Thursday, 15 May 2008

EU TFEU: Transport legislation

The Treaty of Lisbon introduces marginal improvements for future EU transport legislation. Qualified majority voting, already the norm, is extended to cases where veto powers and special pleading have offered opportunities for political black-mailing and unprincipled derogations. At the same time, the powers of the European Parliament are slightly extended.


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Article 91 of the Treaty on the Functioning of the European Union (TFEU) lays down the procedure and the scope of EU transport legislation. 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 91 TFEU
(ex Article 71 TEC)

1. For the purpose of implementing Article 90, and taking into account the distinctive features of transport, the European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:

(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 provisions.

2. When the measures referred to in paragraph 1 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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In Article 2, point 70 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):

70) In Article 71, paragraph 2 shall be replaced by the following:

‘2. When the measures referred to in paragraph 1 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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Article 71 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):

Article 71 TEC

1. For the purpose of implementing Article 70, and taking into account the distinctive features of transport, the Council shall, acting in accordance with the procedure referred to in Article 251 and after consulting the Economic and Social Committee and the Committee of the Regions, lay down:

(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 provisions.

2. By way of derogation from the procedure provided for in paragraph 1, where the application of provisions concerning the principles of the regulatory system for transport would be liable to have a serious effect on the standard of living and on employment in certain areas and on the operation of transport facilities, they shall be laid down by the Council acting unanimously on a proposal from the Commission, after consulting the European Parliament and the Economic and Social Committee. In so doing, the Council shall take into account the need for adaptation to the economic development which will result from establishing the common market.

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Article III-134 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the first paragraph of the current Article 71, but left out the second paragraph TEC (OJ 18.7.2003 C 169/54):

Article III-134 Draft Constitution

European laws or framework laws shall implement Article III- 133, 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 contain:

(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.

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The IGC 2004 merged the European Convention’s Article III-133 on the common transport policy (paragraph 1) and Article III-134 on legislation(paragraph 2) and brought back Article 71(2) TEC in an attenuated form (paragraph 3).

The resulting Article III-236 looked like this (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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The European Convention would have abolished the unanimity requirement or power to block legislation as well as the express grounds for special pleading by the member states to exact derogations by the force of their veto power in the current Article 71(2) TEC. In these cases the European Parliament, now only consulted, would have been a co-legislator according to the main rule, even if a member state pleaded serious effects on the standard of living and on employment in certain areas and on the operation of transport facilities.

The IGC 2004 adopted the proposal of the European Convention, insofar as it scrapped the gridlock-inducing unanimity rule, but special pleading was expressly allowed within the framework of the ordinary legislative procedure.

The IGC 2007, with the normal horizontal amendments, took over the substance of the current Article 71(1) TEC or III-236(2) of the Constitutional Treaty (however you want to present it), with Article 71(2) TEC replaced by the Article III-236(3) text.

In principle, the Treaty of Lisbon means that qualified majority voting applies in the Council and that the European Parliament participates in co-decision over the whole area of the common transport policy. Thus, the powers of the European Parliament are enhanced, at least marginally, and on the face of it, the prospects for more consistent transport legislation become somewhat brighter.

Account shall still be taken of cases where the application of EU legislation might seriously affect the standard of living and level of employment in certain regions, and the operation of transport facilities. Even if the European Commission has a general duty to analyse and to anticipate the consequences of its proposals, both it and the member states are invited to pay special attention to possible dire outcomes on the micro level.

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We check our conclusions against those of others who have scrutinised the Lisbon Treaty and informed ratifying parliaments and the public.


United Kingdom

Professor Steve Peers 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 highlighted the differences between the current Article 71 TEC, the Constitutional Treaty and the Lisbon Treaty. His conclusion on Article 71 TFEU (ToL), to be renumbered Article 91 TFEU in the consolidated version, is on page 21:

“The unanimity exception would be deleted. This also entails an extension of the co-decision procedure.”

The analysis 3.3 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 91 TFEU, Article 71 TFEU (ToL) in the original Lisbon Treaty, is as pithy as that of Peers (page 11):

“Draws on Article 71 TEC. Co-decision applied to paragraph 2.”

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) wrapped 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, bundled 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), explains the contents of Article 71 TFEU (ToL), renumbered Article 91 TFEU (page 205).

A small slip occurs, when the explanation mentions, among technical adjustments, that the words ’common market’ are replaced by the ’internal market’. The last words of Article 71(2) are indeed the ‘common market’, but the Lisbon Treaty Article 91(2) TFEU is worded differently, so the observation is made in the wrong context.

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), presents the same explanation and makes the same small error on page 208.

The ratification bill in Swedish can be accessed at:

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


Ralf Grahn