Tuesday, 23 December 2008

EU Law: Trans-European Networks (TENs)

Since the Roman roads, the importance of good communications has been evident. Transport, energy and telecommunications infrastructure is crucial to the internal market and to cross-border contacts, fostering cohesion.

Although the aims of the European Union seem to be greater than the means, “carrot money” has achieved some progress in improving European networks.

We look at how trans-European networks (TENs) are treated at treaty level, before presenting gateways to further information.


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Article 154 TEC

Article 154 (ex Article 129b) on trans-European networks links them to the objectives referred to in Articles 14 and 158 TEC.

The objective of Article 14 TEC is the internal market, potentially an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured.

The objective of Article 158 TEC is the strengthening of economic and social cohesion, especially reducing the backwardness of the least favoured regions or islands, including rural areas.

Three crucial areas of infrastructure fall within the scope of TENs: transport, telecommunications and energy networks.

The aim is to achieve cross-border effects, by promoting the interconnection and interoperability of national networks. Access to such networks is also promoted.

In line with the territorial and social cohesion objectives, the need to link island, landlocked and peripheral regions with the central regions of the Community is stressed.




Here is the current Article 154 (ex Article 129b) 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/116:

TITLE XV
TRANS-EUROPEAN NETWORKS

Article 154 TEC

1. To help achieve the objectives referred to in Articles 14 and 158 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Community shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.

2. Within the framework of a system of open and competitive markets, action by the Community shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Community.


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Original Lisbon Treaty (ToL)

Although the Treaty of Lisbon is unreadable on its own, it spells out how 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 were not affected 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 154 TEC initially became Article 154 TFEU (ToL) before the renumbering of the treaty made it into Article 170 TFEU in the consolidated version (OJ 17.12.2007 C 306/217).


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Lisbon Treaty consolidated

Article 170 TFEU

After renumbering the Title and the Article as well as the referrals and the customary (horizontal) replacement of Community by Union, Article 170 TFEU shapes up like this in the consolidated version of the Treaty of Lisbon (OJ 9.5.2008 C 115/124–125):


TITLE XVI
TRANS-EUROPEAN NETWORKS

Article 170 TFEU
(ex Article 154 TEC)

1. To help achieve the objectives referred to in Articles 26 and 174 and to enable citizens of the Union, economic operators and regional and local communities to derive full benefit from the setting-up of an area without internal frontiers, the Union shall contribute to the establishment and development of trans-European networks in the areas of transport, telecommunications and energy infrastructures.

2. Within the framework of a system of open and competitive markets, action by the Union shall aim at promoting the interconnection and interoperability of national networks as well as access to such networks. It shall take account in particular of the need to link island, landlocked and peripheral regions with the central regions of the Union.


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Cohesion

Article 170 TFEU refers to Article 174 TFEU, which has undergone a change. The Lisbon Treaty has included territorial cohesion, so the aim is now to strengthen economic, social and territorial cohesion.

(Those interested in this change may wish to look at the activities of Michel Barnier, then Commission member responsible for Regional policy, during the European Convention. Currently Barnier is Minister for Agriculture in the French Government.)

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EU powers

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 categories of EU competence (taxonomy) are 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

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.

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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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Commission activities

Commission activities and news can be approached through the web page Trans-European Networks:

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

The TENs are split among the Directorate-General for Energy and Transport and the administratively somewhat more amorphous Information Society pages, so you might want to check them too.


Ralf Grahn