Thursday, 25 December 2008

EU Law: TEN legislation

Guidelines and measures concerning trans-European transport, energy and telecommunications networks (TEN) are adopted by the co-decision procedure, renamed the ordinary legislative procedure in the Treaty of Lisbon.

Some Commission documents illustrate the state of the play.




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Article 156 TEC

Article 156 TEC (ex Article 129d) on trans-European networks (TEN) refers to the guidelines and measures mentioned in Article 155(1) TEC, which concern:

— establishing a series of guidelines covering the objectives, priorities and broad lines of measures envisaged in the sphere of trans-European networks; these guidelines shall identify projects of common interest,

— implementing any measures that may prove necessary to ensure the interoperability of the networks, in particular in the field of technical standardisation,

— supporting projects of common interest supported by Member States, which are identified in the framework of the guidelines referred to in the first indent, particularly through feasibility studies, loan guarantees or interest-rate subsidies; the Community may also contribute, through the Cohesion Fund set up pursuant to Article 161, to the financing of specific projects in Member States in the area of transport infrastructure.

The Community's activities shall take into account the potential economic viability of the projects.

According to Article 156(1) TEC these guidelines and measures are adopted by the procedure referred to in Article 251 (codecision).

When guidelines and projects of common interest relate to the territory of a member state, the approval of that state is needed. This gives the member state a veto power over these acts. If the guidelines or projects relate to the territories of all member states, every member state has a veto.




Here is the current Article 156 of the Treaty establishing the European Community (TEC), as published in the latest consolidated version of the treaties, OJ 29.12.2006 C 321 E/117:

(TITLE XV
TRANS-EUROPEAN NETWORKS)

Article 156 TEC

The guidelines and other measures referred to in Article 155(1) shall be adopted by the Council, 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.

Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.



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Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how or if the current treaties are amended.

Sometimes there are no specific amendments, although most of the times one or more of the horizontal amendments apply.

Article 2, point 128 of the Lisbon Treaty dealt with consumer protection in Article 153 TEC and point 129 concerns industry, in Article 157 TEC (OJ 17.12.2007 C 306/84).

In other words, Articles 154 to 156 TEC (ex Articles 129b, 129c and 129d) with provisions on trans-European networks are unaffected by specific amendments.


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Renumbering ToL

The Table of equivalences of the original Treaty of Lisbon tells us that Title XV first became Title XV in the TFEU (ToL), but renumbered Title XVI Trans-European networks in the consolidated version.

Article 156 TEC initially became Article 156 TFEU (ToL) before the renumbering of the treaty made it into Article 172 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


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Lisbon Treaty consolidated

Article 172 TFEU

After renumbering the Title and the Article as well as the referral and the customary (horizontal) replacement of the procedure referred to in Article 251 by the ordinary legislative procedure, Article 172 TFEU appears like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/125):


(TITLE XVI
TRANS-EUROPEAN NETWORKS)

Article 172 TFEU
(ex Article 156 TEC)

The guidelines and other measures referred to in Article 171(1) shall be adopted by the European Parliament and the Council, acting in accordance with the ordinary legislative procedure and after consulting the Economic and Social Committee and the Committee of the Regions.

Guidelines and projects of common interest which relate to the territory of a Member State shall require the approval of the Member State concerned.



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EU powers in general

The powers of the European Union are attributed or conferred by the member states through the treaties. The Treaty of Lisbon makes an effort to present the different categories of competence (as they are modestly called) in a systematic manner.

The taxonomy (categories) of EU competence is set out in Article 2 TFEU. The three main or general categories are exclusive competence in 2(1), shared competence in 2(2) as well as supporting, coordinating or supplementing competences in 2(5), although the exact scope and arrangements are laid out in the various treaty provisions as stated in 2(6):

Article 2 TFEU

1. When the Treaties confer on the Union exclusive competence in a specific area, only the Union may legislate and adopt legally binding acts, the Member States being able to do so themselves only if so empowered by the Union or for the implementation of Union acts.

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.

3. The Member States shall coordinate their economic and employment policies within arrangements as determined by this Treaty, which the Union shall have competence to provide.

4. The Union shall have competence, in accordance with the provisions of the Treaty on European Union, to define and implement a common foreign and security policy, including the progressive framing of a common defence policy.

5. In certain areas and under the conditions laid down in the Treaties, the Union shall have competence to carry out actions to support, coordinate or supplement the actions of the Member States, without thereby superseding their competence in these areas.

Legally binding acts of the Union adopted on the basis of the provisions of the Treaties relating to these areas shall not entail harmonisation of Member States' laws or regulations.

6. The scope of and arrangements for exercising the Union's competences shall be determined by the provisions of the Treaties relating to each area.



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Article 4 TFEU: Taxonomy of powers

As an area of shared competence between the EU and the member states, Article 4(2)(h) mentions trans-European networks.
Because the TENs can be seen as flanking measures to other aims and policies, we can mention the internal market, economic, social and territorial cohesion, transport and energy among the competences listed as shared in Article 4 TFEU:

Article 4 TFEU

1. The Union shall share competence with the Member States where the Treaties confer on it a competence which does not relate to the areas referred to in Articles 3 and 6.

2. Shared competence between the Union and the Member States applies in the following principal areas:

(a) internal market;

(b) social policy, for the aspects defined in this Treaty;

(c) economic, social and territorial cohesion;

(d) agriculture and fisheries, excluding the conservation of marine biological resources;

(e) environment;

(f) consumer protection;

(g) transport;

(h) trans-European networks;

(i) energy;

(j) area of freedom, security and justice;

(k) common safety concerns in public health matters, for the aspects defined in this Treaty.

3. In the areas of research, technological development and space, the Union shall have competence to carry out activities, in particular to define and implement programmes; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

4. In the areas of development cooperation and humanitarian aid, the Union shall have competence to carry out activities and conduct a common policy; however, the exercise of that competence shall not result in Member States being prevented from exercising theirs.

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Absentee: Telecommunications

The reader may have noticed that the areas of competence listed as exclusive, shared or supporting do not mention telecommunications specifically.

While other infrastructure relies heavily on public financing, investment in telecommunications networks is expected to come mainly from the liberalised markets (with the exception of remote and sparsely populated areas).

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Summary of legislation: Trans-European networks

On the Commission’s Scadplus web pages with summaries of legislation, the page Trans-European networks offers links to pages with guidelines concerning transport, energy and telecommunications networks, including Community funding:

http://europa.eu/scadplus/leg/en/s06019.htm

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Financial aid

General rules are found on the web page Community financial aid to trans-European networks (last update 6 April 2007):

http://europa.eu/scadplus/leg/en/lvb/l24096.htm

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New integrated approach

For an assessment and a forward look at trans-European networks, you can read the Communication from the Commission Trans-European networks: Towards an integrated approach (21.3.2007, COM(2007) 135 final):

http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2007:0135:FIN:EN:PDF

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New initiatives 2008

Here are some Commission papers on TEN issues in 2008:

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions - Legal Framework for Mobile TV Networks and Services: Best Practice for Authorisation – The EU Model; COM(2008) 845 final

Proposal for a Council Decision on establishing the European Community position within the Ministerial Council of the Energy Community (Tirana, 11 December 2008); COM(2008) 783 final

Green Paper - Towards a secure, sustainable and competitive European energy network; COM(2008) 782 final

Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on the implementation of the trans-European energy networks programme in the period 2002-2006 Pursuant to Article 16 of Regulation 2236/1995/EC; COM(2008) 770 final

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For ease of use, here are the references to the transport, energy and telecommunications networks mentioned in yesterday’s post:

TEN-T (transport networks)

Community guidelines for the development of the trans-European transport network (last update 29 January 2008):

http://europa.eu/scadplus/leg/en/lvb/l24094.htm


Interoperability of the trans-European high-speed rail system (last update 9 April 2008):

http://europa.eu/scadplus/leg/en/lvb/l24095.htm


Interoperability of the trans-European conventional rail system (last update 24 November 2005):

http://europa.eu/scadplus/leg/en/lvb/l24229.htm



Satellite navigation: Galileo (last update 13 January 2006):

http://europa.eu/scadplus/leg/en/lvb/l24205.htm


Galileo Joint Undertaking (last update 2 August 2007):

http://europa.eu/scadplus/leg/en/lvb/l24098.htm


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TEN-E (energy networks)

Trans-European energy networks (last update 5 April 2008) on new guidelines:

http://europa.eu/scadplus/leg/en/lvb/l27066.htm
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eTEN (TEN-Telecom) (telecommunications networks)

Guidelines for trans-European telecommunications networks (last update 23 May 2007):

http://europa.eu/scadplus/leg/en/lvb/l24145.htm

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Commission activities

Commission activities and news can be approached through the web page Trans-European Networks:
http://ec.europa.eu/ten/index_en.html

For a more detailed view, you have to look at the different sectors.


Transport (TEN-T):

http://ec.europa.eu/transport/infrastructure/index_en.htm


Energy (TEN-E):

http://ec.europa.eu/energy/infrastructure/index_en.htm


Telecommunications (eTEN):

http://ec.europa.eu/information_society/activities/eten/index_en.htm

The projects under the eTEN umbrella are drawing to a close. You can read the eTEN Newsletter Quarter 4 – 2008:

http://ec.europa.eu/information_society/activities/eten/newsletters/q4_2008.htm

These first references do not give instant answers concerning the possible current role of the European Union with regard to telecommunications networks, but the web page Telecoms in the European Union refers to both telecoms networks and services:

http://ec.europa.eu/information_society/policy/ecomm/index_en.htm .


Ralf Grahn