Member States within the framework of a common transport policy.

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The European Convention placed Section 7 ‘Transport’ in Part III ‘The policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other specific areas’. Article III-133 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 70 TEC (OJ 18.7.2003 C 169/54):

Section 7
Transport

Article III-133 Draft Constitution

The objectives of the Constitution shall, in matters governed by this Title, be pursued within the framework of a common transport policy.

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The IGC 2004 followed the European Convention in the structure of the treaty, with Part III ‘Policies and functioning of the Union’, Title III ‘Internal policies and action’, Chapter III ‘Policies in other areas’ and Section 7 ‘Transport’. But in Article III-236 of the Treaty establishing a Constitution for Europe the IGC 2004 merged a number of provisions into one, lengthy Article.

Although only the first paragraph corresponds directly to the provisions we have looked at, we present the whole Article III-236 for illustrative purposes (OJ 16.12.2004 C 310/105–106):

Section 7
Transport

Article III-236 Constitution

1. The objectives of the Constitution shall, in matters governed by this Section, be pursued within the framework of a common transport policy.

2. European laws or framework laws shall implement paragraph 1, taking into account the distinctive features of transport. They shall be adopted after consultation of the Committee of the Regions and the Economic and Social Committee.

Such European laws or framework laws shall establish:

(a) common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States;

(b) the conditions under which non‑resident carriers may operate transport services within a Member State;

(c) measures to improve transport safety;

(d) any other appropriate measure.

3. When the European laws or framework laws referred to in paragraph 2 are adopted, account shall be taken of cases where their application might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities.

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From the current TEC to the Treaty of Lisbon there has been no substantial change. Drafting a ‘meatier’ introductory Article in the Constitutional Treaty remained an experiment when the IGC 2007 was mandated to tinker with the current treaties instead of presenting an integrated whole.

Accordingly, I found no special mention in the IGC 2007 Mandate (Council document 11218/07).

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Article 4(2)(g) TFEU names transport as one of the principle areas with shared competence between the EU and the member states, and we have seen that transport has been classified as one of the common policy areas.

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We turn to a few sources outside the treaty texts. It is only natural that most commentators have focused on the institutional questions and the real changes, and that areas largely unchanged have attracted less comments, because they are less relevant for the ratification processes.

On the other hand, this blog attempts to check the different stages of the treaty reform process systematically and to present the treaty foundations for all EU policies in the form they will have when (or if) the Treaty of Lisbon enters into force.

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United Kingdom

Professor Steve Peers has covered the Treaty of Lisbon. Statewatch Analysis ‘EU Reform Treaty Analysis no. 3.3: Revised text of Part Three, Titles I to VI of the Treaty establishing the European Community (TEC): Internal Market and competition’ (Version 2, 23 October 2007) includes the current Title V Transport.

Peers makes an introductory remark on page 20:

“Some press commentary on the Constitutional Treaty suggested that the EU would have a ‘new’ common transport policy. It should be noted that the EC already has a common transport policy, and indeed has done since the original Treaty of Rome in 1958. It can be seen from the text below that the Treaty provisions would largely be left intact by the draft Reform Treaty (ditto the Constitutional Treaty). In fact, the Treaty provisions on transport have barely been amended since the original Treaty of Rome, except to remove the requirement for unanimous voting on shipping and air transport measures back in 1987, when the Single European Act entered into force.”

This analysis and other useful Statewatch analyses are available through:

http://www.statewatch.org/euconstitution.htm

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The Foreign and Commonwealth Office (FCO) offers a convenient source of brief annotations on Lisbon Treaty amendments in ‘A comparative table of the current EC and EU treaties as amended by the Treaty of Lisbon’ (Command Paper 7311, published 21 January 2008). The comment on Article 90 TFEU, Article 70 TFEU (ToL) in the original Lisbon Treaty, is short and unsurprising:

“In substance the same as Article 70 TEC.”

The FCO comparative table is available at:

http://www.official-documents.gov.uk/document/cm73/7311/7311.asp

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The UK House of Commons Library Research Paper 07/86 ‘The Treaty of Lisbon: amendments to the Treaty establishing the European Community’ (published 6 December 2007) wraps up Transport in a brief comment on page 56:

“F. Transport

Title V, Articles 70-80 (Constitution Articles III-236 – 245) are on transport and are based largely on Articles 70 – 75 TEC, but with a change in the voting procedure to the OLP with QMV, except for Article 72, which replaces unanimity in the Constitution Article III-237 with a “special legislative procedure”. Other, minor, changes are Article 75(c), which adds the EP to those bodies to be consulted, and Article 78 (Constitution Article III-243), allowing the Article concerning German unification to be repealed after 5 years.

Present Articles 154 – 156 on Trans-European Networks (TENS) have been moved to Title VII and contain only minor amendments.”

The Library Research Paper 07/86 is available at:

http://www.parliament.uk/commons/lib/research/rp2007/rp07-086.pdf

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The House of Lords European Union Committee report ‘The Treaty of Lisbon: an impact assessment, Volume I: Report’ (HL Paper 62-I, published 13 March 2008) discussed the Lisbon Treaty extensions of the powers of the European Parliament, with the following conclusion (page 72):

“4.138. The Lisbon Treaty considerably increases the powers of the European Parliament—in particular because of the extension of codecision to a substantially larger range of areas, including agriculture, fisheries, transport and structural funds, in addition to the whole of the current “third pillar” of justice and home affairs—to the extent that the European Parliament will become co-legislator for most European laws. This will have an effect on the balance of power between the institutions (see below).”

The report is accessible at:

http://www.publications.parliament.uk/pa/ld200708/ldselect/ldeucom/62/62.pdf

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Sweden

The consultation paper of the government of Sweden, ‘Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds), Ds 2007:48’ published 20 December 2007, bundles together transport and trans-European networks under the headline ‘Transporter och transeuropeiska nät’ (page 280 to 282).

The text offers an overview of the coming Title VI ‘Transport’ and mentions the (fairly small) amendments.

The consultation paper ’Lissabonfördraget’ is available at:

http://www.regeringen.se/content/1/c6/09/49/81/107aa077.pdf

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Finland

The Finnish ratification bill, ‘Hallituksen esitys Eduskunnalle Euroopan unionista tehdyn sopimuksen ja Euroopan yhteisön perustamissopimuksen muuttamisesta tehdyn Lissabonin sopimuksen hyväksymisestä ja laiksi sen lainsäädännön alaan kuuluvien määräysten voimaansaattamisesta’ (HE 23/2008 vp), remarks that Article 70 TFEU (ToL), renumbered Article 90 TFEU, deletes the words ’by Member States’, which leaves the general framework of a common transport policy (page 205).

The Finnish ratification bill is available at:

http://www.finlex.fi/fi/esitykset/he/2008/20080023.pdf

The Swedish language version of the ratification bill ‘Regeringens proposition till Riksdagen med förslag om godkännande av Lissabonfördraget om ändring av fördraget om Europeiska unionen och fördraget om upprättandet av Europeiska gemenskapen och till lag om sättande i kraft av de bestämmelser i fördraget som hör till området för lagstiftningen’ (RP 23/2008 rp), mentions the same fact on page 208.

The ratification bill in Swedish can be accessed at:

http://www.finlex.fi/sv/esitykset/he/2008/20080023.pdf

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One step closer to the substantive EU policy questions concerning the crucially important transport sector, is the European Parliament Fact Sheet 4.5.1. ‘Transport policy: general principles’:

http://www.europarl.europa.eu/facts/4_5_1_en.htm

The Commission’s Transport web pages were down, when I tried a moment ago, but the interested reader will – with more luck – find an impressive amount of useful information and links.


Ralf Grahn