Friday, 16 May 2008

EU TFEU: Transport standstill clause and derogation

According to the Treaty of Lisbon, the member states can legislate in areas of shared competence if the European Union has not legislated or if it has decided to cease exercising its competence. But already the Treaty establishing the European Economic Community included a special standstill clause to prevent national legislation against the aims of the common transport policy, before Community acts were in place. The same principle applies to countries which accede later.

Article 92 of the Treaty on the Functioning of the European Union offers a (slim) chance of derogations (exceptions) to the rule.


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Article 92 of the Treaty on the Functioning of the European Union (TFEU) 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 92 TFEU
(ex Article 72 TEC)

Until the provisions referred to in Article 91(1) have been laid down, no Member State may, unless the Council has unanimously adopted a measure granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.

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In Article 2, point 71 of the Treaty of Lisbon (ToL) the intergovernmental conference (IGC 2007) stated (OJ 17.12.2007 C 306/68):

71) At the beginning of Article 72, the words ‘, without the unanimous approval of the Council,’ shall be replaced by ‘, unless the Council has unanimously adopted a measure granting a derogation,’.

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The provision to be amended, Article 72 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/71):

Article 72 TEC

Until the provisions referred to in Article 71(1) have been laid down, no Member State may, without the unanimous approval of the Council, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.

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Article III-135 of the draft Treaty establishing a Constitution for Europe substantially took over the text of the current Article 72 TEC, but a small mistake remained in the text of the European Convention. Because the draft Constitution deleted the second paragraph of the preceding provision, there was no need to make a reference to the first and only paragraph of Article III-134 (OJ 18.7.2003 C 169/54):

Article III-135 Draft Constitution

Until the European laws or framework laws referred to in the first paragraph of Article III-134 have been adopted, no Member State may, unless the Council of Ministers has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.

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The IGC 2004 had 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).

Therefore, the resulting Article III-237 looked like this, without altering the substance of the provision (OJ 16.12.2004 C 310/106):

Article III-237 Constitution

Until the European laws or framework laws referred to in Article III-236(2) have been adopted, no Member State may, unless the Council has unanimously adopted a European decision granting a derogation, make the various provisions governing the subject on 1 January 1958 or, for acceding States, the date of their accession less favourable in their direct or indirect effect on carriers of other Member States as compared with carriers who are nationals of that State.

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We have followed the treaty reform process from the current TEC to the Treaty of Lisbon (TFEU), now in various stages of ratification, and we have seen that the essence of the provision has remained the same throughout, despite differences in terminology.

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


United Kingdom

Professor Steve Peers covered the Treaty of Lisbon in a number of Statewatch Analyses. ‘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 highlighted the differences between the current Article 72 TEC, the Constitutional Treaty and the Lisbon Treaty. His comment on Article 72 TFEU (ToL), to be renumbered Article 92 TFEU in the consolidated version, concerned only an earlier draft (page 21):

“The technical error in the July draft of the Reform Treaty (which referred to such acts as legislative) has been corrected.”

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 92 TFEU, Article 72 TFEU (ToL) in the original Lisbon Treaty, is short and to the point (page 11):

“In substance the same as Article 72 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) 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

My comment: The comment on the ‘special legislative procedure’ in Article 72 may have been based on an earlier text (but I leave it to the reader interested enough to check). Cf. the comment of Steve Peers above.

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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) may not have found a substantially unchanged provision like Article 92 TFEU worthy of special mention, but for the reader who wants to understand the framework, the Committee’s discussion about ‘The competences of the European Union’ from page 23 to page 30 may be helpful, especially the text on shared competence.

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, but understandably has nothing specific to say about Article 72 TFEU (ToL), the future Article 92 TFEU.

The consultation paper ’Lissabonfördraget’ is available at:

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

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Finland

Even the methodical 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), is content to give only a short explanation of Article 72 TFEU (ToL), renumbered Article 92 TFEU (page 206).

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), offers the same brief explanation 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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Undramatic as it looks, the role of Article 92 TFEU merits some discussion, if we want to understand EU law as a system.

Article 4(2)(g) TFEU mentions transport as one of the principal areas of shared competence between the EU and the member states (OJ 9.5.2008 C 115/51).

Article 2(2) TFEU explains the main meaning of shared competence (OJ 9.5.2008 C 115/50):

“2. When the Treaties confer on the Union a competence shared with the Member States in a specific area, the Union and the Member States may legislate and adopt legally binding acts in that area. The Member States shall exercise their competence to the extent that the Union has not exercised its competence. The Member States shall again exercise their competence to the extent that the Union has decided to cease exercising its competence.”

For the sake of clarity, Protocol (No 25) on the exercise of shared competence should be mentioned although, in my humble opinion, it only states the obvious (OJ 9.5.2008 C 115/307):

“PROTOCOL (No 25)
ON THE EXERCISE OF SHARED COMPETENCE

THE HIGH CONTRACTING PARTIES,

HAVE AGREED UPON the following provisions, which shall be annexed to the Treaty on European Union and to the Treaty on the Functioning of the European Union:

Sole Article

With reference to Article 2 of the Treaty on the Functioning of the European Union on shared competence, when the Union has taken action in a certain area, the scope of this exercise of competence only covers those elements governed by the Union act in question and therefore does not cover the whole area.”

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The function of the predecessors of Article 92 TFEU was, in spite of the general rule, to safeguard the objectives of the common transport market, before the European Union (still today the European Community) had had time to legislate. Even absent Community legislation, the member states were prohibited from frustrating the common aim by legislating in the meantime. The standstill clause became effective for the original six members from the entry into force of the EEC Treaty (Treaty of Rome).

For members who join later, the cut-off date is the date of accession.

At the same time, Article 92 TFEU offers an ‘eye of the needle’ type basis for a measure granting a derogation (exception). The measure has to be unanimously adopted by the Council.


Ralf Grahn