Today the Estonian Government has introduced the bill on ratification of the EU Treaty of Lisbon to the Parliament, Riigikogu.
Ralf Grahn
Source:
Estonian Government’s press briefing, 31 January 2008 (Valitsuse kommunikatsioonibüroo briifingruum);
http://www.valitsus.ee/brf/?id=1222
Thursday, 31 January 2008
EU Treaty of Lisbon: European Defence Agency
Reform Treaty or codifying exercise? The Lisbon Treaty provisions on the European Defence Agency (EDA) are unquestionably new, but the Agency has already been established and it is operational. Thus, the amended Treaty on European Union (TEU) clarifies existing practice at the Treaty level (and gives the EDA a firmer legal base than a somewhat atypical joint action).
The fragmented nature of European defence and military capabilities offers huge potential benefits through concerted action, if the opportunities are seized. These are early days; only time will tell how successfully the member states of the European Union (EU) will manage to streamline their operations and enhance their capabilities in the military field.
The EDA is a strategic corner stone of the common security and defence policy (CSDP), with its efforts to bring more value for money: improved security at a reasonable cost.
***
The intergovernmental conference (IGC 2007) agreed on new and readable CSDP Articles, like the one on the European Defence Agency, Article 28d TEU of the Treaty of Lisbon (OJ 17.12.2007 C 306/35 and 36).
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28d
1. The European Defence Agency referred to in Article 28 A(3), subject to the authority of the Council, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
Because Article 28d TEU is new and therefore already consolidated and lacks antecedents in the existing Treaties, we go to the draft Treaty establishing a Constitution for Europe, where the Convention proposed the following Article III-212 (OJ 18.7.2003 C 169/69):
Article III-212
1. The European Armaments, Research and Military Capabilities Agency, subject to the authority of the Council of Ministers, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The Agency shall be open to all Member States wishing to be part of it. The Council of Ministers, acting by qualified majority, shall adopt a European decision defining the Agency's
statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
The IGC 2004 agreed on the following text in Article III-311 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/139 and 140):
Article III-311
1. The Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), established by Article I-41(3) and subject to the authority of the Council, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a European decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
We can see that the IGC 2004 gave the Agency a snappier name, the European Defence Agency, but left the rest of the Convention’s text untouched.
The IGC 2007 streamlined the language of the initial phrase by deleting ‘in the field of defence capabilities development, research, acquisition and armaments’ already covered by the reference to Article 28a(3) TEU.
A few basic remarks on the European Defence Agency (EDA) in the Lisbon Treaty:
The EDA is intergovernmental: the member states participate and the Agency is subject to the authority of the Council.
The EDA carries out its tasks in liaison with the Commission, (only) where it is necessary, for instance in questions concerning industrial policy or (general) public procurement.
Participation is voluntary for the member states (‘wishing to be part of it’).
Qualified majority voting is used for the Council decision on the statute, seat and operational rules of the EDA.
Concrete projects are forged between restricted groups of member states.
Potentially, the tasks entrusted to the EDA could bring the member states considerably more value for money in the military field.
Although Articles 28a(3) and 28d TEU are new, they actually represent a codifying exercise, which creates a Treaty base for an Agency already created and operating.
***
After the Convention and before the signing of the Constitutional Treaty, the member states agreed on a joint action pursuant to Article 14 TEU:
Council joint action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (OJ 17.7.2004 L 245/17).
The EDA is based in Brussels and the initial provisions on its establishment (Article 1) are in conformity with the comments above. The mission of the EDA is presented in Article 2:
Article 2
Mission
1. The mission of the Agency is to support the Council and the Member States in their effort to improve the EU’s defence capabilities in the field of crisis management and to sustain the ESDP as it stands now and develops in the future.
2. The Agency’s mission shall be without prejudice to the competences of Member States in defence matters.
***
The EDA has legal personality (Article 6). The Agency’s main revenue comes from member states’ contributions based on the applicable gross national income (GNI) scale, according to Article 8(1)(b).
Information about EDA and its activities, including the EDA Work Programme 2008, is available at the Agency’s web site.
Ralf Grahn
Source:
European Defence Agency: EDA Work Programme 2008 (and other information);
http://www.eda.europa.eu/
The fragmented nature of European defence and military capabilities offers huge potential benefits through concerted action, if the opportunities are seized. These are early days; only time will tell how successfully the member states of the European Union (EU) will manage to streamline their operations and enhance their capabilities in the military field.
The EDA is a strategic corner stone of the common security and defence policy (CSDP), with its efforts to bring more value for money: improved security at a reasonable cost.
***
The intergovernmental conference (IGC 2007) agreed on new and readable CSDP Articles, like the one on the European Defence Agency, Article 28d TEU of the Treaty of Lisbon (OJ 17.12.2007 C 306/35 and 36).
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28d
1. The European Defence Agency referred to in Article 28 A(3), subject to the authority of the Council, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
Because Article 28d TEU is new and therefore already consolidated and lacks antecedents in the existing Treaties, we go to the draft Treaty establishing a Constitution for Europe, where the Convention proposed the following Article III-212 (OJ 18.7.2003 C 169/69):
Article III-212
1. The European Armaments, Research and Military Capabilities Agency, subject to the authority of the Council of Ministers, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The Agency shall be open to all Member States wishing to be part of it. The Council of Ministers, acting by qualified majority, shall adopt a European decision defining the Agency's
statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
The IGC 2004 agreed on the following text in Article III-311 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/139 and 140):
Article III-311
1. The Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), established by Article I-41(3) and subject to the authority of the Council, shall have as its task to:
(a) contribute to identifying the Member States' military capability objectives and evaluating observance of the capability commitments given by the Member States;
(b) promote harmonisation of operational needs and adoption of effective, compatible procurement methods;
(c) propose multilateral projects to fulfil the objectives in terms of military capabilities, ensure coordination of the programmes implemented by the Member States and management of specific cooperation programmes;
(d) support defence technology research, and coordinate and plan joint research activities and the study of technical solutions meeting future operational needs;
(e) contribute to identifying and, if necessary, implementing any useful measure for strengthening the industrial and technological base of the defence sector and for improving the effectiveness of military expenditure.
2. The European Defence Agency shall be open to all Member States wishing to be part of it. The Council, acting by a qualified majority, shall adopt a European decision defining the Agency's statute, seat and operational rules. That decision should take account of the level of effective participation in the Agency's activities. Specific groups shall be set up within the Agency bringing together Member States engaged in joint projects. The Agency shall carry out its tasks in liaison with the Commission where necessary.
***
We can see that the IGC 2004 gave the Agency a snappier name, the European Defence Agency, but left the rest of the Convention’s text untouched.
The IGC 2007 streamlined the language of the initial phrase by deleting ‘in the field of defence capabilities development, research, acquisition and armaments’ already covered by the reference to Article 28a(3) TEU.
A few basic remarks on the European Defence Agency (EDA) in the Lisbon Treaty:
The EDA is intergovernmental: the member states participate and the Agency is subject to the authority of the Council.
The EDA carries out its tasks in liaison with the Commission, (only) where it is necessary, for instance in questions concerning industrial policy or (general) public procurement.
Participation is voluntary for the member states (‘wishing to be part of it’).
Qualified majority voting is used for the Council decision on the statute, seat and operational rules of the EDA.
Concrete projects are forged between restricted groups of member states.
Potentially, the tasks entrusted to the EDA could bring the member states considerably more value for money in the military field.
Although Articles 28a(3) and 28d TEU are new, they actually represent a codifying exercise, which creates a Treaty base for an Agency already created and operating.
***
After the Convention and before the signing of the Constitutional Treaty, the member states agreed on a joint action pursuant to Article 14 TEU:
Council joint action 2004/551/CFSP of 12 July 2004 on the establishment of the European Defence Agency (OJ 17.7.2004 L 245/17).
The EDA is based in Brussels and the initial provisions on its establishment (Article 1) are in conformity with the comments above. The mission of the EDA is presented in Article 2:
Article 2
Mission
1. The mission of the Agency is to support the Council and the Member States in their effort to improve the EU’s defence capabilities in the field of crisis management and to sustain the ESDP as it stands now and develops in the future.
2. The Agency’s mission shall be without prejudice to the competences of Member States in defence matters.
***
The EDA has legal personality (Article 6). The Agency’s main revenue comes from member states’ contributions based on the applicable gross national income (GNI) scale, according to Article 8(1)(b).
Information about EDA and its activities, including the EDA Work Programme 2008, is available at the Agency’s web site.
Ralf Grahn
Source:
European Defence Agency: EDA Work Programme 2008 (and other information);
http://www.eda.europa.eu/
Wednesday, 30 January 2008
Two new Lisbon Treaty ratifications
The Slovenian Presidency of the EU Council has informed us that the Parliament of Slovenia has ratified the Treaty of Lisbon. In the words of Prime Minister Janez Janša:
“By a vast majority of 74 votes out of a total of 90, the Republic of Slovenia has become the second Member State to confirm the new institutional structure for more effective functioning of the enlarged European Union.”
The Times of Malta reports that the House of Representatives has unanimously ratified the EU Lisbon reform treaty.
Hungary was the first member state to ratify, so the number of ratifications is now three.
Ralf Grahn
Sources:
Prime Minister Janez Janša welcomes ratification of the Lisbon Treaty; 29 January 2008;
http://www.eu2008.si
Times of Malta: House ratifies Lisbon treaty; 29 January 2008;
http://www.timesofmalta.com
“By a vast majority of 74 votes out of a total of 90, the Republic of Slovenia has become the second Member State to confirm the new institutional structure for more effective functioning of the enlarged European Union.”
The Times of Malta reports that the House of Representatives has unanimously ratified the EU Lisbon reform treaty.
Hungary was the first member state to ratify, so the number of ratifications is now three.
Ralf Grahn
Sources:
Prime Minister Janez Janša welcomes ratification of the Lisbon Treaty; 29 January 2008;
http://www.eu2008.si
Times of Malta: House ratifies Lisbon treaty; 29 January 2008;
http://www.timesofmalta.com
EU Treaty of Lisbon: CSDP mission coalitions
On Monday, the Council of the European Union decided to launch an international military mission in support of UN peace-keeping missions in Darfur, Sudan. The Council conclusions stated i.a.:
“8. The Council launched the military bridging operation EUFOR Tchad/RCA. It authorised the
EU operation commander, with immediate effect, to release the activation order in order to execute the deployment of the forces and start the execution of the mission. The Council reaffirms its full commitment to contribute to the implementation of the UNSC-Resolution 1778 (2007) which authorises the deployment in Chad and Central African Republic of a multidimensional presence, including the EU providing the military element of it. In accordance with this resolution, the EU conducts this military bridging operation for a period of 12 months from the declaration of Initial Operational Capability which is planned to be reached in March 2008. A mid mandate review after 6 months, conducted in conjunction with the UN, will assess the need for a possible UN follow-on capability.”
According to the Council factsheet 14 EU member states will be present in the field and 22 at Operations Headquarters.
***
As we see, international missions – military and civilian – are not new to the common security and defence policy (CSDP) of the EU.
This operation, too, is a coalition of willing and able member state, even a broad one, with at least a token representation of more than two thirds of them.
The Lisbon Treaty clarifies the basic Treaty provisions on CSDP operations, but more than creating new rules it is a codification of existing (and evolving) practice, where the European Union acts to enhance peace and stability in troubled regions.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) offers us one of its new and unmaimed Articles in the Treaty on European Union (TEU) Article 28c (OJ 17.12.2007 C 306/35).
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28c
1. Within the framework of the decisions adopted in accordance with Article 28 B, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.
2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.
***
In the existing TEU the CSDP missions mentioned in Article 17(2) TEU (latest consolidated version OJ 29.12.2006 C 321 E/17), the Petersberg tasks, form the basis for the evolved CSDP Section in the Lisbon Treaty.
Article 17(2)
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
The Convention fathered the rules on tasks entrusted to a group of member states in Article III-211 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/69):
Article III-211
1. Within the framework of the European decisions adopted in accordance with Article III-210, the Council of Ministers may entrust the implementation of a task to a group of Member States having the necessary capability and the desire to undertake the task. Those Member States in association with the Union Minister for Foreign Affairs shall agree between themselves on the management of the task.
2. The Council of Ministers shall be regularly informed by the Member States participating in the task of its progress. Should the completion of the task involve major new consequences or require amendment of the objective, scope and conditions for implementation adopted by the Council of Ministers under Article III-210, the Member States participating shall refer the matter to the Council of Ministers forthwith. In such cases, the Council of Ministers shall adopt the necessary European decisions.
***
The IGC 2004 was the mother of the modified Article III-310 of the Treaty establishing a Constitution for Europe:
Article III-310
1. Within the framework of the European decisions adopted in accordance with Article III-309, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the Union Minister for Foreign Affairs, shall agree among themselves on the management of the task.
2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the European decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary European decisions.
***
The child, Reform Treaty Article 28c TEU, is almost a clone of its mother.
The CSDP provisions have to be read in conjunction. Article 28a TEU forms the background, with 28a(4) requiring a unanimous Council decision to launch a mission, and 28a(5) offering the option to entrust a task to a group of member states. Article 28b TEU describes the various missions – the expanded Petersberg tasks – and the contents to be settled in the Council decision. (Read the two previous posts.)
Article 28c TEU tries to strike a balance between the European Union as a whole and the group of member states which actually implements the task.
The operation is launched in the name of the EU, with the Council defining the objectives, the scope and the general conditions of the mission.
Based on this authorisation, the coalition then agrees on the management of the task, in association with the High Representative.
Basically, the ‘coalition of the willing and able’ runs the operation, and the rest of the member states (Council) only have a right to be informed.
If the mission runs into trouble, or if other major changes are needed, the Council takes on the role of decision maker.
Ralf Grahn
Sources:
Council of the European Union: Council conclusions, General Affairs and External Relations, 28 January 2008, 5624/08, Provisional version (p. 12-15)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/98460.pdf
European Union Council Secretariat: Background: EU Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR Tchad/RCA), January 2008 (p. 2)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/misc/98416.pdf
“8. The Council launched the military bridging operation EUFOR Tchad/RCA. It authorised the
EU operation commander, with immediate effect, to release the activation order in order to execute the deployment of the forces and start the execution of the mission. The Council reaffirms its full commitment to contribute to the implementation of the UNSC-Resolution 1778 (2007) which authorises the deployment in Chad and Central African Republic of a multidimensional presence, including the EU providing the military element of it. In accordance with this resolution, the EU conducts this military bridging operation for a period of 12 months from the declaration of Initial Operational Capability which is planned to be reached in March 2008. A mid mandate review after 6 months, conducted in conjunction with the UN, will assess the need for a possible UN follow-on capability.”
According to the Council factsheet 14 EU member states will be present in the field and 22 at Operations Headquarters.
***
As we see, international missions – military and civilian – are not new to the common security and defence policy (CSDP) of the EU.
This operation, too, is a coalition of willing and able member state, even a broad one, with at least a token representation of more than two thirds of them.
The Lisbon Treaty clarifies the basic Treaty provisions on CSDP operations, but more than creating new rules it is a codification of existing (and evolving) practice, where the European Union acts to enhance peace and stability in troubled regions.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) offers us one of its new and unmaimed Articles in the Treaty on European Union (TEU) Article 28c (OJ 17.12.2007 C 306/35).
50) The following new Articles 28 B to 28 E shall be inserted:
-----
Article 28c
1. Within the framework of the decisions adopted in accordance with Article 28 B, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the High Representative of the Union for Foreign Affairs and Security Policy, shall agree among themselves on the management of the task.
2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary decisions.
***
In the existing TEU the CSDP missions mentioned in Article 17(2) TEU (latest consolidated version OJ 29.12.2006 C 321 E/17), the Petersberg tasks, form the basis for the evolved CSDP Section in the Lisbon Treaty.
Article 17(2)
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
The Convention fathered the rules on tasks entrusted to a group of member states in Article III-211 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/69):
Article III-211
1. Within the framework of the European decisions adopted in accordance with Article III-210, the Council of Ministers may entrust the implementation of a task to a group of Member States having the necessary capability and the desire to undertake the task. Those Member States in association with the Union Minister for Foreign Affairs shall agree between themselves on the management of the task.
2. The Council of Ministers shall be regularly informed by the Member States participating in the task of its progress. Should the completion of the task involve major new consequences or require amendment of the objective, scope and conditions for implementation adopted by the Council of Ministers under Article III-210, the Member States participating shall refer the matter to the Council of Ministers forthwith. In such cases, the Council of Ministers shall adopt the necessary European decisions.
***
The IGC 2004 was the mother of the modified Article III-310 of the Treaty establishing a Constitution for Europe:
Article III-310
1. Within the framework of the European decisions adopted in accordance with Article III-309, the Council may entrust the implementation of a task to a group of Member States which are willing and have the necessary capability for such a task. Those Member States, in association with the Union Minister for Foreign Affairs, shall agree among themselves on the management of the task.
2. Member States participating in the task shall keep the Council regularly informed of its progress on their own initiative or at the request of another Member State. Those States shall inform the Council immediately should the completion of the task entail major consequences or require amendment of the objective, scope and conditions determined for the task in the European decisions referred to in paragraph 1. In such cases, the Council shall adopt the necessary European decisions.
***
The child, Reform Treaty Article 28c TEU, is almost a clone of its mother.
The CSDP provisions have to be read in conjunction. Article 28a TEU forms the background, with 28a(4) requiring a unanimous Council decision to launch a mission, and 28a(5) offering the option to entrust a task to a group of member states. Article 28b TEU describes the various missions – the expanded Petersberg tasks – and the contents to be settled in the Council decision. (Read the two previous posts.)
Article 28c TEU tries to strike a balance between the European Union as a whole and the group of member states which actually implements the task.
The operation is launched in the name of the EU, with the Council defining the objectives, the scope and the general conditions of the mission.
Based on this authorisation, the coalition then agrees on the management of the task, in association with the High Representative.
Basically, the ‘coalition of the willing and able’ runs the operation, and the rest of the member states (Council) only have a right to be informed.
If the mission runs into trouble, or if other major changes are needed, the Council takes on the role of decision maker.
Ralf Grahn
Sources:
Council of the European Union: Council conclusions, General Affairs and External Relations, 28 January 2008, 5624/08, Provisional version (p. 12-15)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/gena/98460.pdf
European Union Council Secretariat: Background: EU Military Operation in Eastern Chad and North Eastern Central African Republic (EUFOR Tchad/RCA), January 2008 (p. 2)
http://www.consilium.europa.eu/ueDocs/cms_Data/docs/pressData/en/misc/98416.pdf
Tuesday, 29 January 2008
EU Treaty of Lisbon: Civilian and military missions
In the Petersberg Declaration, the Western European Union (WEU) Council of Ministers decided to strengthen WEU’s operational role by taking on tasks in addition to the mutual defence obligations of the member states. These are known as the Petersberg tasks (Bonn, 19 June 1992; Declaration II.4):
“4. Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty and Article V of the modified Brussels Treaty respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:
- humanitarian and rescue tasks;
- peacekeeping tasks;
- tasks of combat forces in crisis management, including peacemaking.”
From a British point of view, the European Security and Defence Policy (ESDP) grew from a UK-French initiative at St Malo in 1998, where the Heads of State and Government of France and the United Kingdom are agreed i.a. that the European Union needs to be in a position to play its full role on the international stage, including the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union.
To this end, the leaders concluded, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises.
The St Malo agreement is still presented as one of the highlights of relations between the UK and France, as by the British Embassy in France:
“Current cooperation with France on European Security and Defence Policy evolved from the St Malo proposal to give the EU the capacity to respond to international crises through military and civilian, such as police, operations. In late 2003 this led to Trilateral proposals on the issue of the planning of EU operations, finally agreed in October 2004 at trilateral level, and on the defence aspects of the draft Constitutional Treaty.
The UK and France have recently developed a joint proposal to create EU rapid response forces for urgent crises where the UN needs assistance (battlegroups). The UK and French governments are both buying new aircraft carriers and are looking at the scope for co-operation on this, and on other major procurement projects such as air refuelling tankers.”
This view is attested by the UK House of Commons Foreign Affairs Committee, which notes that President Sarkozy of France has already made it clear that, ten years after St Malo, the development of EU defence will be a priority of France’s EU Presidency in the second half of 2008 (p. 71)
***
Since the following Articles on the common security and defence policy are new at the Treaty level, the intergovernmental conference (IGC 2007) had to render them in a readable way. Thus, the IGC 2007 version is the consolidated version (bar later renumbering; I follow the original Lisbon Treaty numbers). Unmutilated Article 28b TEU is next (OJ 17.12.2007 C 306/34 and 35):
50) The following new Articles 28 B to 28 E shall be inserted:
Article 28b
1. The tasks referred to in Article 28 A(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
CSDP missions are not new as such. In CSDP Article 17 TEU different tasks are mentioned (latest consolidated version OJ 29.12.2006 C 321 E/17):
Article 17(2) TEU
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
In this, as in many instances, the Treaty of Lisbon is indebted to the Convention, which drafted Article III-210 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68 and 69):
SECTION 1
The common security and defence policy
Article III-210
1. The tasks referred to in Article I-40(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council of Ministers, acting unanimously, shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council of Ministers and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
In the Treaty establishing a Constitution for Europe the member states’ governments signed up to the proposal of the Convention in Article III-309 (OJ 16.12.2004 C 310/138 and 139):
SECTION 2
THE COMMON SECURITY AND DEFENCE POLICY
Article III-309
1. The tasks referred to in Article I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
We see that humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking, already have their basis in the existing TEU, exactly as presented in the Petersberg Declaration.
The Convention, the Constitutional Treaty and the Reform Treaty, almost ‘verbatim’, codify and exemplify existing and expanding practice, where not only military units, but civilian components can be deployed as well, and the fight against terrorism is mentioned explicitly. This is the expansion in the list of “Petersberg tasks” the UK House of Commons Foreign Affairs Committee refers to in its report (p. 73).
The Swedish government refers to the framework for the European Union’s crisis management operations in the Reform Treaty Article 28a TEU and mentions the further development of the Petersberg tasks in Article 28b TEU to encompass missions before, during and after a conflict. The government offers some examples of civilian missions – police tasks, support for the rule of law and rescue services – as well as mentioning military tasks (p. 365-366).
While the Council adopts the necessary basic decisions, unanimously pursuant to Article 28a(4), we take note of the importance of the High Representative and the Political and Security Committee in the day to day coordination of the CSDP operations.
Ralf Grahn
Sources:
Western European Union Council of Ministers: Petersberg Declaration; Bonn, 19 June 1992
Joint declaration: British-French summit St Malo, 3-4 December 1998
British Embassy, France: The Franco-British relationship today
UK House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty; Third Report of Session 2007-08; 20 January 2008
Government of Sweden: Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds) 2007:48; 20 december 2007
“4. Apart from contributing to the common defence in accordance with Article 5 of the Washington Treaty and Article V of the modified Brussels Treaty respectively, military units of WEU member States, acting under the authority of WEU, could be employed for:
- humanitarian and rescue tasks;
- peacekeeping tasks;
- tasks of combat forces in crisis management, including peacemaking.”
From a British point of view, the European Security and Defence Policy (ESDP) grew from a UK-French initiative at St Malo in 1998, where the Heads of State and Government of France and the United Kingdom are agreed i.a. that the European Union needs to be in a position to play its full role on the international stage, including the responsibility of the European Council to decide on the progressive framing of a common defence policy in the framework of CFSP. The Council must be able to take decisions on an intergovernmental basis, covering the whole range of activity set out in Title V of the Treaty of European Union.
To this end, the leaders concluded, the Union must have the capacity for autonomous action, backed up by credible military forces, the means to decide to use them, and a readiness to do so, in order to respond to international crises.
The St Malo agreement is still presented as one of the highlights of relations between the UK and France, as by the British Embassy in France:
“Current cooperation with France on European Security and Defence Policy evolved from the St Malo proposal to give the EU the capacity to respond to international crises through military and civilian, such as police, operations. In late 2003 this led to Trilateral proposals on the issue of the planning of EU operations, finally agreed in October 2004 at trilateral level, and on the defence aspects of the draft Constitutional Treaty.
The UK and France have recently developed a joint proposal to create EU rapid response forces for urgent crises where the UN needs assistance (battlegroups). The UK and French governments are both buying new aircraft carriers and are looking at the scope for co-operation on this, and on other major procurement projects such as air refuelling tankers.”
This view is attested by the UK House of Commons Foreign Affairs Committee, which notes that President Sarkozy of France has already made it clear that, ten years after St Malo, the development of EU defence will be a priority of France’s EU Presidency in the second half of 2008 (p. 71)
***
Since the following Articles on the common security and defence policy are new at the Treaty level, the intergovernmental conference (IGC 2007) had to render them in a readable way. Thus, the IGC 2007 version is the consolidated version (bar later renumbering; I follow the original Lisbon Treaty numbers). Unmutilated Article 28b TEU is next (OJ 17.12.2007 C 306/34 and 35):
50) The following new Articles 28 B to 28 E shall be inserted:
Article 28b
1. The tasks referred to in Article 28 A(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The High Representative of the Union for Foreign Affairs and Security Policy, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
CSDP missions are not new as such. In CSDP Article 17 TEU different tasks are mentioned (latest consolidated version OJ 29.12.2006 C 321 E/17):
Article 17(2) TEU
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking.
***
In this, as in many instances, the Treaty of Lisbon is indebted to the Convention, which drafted Article III-210 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68 and 69):
SECTION 1
The common security and defence policy
Article III-210
1. The tasks referred to in Article I-40(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peacemaking and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council of Ministers, acting unanimously, shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council of Ministers and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
In the Treaty establishing a Constitution for Europe the member states’ governments signed up to the proposal of the Convention in Article III-309 (OJ 16.12.2004 C 310/138 and 139):
SECTION 2
THE COMMON SECURITY AND DEFENCE POLICY
Article III-309
1. The tasks referred to in Article I-41(1), in the course of which the Union may use civilian and military means, shall include joint disarmament operations, humanitarian and rescue tasks, military advice and assistance tasks, conflict prevention and peace-keeping tasks, tasks of combat forces in crisis management, including peace-making and post-conflict stabilisation. All these tasks may contribute to the fight against terrorism, including by supporting third countries in combating terrorism in their territories.
2. The Council shall adopt European decisions relating to the tasks referred to in paragraph 1, defining their objectives and scope and the general conditions for their implementation. The Union Minister for Foreign Affairs, acting under the authority of the Council and in close and constant contact with the Political and Security Committee, shall ensure coordination of the civilian and military aspects of such tasks.
***
We see that humanitarian and rescue tasks, peace-keeping tasks and tasks of combat forces in crisis management, including peacemaking, already have their basis in the existing TEU, exactly as presented in the Petersberg Declaration.
The Convention, the Constitutional Treaty and the Reform Treaty, almost ‘verbatim’, codify and exemplify existing and expanding practice, where not only military units, but civilian components can be deployed as well, and the fight against terrorism is mentioned explicitly. This is the expansion in the list of “Petersberg tasks” the UK House of Commons Foreign Affairs Committee refers to in its report (p. 73).
The Swedish government refers to the framework for the European Union’s crisis management operations in the Reform Treaty Article 28a TEU and mentions the further development of the Petersberg tasks in Article 28b TEU to encompass missions before, during and after a conflict. The government offers some examples of civilian missions – police tasks, support for the rule of law and rescue services – as well as mentioning military tasks (p. 365-366).
While the Council adopts the necessary basic decisions, unanimously pursuant to Article 28a(4), we take note of the importance of the High Representative and the Political and Security Committee in the day to day coordination of the CSDP operations.
Ralf Grahn
Sources:
Western European Union Council of Ministers: Petersberg Declaration; Bonn, 19 June 1992
Joint declaration: British-French summit St Malo, 3-4 December 1998
British Embassy, France: The Franco-British relationship today
UK House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty; Third Report of Session 2007-08; 20 January 2008
Government of Sweden: Lissabonfördraget; Statsrådsberedningen, Departementsserien (Ds) 2007:48; 20 december 2007
Monday, 28 January 2008
EU Treaty of Lisbon: Security and defence
The Treaty of Lisbon would take the European Union one step closer to a meaningful common security and defence policy (CSDP) and the prospect of a common defence, compatible with NATO.
The Lisbon Treaty marks a stage in development, when the strictures of intergovernmental cooperation and unanimous decisions are the norm.
Still, a developing common foreign and security policy (CSDP), civilian and military operations, a future common defence, improved military capabilities, the European Defence Agency, coalitions of the able and willing, permanent structured cooperation and a mutual defence clause are given new or beefed-up Treaty provisions.
***
The intergovernmental conference (IGC 2007) gave the Treaty on European Union (TEU) Chapter 2 on the common foreign and security policy (CFSP) a new clarifying section 2 on the specific provisions concerning the common security and defence policy (CSDP). First, we look at the text of Article 28a TEU as amended by the Treaty of Lisbon (OJ 17.12.2007 C 306/33 and 34):
48) The following new section 2 shall be inserted:
"SECTION 2 PROVISIONS ON THE COMMON SECURITY AND DEFENCE POLICY"
49) An Article 28 A shall be inserted, taking over the wording of Article 17, with the following amendments:
(a) the following new paragraph 1 shall be inserted and the next paragraph shall be renumbered 2:
"1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.";
(b) paragraph 1, renumbered 2, shall be amended as follows:
(i) the first subparagraph shall be replaced by the following:
"2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.";
(ii) in the second subparagraph, the words "in accordance with this Article" shall be replaced by "in accordance with this Section";
(iii) the third subparagraph shall be deleted.
(c) the present paragraphs 2, 3, 4 and 5 shall be replaced by the following paragraphs 3 to 7:
"3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.
4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.
7. If a Member State is the victim of armed aggression on its territory, the other
Member States shall have towards it an obligation of aid and assistance by all the means in
their power, in accordance with Article 51 of the United Nations Charter. This shall not
prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.
***
Since Article 28a TEU takes over most of the wording of Article 17 TEU in the existing Treaty, we go to the latest consolidated version of Article 17 TEU (OJ 29.12.2006 C 321 E/17):
Article 17
1. The common foreign and security policy shall include all questions relating to the security of
the Union, including the progressive framing of a common defence policy, which might lead to
a common defence, should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
The progressive framing of a common defence policy will be supported, as Member States consider appropriate, by cooperation between them in the field of armaments.
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping
tasks and tasks of combat forces in crisis management, including peacemaking.
3. Decisions having defence implications dealt with under this Article shall be taken without
prejudice to the policies and obligations referred to in paragraph 1, second subparagraph.
4. The provisions of this Article shall not prevent the development of closer cooperation
between two or more Member States on a bilateral level, in the framework of the Western
European Union (WEU) and NATO, provided such cooperation does not run counter to or impede that provided for in this title.
5. With a view to furthering the objectives of this Article, the provisions of this Article will be
reviewed in accordance with Article 48.
***
Desiring to fill the communication gap willed by the Council, we now proceed to construct one consolidated language version out of the 23 that the Council should have published of the Lisbon Treaty Article 28a TEU, by combining Article 17 TEU with the amendments:
Article 28a
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.
4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.
7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.
***
The main corresponding Article in the draft Treaty establishing a Constitution for Europe was Article I-40 (OJ 18.7.2003 C 169/18):
Article 40
Specific provisions for implementing the common security and defence policy
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on assets civil and military. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council of Ministers. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. A European Armaments, Research and Military Capabilities Agency shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council of Ministers in evaluating the improvement of military capabilities.
4. European decisions on the implementation of the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council of Ministers acting unanimously on a proposal from the Union Minister for Foreign Affairs or from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council of Ministers may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III- 211.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish structured cooperation within the Union framework. Such cooperation shall be governed by the provisions of Article III-213.
7. Until such time as the European Council has acted in accordance with paragraph 2 of this Article, closer cooperation shall be established, in the Union framework, as regards mutual defence. Under this cooperation, if one of the Member States participating in such cooperation is the victim of armed aggression on its territory, the other participating States shall give it aid and assistance by all the means in their power, military or other, in accordance with Article 51 of the United Nations Charter. In the execution of closer cooperation on mutual defence, the participating Member States shall work in close cooperation with the North Atlantic Treaty Organisation. The detailed arrangements for participation in this cooperation and its operation, and the relevant decision-making procedures, are set out in Article III-214.
8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy, and shall be kept informed of how it evolves.
***
The proposal by the Convention was taken over, with modifications, in the Treaty establishing a Constitution for Europe Article I-41 (OJ 16.12.2004 C 310/30 and 31):
Article I-41
Specific provisions relating to the common security and defence policy
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States, it shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. An Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency) shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities.
4. European decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the Union Minister for Foreign Affairs or an initiative from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III-310.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article III-312. It shall not affect the provisions of Article III-309.
7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.
8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy. It shall be kept informed of how it evolves.
***
A Section with the CSDP provisions clarifies the Treaty.
The Reform Treaty Article 28a TEU is, in keeping with the IGC 2007 Mandate (Council document 11218/07), an almost word for word rendering of Article I-41, paragraphs 1 to 7, of the Constitutional Treaty. Here, as elsewhere, the ‘Union Minister for Foreign Affairs’ has become the ‘High Representative of the Union for Foreign Affairs and Security Policy’.
The text of Article I-41(8) on specific CSDP consulting of the European Parliament has been deleted.
The CSDP encompasses both civilian and military means.
The CSDP is firmly planted in intergovernmental cooperation, although civilian tasks may require action by the Commission.
The objective of the Lisbon Treaty is progressively to frame a common Union defence policy and to establish a common defence. But the common defence requires a unanimous decision by the European Council and adoption (ratification) in the member states.
The heterogeneous nature of the European Union as a security and defence community at its present stage of development is ambiguously transmitted by the words ‘certain Member States’.
In fact, there are at least three categories of ‘certain Member States’.
First, we have certain Member States, with a security and defence policy with a ‘specific character’, not to be prejudiced. These are the six (former) neutral or non-aligned countries, which remain outside NATO: Austria, Cyprus, Finland, Ireland, Malta and Sweden. The Lisbon Treaty does not define the scope of their exemptions.
Second, there is the opt-out of Denmark (a member of NATO), set out in the Protocol on the position of Denmark, amended to take the Danish opt-outs into consideration. Article 5 (ex 6) of the Protocol defines Denmark’s opt-out from matters with defence implications, Article 13(1), Article 28 A and Articles 28 B to 28 E of the TEU. On the other hand, ‘Denmark will not prevent the other Member States from further developing their cooperation in this area’ (OJ 17.12.2007 C 306/186).
Third, there is the European mainstream, ‘certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty’. For them, EU CSDP obligations and NATO policies have to be compatible.
Some of the CSDP commitments of the member states are: to make civilian and military capabilities available to the EU, to establish multinational forces, to improve their military capabilities.
There are new provisions for existing European Defence Agency, which shall contribute to enhancing military capabilities.
CSDP decisions, including decisions to launch missions, are taken unanimously.
Missions or other tasks may be entrusted to coalitions of willing member states.
Permanent structured cooperation between member states with higher military capabilities are envisioned in Article 28a(6) and in the detailed Protocol on permanent structured cooperation established by Article 28a of the Treaty on European Union:
“PROTOCOL
ON PERMANENT STRUCTURED COOPERATION ESTABLISHED
BY ARTICLE 28 A OF THE TREATY ON EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article 28 A(6) and Article 28 E of the Treaty on European Union,
RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;
RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 28 B of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;
RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;
RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;
CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;
DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;
RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;
RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;
CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;
RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,
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:
Article 1
The permanent structured cooperation referred to in Article 28 A(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:
(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and
(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.
Article 2
To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to
(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;
(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;
(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;
(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;
(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.
Article 3
The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 28 E of the Treaty on European Union.”
***
Last but not least, we have the upgraded mutual assistance clause in Article 28a(7), the obligation to give aid and assistance if a member state is the victim of armed aggression on its territory. This obligation is unclear concerning ‘certain Member States’, i.e. the neutral or non-aligned ones.
NATO remains the foundation of the collective defence of the EU members which belong to NATO.
The European Parliament is marginalised. There is only the general clause on consulting the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy (Article 21 TEU) and the existing Parliamentary Assembly of the Western European Union (WEU).
***
Next time we look at the legal basis for CSDP operations.
Ralf Grahn
The Lisbon Treaty marks a stage in development, when the strictures of intergovernmental cooperation and unanimous decisions are the norm.
Still, a developing common foreign and security policy (CSDP), civilian and military operations, a future common defence, improved military capabilities, the European Defence Agency, coalitions of the able and willing, permanent structured cooperation and a mutual defence clause are given new or beefed-up Treaty provisions.
***
The intergovernmental conference (IGC 2007) gave the Treaty on European Union (TEU) Chapter 2 on the common foreign and security policy (CFSP) a new clarifying section 2 on the specific provisions concerning the common security and defence policy (CSDP). First, we look at the text of Article 28a TEU as amended by the Treaty of Lisbon (OJ 17.12.2007 C 306/33 and 34):
48) The following new section 2 shall be inserted:
"SECTION 2 PROVISIONS ON THE COMMON SECURITY AND DEFENCE POLICY"
49) An Article 28 A shall be inserted, taking over the wording of Article 17, with the following amendments:
(a) the following new paragraph 1 shall be inserted and the next paragraph shall be renumbered 2:
"1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.";
(b) paragraph 1, renumbered 2, shall be amended as follows:
(i) the first subparagraph shall be replaced by the following:
"2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.";
(ii) in the second subparagraph, the words "in accordance with this Article" shall be replaced by "in accordance with this Section";
(iii) the third subparagraph shall be deleted.
(c) the present paragraphs 2, 3, 4 and 5 shall be replaced by the following paragraphs 3 to 7:
"3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.
4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.
7. If a Member State is the victim of armed aggression on its territory, the other
Member States shall have towards it an obligation of aid and assistance by all the means in
their power, in accordance with Article 51 of the United Nations Charter. This shall not
prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.
***
Since Article 28a TEU takes over most of the wording of Article 17 TEU in the existing Treaty, we go to the latest consolidated version of Article 17 TEU (OJ 29.12.2006 C 321 E/17):
Article 17
1. The common foreign and security policy shall include all questions relating to the security of
the Union, including the progressive framing of a common defence policy, which might lead to
a common defence, should the European Council so decide. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
The progressive framing of a common defence policy will be supported, as Member States consider appropriate, by cooperation between them in the field of armaments.
2. Questions referred to in this Article shall include humanitarian and rescue tasks, peacekeeping
tasks and tasks of combat forces in crisis management, including peacemaking.
3. Decisions having defence implications dealt with under this Article shall be taken without
prejudice to the policies and obligations referred to in paragraph 1, second subparagraph.
4. The provisions of this Article shall not prevent the development of closer cooperation
between two or more Member States on a bilateral level, in the framework of the Western
European Union (WEU) and NATO, provided such cooperation does not run counter to or impede that provided for in this title.
5. With a view to furthering the objectives of this Article, the provisions of this Article will be
reviewed in accordance with Article 48.
***
Desiring to fill the communication gap willed by the Council, we now proceed to construct one consolidated language version out of the 23 that the Council should have published of the Lisbon Treaty Article 28a TEU, by combining Article 17 TEU with the amendments:
Article 28a
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civilian and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Section shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. The Agency in the field of defence capabilities development, research, acquisition and armaments (hereinafter referred to as "the European Defence Agency") shall identify operational requirements, shall promote measures to satisfy those requirements, shall contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, shall participate in defining a European capabilities and armaments policy, and shall assist the Council in evaluating the improvement of military capabilities.
4. Decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy or an initiative from a Member State. The High Representative may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article 28 C.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article 28 E. It shall not affect the provisions of Article 28 B.
7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.’.
***
The main corresponding Article in the draft Treaty establishing a Constitution for Europe was Article I-40 (OJ 18.7.2003 C 169/18):
Article 40
Specific provisions for implementing the common security and defence policy
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on assets civil and military. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States and shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council of Ministers. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. A European Armaments, Research and Military Capabilities Agency shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council of Ministers in evaluating the improvement of military capabilities.
4. European decisions on the implementation of the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council of Ministers acting unanimously on a proposal from the Union Minister for Foreign Affairs or from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council of Ministers may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III- 211.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish structured cooperation within the Union framework. Such cooperation shall be governed by the provisions of Article III-213.
7. Until such time as the European Council has acted in accordance with paragraph 2 of this Article, closer cooperation shall be established, in the Union framework, as regards mutual defence. Under this cooperation, if one of the Member States participating in such cooperation is the victim of armed aggression on its territory, the other participating States shall give it aid and assistance by all the means in their power, military or other, in accordance with Article 51 of the United Nations Charter. In the execution of closer cooperation on mutual defence, the participating Member States shall work in close cooperation with the North Atlantic Treaty Organisation. The detailed arrangements for participation in this cooperation and its operation, and the relevant decision-making procedures, are set out in Article III-214.
8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy, and shall be kept informed of how it evolves.
***
The proposal by the Convention was taken over, with modifications, in the Treaty establishing a Constitution for Europe Article I-41 (OJ 16.12.2004 C 310/30 and 31):
Article I-41
Specific provisions relating to the common security and defence policy
1. The common security and defence policy shall be an integral part of the common foreign and security policy. It shall provide the Union with an operational capacity drawing on civil and military assets. The Union may use them on missions outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter. The performance of these tasks shall be undertaken using capabilities provided by the Member States.
2. The common security and defence policy shall include the progressive framing of a common Union defence policy. This will lead to a common defence, when the European Council, acting unanimously, so decides. It shall in that case recommend to the Member States the adoption of such a decision in accordance with their respective constitutional requirements.
The policy of the Union in accordance with this Article shall not prejudice the specific character of the security and defence policy of certain Member States, it shall respect the obligations of certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation, under the North Atlantic Treaty, and be compatible with the common security and defence policy established within that framework.
3. Member States shall make civilian and military capabilities available to the Union for the implementation of the common security and defence policy, to contribute to the objectives defined by the Council. Those Member States which together establish multinational forces may also make them available to the common security and defence policy.
Member States shall undertake progressively to improve their military capabilities. An Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency) shall be established to identify operational requirements, to promote measures to satisfy those requirements, to contribute to identifying and, where appropriate, implementing any measure needed to strengthen the industrial and technological base of the defence sector, to participate in defining a European capabilities and armaments policy, and to assist the Council in evaluating the improvement of military capabilities.
4. European decisions relating to the common security and defence policy, including those initiating a mission as referred to in this Article, shall be adopted by the Council acting unanimously on a proposal from the Union Minister for Foreign Affairs or an initiative from a Member State. The Union Minister for Foreign Affairs may propose the use of both national resources and Union instruments, together with the Commission where appropriate.
5. The Council may entrust the execution of a task, within the Union framework, to a group of Member States in order to protect the Union's values and serve its interests. The execution of such a task shall be governed by Article III-310.
6. Those Member States whose military capabilities fulfil higher criteria and which have made more binding commitments to one another in this area with a view to the most demanding missions shall establish permanent structured cooperation within the Union framework. Such cooperation shall be governed by Article III-312. It shall not affect the provisions of Article III-309.
7. If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter. This shall not prejudice the specific character of the security and defence policy of certain Member States.
Commitments and cooperation in this area shall be consistent with commitments under the North Atlantic Treaty Organisation, which, for those States which are members of it, remains the foundation of their collective defence and the forum for its implementation.
8. The European Parliament shall be regularly consulted on the main aspects and basic choices of the common security and defence policy. It shall be kept informed of how it evolves.
***
A Section with the CSDP provisions clarifies the Treaty.
The Reform Treaty Article 28a TEU is, in keeping with the IGC 2007 Mandate (Council document 11218/07), an almost word for word rendering of Article I-41, paragraphs 1 to 7, of the Constitutional Treaty. Here, as elsewhere, the ‘Union Minister for Foreign Affairs’ has become the ‘High Representative of the Union for Foreign Affairs and Security Policy’.
The text of Article I-41(8) on specific CSDP consulting of the European Parliament has been deleted.
The CSDP encompasses both civilian and military means.
The CSDP is firmly planted in intergovernmental cooperation, although civilian tasks may require action by the Commission.
The objective of the Lisbon Treaty is progressively to frame a common Union defence policy and to establish a common defence. But the common defence requires a unanimous decision by the European Council and adoption (ratification) in the member states.
The heterogeneous nature of the European Union as a security and defence community at its present stage of development is ambiguously transmitted by the words ‘certain Member States’.
In fact, there are at least three categories of ‘certain Member States’.
First, we have certain Member States, with a security and defence policy with a ‘specific character’, not to be prejudiced. These are the six (former) neutral or non-aligned countries, which remain outside NATO: Austria, Cyprus, Finland, Ireland, Malta and Sweden. The Lisbon Treaty does not define the scope of their exemptions.
Second, there is the opt-out of Denmark (a member of NATO), set out in the Protocol on the position of Denmark, amended to take the Danish opt-outs into consideration. Article 5 (ex 6) of the Protocol defines Denmark’s opt-out from matters with defence implications, Article 13(1), Article 28 A and Articles 28 B to 28 E of the TEU. On the other hand, ‘Denmark will not prevent the other Member States from further developing their cooperation in this area’ (OJ 17.12.2007 C 306/186).
Third, there is the European mainstream, ‘certain Member States, which see their common defence realised in the North Atlantic Treaty Organisation (NATO), under the North Atlantic Treaty’. For them, EU CSDP obligations and NATO policies have to be compatible.
Some of the CSDP commitments of the member states are: to make civilian and military capabilities available to the EU, to establish multinational forces, to improve their military capabilities.
There are new provisions for existing European Defence Agency, which shall contribute to enhancing military capabilities.
CSDP decisions, including decisions to launch missions, are taken unanimously.
Missions or other tasks may be entrusted to coalitions of willing member states.
Permanent structured cooperation between member states with higher military capabilities are envisioned in Article 28a(6) and in the detailed Protocol on permanent structured cooperation established by Article 28a of the Treaty on European Union:
“PROTOCOL
ON PERMANENT STRUCTURED COOPERATION ESTABLISHED
BY ARTICLE 28 A OF THE TREATY ON EUROPEAN UNION
THE HIGH CONTRACTING PARTIES,
HAVING REGARD TO Article 28 A(6) and Article 28 E of the Treaty on European Union,
RECALLING that the Union is pursuing a common foreign and security policy based on the achievement of growing convergence of action by Member States;
RECALLING that the common security and defence policy is an integral part of the common foreign and security policy; that it provides the Union with operational capacity drawing on civil and military assets; that the Union may use such assets in the tasks referred to in Article 28 B of the Treaty on European Union outside the Union for peace-keeping, conflict prevention and strengthening international security in accordance with the principles of the United Nations Charter; that the performance of these tasks is to be undertaken using capabilities provided by the Member States in accordance with the principle of a single set of forces;
RECALLING that the common security and defence policy of the Union does not prejudice the specific character of the security and defence policy of certain Member States;
RECALLING that the common security and defence policy of the Union respects the obligations under the North Atlantic Treaty of those Member States which see their common defence realised in the North Atlantic Treaty Organisation, which remains the foundation of the collective defence of its members, and is compatible with the common security and defence policy established within that framework;
CONVINCED that a more assertive Union role in security and defence matters will contribute to the vitality of a renewed Atlantic Alliance, in accordance with the Berlin Plus arrangements;
DETERMINED to ensure that the Union is capable of fully assuming its responsibilities within the international community;
RECOGNISING that the United Nations Organisation may request the Union's assistance for the urgent implementation of missions undertaken under Chapters VI and VII of the United Nations Charter;
RECOGNISING that the strengthening of the security and defence policy will require efforts by Member States in the area of capabilities;
CONSCIOUS that embarking on a new stage in the development of the European security and defence policy involves a determined effort by the Member States concerned;
RECALLING the importance of the High Representative of the Union for Foreign Affairs and Security Policy being fully involved in proceedings relating to permanent structured cooperation,
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:
Article 1
The permanent structured cooperation referred to in Article 28 A(6) of the Treaty on European Union shall be open to any Member State which undertakes, from the date of entry into force of the Treaty of Lisbon, to:
(a) proceed more intensively to develop its defence capacities through the development of its national contributions and participation, where appropriate, in multinational forces, in the main European equipment programmes, and in the activity of the Agency in the field of defence capabilities development, research, acquisition and armaments (European Defence Agency), and
(b) have the capacity to supply by 2010 at the latest, either at national level or as a component of multinational force groups, targeted combat units for the missions planned, structured at a tactical level as a battle group, with support elements including transport and logistics, capable of carrying out the tasks referred to in Article 28 B of the Treaty on European Union, within a period of 5 to 30 days, in particular in response to requests from the United Nations Organisation, and which can be sustained for an initial period of 30 days and be extended up to at least 120 days.
Article 2
To achieve the objectives laid down in Article 1, Member States participating in permanent structured cooperation shall undertake to
(a) cooperate, as from the entry into force of the Treaty of Lisbon, with a view to achieving approved objectives concerning the level of investment expenditure on defence equipment, and regularly review these objectives, in the light of the security environment and of the Union's international responsibilities;
(b) bring their defence apparatus into line with each other as far as possible, particularly by harmonising the identification of their military needs, by pooling and, where appropriate, specialising their defence means and capabilities, and by encouraging cooperation in the fields of training and logistics;
(c) take concrete measures to enhance the availability, interoperability, flexibility and deployability of their forces, in particular by identifying common objectives regarding the commitment of forces, including possibly reviewing their national decision-making procedures;
(d) work together to ensure that they take the necessary measures to make good, including through multinational approaches, and without prejudice to undertakings in this regard within the North Atlantic Treaty Organisation, the shortfalls perceived in the framework of the ‘Capability Development Mechanism’;
(e) take part, where appropriate, in the development of major joint or European equipment programmes in the framework of the European Defence Agency.
Article 3
The European Defence Agency shall contribute to the regular assessment of participating Member States' contributions with regard to capabilities, in particular contributions made in accordance with the criteria to be established, inter alia, on the basis of Article 2, and shall report thereon at least once a year. The assessment may serve as a basis for Council recommendations and decisions adopted in accordance with Article 28 E of the Treaty on European Union.”
***
Last but not least, we have the upgraded mutual assistance clause in Article 28a(7), the obligation to give aid and assistance if a member state is the victim of armed aggression on its territory. This obligation is unclear concerning ‘certain Member States’, i.e. the neutral or non-aligned ones.
NATO remains the foundation of the collective defence of the EU members which belong to NATO.
The European Parliament is marginalised. There is only the general clause on consulting the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy (Article 21 TEU) and the existing Parliamentary Assembly of the Western European Union (WEU).
***
Next time we look at the legal basis for CSDP operations.
Ralf Grahn
Sunday, 27 January 2008
EU Treaty of Lisbon: CFSP financial provisions
Why do the unsettled times between Royal prerogatives and Parliamentary appropriations described in the Diary of Samuel Pepys (1633 – 1703) come to my mind, when I look at the financial provisions for the common foreign and security policy (CFSP) and the common security and defence policy (CSDP) of the European Union (EU)?
If nothing more is sought than soothing foreign policy statements, if there is unanimity, the costs are negligible. But since the early days of European Political Cooperation (EPC) the member states have gradually started to think that they could actually have an impact in world affairs, given the means.
The Lisbon Treaty is a step in that direction, with enhanced coordination and more flexible allocation of resources. The governments and the Council remain key players, with only a light touch of democratic scrutiny by the European Parliament concerning both contents and finances.
When the Union budget is used for CFSP ends the European Parliament is only consulted. If the member states use their own resources, the EP can be side-stepped.
***
The intergovernmental conference (IGC 2007) deemed it opportune to present its reforms like this (OJ 17.12.2007 C 306/31 and 32):
46) Articles 27 A to 27 E, on enhanced cooperation, shall be replaced by Article 10 in accordance with point 22 above.
47) Article 28 shall be amended as follows:
(a) paragraph 1 shall be deleted and the remaining paragraphs shall be renumbered accordingly; throughout the Article the words "budget of the European Communities" shall be replaced by "Union budget";
(b) in paragraph 2, renumbered 1, the words "which the provisions relating to the areas referred to in this Title entail" shall be replaced by "to which the implementation of this Chapter gives rise";
(c) in paragraph 3, renumbered 2, the words "the implementation of those provisions" in the first subparagraph shall be replaced by "the implementation of this Chapter";
(d) the following new paragraph 3 shall be added and paragraph 4 deleted:
"3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.".
***
We start our work by going to the existing Article 28 of the Treaty on European Union (TEU), which we find in the latest consolidated version of the Treaty (OJ 29.12.2006 C 321 E/23):
Article 28
1. Articles 189, 190, 196 to 199, 203, 204, 206 to 209, 213 to 219, 255 and 290 of the
Treaty establishing the European Community shall apply to the provisions relating to the areas
referred to in this title.
2. Administrative expenditure which the provisions relating to the areas referred to in this title
entail for the institutions shall be charged to the budget of the European Communities.
3. Operating expenditure to which the implementation of those provisions gives rise shall also
be charged to the budget of the European Communities, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.
In cases where expenditure is not charged to the budget of the European Communities, it shall be charged to the Member States in accordance with the gross national product scale, unless the
Council acting unanimously decides otherwise. As for expenditure arising from operations having
military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
4. The budgetary procedure laid down in the Treaty establishing the European Community shall
apply to the expenditure charged to the budget of the European Communities.
***
What is Article 28 TEU going to look like, if the Lisbon Treaty enters into force? Merging the existing text with the amendments drafted by the IGC 2007 should lead us to a new, consolidated Article 28 TEU:
Article 28
1. Administrative expenditure to which the implementation of this Chapter gives rise for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of this Chapter gives rise shall also
be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.
In cases where expenditure is not charged to the Union budget, it shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.
***
The Convention, led by Valéry Giscard d’Estaing, looked for more flexibility and rapidity by proposing the following Article III-215 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/70):
SECTION 2
Financial provisions
Article III-215
1. Administrative expenditure which the provisions referred to in this Chapter entail for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of those provisions gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council of Ministers decides otherwise.
In cases where expenditure is not charged to the Union's budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council of Ministers decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council of Ministers have made a formal declaration under Article III-201(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council of Ministers shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for tasks as referred to in Article I-40(1). It shall act after consulting the European Parliament.
Preparatory activities for tasks as referred to in Article I-40(1) which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council of Ministers shall adopt by a qualified majority on a proposal from the Union Minister for Foreign Affairs European decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund and the procedures for reimbursement;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When it is planning a task as referred to in Article I-40(1) which cannot be charged to the Union's budget, the Council of Ministers shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council of Ministers on the implementation of this remit.
***
In the Treaty establishing a Constitution for Europe the member states took on board the proposal of the Convention with minor changes in Article III-313 (OJ 16.12.2004 C 310/141 and 142):
SECTION 3
FINANCIAL PROVISIONS
Article III-313
1. Administrative expenditure which the implementation of this Chapter entails for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of this Chapter gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council decides otherwise.
In cases where expenditure is not charged to the Union budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article III-300(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article I-41(1) and Article III-309. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article I-41(1) and Article III-309 which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the Union Minister for Foreign Affairs, European decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article I-41(1) and Article III-309 cannot be charged to the Union budget, the Council shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council on the implementation of this remit.
***
The similarities between the draft Constitutional Treaty, the Constitutional Treaty and the Lisbon Treaty are obvious in this Article.
The financial provisions in Article 28 TEU concern ‘this Chapter’, i.e. the common foreign and security policy (CFSP), including the common security and defence policy (CSDP).
Administrative expenditure is charged to the Union budget.
Non-military operating expenses are charged to the Union budget, if the Council does not unanimously decide otherwise.
Expenditure with military or defence implications is charged to the member states, if the Council does not unanimously decide otherwise. As a rule, a gross national product scale is used for the contributions of the member states, but the Council can unanimously decide otherwise.
The reference to the formal declaration in Article 23(1), second subparagraph, points to the existing TEU. Following the original numbering of the Reform Treaty TEU (as I have done throughout), the corresponding provision is Article 15b(1) TEU, second subparagraph:
“Article 15b(1)
Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.”
In other words, an abstaining member state makes a formal declaration, lets the other members proceed, but is not bound by the decision with military or defence implications, including the operating expenditure.
Rapid access to CFSP resources is the novelty in the Lisbon Treaty, as proposed by the Convention and incorporated into the Constitutional Treaty, especially preparatory activities for CSDP operations referred to in Article 28a(1) and Article 28b.
The Council decides on the procedures for rapid access to funds from the Union budget for urgent needs. The European Parliament is only consulted.
If the preparatory activities can not be charged to the Union budget, they shall be covered by a start-up fund made up of member states’ contribution. The Council makes the decisions needed by qualified majority, on a proposal from the High Representative. The Council authorises the use of the fund and monitors its use. – There is no mention of scrutiny by the European Parliament.
***
The provisions on the common security and defence policy (CSDP) are next in line.
Ralf Grahn
If nothing more is sought than soothing foreign policy statements, if there is unanimity, the costs are negligible. But since the early days of European Political Cooperation (EPC) the member states have gradually started to think that they could actually have an impact in world affairs, given the means.
The Lisbon Treaty is a step in that direction, with enhanced coordination and more flexible allocation of resources. The governments and the Council remain key players, with only a light touch of democratic scrutiny by the European Parliament concerning both contents and finances.
When the Union budget is used for CFSP ends the European Parliament is only consulted. If the member states use their own resources, the EP can be side-stepped.
***
The intergovernmental conference (IGC 2007) deemed it opportune to present its reforms like this (OJ 17.12.2007 C 306/31 and 32):
46) Articles 27 A to 27 E, on enhanced cooperation, shall be replaced by Article 10 in accordance with point 22 above.
47) Article 28 shall be amended as follows:
(a) paragraph 1 shall be deleted and the remaining paragraphs shall be renumbered accordingly; throughout the Article the words "budget of the European Communities" shall be replaced by "Union budget";
(b) in paragraph 2, renumbered 1, the words "which the provisions relating to the areas referred to in this Title entail" shall be replaced by "to which the implementation of this Chapter gives rise";
(c) in paragraph 3, renumbered 2, the words "the implementation of those provisions" in the first subparagraph shall be replaced by "the implementation of this Chapter";
(d) the following new paragraph 3 shall be added and paragraph 4 deleted:
"3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.".
***
We start our work by going to the existing Article 28 of the Treaty on European Union (TEU), which we find in the latest consolidated version of the Treaty (OJ 29.12.2006 C 321 E/23):
Article 28
1. Articles 189, 190, 196 to 199, 203, 204, 206 to 209, 213 to 219, 255 and 290 of the
Treaty establishing the European Community shall apply to the provisions relating to the areas
referred to in this title.
2. Administrative expenditure which the provisions relating to the areas referred to in this title
entail for the institutions shall be charged to the budget of the European Communities.
3. Operating expenditure to which the implementation of those provisions gives rise shall also
be charged to the budget of the European Communities, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.
In cases where expenditure is not charged to the budget of the European Communities, it shall be charged to the Member States in accordance with the gross national product scale, unless the
Council acting unanimously decides otherwise. As for expenditure arising from operations having
military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
4. The budgetary procedure laid down in the Treaty establishing the European Community shall
apply to the expenditure charged to the budget of the European Communities.
***
What is Article 28 TEU going to look like, if the Lisbon Treaty enters into force? Merging the existing text with the amendments drafted by the IGC 2007 should lead us to a new, consolidated Article 28 TEU:
Article 28
1. Administrative expenditure to which the implementation of this Chapter gives rise for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of this Chapter gives rise shall also
be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council acting unanimously decides otherwise.
In cases where expenditure is not charged to the Union budget, it shall be charged to the Member States in accordance with the gross national product scale, unless the Council acting unanimously decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article 23(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council shall adopt a decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article 28 A(1) and Article 28 B which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article 28 A(1) and Article 28 B cannot be charged to the Union budget, the Council shall authorise the High Representative to use the fund. The High Representative shall report to the Council on the implementation of this remit.
***
The Convention, led by Valéry Giscard d’Estaing, looked for more flexibility and rapidity by proposing the following Article III-215 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/70):
SECTION 2
Financial provisions
Article III-215
1. Administrative expenditure which the provisions referred to in this Chapter entail for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of those provisions gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council of Ministers decides otherwise.
In cases where expenditure is not charged to the Union's budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council of Ministers decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council of Ministers have made a formal declaration under Article III-201(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council of Ministers shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for tasks as referred to in Article I-40(1). It shall act after consulting the European Parliament.
Preparatory activities for tasks as referred to in Article I-40(1) which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council of Ministers shall adopt by a qualified majority on a proposal from the Union Minister for Foreign Affairs European decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund and the procedures for reimbursement;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When it is planning a task as referred to in Article I-40(1) which cannot be charged to the Union's budget, the Council of Ministers shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council of Ministers on the implementation of this remit.
***
In the Treaty establishing a Constitution for Europe the member states took on board the proposal of the Convention with minor changes in Article III-313 (OJ 16.12.2004 C 310/141 and 142):
SECTION 3
FINANCIAL PROVISIONS
Article III-313
1. Administrative expenditure which the implementation of this Chapter entails for the institutions shall be charged to the Union budget.
2. Operating expenditure to which the implementation of this Chapter gives rise shall also be charged to the Union budget, except for such expenditure arising from operations having military or defence implications and cases where the Council decides otherwise.
In cases where expenditure is not charged to the Union budget it shall be charged to the Member States in accordance with the gross national product scale, unless the Council decides otherwise. As for expenditure arising from operations having military or defence implications, Member States whose representatives in the Council have made a formal declaration under Article III-300(1), second subparagraph, shall not be obliged to contribute to the financing thereof.
3. The Council shall adopt a European decision establishing the specific procedures for guaranteeing rapid access to appropriations in the Union budget for urgent financing of initiatives in the framework of the common foreign and security policy, and in particular for preparatory activities for the tasks referred to in Article I-41(1) and Article III-309. It shall act after consulting the European Parliament.
Preparatory activities for the tasks referred to in Article I-41(1) and Article III-309 which are not charged to the Union budget shall be financed by a start-up fund made up of Member States' contributions.
The Council shall adopt by a qualified majority, on a proposal from the Union Minister for Foreign Affairs, European decisions establishing:
(a) the procedures for setting up and financing the start-up fund, in particular the amounts allocated to the fund;
(b) the procedures for administering the start-up fund;
(c) the financial control procedures.
When the task planned in accordance with Article I-41(1) and Article III-309 cannot be charged to the Union budget, the Council shall authorise the Union Minister for Foreign Affairs to use the fund. The Union Minister for Foreign Affairs shall report to the Council on the implementation of this remit.
***
The similarities between the draft Constitutional Treaty, the Constitutional Treaty and the Lisbon Treaty are obvious in this Article.
The financial provisions in Article 28 TEU concern ‘this Chapter’, i.e. the common foreign and security policy (CFSP), including the common security and defence policy (CSDP).
Administrative expenditure is charged to the Union budget.
Non-military operating expenses are charged to the Union budget, if the Council does not unanimously decide otherwise.
Expenditure with military or defence implications is charged to the member states, if the Council does not unanimously decide otherwise. As a rule, a gross national product scale is used for the contributions of the member states, but the Council can unanimously decide otherwise.
The reference to the formal declaration in Article 23(1), second subparagraph, points to the existing TEU. Following the original numbering of the Reform Treaty TEU (as I have done throughout), the corresponding provision is Article 15b(1) TEU, second subparagraph:
“Article 15b(1)
Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.”
In other words, an abstaining member state makes a formal declaration, lets the other members proceed, but is not bound by the decision with military or defence implications, including the operating expenditure.
Rapid access to CFSP resources is the novelty in the Lisbon Treaty, as proposed by the Convention and incorporated into the Constitutional Treaty, especially preparatory activities for CSDP operations referred to in Article 28a(1) and Article 28b.
The Council decides on the procedures for rapid access to funds from the Union budget for urgent needs. The European Parliament is only consulted.
If the preparatory activities can not be charged to the Union budget, they shall be covered by a start-up fund made up of member states’ contribution. The Council makes the decisions needed by qualified majority, on a proposal from the High Representative. The Council authorises the use of the fund and monitors its use. – There is no mention of scrutiny by the European Parliament.
***
The provisions on the common security and defence policy (CSDP) are next in line.
Ralf Grahn
Saturday, 26 January 2008
EU Treaty of Lisbon: Separate powers and rules
The European Community (EC) is merged into the European Union (EU), but the separate powers and procedures remain for the ‘Community’ areas and the intergovernmental common foreign and security policy (CFSP).
We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
---
Article 25b
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.
***
Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):
Article 46(f)
The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:
---
(f) Articles 46 to 53.
Article 47
Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.
***
We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.
The following Articles then indicate in which areas the different competences (powers) apply:
Article 2 B TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal
market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.
Article 2 C 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 2 B and 2 E.
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.
Article 2 D TFEU
1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
Article 2 E TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-209
The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.
The Court of Justice shall have jurisdiction to monitor compliance with this Article.
***
Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):
Article III-308
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.
***
The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).
The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.
The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.
The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.
This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:
Article 240a TFEU
The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.
However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.
***
Financial provisions for the CFSP are next in line.
Ralf Grahn
We look at how these areas are kept separate in the Lisbon Treaty, and glimpse at the different categories of competence and at the role of the Court of Justice in upholding these separate competences and procedures.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following way (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
---
Article 25b
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences referred to in Articles 2 B to 2 E of the Treaty on the Functioning of the European Union.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Treaties for the exercise of the Union competences under this Chapter.
***
Article 25b TEU reminds us of Article 46(f) TEU and it replaces Article 47 TEU. We turn to the existing Treaty on European Union (latest consolidated version of the Treaty on European Union and of the Treaty establishing the European Community in OJ 29.12.2006 C 321 E/33 and 34):
Article 46(f)
The provisions of the Treaty establishing the European Community, the Treaty establishing the European Coal and Steel Community and the Treaty establishing the European Atomic Energy Community concerning the powers of the Court of Justice of the European Communities and the exercise of those powers shall apply only to the following provisions of this Treaty:
---
(f) Articles 46 to 53.
Article 47
Subject to the provisions amending the Treaty establishing the European Economic Community
with a view to establishing the European Community, the Treaty establishing the European Coal
and Steel Community and the Treaty establishing the European Atomic Energy Community, and to these final provisions, nothing in this Treaty shall affect the Treaties establishing the European Communities or the subsequent Treaties and Acts modifying or supplementing them.
***
We look at the powers referred to in the Treaty on the Functioning of the European Union (TFEU) Articles 2 B to 2 E (OJ 17.12.2007 C 306/45 to 47) in Title 1 Categories and areas of Union competence, where Article 2 A has first presented the different forms of competence: exclusive competence, shared competence, coordination, CFSP etc.
The following Articles then indicate in which areas the different competences (powers) apply:
Article 2 B TFEU
1. The Union shall have exclusive competence in the following areas:
(a) customs union;
(b) the establishing of the competition rules necessary for the functioning of the internal
market;
(c) monetary policy for the Member States whose currency is the euro;
(d) the conservation of marine biological resources under the common fisheries policy;
(e) common commercial policy.
2. The Union shall also have exclusive competence for the conclusion of an international
agreement when its conclusion is provided for in a legislative act of the Union or is necessary
to enable the Union to exercise its internal competence, or insofar as its conclusion may affect
common rules or alter their scope.
Article 2 C 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 2 B and 2 E.
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.
Article 2 D TFEU
1. The Member States shall coordinate their economic policies within the Union. To this
end, the Council shall adopt measures, in particular broad guidelines for these policies.
Specific provisions shall apply to those Member States whose currency is the euro.
2. The Union shall take measures to ensure coordination of the employment policies of
the Member States, in particular by defining guidelines for these policies.
3. The Union may take initiatives to ensure coordination of Member States' social policies.
Article 2 E TFEU
The Union shall have competence to carry out actions to support, coordinate or supplement
the actions of the Member States. The areas of such action shall, at European level, be:
(a) protection and improvement of human health;
(b) industry;
(c) culture;
(d) tourism;
(e) education, vocational training, youth and sport;
(f) civil protection;
(g) administrative cooperation.
***
We take a look at the preceding drafting exercises. First, the Convention proposed an Article III-209 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-209
The implementation of the common foreign and security policy shall not affect the competences listed in Articles I-12 to I-14 and I-16. Likewise, the implementation of the policies listed in
those articles shall not affect the competence referred to in Article I-15.
The Court of Justice shall have jurisdiction to monitor compliance with this Article.
***
Second, we compare with the Treaty establishing a Constitution for Europe, where the corresponding provision is Article III-308 (OJ 16.12.2004 C 310/138):
Article III-308
The implementation of the common foreign and security policy shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences referred to in Articles I-13 to I-15 and I-17.
Similarly, the implementation of the policies listed in those Articles shall not affect the application of the procedures and the extent of the powers of the institutions laid down by the Constitution for the exercise of the Union competences under this Chapter.
***
The existing Article 47 TEU says, in effect, that the establishment of the European Union (EU) would not encroach upon the Community powers and procedures (TEC).
The Convention and the Constitutional Treaty drafted their corresponding Articles to point both ways: to ‘Community’ and CFSP powers and procedures, respectively. The proposed Article 25b TEU of the Lisbon Treaty and Article III-308 of the Constitutional Treaty are highly similar.
The present pillar structure of the European Union consists of the first or Community pillar (TEC), and the two intergovernmental pillars (TEU), the second or foreign and security policy (CFSP) and the third, originally justice and home affairs, now the remaining intergovernmental provisions on police and judicial cooperation in criminal matters.
The Lisbon Treaty abolishes the pillar structure and the European Community (EC) by uniting everything under the European Union (EU), but the ‘Community’ powers and procedures and the intergovernmental character of the CFSP and the CSDP remain separate.
This can be seen in the new Article 240a TFEU of the Reform Treaty, where the Court of Justice lacks jurisdiction in CFSP issues, but has jurisdiction concerning the boundaries between ‘Community’ and CFSP competence:
Article 240a TFEU
The Court of Justice of the European Union shall not have jurisdiction with respect to the
provisions relating to the common foreign and security policy nor with respect to acts adopted
on the basis of those provisions.
However, the Court shall have jurisdiction to monitor compliance with Article 25b of the
Treaty on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 230 of this Treaty, reviewing the
legality of decisions providing for restrictive measures against natural or legal persons adopted
by the Council on the basis of Chapter 2 of Title V of the Treaty on European Union.
***
Financial provisions for the CFSP are next in line.
Ralf Grahn
Friday, 25 January 2008
EU Treaty of Lisbon: Personal data protection
Internationally, the protection of personal data can be seen as a particular European sensitivity, where balance is sought between concerns for privacy and security. The different approaches between the European Union and the United States of America have led to protracted negotiations on both commercial use and security measures.
Internally, the European Community (EC) introduced common norms on the protection of personal data, binding the member states, generally in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and concerning telecommunications in Directive 97/66/EC, repealed and replaced by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The Treaty of Maastricht filled a gap concerning protection of personal data held by the EC itself. On the basis of Article 286 TEC a Regulation has been enacted: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
The scope of Regulation 45/2001 is restricted to European Community legislation; the intergovernmental pillars, the common foreign and security policy (CFSP) and police and judicial cooperation in criminal matters, remain outside the scope of the Regulation.
***
On the other hand, Article 8 of the Charter of Fundamental Rights of the European Union (OJ 14.12.2007 C 303/4) lays down a general right to protection of personal data:
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights give the following background to Article 8 (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
The Treaty of Lisbon introduces a new Article 25a in the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
Article 25a
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Since the proposed new Article 25a refers to Article 16b of the Treaty on the Functioning of the European Union (TFEU), we have to look up Article 16b TFEU, as amended:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Since Article 16b TFEU replaces Article 286 of the Treaty establishing the European Community (TEC), we have to take a look at that:
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the
processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The Convention proposed a unitary legal basis for protection of personal data in the draft Treaty establishing a Constitution for Europe Article I-50 (OJ 18.7.2003 C 169/20):
Article 50
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The Treaty establishing a Constitution for Europe took over the Convention’s proposal almost ‘verbatim’ in Article I-51 (OJ 16.12.2004 C 310/36):
Article I-51
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of
individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Annexed to the Constitutional Treaty was joint Declaration (number 10) on Article I-51, which gave an indication of the sensitivities of the member state governments (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
If the Convention and the Constitutional Treaty had a unitary approach, taking into consideration the restrictions implied by Declaration 10, the Lisbon Treaty hollowed out the general provision in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15): There will also be a specific legal basis on personal data protection in the CFSP area. – Footnote 7 added: With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.
The specific legal basis for Chapter 2 Specific provisions on the common foreign and security policy, Article 25a TEU in the Reform Treaty follows from the mandate of the intergovernmental conference. The purpose of the new Article seems to be to offer leeway to the Union and member states’ governments in questions related to security.
***
Next time we look at Article 25b TEU.
Ralf Grahn
Internally, the European Community (EC) introduced common norms on the protection of personal data, binding the member states, generally in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and concerning telecommunications in Directive 97/66/EC, repealed and replaced by Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications).
The Treaty of Maastricht filled a gap concerning protection of personal data held by the EC itself. On the basis of Article 286 TEC a Regulation has been enacted: Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data.
The scope of Regulation 45/2001 is restricted to European Community legislation; the intergovernmental pillars, the common foreign and security policy (CFSP) and police and judicial cooperation in criminal matters, remain outside the scope of the Regulation.
***
On the other hand, Article 8 of the Charter of Fundamental Rights of the European Union (OJ 14.12.2007 C 303/4) lays down a general right to protection of personal data:
Article 8
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. Such data must be processed fairly for specified purposes and on the basis of the consent of the
person concerned or some other legitimate basis laid down by law. Everyone has the right of access to data which has been collected concerning him or her, and the right to have it rectified.
3. Compliance with these rules shall be subject to control by an independent authority.
***
The Explanations relating to the Charter of Fundamental Rights give the following background to Article 8 (OJ 14.12.2007 C 303/20):
Explanation on Article 8 — Protection of personal data
This Article has been based on Article 286 of the Treaty establishing the European Community and Directive 95/46/EC of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31) as well as on Article 8 of the ECHR and on the Council of Europe Convention of 28 January 1981 for the Protection of Individuals with regard to Automatic Processing of Personal Data, which has been ratified by all the Member States. Article 286 of the EC Treaty is now replaced by Article 16 of the Treaty on the Functioning of the European Union and Article 39 of the Treaty on European Union. Reference is also made to Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.1.2001, p. 1). The above-mentioned Directive and Regulation contain conditions and limitations for the exercise of the right to the protection of personal data.
***
The Treaty of Lisbon introduces a new Article 25a in the Treaty on European Union (TEU) (OJ 17.12.2007 C 306/31):
45) Articles 26 and 27 shall be repealed. The following Articles 25a and 25b shall be inserted, with Article 25b replacing Article 47:
Article 25a
In accordance with Article 16 B of the Treaty on the Functioning of the European Union and by way of derogation from paragraph 2 thereof, the Council shall adopt a decision laying down the rules relating to the protection of individuals with regard to the processing of personal data by the Member States when carrying out activities which fall within the scope of this Chapter, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Since the proposed new Article 25a refers to Article 16b of the Treaty on the Functioning of the European Union (TFEU), we have to look up Article 16b TFEU, as amended:
29) An Article 16 B shall be inserted, replacing Article 286:
Article 16b TFEU
1. Everyone has the right to the protection of personal data concerning them.
2. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
The rules adopted on the basis of this Article shall be without prejudice to the specific rules laid down in Article 25a of the Treaty on European Union.
***
Since Article 16b TFEU replaces Article 286 of the Treaty establishing the European Community (TEC), we have to take a look at that:
Article 286 TEC
1. From 1 January 1999, Community acts on the protection of individuals with regard to the
processing of personal data and the free movement of such data shall apply to the institutions and bodies set up by, or on the basis of, this Treaty.
2. Before the date referred to in paragraph 1, the Council, acting in accordance with the procedure referred to in Article 251, shall establish an independent supervisory body responsible for monitoring the application of such Community acts to Community institutions and bodies and shall adopt any other relevant provisions as appropriate.
***
The Convention proposed a unitary legal basis for protection of personal data in the draft Treaty establishing a Constitution for Europe Article I-50 (OJ 18.7.2003 C 169/20):
Article 50
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. A European law shall lay down the rules relating to the protection of individuals with regard to the processing of personal data by Union Institutions, bodies and agencies, and by the Member States when carrying out activities which come under the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of an independent authority.
***
The Treaty establishing a Constitution for Europe took over the Convention’s proposal almost ‘verbatim’ in Article I-51 (OJ 16.12.2004 C 310/36):
Article I-51
Protection of personal data
1. Everyone has the right to the protection of personal data concerning him or her.
2. European laws or framework laws shall lay down the rules relating to the protection of
individuals with regard to the processing of personal data by Union institutions, bodies, offices and agencies, and by the Member States when carrying out activities which fall within the scope of Union law, and the rules relating to the free movement of such data. Compliance with these rules shall be subject to the control of independent authorities.
***
Annexed to the Constitutional Treaty was joint Declaration (number 10) on Article I-51, which gave an indication of the sensitivities of the member state governments (OJ 16.12.2004 C 310/423):
10. Declaration on Article I-51
The Conference declares that, whenever rules on protection of personal data to be adopted on the basis of Article I-51 could have direct implications for national security, due account will have to be taken of the specific characteristics of the matter. It recalls that the legislation presently applicable (see in particular Directive 95/46/EC) includes specific derogations in this regard.
***
If the Convention and the Constitutional Treaty had a unitary approach, taking into consideration the restrictions implied by Declaration 10, the Lisbon Treaty hollowed out the general provision in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15): There will also be a specific legal basis on personal data protection in the CFSP area. – Footnote 7 added: With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.
The specific legal basis for Chapter 2 Specific provisions on the common foreign and security policy, Article 25a TEU in the Reform Treaty follows from the mandate of the intergovernmental conference. The purpose of the new Article seems to be to offer leeway to the Union and member states’ governments in questions related to security.
***
Next time we look at Article 25b TEU.
Ralf Grahn
Thursday, 24 January 2008
EP looks forward to Lisbon Treaty
The Committee on Constitutional Affairs of the European Parliament has voted on a draft report by Richard Corbett and Iñigo Méndez de Vigo on the Treaty of Lisbon. The Committee, at last, looks forward to the rapid publication of the consolidated Treaties as revised by the Treaty of Lisbon, in order to inform European citizens clearly and objectively about the content of the Treaty.
Knowing well that the Council has refused publication before the Treaties are in force, it would be better if the European Parliament rapidly published the consolidated Treaties in all the official languages of the EU (especially the 15 missing language versions), instead of ‘looking forward’ to the unlikely event.
The draft report approved by 20 votes to 6 contained the following conclusions, to be voted on by a plenary session in February, where the European Parliament:
“7. Believes that this Treaty will provide a stable and lasting framework for the future
development of the Union;
8. Endorses the Treaty and hopes that all Member States of the Union will be in a position to
achieve its ratification by 1 January 2009;
9. Is aware that an amending treaty is inevitably less clear and readable than a codified
treaty, but looks forward to the rapid publication of the consolidated Treaties as revised by
the Treaty of Lisbon, which will provide citizens with a clearer basic text of the Union;
10. Reiterates its request that all possible efforts be deployed, both by EU institutions and
national authorities in accordance with the principle of sincere cooperation, in order to
inform European citizens clearly and objectively about the content of the Treaty;
11. Instructs its committee responsible to prepare the necessary changes to its Rules of
Procedure and to assess the needs for further implementing measures;
12. Instructs its President to forward this resolution and the report of the Committee on
Constitutional Affairs to the national parliaments of the Member States, to the Council, to
the European Commission and to the former Members of the Convention on the Future of
Europe, and to ensure that Parliament's services, including its external offices, provide
ample information about Parliament's position on the Treaty.”
Ralf Grahn
Sources:
European Parliament, Committee on Constitutional Affairs: Draft Report on the Treaty of Lisbon (2007/0000(INI); Rapporteurs: Richard Corbett and Iñigo Méndez de Vigo
European Parliament, Press service: Reasons to ratify the Lisbon Treaty this year; 23-01-2008
Knowing well that the Council has refused publication before the Treaties are in force, it would be better if the European Parliament rapidly published the consolidated Treaties in all the official languages of the EU (especially the 15 missing language versions), instead of ‘looking forward’ to the unlikely event.
The draft report approved by 20 votes to 6 contained the following conclusions, to be voted on by a plenary session in February, where the European Parliament:
“7. Believes that this Treaty will provide a stable and lasting framework for the future
development of the Union;
8. Endorses the Treaty and hopes that all Member States of the Union will be in a position to
achieve its ratification by 1 January 2009;
9. Is aware that an amending treaty is inevitably less clear and readable than a codified
treaty, but looks forward to the rapid publication of the consolidated Treaties as revised by
the Treaty of Lisbon, which will provide citizens with a clearer basic text of the Union;
10. Reiterates its request that all possible efforts be deployed, both by EU institutions and
national authorities in accordance with the principle of sincere cooperation, in order to
inform European citizens clearly and objectively about the content of the Treaty;
11. Instructs its committee responsible to prepare the necessary changes to its Rules of
Procedure and to assess the needs for further implementing measures;
12. Instructs its President to forward this resolution and the report of the Committee on
Constitutional Affairs to the national parliaments of the Member States, to the Council, to
the European Commission and to the former Members of the Convention on the Future of
Europe, and to ensure that Parliament's services, including its external offices, provide
ample information about Parliament's position on the Treaty.”
Ralf Grahn
Sources:
European Parliament, Committee on Constitutional Affairs: Draft Report on the Treaty of Lisbon (2007/0000(INI); Rapporteurs: Richard Corbett and Iñigo Méndez de Vigo
European Parliament, Press service: Reasons to ratify the Lisbon Treaty this year; 23-01-2008
EU Treaty of Lisbon: Political and Security Committee
Foreign policy coordination between the member states of the European Economic Community (EEC), known as European Political Cooperation, started in 1970. Informal meetings of the Ministers of Foreign Affairs, known as Gymnich meetings, have been held since 1974. Gradually, the contacts between the European capitals and their representatives in Brussels have evolved, leading to the intergovernmental common foreign and security policy (CFSP), including the common security and defence policy (CSDP).
The Lisbon Treaty merges the European Community (EC) into the European Union (EU), abolishes the pillar structure and aims to strengthen CFSP coordination, i.a. by the enhanced role of the High Representative/Vice-President , but the basic intergovernmental character of the CFSP remains.
Preparations for the meetings of ministers have developed as well, from meetings of the political directors of the Foreign Ministries into the present structures with a Political and Security Committee preparing the work of the Permanent Representatives and the Council. Since the Treaty of Nice, the Committee may be entrusted by the Council to manage crisis operations.
The relevant Article on the Political and Security Committee is adapted to these general changes.
***
The Treaty of Lisbon amends the Treaty on European Union (TEU) Article 25 (OJ 17.12.2007 C 306/31) according to the intergovernmental conference (IGC 2007).
44) Article 25 shall be amended as follows:
(a) in the first paragraph, first sentence, the reference to the Treaty establishing the European Community shall be replaced by a reference to the Treaty on the functioning of the European Union and the words "or of the High Representative of the Union for Foreign Affairs and Security Policy" shall be inserted after "at the request of the Council"; in the second sentence, the words "without prejudice to the responsibility of the Presidency and the Commission" shall be replaced by "without prejudice to the powers of the High Representative";
(b) the text of the second paragraph shall be replaced by the following: "Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of the crisis management operations referred to in Article 28 B.";
(c) in the third paragraph, the words ", without prejudice to Article 47" shall be deleted.
***
The existing Treaty on European Union (TEU) Article 25 has the following wording (latest consolidated version OJ 29.12.2006 C 321 E/21):
Article 25
Without prejudice to Article 207 of the Treaty establishing the European Community, a Political
and Security Committee shall monitor the international situation in the areas covered by the
common foreign and security policy and contribute to the definition of policies by delivering
opinions to the Council at the request of the Council or on its own initiative. It shall also monitor
the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission.
Within the scope of this title, this Committee shall exercise, under the responsibility of the Council, political control and strategic direction of crisis management operations.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation, without prejudice to Article 47.
***
The new consolidated version of Article 25 TEU should read like this:
Article 25
Without prejudice to Article 207 of the Treaty on the functioning of the European Union, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative.
Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of crisis management operations referred to in Article 28 B.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation.
***
The reference to the existing Article 207 TEC, Article III-247 in the draft Constitutional Treaty and Article III-344 in the Constitutional Treaty leads to Article 207 in the Treaty on the Functioning of the European Union (TFEU) points out the responsibilities of the Committee of the permanent representatives of the governments of the member states, known by the French acronym Coreper. In the Lisbon Treaty it has the following wording:
Article 207
1. A committee consisting of the Permanent Representatives of the Governments of the
Member States shall be responsible for preparing the work of the Council and for carrying out
the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases
provided for in the Council's Rules of Procedure.
2. The Council shall be assisted by a General Secretariat, under the responsibility of a
Secretary-General appointed by the Council.
The Council shall decide on the organisation of the General Secretariat by a simple majority.
3. The Council shall act by a simple majority regarding procedural matters and for the
adoption of its Rules of Procedure.
***
The Convention proposed the following Article III-208 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-208
Without prejudice to Article III-247, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council of Ministers at the request of the latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Union Minister for Foreign Affairs.
Within the scope of this Chapter, this Committee shall exercise, under the responsibility of the Council of Ministers and of the Union Minister for Foreign Affairs, political control and strategic
direction of crisis management operations, as defined in Article III-210.
The Council of Ministers may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council of Ministers, to take the relevant
measures concerning the political control and strategic direction of the operation.
***
The Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/138) Article III-307 looked like this:
Article III-307
1. Without prejudice to Article III-344, a Political and Security Committee shall monitor the
international situation in the areas covered by the common foreign and security policy and
contribute to the definition of policies by delivering opinions to the Council at the request of the
latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the Union Minister for
Foreign Affairs.
2. Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the Union Minister for Foreign Affairs, the political control and strategic direction of the crisis management operations referred to in Article III-309.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant measures concerning the political control and strategic direction of the operation.
***
The amended Article 25 is one of many examples where the existing Treaties are adapted technically as a consequence of the position of the High Representative and following the renaming of the TEC, which becomes the TFEU. These changes in the Lisbon Treaty are, of course, quite similar to the wording of the Constitutional Treaty, but more profoundly they express the essential continuity between much of the existing Treaties with the Reform Treaty.
The Political and Security Committee (French acronym COPS) does not encroach upon the responsibilities of Coreper to prepare the work of the Council, unless expressly mandated by the Council to manage a crisis situation.
Ralf Grahn
The Lisbon Treaty merges the European Community (EC) into the European Union (EU), abolishes the pillar structure and aims to strengthen CFSP coordination, i.a. by the enhanced role of the High Representative/Vice-President , but the basic intergovernmental character of the CFSP remains.
Preparations for the meetings of ministers have developed as well, from meetings of the political directors of the Foreign Ministries into the present structures with a Political and Security Committee preparing the work of the Permanent Representatives and the Council. Since the Treaty of Nice, the Committee may be entrusted by the Council to manage crisis operations.
The relevant Article on the Political and Security Committee is adapted to these general changes.
***
The Treaty of Lisbon amends the Treaty on European Union (TEU) Article 25 (OJ 17.12.2007 C 306/31) according to the intergovernmental conference (IGC 2007).
44) Article 25 shall be amended as follows:
(a) in the first paragraph, first sentence, the reference to the Treaty establishing the European Community shall be replaced by a reference to the Treaty on the functioning of the European Union and the words "or of the High Representative of the Union for Foreign Affairs and Security Policy" shall be inserted after "at the request of the Council"; in the second sentence, the words "without prejudice to the responsibility of the Presidency and the Commission" shall be replaced by "without prejudice to the powers of the High Representative";
(b) the text of the second paragraph shall be replaced by the following: "Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of the crisis management operations referred to in Article 28 B.";
(c) in the third paragraph, the words ", without prejudice to Article 47" shall be deleted.
***
The existing Treaty on European Union (TEU) Article 25 has the following wording (latest consolidated version OJ 29.12.2006 C 321 E/21):
Article 25
Without prejudice to Article 207 of the Treaty establishing the European Community, a Political
and Security Committee shall monitor the international situation in the areas covered by the
common foreign and security policy and contribute to the definition of policies by delivering
opinions to the Council at the request of the Council or on its own initiative. It shall also monitor
the implementation of agreed policies, without prejudice to the responsibility of the Presidency and the Commission.
Within the scope of this title, this Committee shall exercise, under the responsibility of the Council, political control and strategic direction of crisis management operations.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation, without prejudice to Article 47.
***
The new consolidated version of Article 25 TEU should read like this:
Article 25
Without prejudice to Article 207 of the Treaty on the functioning of the European Union, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council at the request of the Council or of the High Representative of the Union for Foreign Affairs and Security Policy or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the High Representative.
Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the High Representative, the political control and strategic direction of crisis management operations referred to in Article 28 B.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant decisions concerning the political control and strategic direction of the operation.
***
The reference to the existing Article 207 TEC, Article III-247 in the draft Constitutional Treaty and Article III-344 in the Constitutional Treaty leads to Article 207 in the Treaty on the Functioning of the European Union (TFEU) points out the responsibilities of the Committee of the permanent representatives of the governments of the member states, known by the French acronym Coreper. In the Lisbon Treaty it has the following wording:
Article 207
1. A committee consisting of the Permanent Representatives of the Governments of the
Member States shall be responsible for preparing the work of the Council and for carrying out
the tasks assigned to it by the latter. The Committee may adopt procedural decisions in cases
provided for in the Council's Rules of Procedure.
2. The Council shall be assisted by a General Secretariat, under the responsibility of a
Secretary-General appointed by the Council.
The Council shall decide on the organisation of the General Secretariat by a simple majority.
3. The Council shall act by a simple majority regarding procedural matters and for the
adoption of its Rules of Procedure.
***
The Convention proposed the following Article III-208 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-208
Without prejudice to Article III-247, a Political and Security Committee shall monitor the international situation in the areas covered by the common foreign and security policy and contribute to the definition of policies by delivering opinions to the Council of Ministers at the request of the latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the responsibility of the Union Minister for Foreign Affairs.
Within the scope of this Chapter, this Committee shall exercise, under the responsibility of the Council of Ministers and of the Union Minister for Foreign Affairs, political control and strategic
direction of crisis management operations, as defined in Article III-210.
The Council of Ministers may authorise the Committee, for the purpose and for the duration of a crisis management operation, as determined by the Council of Ministers, to take the relevant
measures concerning the political control and strategic direction of the operation.
***
The Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/138) Article III-307 looked like this:
Article III-307
1. Without prejudice to Article III-344, a Political and Security Committee shall monitor the
international situation in the areas covered by the common foreign and security policy and
contribute to the definition of policies by delivering opinions to the Council at the request of the
latter, or of the Union Minister for Foreign Affairs, or on its own initiative. It shall also monitor the implementation of agreed policies, without prejudice to the powers of the Union Minister for
Foreign Affairs.
2. Within the scope of this Chapter, the Political and Security Committee shall exercise, under the responsibility of the Council and of the Union Minister for Foreign Affairs, the political control and strategic direction of the crisis management operations referred to in Article III-309.
The Council may authorise the Committee, for the purpose and for the duration of a crisis
management operation, as determined by the Council, to take the relevant measures concerning the political control and strategic direction of the operation.
***
The amended Article 25 is one of many examples where the existing Treaties are adapted technically as a consequence of the position of the High Representative and following the renaming of the TEC, which becomes the TFEU. These changes in the Lisbon Treaty are, of course, quite similar to the wording of the Constitutional Treaty, but more profoundly they express the essential continuity between much of the existing Treaties with the Reform Treaty.
The Political and Security Committee (French acronym COPS) does not encroach upon the responsibilities of Coreper to prepare the work of the Council, unless expressly mandated by the Council to manage a crisis situation.
Ralf Grahn
Wednesday, 23 January 2008
British consolidated Lisbon Treaty
The UK Foreign and Commonwealth Office has published a consolidated version of the Treaty of Lisbon. The ratification debate in the House of Commons started this week and is expected to continue for four more weeks.
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, go to:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
***
There are other consolidated English language versions of the Lisbon Treaty. Here is a reminder:
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete consolidation of the amended treaties, including the protocols and annexes, in a format easy to read
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com/
Statewatch
Professor Steve Peers has painstakingly compiled a version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where likenesses and differences between the different reform stages are highlighted
Go to http://www.statewatch.org/
Markus Walther
Markus Walther, a German student who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe has produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
Go to http://www.openeurope.org.uk/research/comparative.pdf
***
I refer those who look for other language versions to my earlier posts.
Ralf Grahn
P.S The FCO has also published Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
The FCO web pages on Britain in the EU contain both general information on the Reform Treaty and answers on specific questions in addition to the consolidation I just mentioned. For the consolidated version of the Lisbon Treaty, go to:
http://www.fco.gov.uk/Files/kfile/FCO_PDF_CM7310_ConsolidatedTreaties.pdf
***
There are other consolidated English language versions of the Lisbon Treaty. Here is a reminder:
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete consolidation of the amended treaties, including the protocols and annexes, in a format easy to read
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com/
Statewatch
Professor Steve Peers has painstakingly compiled a version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where likenesses and differences between the different reform stages are highlighted
Go to http://www.statewatch.org/
Markus Walther
Markus Walther, a German student who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Open Europe
Open Europe has produced a consolidated version with the Treaty of Lisbon and the Treaty establishing a Constitution for Europe presented side by side for convenient comparison.
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
Go to http://www.openeurope.org.uk/research/comparative.pdf
***
I refer those who look for other language versions to my earlier posts.
Ralf Grahn
P.S The FCO has also published Command Paper 7311 A comparative table of the current EC and EU Treaties as amended by the treaty of Lisbon, which briefly sets out the similarities and differences between the Lisbon Treaty and the other relevant Treaties. Available through the Official Documents web page (as is Cm 7310 mentioned above):
http://www.official-documents.gov.uk/
Malta backs Lisbon Treaty
The parliamentary debate on ratification of the Treaty of Lisbon has started in Malta. It seems to be plain sailing, according to the Times of Malta:
“The European and Foreign Affairs Committee of the House of Representatives yesterday debated and unanimously expressed itself in favour of the EU's Lisbon Treaty after a motion calling for the ratification of the treaty was moved by Prime Minister Lawrence Gonzi.”
Ralf Grahn
Times of Malta: Lisbon Treaty finds unanimous House backing; 22nd January 2008;
http://www.timesofmalta.com/articles/view/20080122/local/lisbon-treaty-finds-unanimous-house-backing
“The European and Foreign Affairs Committee of the House of Representatives yesterday debated and unanimously expressed itself in favour of the EU's Lisbon Treaty after a motion calling for the ratification of the treaty was moved by Prime Minister Lawrence Gonzi.”
Ralf Grahn
Times of Malta: Lisbon Treaty finds unanimous House backing; 22nd January 2008;
http://www.timesofmalta.com/articles/view/20080122/local/lisbon-treaty-finds-unanimous-house-backing
EU Treaty of Lisbon: International agreements
International agreements are important instruments to further the objectives of the European Union in its external relations. This time we look at the basic provision in the Treaty of Lisbon relating to international agreements in the area of the common foreign and security policy (CFSP), in comparison with the corresponding provisions in the existing Treaty on European Union (TEU), the draft Constitution and the Constitutional Treaty. We briefly refer to the relevant procedural articles in the new Treaty on the Functioning of the European Union (TFEU).
The CFSP provisions, including those on international agreements, belong to the sphere of intergovernmental cooperation, as opposed to certain supranational ‘Community’ powers.
***
The intergovernmental conference (IGC 2007) concluded the following in the Treaty of Lisbon (OJ 17.12.2007 C 306/30):
41) The text of Article 22 shall become Article 15a; it shall be amended as set out above in point 33.
42) The text of Article 23 shall become Article 15b; it shall be amended as set out above in point 34.
43) Article 24 shall be replaced by the following:
Article 24 TEU
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
In the existing consolidated Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321 E/20 and 21) Article 24 contains both the principles and the procedures relating to international agreements under Title V, the common foreign and security policy (CFSP), and Title VI, Police and judicial cooperation in criminal matters.
Article 24
1. When it is necessary to conclude an agreement with one or more States or international
organisations in implementation of this title, the Council may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be
concluded by the Council on a recommendation from the Presidency.
2. The Council shall act unanimously when the agreement covers an issue for which unanimity
is required for the adoption of internal decisions.
3. When the agreement is envisaged in order to implement a joint action or common position,
the Council shall act by a qualified majority in accordance with Article 23(2).
4. The provisions of this Article shall also apply to matters falling under Title VI. When the
agreement covers an issue for which a qualified majority is required for the adoption of internal
decisions or measures, the Council shall act by a qualified majority in accordance with Article 34
(3).
5. No agreement shall be binding on a Member State whose representative in the Council states
that it has to comply with the requirements of its own constitutional procedure; the other
members of the Council may agree that the agreement shall nevertheless apply provisionally.
6. Agreements concluded under the conditions set out by this Article shall be binding on the
institutions of the Union.
***
In addition, we take note of the existing Treaty establishing the European Community (TEC) Article 300, which concerns the conclusion of international agreements by the European Community (EC).
***
The Convention proposed the following Article III-2004 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C169/67):
Article III-204
The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227.
***
In the Treaty establishing a Constitution for Europe actually signed by the member states, the corresponding Article was III-303 (OJ 16.12.2004 C 310/137):
Article III-303
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
We see that the Lisbon Treaty Article 24 TEU has the same wording as the Constitutional Treaty Article III-303. While the likeness of the Reform Treaty and the Constitutional Treaty is evident in many instances, the essential continuity between many of the provisions existing Treaties and the Lisbon Treaty should not be forgotten.
The scope of the proposed Article 24 TEU is narrower, since it refers only to areas covered in Chapter 2, i.e. the common foreign and security policy (CFSP), which remains in the intergovernmental domain.
In the new Article 24 TEU, there are no procedural rules and no reference to those provisions. We find them in the new Treaty on the functioning of the European Union (TFEU), Part V External action by the Union, Title V International agreements, especially Article 188n TFEU, with provisions on the opening of negotiations, the issuing of directives to the negotiator and the conclusion of the agreement.
Since the European Community (EC), which has legal personality, is merged into the European Union (EU), on which legal personality is conferred, there is no need for separate provisions on the account of different entities. But the competences of the intergovernmental Council and the ‘communitarian’ Commission remain distinct.
When the agreements relate exclusively to the CFSP, the Council adopts the decision concluding the agreement. In other cases the European Parliament is only consulted, if the consent of the EP is not expressly provided for, Article 188n(6) TFEU.
***
Next time we look at the Political and Security Committee (PSC).
Ralf Grahn
The CFSP provisions, including those on international agreements, belong to the sphere of intergovernmental cooperation, as opposed to certain supranational ‘Community’ powers.
***
The intergovernmental conference (IGC 2007) concluded the following in the Treaty of Lisbon (OJ 17.12.2007 C 306/30):
41) The text of Article 22 shall become Article 15a; it shall be amended as set out above in point 33.
42) The text of Article 23 shall become Article 15b; it shall be amended as set out above in point 34.
43) Article 24 shall be replaced by the following:
Article 24 TEU
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
In the existing consolidated Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321 E/20 and 21) Article 24 contains both the principles and the procedures relating to international agreements under Title V, the common foreign and security policy (CFSP), and Title VI, Police and judicial cooperation in criminal matters.
Article 24
1. When it is necessary to conclude an agreement with one or more States or international
organisations in implementation of this title, the Council may authorise the Presidency, assisted by the Commission as appropriate, to open negotiations to that effect. Such agreements shall be
concluded by the Council on a recommendation from the Presidency.
2. The Council shall act unanimously when the agreement covers an issue for which unanimity
is required for the adoption of internal decisions.
3. When the agreement is envisaged in order to implement a joint action or common position,
the Council shall act by a qualified majority in accordance with Article 23(2).
4. The provisions of this Article shall also apply to matters falling under Title VI. When the
agreement covers an issue for which a qualified majority is required for the adoption of internal
decisions or measures, the Council shall act by a qualified majority in accordance with Article 34
(3).
5. No agreement shall be binding on a Member State whose representative in the Council states
that it has to comply with the requirements of its own constitutional procedure; the other
members of the Council may agree that the agreement shall nevertheless apply provisionally.
6. Agreements concluded under the conditions set out by this Article shall be binding on the
institutions of the Union.
***
In addition, we take note of the existing Treaty establishing the European Community (TEC) Article 300, which concerns the conclusion of international agreements by the European Community (EC).
***
The Convention proposed the following Article III-2004 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C169/67):
Article III-204
The Union may conclude agreements with one or more States or international organisations pursuant to this Chapter, in accordance with the procedure described in Article III-227.
***
In the Treaty establishing a Constitution for Europe actually signed by the member states, the corresponding Article was III-303 (OJ 16.12.2004 C 310/137):
Article III-303
The Union may conclude agreements with one or more States or international organisations in areas covered by this Chapter.
***
We see that the Lisbon Treaty Article 24 TEU has the same wording as the Constitutional Treaty Article III-303. While the likeness of the Reform Treaty and the Constitutional Treaty is evident in many instances, the essential continuity between many of the provisions existing Treaties and the Lisbon Treaty should not be forgotten.
The scope of the proposed Article 24 TEU is narrower, since it refers only to areas covered in Chapter 2, i.e. the common foreign and security policy (CFSP), which remains in the intergovernmental domain.
In the new Article 24 TEU, there are no procedural rules and no reference to those provisions. We find them in the new Treaty on the functioning of the European Union (TFEU), Part V External action by the Union, Title V International agreements, especially Article 188n TFEU, with provisions on the opening of negotiations, the issuing of directives to the negotiator and the conclusion of the agreement.
Since the European Community (EC), which has legal personality, is merged into the European Union (EU), on which legal personality is conferred, there is no need for separate provisions on the account of different entities. But the competences of the intergovernmental Council and the ‘communitarian’ Commission remain distinct.
When the agreements relate exclusively to the CFSP, the Council adopts the decision concluding the agreement. In other cases the European Parliament is only consulted, if the consent of the EP is not expressly provided for, Article 188n(6) TFEU.
***
Next time we look at the Political and Security Committee (PSC).
Ralf Grahn
Tuesday, 22 January 2008
Lisbon referendum dilemma
The constitutional setting and the political forces vary between the different EU member states, but at the level of principles, governments, legislators and citizens have cause for thought. Even if one’s own country would be on a clear path to parliamentary ratification of the Lisbon treaty, what happens in the other countries is a common concern.
Just as a majority of all car drivers think that they are better than the majority, it is nearly self-evident that citizens are ready to relieve their elected representatives of the burden to decide, if anyone arranges an opinion poll to find out ‘what the people think’. Thus, there is always some mileage to be got out of demanding a referendum for a politician out of government, especially if he is unlikely to be voted into office in the near future.
The Treaty of Lisbon is no different in this respect from purely domestic issues, but it highlights the discrepancy between a domestic debate and consequences for the rest of the European Union.
The conflicting pressures are most acutely felt in countries where the political leaders promised a referendum on the Treaty establishing a Constitution for Europe.
The similarities between the Constitutional Treaty and the watered down Lisbon Treaty are obvious, but they have been in the public domain since the June IGC 2007 mandate. No surprise there.
Referendum is a stickier matter, in my opinion. It was not prudent for governments to get carried away by promising referendums in the first place. Despite its name, the ‘Constitution’ was, despite its pompous name, first and foremost an exercise in improved internal decision making in an enlarged Union. As a by-product, the different layers of previous treaty reform would have been tidied up and presented in an overly long, but fairly readable form.
But after promising, the weaknesses of the EU's treaty basis, which should have been evident, have been more widely understood: Unanimity between governments and then separate majorities (often qualified) in national parliaments (perhaps different chambers) is hard enough in a Union with 27 members, given the vagaries of politics. If national referendums were the norm, separate majorities in all 27 of them would be an additional hurdle, almost guaranteed to wreck any attempt.
Thus, there is an ethical and a practical dilemma. What should a national leader do, given the outcome for the EU as a whole:
Honour stupid promises and accept permanent deadlock?
Ram through an 'elitist' Constitutional Treaty minus?
Found a new Union (perhaps for a smaller number of members) based on the EU citizens, with a real democratic Constitution?
Ralf Grahn
Just as a majority of all car drivers think that they are better than the majority, it is nearly self-evident that citizens are ready to relieve their elected representatives of the burden to decide, if anyone arranges an opinion poll to find out ‘what the people think’. Thus, there is always some mileage to be got out of demanding a referendum for a politician out of government, especially if he is unlikely to be voted into office in the near future.
The Treaty of Lisbon is no different in this respect from purely domestic issues, but it highlights the discrepancy between a domestic debate and consequences for the rest of the European Union.
The conflicting pressures are most acutely felt in countries where the political leaders promised a referendum on the Treaty establishing a Constitution for Europe.
The similarities between the Constitutional Treaty and the watered down Lisbon Treaty are obvious, but they have been in the public domain since the June IGC 2007 mandate. No surprise there.
Referendum is a stickier matter, in my opinion. It was not prudent for governments to get carried away by promising referendums in the first place. Despite its name, the ‘Constitution’ was, despite its pompous name, first and foremost an exercise in improved internal decision making in an enlarged Union. As a by-product, the different layers of previous treaty reform would have been tidied up and presented in an overly long, but fairly readable form.
But after promising, the weaknesses of the EU's treaty basis, which should have been evident, have been more widely understood: Unanimity between governments and then separate majorities (often qualified) in national parliaments (perhaps different chambers) is hard enough in a Union with 27 members, given the vagaries of politics. If national referendums were the norm, separate majorities in all 27 of them would be an additional hurdle, almost guaranteed to wreck any attempt.
Thus, there is an ethical and a practical dilemma. What should a national leader do, given the outcome for the EU as a whole:
Honour stupid promises and accept permanent deadlock?
Ram through an 'elitist' Constitutional Treaty minus?
Found a new Union (perhaps for a smaller number of members) based on the EU citizens, with a real democratic Constitution?
Ralf Grahn
EU Treaty of Lisbon: Democratic scrutiny of CFSP
Long after the European states became democracies, their foreign, security and defence policies retained an aura of an era of royal prerogatives. Add the difficulty that each country should actually contribute something if the the member states of the European Union want to shape a real common foreign and security policy (CFSP) and a working common security and defence policy (CSDP) and profit from them.
The governments’ progress towards effective common policies has been hesitant, their enthusiasm for openness and transparency tepid and their guard against democratic accountability and scrutiny jealous.
The Treaty of Lisbon goes some way towards a more effective CFSP and CSDP, but democratic accountability and democratic scrutiny advance only nominally. In these areas the European Union continues to be far from its founding values.
The CFSP and the CSDP are like a throwback to pre-democratic or proto-democratic times, which remind us more of the 19th than of the 21st century.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) amended Article 21 TEU (OJ 17.12.2007 C 306/30):
40) Article 21 shall be amended as follows:
(a) the first paragraph shall be replaced by the following:
"The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.";
(b) in the second paragraph, first sentence, the words "and to the High Representative" shall be inserted at the end; in the second sentence, the words "It shall hold an annual debate" shall be replaced by "Twice a year it shall hold a debate" and the words ", including the common security and defence policy" shall be inserted at the end.
***
In the existing Treaty on European Union (TEU) Article 21 looks like this (latest consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community OJ 29.12.2006 C 321 E/19):
Article 21
The Presidency shall consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament shall be kept regularly informed by the Presidency and the Commission of the development of the Union's foreign and security policy.
The European Parliament may ask questions of the Council or make recommendations to it. It shall hold an annual debate on progress in implementing the common foreign and security policy.
***
The updated and consolidated version of Article 21 TEU would look like this:
The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.
The European Parliament may ask questions of the Council or make recommendations to it and to the High Representative. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
The Convention draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68) proposed an Article III-205:
Article III-205
1. The Union Minister for Foreign Affairs shall consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy, including the common security and defence policy, and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament shall be kept regularly informed by the Union Minister for Foreign Affairs of the development of the common foreign and security policy, including the common security and defence policy. Special representatives may be involved in briefing the European Parliament.
2. The European Parliament may ask questions of the Council of Ministers and of the Union Minister for Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
The corresponding provision in the Treaty establishing a Constitution for Europe was Article III-304 (OJ 16.12.2004 C 310/137):
Article III-304
1. The Union Minister for Foreign Affairs shall consult and inform the European Parliament in
accordance with Article I-40(8) and Article I-41(8). He or she shall ensure that the views of the
European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.
2. The European Parliament may ask questions of the Council and of the Union Minister for
Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
There are changes when the High Representative takes the place of the rotating Presidency. But otherwise there is not much between the different versions, from the present Article 21 TEU, through the draft Constitution which added a second annual debate, to the Constitution and the Lisbon Treaty Article 21 TEU which retained the modest advances.
CFSP and CSDP is like a throwback to pre-democratic or proto-democratic times, which remind us more of the 19th than of the 21st century.
The scale of foreign policy challenges has increasingly overgrown the effective capacity of the individual member states. Basically, they can choose between solo impotence and shared power. Since only the EU level offers promises of effective action, democratic governance should follow upstairs.
The need for institutional reform is far from over.
***
International agreements will follow.
Ralf Grahn
The governments’ progress towards effective common policies has been hesitant, their enthusiasm for openness and transparency tepid and their guard against democratic accountability and scrutiny jealous.
The Treaty of Lisbon goes some way towards a more effective CFSP and CSDP, but democratic accountability and democratic scrutiny advance only nominally. In these areas the European Union continues to be far from its founding values.
The CFSP and the CSDP are like a throwback to pre-democratic or proto-democratic times, which remind us more of the 19th than of the 21st century.
***
In the Treaty of Lisbon the intergovernmental conference (IGC 2007) amended Article 21 TEU (OJ 17.12.2007 C 306/30):
40) Article 21 shall be amended as follows:
(a) the first paragraph shall be replaced by the following:
"The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.";
(b) in the second paragraph, first sentence, the words "and to the High Representative" shall be inserted at the end; in the second sentence, the words "It shall hold an annual debate" shall be replaced by "Twice a year it shall hold a debate" and the words ", including the common security and defence policy" shall be inserted at the end.
***
In the existing Treaty on European Union (TEU) Article 21 looks like this (latest consolidated versions of the Treaty on European Union and of the Treaty establishing the European Community OJ 29.12.2006 C 321 E/19):
Article 21
The Presidency shall consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament shall be kept regularly informed by the Presidency and the Commission of the development of the Union's foreign and security policy.
The European Parliament may ask questions of the Council or make recommendations to it. It shall hold an annual debate on progress in implementing the common foreign and security policy.
***
The updated and consolidated version of Article 21 TEU would look like this:
The High Representative of the Union for Foreign Affairs and Security Policy shall regularly consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy and the common security and defence policy and inform it of how those policies evolve. He shall ensure that the views of the European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.
The European Parliament may ask questions of the Council or make recommendations to it and to the High Representative. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
The Convention draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68) proposed an Article III-205:
Article III-205
1. The Union Minister for Foreign Affairs shall consult the European Parliament on the main aspects and the basic choices of the common foreign and security policy, including the common security and defence policy, and shall ensure that the views of the European Parliament are duly taken into consideration. The European Parliament shall be kept regularly informed by the Union Minister for Foreign Affairs of the development of the common foreign and security policy, including the common security and defence policy. Special representatives may be involved in briefing the European Parliament.
2. The European Parliament may ask questions of the Council of Ministers and of the Union Minister for Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
The corresponding provision in the Treaty establishing a Constitution for Europe was Article III-304 (OJ 16.12.2004 C 310/137):
Article III-304
1. The Union Minister for Foreign Affairs shall consult and inform the European Parliament in
accordance with Article I-40(8) and Article I-41(8). He or she shall ensure that the views of the
European Parliament are duly taken into consideration. Special representatives may be involved in briefing the European Parliament.
2. The European Parliament may ask questions of the Council and of the Union Minister for
Foreign Affairs or make recommendations to them. Twice a year it shall hold a debate on progress in implementing the common foreign and security policy, including the common security and defence policy.
***
There are changes when the High Representative takes the place of the rotating Presidency. But otherwise there is not much between the different versions, from the present Article 21 TEU, through the draft Constitution which added a second annual debate, to the Constitution and the Lisbon Treaty Article 21 TEU which retained the modest advances.
CFSP and CSDP is like a throwback to pre-democratic or proto-democratic times, which remind us more of the 19th than of the 21st century.
The scale of foreign policy challenges has increasingly overgrown the effective capacity of the individual member states. Basically, they can choose between solo impotence and shared power. Since only the EU level offers promises of effective action, democratic governance should follow upstairs.
The need for institutional reform is far from over.
***
International agreements will follow.
Ralf Grahn
Monday, 21 January 2008
Lisbon and Constitution side by side
The anti-EU lobbying group Open Europe has published an updated version of their comparison of the EU Lisbon Treaty and the Treaty establishing a Constitution for Europe. The treaty texts are presented side by side, with the differences easy to spot.
The numbering of the articles follows the plan for a coming officially unofficial consolidated version of the Lisbon Treaty to be published by the European Union, when all the ratification processes are over and the Reform Treaty in force.
(My blog has looked at the the Treaty of Lisbon according to the numbering given by the intergovernmental conference and will continue to do so, on the assumption that the reader of the treaty searches for answers to an article with the specific number mentioned in the amending treaty as presented.)
***
Open Europe’s press summary 21 January 2008 included the following:
“Saturday’s Times reported that EU Communications Commissioner Margot Wallstrom has said that the European Council is refusing her request to publish a readable version of the Lisbon Treaty. Such a text will only be made public after ratification in the member states.”
(I refer to my numerous posts on the matter of consolidated versions of the Lisbon Treaty for the citizens of the European Union.)
Ralf Grahn
Source:
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
Open Europe: Press summary archive; 21 January 2008;
http://www.openeurope.org.uk/media-centre/summary.aspx?id=511
The numbering of the articles follows the plan for a coming officially unofficial consolidated version of the Lisbon Treaty to be published by the European Union, when all the ratification processes are over and the Reform Treaty in force.
(My blog has looked at the the Treaty of Lisbon according to the numbering given by the intergovernmental conference and will continue to do so, on the assumption that the reader of the treaty searches for answers to an article with the specific number mentioned in the amending treaty as presented.)
***
Open Europe’s press summary 21 January 2008 included the following:
“Saturday’s Times reported that EU Communications Commissioner Margot Wallstrom has said that the European Council is refusing her request to publish a readable version of the Lisbon Treaty. Such a text will only be made public after ratification in the member states.”
(I refer to my numerous posts on the matter of consolidated versions of the Lisbon Treaty for the citizens of the European Union.)
Ralf Grahn
Source:
Open Europe: The Lisbon Treaty and the European Constitution: A side-by-side comparison; January 2008;
http://www.openeurope.org.uk/research/comparative.pdf
Open Europe: Press summary archive; 21 January 2008;
http://www.openeurope.org.uk/media-centre/summary.aspx?id=511
Product plugging by Christopher Booker
In The Telegraph, Christopher Booker made a lot of noise about contempt for Parliament and the like. According to Booker, the Government asks MPs to approve the EU treaty even before they have a proper chance to examine what it is they are voting on.
Booker then goes on to plug the consolidated Lisbon Treaty being prepared by the end of the week by a private firm: “a 331-page text of the treaty with invaluable analysis” (cost £27.50).
I am not going into the interesting questions of journalistic ethics concerning product placement or downright marketing, but I sincerely hope that others will.
***
The Council’s refusal to publish consolidated versions of the Treaty of Lisbon, “putting all those amendments in context, in such a way that their significance can be understood” as Booker says, is a serious drawback for democratic debate in Europe.
Therefore, the readers of this blog have been kept aware of the different consolidated language versions that have been published, as far as I have been able to find out.
English speakers are, relatively speaking, in the enviable position to have three different consolidations of the Reform Treaty available, for free. Perhaps there is cause to mention the consolidated Lisbon Treaties in English again:
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete consolidation of the amended treaties, including the protocols and annexes, in a format easy to read
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled a version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where likenesses and differences between the different reform stages are highlighted
Go to http://www.statewatch.org
Markus Walther
Markus Walther, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Other resources
Other resources on the Lisbon Treaty have been mentioned here frequently, with the latest posting dated yesterday, on some of the UK Parliamentary documents.
***
If Booker wants to scandalise the British government and market valuable books, they are his choices.
But the information already exists for those who are interested in the facts.
Ralf Grahn
Source:
Christopher Booker’s Notebook: MPs required to ratify Lisbon treaty without reading it; The Telegraph 19/01/2008;
http://www.telegraph.co.uk/news/main.jhtml%3Bjsessionid%3D2V4OJ542O2YSDQFIQMFCFGGAVCBQYIV0?xml=/news/2008/01/20/nbooker120.xml
Booker then goes on to plug the consolidated Lisbon Treaty being prepared by the end of the week by a private firm: “a 331-page text of the treaty with invaluable analysis” (cost £27.50).
I am not going into the interesting questions of journalistic ethics concerning product placement or downright marketing, but I sincerely hope that others will.
***
The Council’s refusal to publish consolidated versions of the Treaty of Lisbon, “putting all those amendments in context, in such a way that their significance can be understood” as Booker says, is a serious drawback for democratic debate in Europe.
Therefore, the readers of this blog have been kept aware of the different consolidated language versions that have been published, as far as I have been able to find out.
English speakers are, relatively speaking, in the enviable position to have three different consolidations of the Reform Treaty available, for free. Perhaps there is cause to mention the consolidated Lisbon Treaties in English again:
IIEA
Peadar ó Broin at the Institute of International and European Affairs (Dublin, Ireland) has produced a complete consolidation of the amended treaties, including the protocols and annexes, in a format easy to read
Treaty on European Union
Treaty on the Functioning of the European Union
Annexes to the EU and FEU Treaties
Protocols to the EU and FEU Treaties and, where appropriate, to the EAEC Treaty
Go to http://www.iiea.com
Statewatch
Professor Steve Peers has painstakingly compiled a version consisting of several files for the Statewatch Observatory on the EU Constitution and the Reform Treaty, where likenesses and differences between the different reform stages are highlighted
Go to http://www.statewatch.org
Markus Walther
Markus Walther, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without protocols and charter).
Go to http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Other resources
Other resources on the Lisbon Treaty have been mentioned here frequently, with the latest posting dated yesterday, on some of the UK Parliamentary documents.
***
If Booker wants to scandalise the British government and market valuable books, they are his choices.
But the information already exists for those who are interested in the facts.
Ralf Grahn
Source:
Christopher Booker’s Notebook: MPs required to ratify Lisbon treaty without reading it; The Telegraph 19/01/2008;
http://www.telegraph.co.uk/news/main.jhtml%3Bjsessionid%3D2V4OJ542O2YSDQFIQMFCFGGAVCBQYIV0?xml=/news/2008/01/20/nbooker120.xml
EU Treaty of Lisbon: Cooperation between diplomatic missions
The diplomatic and consular missions of the EU member states and the present Commission delegations (future Union delegations forming part of the European External Action Service) are precious resources for the member states and the European Union.
Cooperation between them offers possibilities to represent the interests of the EU and the member states effectively in third countries and international conferences and organisations.
Together they can improve the assessments and policy recommendations flowing back to the Council and the member states.
The citizenship of the European Union, established by the Maastricht Treaty, carries with it rights, including a subsidiary right to diplomatic and consular protection in third countries, where the citizen’s state is unrepresented.
For expats in trouble or stranded tourists, especially in remote parts of the world, this protection can be valuable. Citizens of smaller member states, with fewer diplomatic or consular missions, are more likely to profit from this practical example of growing EU solidarity, but even the bigger member states are thinly represented on the ground in many regions of the world.
***
The intergovernmental conference (IGC 2007) agreed on the following amendments to Article 20 TEU (OJ 17.12.2007 C 306/30):
39) Article 20 shall be amended as follows:
(a) in the first paragraph, the words "Commission delegations" shall be replaced by "Union delegations" and the words "the common positions and joint actions adopted by the Council" shall be replaced by "decisions defining Union positions and actions adopted pursuant to this Chapter";
(b) in the second paragraph, the words "information, carrying out joint assessments" shall be replaced by "information and carrying out joint assessments" and the words "and contributing to the implementation of the provisions referred to in Article 20 of the Treaty establishing the European Community" shall be deleted;
(c) the following new paragraph shall be added:
"They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.".
***
The existing Article 20 TEU looks like this (latest consolidated version OJ 29.12.2006 C 321 E/18):
Article 20
The diplomatic and consular missions of the Member States and the Commission delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.
They shall step up cooperation by exchanging information, carrying out joint assessments and
contributing to the implementation of the provisions referred to in Article 20 of the Treaty
establishing the European Community.
***
Article 20 of the Treaty establishing the European Community (TEC) referred to above builds on the citizenship of the Union and the rights of Union citizens mentioned in Article 17 TEC.
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
Consolidation, i.e. merging the amendments and the existing text leads to the consolidated and updated Article 20 TEU:
Article 20
The diplomatic and consular missions of the Member States and the Union delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.
***
Article III-207 proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68) looked like this:
Article III-207
The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations,
shall cooperate in ensuring that the European decisions relating to Union positions and actions adopted by the Council of Ministers are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the provisions referred to in Article I-8(2) on the rights of European citizens to protection in the territory of a third country and the measures
adopted pursuant to Article III-11.
***
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/137 and 138) the corresponding Article was III-306:
Article III-306
The diplomatic and consular missions of the Member States and the Union delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the European decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of European citizens to protection in the
territory of third countries as referred to in Article I-10(2)(c) and the measures adopted pursuant to Article III-127.
***
There are only minor differences between the existing Article 20 TEU, by the way of the draft Constitutional Treaty Article III-207 and the Constitutional Treaty Article III-306, and the amended Article 20 TEU, including the references to Article 17(2)(c) and Article 20 of the Treaty on the Functioning of the European Union (TFEU).
The protection of EU citizens by diplomatic and consular authorities of any member state in the territory of third countries deserves a few comments.
First, this right to protection is subsidiary, i.e. it applies where the Union citizen’s own country is unrepresented.
Second, the principle of equal treatment applies: Protection is given on the same conditions as to the nationals of the state giving protection.
Third, the measures giving the citizens of the European Union diplomatic and consular protection are seen as intimately linked to the common foreign and security policy (CFSP) of the European Union. They belong to the sphere of intergovernmental cooperation, and the Council adopts the necessary directives in accordance with a special legislative procedure. The European Parliament is only consulted (Article 20 TFEU).
Fourth, the Charter of Fundamental Rights of the European Union Article 46 (OJ 14.12.2007 C 303/12) contains the right to protection by diplomatic or consular authorities, with wording almost identical to Article 17(2)(c) TFEU.
***
Next time we turn to the modest role of the elected representatives of the citizens in the European Parliament in questions pertaining to the common foreign and security policy (CFSP).
Ralf Grahn
P.S. Did the drafting technique used for the Lisbon Treaty lead to a shorter text, given that both the text to be substituted and the amendment itself had to be mentioned in the Reform Treaty?
Cooperation between them offers possibilities to represent the interests of the EU and the member states effectively in third countries and international conferences and organisations.
Together they can improve the assessments and policy recommendations flowing back to the Council and the member states.
The citizenship of the European Union, established by the Maastricht Treaty, carries with it rights, including a subsidiary right to diplomatic and consular protection in third countries, where the citizen’s state is unrepresented.
For expats in trouble or stranded tourists, especially in remote parts of the world, this protection can be valuable. Citizens of smaller member states, with fewer diplomatic or consular missions, are more likely to profit from this practical example of growing EU solidarity, but even the bigger member states are thinly represented on the ground in many regions of the world.
***
The intergovernmental conference (IGC 2007) agreed on the following amendments to Article 20 TEU (OJ 17.12.2007 C 306/30):
39) Article 20 shall be amended as follows:
(a) in the first paragraph, the words "Commission delegations" shall be replaced by "Union delegations" and the words "the common positions and joint actions adopted by the Council" shall be replaced by "decisions defining Union positions and actions adopted pursuant to this Chapter";
(b) in the second paragraph, the words "information, carrying out joint assessments" shall be replaced by "information and carrying out joint assessments" and the words "and contributing to the implementation of the provisions referred to in Article 20 of the Treaty establishing the European Community" shall be deleted;
(c) the following new paragraph shall be added:
"They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.".
***
The existing Article 20 TEU looks like this (latest consolidated version OJ 29.12.2006 C 321 E/18):
Article 20
The diplomatic and consular missions of the Member States and the Commission delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the common positions and joint actions adopted by the Council are complied with and implemented.
They shall step up cooperation by exchanging information, carrying out joint assessments and
contributing to the implementation of the provisions referred to in Article 20 of the Treaty
establishing the European Community.
***
Article 20 of the Treaty establishing the European Community (TEC) referred to above builds on the citizenship of the Union and the rights of Union citizens mentioned in Article 17 TEC.
Article 20 TEC
Every citizen of the Union shall, in the territory of a third country in which the Member State of
which he is a national is not represented, be entitled to protection by the diplomatic or consular
authorities of any Member State, on the same conditions as the nationals of that State. Member
States shall establish the necessary rules among themselves and start the international negotiations required to secure this protection.
***
Consolidation, i.e. merging the amendments and the existing text leads to the consolidated and updated Article 20 TEU:
Article 20
The diplomatic and consular missions of the Member States and the Union delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented.
They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of citizens of the Union to protection in the territory of third countries as referred to in Article 17(2)(c) of the Treaty on the Functioning of the European Union and of the measures adopted pursuant to Article 20 of that Treaty.
***
Article III-207 proposed by the European Convention in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68) looked like this:
Article III-207
The diplomatic and consular missions of the Member States and the Union delegations in third countries and international conferences, and their representations to international organisations,
shall cooperate in ensuring that the European decisions relating to Union positions and actions adopted by the Council of Ministers are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the provisions referred to in Article I-8(2) on the rights of European citizens to protection in the territory of a third country and the measures
adopted pursuant to Article III-11.
***
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310/137 and 138) the corresponding Article was III-306:
Article III-306
The diplomatic and consular missions of the Member States and the Union delegations in
third countries and international conferences, and their representations to international organisations, shall cooperate in ensuring that the European decisions defining Union positions and actions adopted pursuant to this Chapter are complied with and implemented. They shall step up cooperation by exchanging information and carrying out joint assessments.
They shall contribute to the implementation of the right of European citizens to protection in the
territory of third countries as referred to in Article I-10(2)(c) and the measures adopted pursuant to Article III-127.
***
There are only minor differences between the existing Article 20 TEU, by the way of the draft Constitutional Treaty Article III-207 and the Constitutional Treaty Article III-306, and the amended Article 20 TEU, including the references to Article 17(2)(c) and Article 20 of the Treaty on the Functioning of the European Union (TFEU).
The protection of EU citizens by diplomatic and consular authorities of any member state in the territory of third countries deserves a few comments.
First, this right to protection is subsidiary, i.e. it applies where the Union citizen’s own country is unrepresented.
Second, the principle of equal treatment applies: Protection is given on the same conditions as to the nationals of the state giving protection.
Third, the measures giving the citizens of the European Union diplomatic and consular protection are seen as intimately linked to the common foreign and security policy (CFSP) of the European Union. They belong to the sphere of intergovernmental cooperation, and the Council adopts the necessary directives in accordance with a special legislative procedure. The European Parliament is only consulted (Article 20 TFEU).
Fourth, the Charter of Fundamental Rights of the European Union Article 46 (OJ 14.12.2007 C 303/12) contains the right to protection by diplomatic or consular authorities, with wording almost identical to Article 17(2)(c) TFEU.
***
Next time we turn to the modest role of the elected representatives of the citizens in the European Parliament in questions pertaining to the common foreign and security policy (CFSP).
Ralf Grahn
P.S. Did the drafting technique used for the Lisbon Treaty lead to a shorter text, given that both the text to be substituted and the amendment itself had to be mentioned in the Reform Treaty?
Sunday, 20 January 2008
British resources on EU Lisbon Treaty
The debate on the ratification of the Treaty of Lisbon starts in earnest in the UK House of Commons tomorrow, Monday. Here is a list of some resources on the EU Reform Treaty from a British perspective:
European Union (Amendment) Bill, 17 December 2007, Bill 48
Explanatory notes to the European Union (Amendment) Bill
House of Commons Library, Research paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union
House of Commons Library, Research paper 07/86, 6 December 2007: The Treaty of Lisbon: amendments to the Treaty establishing the European Community
House of Commons Library, Research paper 08/03, 15 January 2008: European Union (Amendment) Bill, Bill 48 of 2007-08
House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty, Third Report of Session 2007-08
***
The report of the Foreign Affairs Committee was published today. The first media reactions have focused on the essential similarities between the Constitutional Treaty and the Lisbon Treaty.
This is true, especially concerning the foreign policy parts of the Treaty of Lisbon, and a foregone conclusion for anyone who has read the June 2007 mandate for the intergovernmental conference.
Naturally, the Treaty of Lisbon itself, and the consolidated versions offered by Statewatch, the IIEA and Markus Walther are important materials.
Should I have mentioned other documents or comments?
Ralf Grahn
European Union (Amendment) Bill, 17 December 2007, Bill 48
Explanatory notes to the European Union (Amendment) Bill
House of Commons Library, Research paper 07/80, 22 November 2007: The EU Reform Treaty: amendments to the Treaty on European Union
House of Commons Library, Research paper 07/86, 6 December 2007: The Treaty of Lisbon: amendments to the Treaty establishing the European Community
House of Commons Library, Research paper 08/03, 15 January 2008: European Union (Amendment) Bill, Bill 48 of 2007-08
House of Commons Foreign Affairs Committee: Foreign Policy Aspects of the Lisbon Treaty, Third Report of Session 2007-08
***
The report of the Foreign Affairs Committee was published today. The first media reactions have focused on the essential similarities between the Constitutional Treaty and the Lisbon Treaty.
This is true, especially concerning the foreign policy parts of the Treaty of Lisbon, and a foregone conclusion for anyone who has read the June 2007 mandate for the intergovernmental conference.
Naturally, the Treaty of Lisbon itself, and the consolidated versions offered by Statewatch, the IIEA and Markus Walther are important materials.
Should I have mentioned other documents or comments?
Ralf Grahn
EU Treaty of Lisbon: International organisations and conferences
If the member states of the European Union (EU) want to shape world events effectively, they have to coordinate their actions in international organisations and at international conferences. This coordination encompasses both questions of substance and candidates for international posts.
The Security Council of the United Nations, where France and the United Kingdom – the only EU states with nuclear weapons – are permanent members, is a special case. Neither has shown any interest to give up its seat, its veto powers or its status as a (former) great power in favour of representation for the European Union, but at a practical level both have an interest to keep the other EU members on board in most questions.
Action in international organisations and at international conferences is one aspect of the common foreign and security policy (CFSP) of the EU in order to safeguard its values and promote its objectives.
***
The intergovernmental conference (IGC 2007) regaled us with this exquisite sample of stirring penmanship. See the Treaty of Lisbon (OJ 17.12.2007 C 306/29):
”38) Article 19 shall be amended as follows:
(a) in paragraph 1, the words "the common positions" shall be replaced by "the Union's positions" in the first and second subparagraphs and the following sentence shall be added at the end of the first subparagraph: "The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination.";
(b) paragraph 2 shall be amended as follows:
(i) in the first subparagraph, the words "Without prejudice to paragraph 1 and Article 14(3)," shall be replaced by "In accordance with Article 11(3)," and the words "the latter" shall be replaced by "the other Member States and the High Representative";
(ii) in the second subparagraph, first sentence, the words "and the High Representative" shall be inserted after "the other Member States"; in the second sentence, the word "permanent" shall be deleted and the words "ensure the defence of the positions" shall be replaced by "defend the positions";
(iii) the following new third subparagraph shall be added:
"When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position."
***
In the existing Treaty on European Union (TEU) Article 19 looks like this (latest consolidated version OJ 29.12.2006 C 321 E/18):
“Article 19
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the common positions in such forums.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the common positions.
2. Without prejudice to paragraph 1 and Article 14(3), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter informed of any matter of common interest.
Member States which are also members of the United Nations Security Council will concert and
keep the other Member States fully informed. Member States which are permanent members of the Security Council will, in the execution of their functions, ensure the defence of the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.”
***
We now proceed towards a consolidated version of Article 19 TEU, by making the amendments according to the ’construction manual’. Here is the amended and consolidated Article:
Article 19
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the Union’s positions in such forums. The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the Union’s positions.
2. In accordance with Article 11(3), Member States represented in international
organisations or international conferences where not all the Member States participate shall
keep the other Member States and the High Representative informed of any matter of common interest.
Member States which are also members of the United Nations Security Council will concert and
keep the other Member States and the High Representative fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position.
***
The European Convention proposed the following Article III-206 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-206
1. Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union's positions in such fora. The Union Minister for Foreign Affairs shall organise this coordination.
In international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union's positions.
2. Without prejudice to paragraph 1 and Article III-198(3), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest.
Member States which are also members of the United Nations Security Council shall concert and keep the other Member States and the Union Minister for Foreign Affairs fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the
Union Minister for Foreign Affairs be asked to present the Union's position.
***
The Treaty establishing a Constitution for Europe actually signed by the member states had the following Article III-305 (OJ 16.12.2004 C 310/137):
Article III-305
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the Union's positions in such fora. The Union Minister for
Foreign Affairs shall organise this coordination.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the Union's positions.
2. In accordance with Article I-16(2), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest.
Member States which are also members of the United Nations Security Council shall concert and
keep the other Member States and the Union Minister for Foreign Affairs fully informed.
Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position.
***
As we see, the basic idea remains the same from the existing TEU, via the Convention and the Constitutional Treaty to the Lisbon Treaty, when Article 19 TEU is presented in a readable, consolidated form.
The role of the High Representative is highlighted, both as a recipient of information and as an organiser of the needed coordination between member states.
The real addition, since the Convention, is Article 19(2) TEU, the new third subparagraph, on the invitation to the High Representative to present the Union’s position (provided there is one).
The loser here, as in the common foreign and security policy in general, is the rotating presidency of the Council. No more memorable appearances in the name of ‘Europe’ on the world stage for the leader(s) of a member state, every fourteenth year or so. The enhanced role of the High Representative should contribute to more coordinated, coherent and consistent action by the EU at international forums.
Since the EU’s agreed CFSP values and objectives are praiseworthy, institutional innovations leading to improved delivery are welcome from a citizen’s standpoint.
***
Let it be said that the Treaty of Lisbon does not deprive the permanent members of the United Nations Security Council of their seats, or change the composition of the Security Council, which can not be done unilaterally by the European Union.
On the other hand, from an EU citizen’s point of view and in order to strengthen global governance, a permanent Security Council seat for the European Union would be an improvement.
The UN Security Council remains special, in that the members, the permanent ones constantly, are supposed to ‘concert’ first, and then to inform the rest. How much the practices evolve towards advance ‘concert’ within the Council remains to be seen.
***
Diplomatic cooperation will be next in turn.
Ralf Grahn
The Security Council of the United Nations, where France and the United Kingdom – the only EU states with nuclear weapons – are permanent members, is a special case. Neither has shown any interest to give up its seat, its veto powers or its status as a (former) great power in favour of representation for the European Union, but at a practical level both have an interest to keep the other EU members on board in most questions.
Action in international organisations and at international conferences is one aspect of the common foreign and security policy (CFSP) of the EU in order to safeguard its values and promote its objectives.
***
The intergovernmental conference (IGC 2007) regaled us with this exquisite sample of stirring penmanship. See the Treaty of Lisbon (OJ 17.12.2007 C 306/29):
”38) Article 19 shall be amended as follows:
(a) in paragraph 1, the words "the common positions" shall be replaced by "the Union's positions" in the first and second subparagraphs and the following sentence shall be added at the end of the first subparagraph: "The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination.";
(b) paragraph 2 shall be amended as follows:
(i) in the first subparagraph, the words "Without prejudice to paragraph 1 and Article 14(3)," shall be replaced by "In accordance with Article 11(3)," and the words "the latter" shall be replaced by "the other Member States and the High Representative";
(ii) in the second subparagraph, first sentence, the words "and the High Representative" shall be inserted after "the other Member States"; in the second sentence, the word "permanent" shall be deleted and the words "ensure the defence of the positions" shall be replaced by "defend the positions";
(iii) the following new third subparagraph shall be added:
"When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position."
***
In the existing Treaty on European Union (TEU) Article 19 looks like this (latest consolidated version OJ 29.12.2006 C 321 E/18):
“Article 19
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the common positions in such forums.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the common positions.
2. Without prejudice to paragraph 1 and Article 14(3), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter informed of any matter of common interest.
Member States which are also members of the United Nations Security Council will concert and
keep the other Member States fully informed. Member States which are permanent members of the Security Council will, in the execution of their functions, ensure the defence of the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.”
***
We now proceed towards a consolidated version of Article 19 TEU, by making the amendments according to the ’construction manual’. Here is the amended and consolidated Article:
Article 19
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the Union’s positions in such forums. The High Representative of the Union for Foreign Affairs and Security Policy shall organise this coordination.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the Union’s positions.
2. In accordance with Article 11(3), Member States represented in international
organisations or international conferences where not all the Member States participate shall
keep the other Member States and the High Representative informed of any matter of common interest.
Member States which are also members of the United Nations Security Council will concert and
keep the other Member States and the High Representative fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the High Representative be invited to present the Union's position.
***
The European Convention proposed the following Article III-206 in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/68):
Article III-206
1. Member States shall coordinate their action in international organisations and at international conferences. They shall uphold the Union's positions in such fora. The Union Minister for Foreign Affairs shall organise this coordination.
In international organisations and at international conferences where not all the Member States participate, those which do take part shall uphold the Union's positions.
2. Without prejudice to paragraph 1 and Article III-198(3), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest.
Member States which are also members of the United Nations Security Council shall concert and keep the other Member States and the Union Minister for Foreign Affairs fully informed. Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the provisions of the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the
Union Minister for Foreign Affairs be asked to present the Union's position.
***
The Treaty establishing a Constitution for Europe actually signed by the member states had the following Article III-305 (OJ 16.12.2004 C 310/137):
Article III-305
1. Member States shall coordinate their action in international organisations and at international
conferences. They shall uphold the Union's positions in such fora. The Union Minister for
Foreign Affairs shall organise this coordination.
In international organisations and at international conferences where not all the Member States
participate, those which do take part shall uphold the Union's positions.
2. In accordance with Article I-16(2), Member States represented in international organisations or international conferences where not all the Member States participate shall keep the latter, as well as the Union Minister for Foreign Affairs, informed of any matter of common interest.
Member States which are also members of the United Nations Security Council shall concert and
keep the other Member States and the Union Minister for Foreign Affairs fully informed.
Member States which are members of the Security Council will, in the execution of their functions, defend the positions and the interests of the Union, without prejudice to their responsibilities under the United Nations Charter.
When the Union has defined a position on a subject which is on the United Nations Security Council agenda, those Member States which sit on the Security Council shall request that the Union Minister for Foreign Affairs be asked to present the Union's position.
***
As we see, the basic idea remains the same from the existing TEU, via the Convention and the Constitutional Treaty to the Lisbon Treaty, when Article 19 TEU is presented in a readable, consolidated form.
The role of the High Representative is highlighted, both as a recipient of information and as an organiser of the needed coordination between member states.
The real addition, since the Convention, is Article 19(2) TEU, the new third subparagraph, on the invitation to the High Representative to present the Union’s position (provided there is one).
The loser here, as in the common foreign and security policy in general, is the rotating presidency of the Council. No more memorable appearances in the name of ‘Europe’ on the world stage for the leader(s) of a member state, every fourteenth year or so. The enhanced role of the High Representative should contribute to more coordinated, coherent and consistent action by the EU at international forums.
Since the EU’s agreed CFSP values and objectives are praiseworthy, institutional innovations leading to improved delivery are welcome from a citizen’s standpoint.
***
Let it be said that the Treaty of Lisbon does not deprive the permanent members of the United Nations Security Council of their seats, or change the composition of the Security Council, which can not be done unilaterally by the European Union.
On the other hand, from an EU citizen’s point of view and in order to strengthen global governance, a permanent Security Council seat for the European Union would be an improvement.
The UN Security Council remains special, in that the members, the permanent ones constantly, are supposed to ‘concert’ first, and then to inform the rest. How much the practices evolve towards advance ‘concert’ within the Council remains to be seen.
***
Diplomatic cooperation will be next in turn.
Ralf Grahn
Saturday, 19 January 2008
EU Lisbon Treaty ratification: Estonia
Prime minister Andrus Ansip has told a press conference that government of Estonia is going to consider the Treaty of Lisbon next Thursday, 31 January 2008, and that he expects the Riigikogu, the Estonian Parliament, to ratify the Reform Treaty during the first half of this year.
According to the European Policy Centre (EPC) parliamentary ratification needs a simple majority, thought to be easily achieved, since all parties have declared their support for the Treaty.
Ralf Grahn
Sources:
Valitsuse briifinguruum: Valitsuse pressikonverentsi stenogramm, 17. jaanuar 2008;
http://www.valitsus.ee
EPC: Treaty ratification: state of play (as at 15 January 2008);
http://www.epc.eu
According to the European Policy Centre (EPC) parliamentary ratification needs a simple majority, thought to be easily achieved, since all parties have declared their support for the Treaty.
Ralf Grahn
Sources:
Valitsuse briifinguruum: Valitsuse pressikonverentsi stenogramm, 17. jaanuar 2008;
http://www.valitsus.ee
EPC: Treaty ratification: state of play (as at 15 January 2008);
http://www.epc.eu
EU Lisbon Treaty ratification: Denmark
The Danish Parliament, Folketinget, has started its work on the ratification of the EU Treaty of Lisbon. The government bill can be downloaded freely:
Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratifikation af Lissabon-traktaten)
Lovforslag nr. L 53; 9. januar 2008
http://www.ft.dk/doc.aspx?/Samling/20072/lovforslag/L53/index.htm
***
After the signing of the Treaty of Lisbon, the Danish consolidated version of the Lisbon Treaty, mentioned in an earlier post, has been updated. For a free download, go to:
Folketinget: Sammenskrevet udgave af Lissabontraktaten, som undertegnet af EU’s stats- og regeringsledare den 13. december 2007, og det gaeldende traktatgrundlag;
http://www.euo.dk/upload/application/pdf/acc3e206/Lissabontraktaten.pdf
***
Folketingets EU-Oplysning, the Parliament’s EU Information Centre, offers information on the European Union in Danish, but some information is available in English, too:
http://www.eu-oplysningen.dk
***
The Reform Treaty is to be ratified by the Parliament of Denmark, but the government led by Anders Fogh Rasmussen is planning a referendum on the possible abolition of the Danish opt-outs from the EU Treaties.
Here is a part of the information on offer concerning Denmark’s opt-outs:
“Denmark has four so-called opt-outs from participation in EU policies.
As a result of the Danish no-vote to the Maastrich Treaty in 1992 the European Council adopted a declaration in Edinburg in December 1992 granting Denmark special status regarding EU cooperation. In order to meet the Danish concerns about the Maastricht Treaty Denmark was given four opt-outs from participation in EU policies:
Economic and Monetary Union: Denmark does not participate in the third phase of Economic and Monetary Union.
Common defence: Denmark does not participate in the elaboration and implementation of decisions and actions which have defence implications.
Justice and home affairs: Denmark only participates in EU judicial cooperation at an intergovernmental level.
Union citizenship: The Danish Opt-out on citizenship has been embodied in the Amsterdam Treaty, where it is stated, that union citizenship is a supplement to national citizenship and not a replacement.”
Ralf Grahn
Forslag til lov om aendring af lov om Danmarks tiltraedelse af De Europaeiske Faelleskaber og Den Europaeiske Union (Danmarks ratifikation af Lissabon-traktaten)
Lovforslag nr. L 53; 9. januar 2008
http://www.ft.dk/doc.aspx?/Samling/20072/lovforslag/L53/index.htm
***
After the signing of the Treaty of Lisbon, the Danish consolidated version of the Lisbon Treaty, mentioned in an earlier post, has been updated. For a free download, go to:
Folketinget: Sammenskrevet udgave af Lissabontraktaten, som undertegnet af EU’s stats- og regeringsledare den 13. december 2007, og det gaeldende traktatgrundlag;
http://www.euo.dk/upload/application/pdf/acc3e206/Lissabontraktaten.pdf
***
Folketingets EU-Oplysning, the Parliament’s EU Information Centre, offers information on the European Union in Danish, but some information is available in English, too:
http://www.eu-oplysningen.dk
***
The Reform Treaty is to be ratified by the Parliament of Denmark, but the government led by Anders Fogh Rasmussen is planning a referendum on the possible abolition of the Danish opt-outs from the EU Treaties.
Here is a part of the information on offer concerning Denmark’s opt-outs:
“Denmark has four so-called opt-outs from participation in EU policies.
As a result of the Danish no-vote to the Maastrich Treaty in 1992 the European Council adopted a declaration in Edinburg in December 1992 granting Denmark special status regarding EU cooperation. In order to meet the Danish concerns about the Maastricht Treaty Denmark was given four opt-outs from participation in EU policies:
Economic and Monetary Union: Denmark does not participate in the third phase of Economic and Monetary Union.
Common defence: Denmark does not participate in the elaboration and implementation of decisions and actions which have defence implications.
Justice and home affairs: Denmark only participates in EU judicial cooperation at an intergovernmental level.
Union citizenship: The Danish Opt-out on citizenship has been embodied in the Amsterdam Treaty, where it is stated, that union citizenship is a supplement to national citizenship and not a replacement.”
Ralf Grahn
EU Treaty of Lisbon: CFSP special representative
The Treaty of Amsterdam gave the European Union an important common foreign and security policy tool: the special representative. The EU has been able to appoint special representatives with a mandate to act on behalf of the Union ‘on the ground’. The special representatives have been appointed by the Council, especially to trouble spots where the EU strives to achieve peace and stability.
***
In the Treaty of Lisbon (OJ 17.12.2007 C 306/29) the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following manner:
36) The text of Article 17 shall become Article 28 A, it shall be amended as set out below in point 49.
37) Article 18 shall be amended as follows:
(a) paragraphs 1 to 4 shall be deleted;
(b) in paragraph 5, which shall not be numbered, the words "whenever it deems it necessary," shall be replaced by "on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy" and the following sentence shall be added at the end: "The special representative shall carry out his mandate under the authority of the High Representative.".
***
In the existing Article 18 TEU (latest consolidated version OJ 29.12.2006/17 and 18) the first four paragraphs, which concern the rotating Presidency to be abolished by the High Representative as chair of the Foreign Affairs Council, are deleted, so there is no need to set them out here. Article 18(5) reads as follows:
“5. The Council may, whenever it deems it necessary, appoint a special representative with a mandate in relation to particular policy issues.”
***
As a consequence, the new consolidated Article 18 TEU should look like this:
Article 18
The Council may, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, appoint a special representative with a mandate in relation to particular policy issues. The special representative shall carry out his mandate under the authority of the High Representative.
***
The Convention, led by Valéry Giscard d’Estaing, proposed in the draft Treaty establishing a Constitution for Europe Article III-203 (OJ 18.7.2003 C 169/67) that the appointment should take place on the initiative of the Union Minister for Foreign Affairs and carry out his or her mandate under the authority of the same Minister.
In essence, this provision was taken over in the Treaty establishing a Constitution for Europe, as Article III-302.
The Reform Treaty retains the substance of the Constitutional Treaty, but the ‘Union Minister for Foreign Affairs’ has been renamed the ‘High Representative of the Union for Foreign Affairs and Security Policy’, as elsewhere in the Lisbon Treaty.
***
Here are a few fresh examples of Council decisions concerning EU special representatives. As we see, the mandates have been in the form of joint actions:
Council Joint Action 2007/809/CFSP of 6 December 2007 amending Joint Action 2007/108/CFSP extending the mandate of the European Union Special Representative for Sudan
Council Joint Action 2007/805/CFSP of 6 December 2007 appointing a European Union Special Representative to the African Union
Council Joint Action 2007/748/CFSP of 19 November 2007 amending Joint Action 2007/87/CFSP amending and extending the mandate of the European Union Special Representative in Bosnia and Herzegovina
Council Joint Action 2007/744/CFSP of 19 November 2007 amending and extending Joint Action 2006/623/CFSP on the establishment of an EU team to contribute to the preparations of the establishment of a possible International Civilian Office in Kosovo, including a European Union Special Representative component (ICO/EUSR Preparation Team)
Council Joint Action 2007/732/CFSP of 13 November 2007 amending Joint Action 2007/106/CFSP extending the mandate of the Special Representative of the European Union for Afghanistan
***
Coordination in international organisations and at international conferences will be next.
Ralf Grahn
P.S. Do you understand why the amended Article 18 TEU was not written clearly by the IGC 2007?
***
In the Treaty of Lisbon (OJ 17.12.2007 C 306/29) the intergovernmental conference (IGC 2007) decided to amend the Treaty on European Union (TEU) in the following manner:
36) The text of Article 17 shall become Article 28 A, it shall be amended as set out below in point 49.
37) Article 18 shall be amended as follows:
(a) paragraphs 1 to 4 shall be deleted;
(b) in paragraph 5, which shall not be numbered, the words "whenever it deems it necessary," shall be replaced by "on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy" and the following sentence shall be added at the end: "The special representative shall carry out his mandate under the authority of the High Representative.".
***
In the existing Article 18 TEU (latest consolidated version OJ 29.12.2006/17 and 18) the first four paragraphs, which concern the rotating Presidency to be abolished by the High Representative as chair of the Foreign Affairs Council, are deleted, so there is no need to set them out here. Article 18(5) reads as follows:
“5. The Council may, whenever it deems it necessary, appoint a special representative with a mandate in relation to particular policy issues.”
***
As a consequence, the new consolidated Article 18 TEU should look like this:
Article 18
The Council may, on a proposal from the High Representative of the Union for Foreign Affairs and Security Policy, appoint a special representative with a mandate in relation to particular policy issues. The special representative shall carry out his mandate under the authority of the High Representative.
***
The Convention, led by Valéry Giscard d’Estaing, proposed in the draft Treaty establishing a Constitution for Europe Article III-203 (OJ 18.7.2003 C 169/67) that the appointment should take place on the initiative of the Union Minister for Foreign Affairs and carry out his or her mandate under the authority of the same Minister.
In essence, this provision was taken over in the Treaty establishing a Constitution for Europe, as Article III-302.
The Reform Treaty retains the substance of the Constitutional Treaty, but the ‘Union Minister for Foreign Affairs’ has been renamed the ‘High Representative of the Union for Foreign Affairs and Security Policy’, as elsewhere in the Lisbon Treaty.
***
Here are a few fresh examples of Council decisions concerning EU special representatives. As we see, the mandates have been in the form of joint actions:
Council Joint Action 2007/809/CFSP of 6 December 2007 amending Joint Action 2007/108/CFSP extending the mandate of the European Union Special Representative for Sudan
Council Joint Action 2007/805/CFSP of 6 December 2007 appointing a European Union Special Representative to the African Union
Council Joint Action 2007/748/CFSP of 19 November 2007 amending Joint Action 2007/87/CFSP amending and extending the mandate of the European Union Special Representative in Bosnia and Herzegovina
Council Joint Action 2007/744/CFSP of 19 November 2007 amending and extending Joint Action 2006/623/CFSP on the establishment of an EU team to contribute to the preparations of the establishment of a possible International Civilian Office in Kosovo, including a European Union Special Representative component (ICO/EUSR Preparation Team)
Council Joint Action 2007/732/CFSP of 13 November 2007 amending Joint Action 2007/106/CFSP extending the mandate of the Special Representative of the European Union for Afghanistan
***
Coordination in international organisations and at international conferences will be next.
Ralf Grahn
P.S. Do you understand why the amended Article 18 TEU was not written clearly by the IGC 2007?
Friday, 18 January 2008
Complete consolidated Lisbon Treaty in English
Yesterday I mentioned the updated and consolidated English language version of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) by Peadar ó Broin, of the Institute of International and European Affairs (Dublin, Ireland).
Now Peadar ó Broin has informed me that the Annexes to the Treaties as well as the Protocols have been added to the Institute’s web site:
http://www.iiea.com/
The Treaties, Annexes and Protocols can be downloaded freely.
I thank Peadar ó Broin for his work and the IIEA for making it possible. They have made life easier for a lot of people.
***
We know that there is going to be a referendum in Ireland on the Treaty of Lisbon. The consolidations serve important domestic needs as a factual basis for public debate. But, at the same time the published consolidated versions offer needed reliable information to all European citizens and others who are able to use texts in English, especially those who have no consolidated version in their own language.
Dear Reader,
I look forward to further information from you on the Treaty of Lisbon: consolidated versions, official documents from the member states, popular presentations and scholarly literature, as well as information on the ratification processes.
Ralf Grahn
P.S. My oxymoron of the day is addressed to the European Council: Informed debate, without information?
Now Peadar ó Broin has informed me that the Annexes to the Treaties as well as the Protocols have been added to the Institute’s web site:
http://www.iiea.com/
The Treaties, Annexes and Protocols can be downloaded freely.
I thank Peadar ó Broin for his work and the IIEA for making it possible. They have made life easier for a lot of people.
***
We know that there is going to be a referendum in Ireland on the Treaty of Lisbon. The consolidations serve important domestic needs as a factual basis for public debate. But, at the same time the published consolidated versions offer needed reliable information to all European citizens and others who are able to use texts in English, especially those who have no consolidated version in their own language.
Dear Reader,
I look forward to further information from you on the Treaty of Lisbon: consolidated versions, official documents from the member states, popular presentations and scholarly literature, as well as information on the ratification processes.
Ralf Grahn
P.S. My oxymoron of the day is addressed to the European Council: Informed debate, without information?
EU Treaty of Lisbon: CFSP common approach
I would like to see European leaders who make me proud.
***
The EU member states consult, they reach a common approach, and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
In my dictionary ‘fair play’ is described as ‘respect for the rules or equal treatment of all concerned’.
It was a serious miscalculation by the intergovernmental conference (the European Council) to decide that no consolidated versions of the Lisbon Treaty are to be published by any EU institution before the amending Treaties are ratified in every member state and have entered into force. It was and is depressing that the other EU institutions acquiesce in this conspiracy of silence, and that individual ministers and MEPs, as well as European political parties are keener to show solidarity to their peers than to the public. (If anybody is in doubt as to the essential correctness of my assertions, I refer to the lightly sanitized postings on my blogs since the middle of October. If push came to shove, I would have to present my documented evidence, if not able to claim journalistic anonymity for my sources.)
Has anybody presented a recorded decision? Has anybody stepped forward to take responsibility, or to present the reasons openly? Not to my knowledge. Having asked around, I have found that most of the people ‘in the know’ prefer not to answer. It seems to be a more convenient option than lying or telling the truth, but it goes against the grain of democratic interplay.
The end result of the intergovernmental conference is that we have an unreadable Reform Treaty, which makes a mockery of open communication and the notion of democratic fair play. The damage caused is deeper and more long-lasting than the inconvenience caused by foaming fanatics claiming that 50 year old treaty provisions are novelties smashing state sovereignty (as in Britain) or social protection (as in France) or whatever.
The lack of a readable text has done nothing to dampen the spirits on the fringes, where conscientious analysis is less than highly regarded and balanced presentation unknown, but it has meant serious inconvenience for those, who would like to base their opinion on facts (without pre-programmed filtering or spin by office holders and institutions).
The citizens who want to know the end result conveniently can go to one of the available consolidated language versions of the Treaty of Lisbon, like the updated TEU and TFEU published in English by the Institute of International and European Affairs (Dublin, Ireland):
http://www.iiea.com
They are of great service to the public.
***
My own quest is a little bit different. I try to wade through the Lisbon Treaty, one Article at a time, taking note of the similarities and differences between the existing Treaties, the draft Constitution, the signed Constitution and the amending Treaties. This I do as objectively as I can. In addition, I offer my personal comments on the (proposed) ‘state of the Union’, from an EU citizen’s point of view.
I imagine that my work could be of assistance to students of European affairs (politcs, law, economics) and to generalist teachers as well as to interested citizens who would want to take a deeper look at the background or consider subjective but independent views untrammelled by inbred hostility or self-congratulatory institutional loyalty.
As long as the EU institutions fail to publish consolidated, readable versions of the Treaty of Lisbon in every official language of the Union, I find it meaningful to decipher the Reform Treaty, as far as I am able, given the practical constraints. And it offers me an opportunity to repeat (ad nauseam) how our leaders have failed to live up to expectations formed by their professed ideals and principles. The mixture of ingredients like fact, irony, sarcasm and humour may vary from time to time, but the theme is constant: Publish or perish. (It goes for all sides.)
I welcome reasoned debate and I prefer real persons who use their own names.
***
I would like to see European leaders who make me proud, and who take care of our common interests, while playing by the rules of fair play.
***
What does the intergovernmental conference (IGC 2007) have in store for us today? We go to the following exercise in public relations by our governments, the Treaty of Lisbon (OJ 17.12.2007 C 306/28-29) amending the Treaty on European Union (TEU).
"35) Article 16 shall be amended as follows:
(a) the words "inform and" shall be deleted, the words "within the Council" shall be replaced by "within the European Council and the Council" and the words "in order to ensure that the Union's influence is exerted as effectively as possible by means of concerted and convergent action" shall be replaced by "in order to determine a common approach";
(b) the following sentences shall be added after the first sentence: "Before undertaking any action on the international scene or entering into any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.";
(c) the following two paragraphs shall be added:
"When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.”
***
Today’s exercise seems fairly straightforward. First, we turn to the existing Treaty on European Union, Article 16 TEU (latest consolidated version OJ 29.12.2006 C 321 E/6):
“Article 16
Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that the Union’s influence is exerted as effectively as possible by means of concerted and convergent action.”
***
Then, starts the fun part: reconstructing the democratic intention of our leaders:
Article 16
Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.
When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.
***
The member states consult, they reach a common approach and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
***
What does this consolidated Article remind us of? We turn to the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/17) Article I-39 Specific provisions for implementing common foreign and security policy, or more exactly Article I-39(5):
“5. Member States shall consult one another within the European Council and the Council of Ministers on any foreign and security policy issue which is of general interest in order to determine a common approach. Before undertaking any action on the international scene or any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council of Ministers. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.”
We then proceed to Article III-202 as proposed by the Convention:
“1. When the Union has defined a common approach within the meaning of Article I-39(5), the Union Minister for Foreign Affairs and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council of Ministers.
2. The diplomatic missions of the Member States and the delegations of the Union shall cooperate in third countries and in international organisations and shall contribute to formulating and implementing a common approach.”
***
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) the first corresponding Article I-40 had a new, slightly altered headline: Specific provisions relating to the common foreign and security policy, and the ‘Council of Ministers’ had become the ‘Council’. Otherwise Article I-40(5) in the signed Treaty was the same as the corresponding provision drafted by the Convention.
Article III-301 of the Constitutional Treaty gave the wording a few touches, but in essence it took over the text proposed by the Convention in its Article III-202.
The Treaty of Lisbon, Article 16 TEU, merges the two corresponding Articles of the draft Constitution and the signed Constitutional Treaty without altering the substance.
***
This was today’s deciphering exercise. Slowly but surely we cover the ground the IGC 2007 would have us see only ‘through a glass, darkly’. (Thank you, Donna Leon.)
Ralf Grahn
***
The EU member states consult, they reach a common approach, and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
In my dictionary ‘fair play’ is described as ‘respect for the rules or equal treatment of all concerned’.
It was a serious miscalculation by the intergovernmental conference (the European Council) to decide that no consolidated versions of the Lisbon Treaty are to be published by any EU institution before the amending Treaties are ratified in every member state and have entered into force. It was and is depressing that the other EU institutions acquiesce in this conspiracy of silence, and that individual ministers and MEPs, as well as European political parties are keener to show solidarity to their peers than to the public. (If anybody is in doubt as to the essential correctness of my assertions, I refer to the lightly sanitized postings on my blogs since the middle of October. If push came to shove, I would have to present my documented evidence, if not able to claim journalistic anonymity for my sources.)
Has anybody presented a recorded decision? Has anybody stepped forward to take responsibility, or to present the reasons openly? Not to my knowledge. Having asked around, I have found that most of the people ‘in the know’ prefer not to answer. It seems to be a more convenient option than lying or telling the truth, but it goes against the grain of democratic interplay.
The end result of the intergovernmental conference is that we have an unreadable Reform Treaty, which makes a mockery of open communication and the notion of democratic fair play. The damage caused is deeper and more long-lasting than the inconvenience caused by foaming fanatics claiming that 50 year old treaty provisions are novelties smashing state sovereignty (as in Britain) or social protection (as in France) or whatever.
The lack of a readable text has done nothing to dampen the spirits on the fringes, where conscientious analysis is less than highly regarded and balanced presentation unknown, but it has meant serious inconvenience for those, who would like to base their opinion on facts (without pre-programmed filtering or spin by office holders and institutions).
The citizens who want to know the end result conveniently can go to one of the available consolidated language versions of the Treaty of Lisbon, like the updated TEU and TFEU published in English by the Institute of International and European Affairs (Dublin, Ireland):
http://www.iiea.com
They are of great service to the public.
***
My own quest is a little bit different. I try to wade through the Lisbon Treaty, one Article at a time, taking note of the similarities and differences between the existing Treaties, the draft Constitution, the signed Constitution and the amending Treaties. This I do as objectively as I can. In addition, I offer my personal comments on the (proposed) ‘state of the Union’, from an EU citizen’s point of view.
I imagine that my work could be of assistance to students of European affairs (politcs, law, economics) and to generalist teachers as well as to interested citizens who would want to take a deeper look at the background or consider subjective but independent views untrammelled by inbred hostility or self-congratulatory institutional loyalty.
As long as the EU institutions fail to publish consolidated, readable versions of the Treaty of Lisbon in every official language of the Union, I find it meaningful to decipher the Reform Treaty, as far as I am able, given the practical constraints. And it offers me an opportunity to repeat (ad nauseam) how our leaders have failed to live up to expectations formed by their professed ideals and principles. The mixture of ingredients like fact, irony, sarcasm and humour may vary from time to time, but the theme is constant: Publish or perish. (It goes for all sides.)
I welcome reasoned debate and I prefer real persons who use their own names.
***
I would like to see European leaders who make me proud, and who take care of our common interests, while playing by the rules of fair play.
***
What does the intergovernmental conference (IGC 2007) have in store for us today? We go to the following exercise in public relations by our governments, the Treaty of Lisbon (OJ 17.12.2007 C 306/28-29) amending the Treaty on European Union (TEU).
"35) Article 16 shall be amended as follows:
(a) the words "inform and" shall be deleted, the words "within the Council" shall be replaced by "within the European Council and the Council" and the words "in order to ensure that the Union's influence is exerted as effectively as possible by means of concerted and convergent action" shall be replaced by "in order to determine a common approach";
(b) the following sentences shall be added after the first sentence: "Before undertaking any action on the international scene or entering into any commitment which could affect the Union's interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.";
(c) the following two paragraphs shall be added:
"When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.”
***
Today’s exercise seems fairly straightforward. First, we turn to the existing Treaty on European Union, Article 16 TEU (latest consolidated version OJ 29.12.2006 C 321 E/6):
“Article 16
Member States shall inform and consult one another within the Council on any matter of foreign and security policy of general interest in order to ensure that the Union’s influence is exerted as effectively as possible by means of concerted and convergent action.”
***
Then, starts the fun part: reconstructing the democratic intention of our leaders:
Article 16
Member States shall consult one another within the European Council and the Council on any matter of foreign and security policy of general interest in order to determine a common approach. Before undertaking any action on the international scene or entering into any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.
When the European Council or the Council has defined a common approach of the Union within the meaning of the first paragraph, the High Representative of the Union for Foreign Affairs and Security Policy and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within their activities within the Council.
The diplomatic missions of the Member States and the Union delegations in third countries and at international organisations shall cooperate and shall contribute to formulating and implementing the common approach.
***
The member states consult, they reach a common approach and then they coordinate their action. That is the purpose of the European Union, isn’t it? Then, why communicate like it was a state secret?
***
What does this consolidated Article remind us of? We turn to the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169/17) Article I-39 Specific provisions for implementing common foreign and security policy, or more exactly Article I-39(5):
“5. Member States shall consult one another within the European Council and the Council of Ministers on any foreign and security policy issue which is of general interest in order to determine a common approach. Before undertaking any action on the international scene or any commitment which could affect the Union’s interests, each Member State shall consult the others within the European Council or the Council of Ministers. Member States shall ensure, through the convergence of their actions, that the Union is able to assert its interests and values on the international scene. Member States shall show mutual solidarity.”
We then proceed to Article III-202 as proposed by the Convention:
“1. When the Union has defined a common approach within the meaning of Article I-39(5), the Union Minister for Foreign Affairs and the Ministers for Foreign Affairs of the Member States shall coordinate their activities within the Council of Ministers.
2. The diplomatic missions of the Member States and the delegations of the Union shall cooperate in third countries and in international organisations and shall contribute to formulating and implementing a common approach.”
***
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) the first corresponding Article I-40 had a new, slightly altered headline: Specific provisions relating to the common foreign and security policy, and the ‘Council of Ministers’ had become the ‘Council’. Otherwise Article I-40(5) in the signed Treaty was the same as the corresponding provision drafted by the Convention.
Article III-301 of the Constitutional Treaty gave the wording a few touches, but in essence it took over the text proposed by the Convention in its Article III-202.
The Treaty of Lisbon, Article 16 TEU, merges the two corresponding Articles of the draft Constitution and the signed Constitutional Treaty without altering the substance.
***
This was today’s deciphering exercise. Slowly but surely we cover the ground the IGC 2007 would have us see only ‘through a glass, darkly’. (Thank you, Donna Leon.)
Ralf Grahn
Thursday, 17 January 2008
Updated Lisbon Treaty in English
Yesterday evening I received a positive message from Peadar ó Broin, of the Institute of International and European Affairs (Dublin, Ireland): An updated consolidated English version of the Treaty of Lisbon has been posted on the web site of the Institute:
http://www.iiea.com
A Gaelic version will be posted, soon. That would bring the number of readable language versions to eight out of 23 official EU languages.
***
In addition, Peadar ó Broin’s message was heartening personally, too. I take the liberty to repeat it here:
“Dear Ralf,
Congratulations on your blog, a much needed information resource! Just to let you know that I have placed an updated edition of the Consolidated Treaties as amended by the Treaty of Lisbon on the website of the Institute of International and European Affairs ( www.iiea.com ). This is the English language edition; an edition in Irish Gaelic will be placed on the website shortly.
The Protocols, Charter and Declarations will also be available on the website in English, hopefully by tomorrow.
Good luck with your research and kind regards,
Peadar ó BROIN”
***
I think that the citizens of the European Union are entitled to readable versions of the Reform Treaty, each in his or her language.
For the convenience of those readers who daily arrive at my blog, while looking for a consolidated version of the Treaty of Lisbon, I am going to present a summary of my findings so far:
Danish
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
English
Institute of International and European Affairs (Ireland) updated version
http://www.iiea.com
Statewatch (professor Steve Peers)
http://www.statewatch.org
Markus Walther
http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
French
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Gaelic
A consolidation in Irish Gaelic promised shortly by the Institute of International and European Affairs, Dublin.
German
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Hungarian
Two sources have reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although I have not been able to verify it.
Spanish
Real Instituto Elcano (updated after signing; note the introductory study)
http://www.realinstitutoelcano.org
Swedish
Sieps – Svenska institutet för europapolitiska studier: Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf);
http://www.sieps.se
***
I am most grateful if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions, popular or scholarly literature and information on the ratification processes.
Ralf Grahn
http://www.iiea.com
A Gaelic version will be posted, soon. That would bring the number of readable language versions to eight out of 23 official EU languages.
***
In addition, Peadar ó Broin’s message was heartening personally, too. I take the liberty to repeat it here:
“Dear Ralf,
Congratulations on your blog, a much needed information resource! Just to let you know that I have placed an updated edition of the Consolidated Treaties as amended by the Treaty of Lisbon on the website of the Institute of International and European Affairs ( www.iiea.com ). This is the English language edition; an edition in Irish Gaelic will be placed on the website shortly.
The Protocols, Charter and Declarations will also be available on the website in English, hopefully by tomorrow.
Good luck with your research and kind regards,
Peadar ó BROIN”
***
I think that the citizens of the European Union are entitled to readable versions of the Reform Treaty, each in his or her language.
For the convenience of those readers who daily arrive at my blog, while looking for a consolidated version of the Treaty of Lisbon, I am going to present a summary of my findings so far:
Danish
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
English
Institute of International and European Affairs (Ireland) updated version
http://www.iiea.com
Statewatch (professor Steve Peers)
http://www.statewatch.org
Markus Walther
http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Finnish
Europe Information, of the Ministry for Foreign Affairs, has promised a consolidated version during the spring.
French
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
Gaelic
A consolidation in Irish Gaelic promised shortly by the Institute of International and European Affairs, Dublin.
German
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Hungarian
Two sources have reported that the Hungarian government has published a consolidation of the Lisbon Treaty, although I have not been able to verify it.
Spanish
Real Instituto Elcano (updated after signing; note the introductory study)
http://www.realinstitutoelcano.org
Swedish
Sieps – Svenska institutet för europapolitiska studier: Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf);
http://www.sieps.se
***
I am most grateful if you want to share your knowledge on the Treaty of Lisbon with me and other EU citizens: consolidated versions, popular or scholarly literature and information on the ratification processes.
Ralf Grahn
EU Treaty of Lisbon: CFSP decision making
Today, we look at one example of how the intergovernmental conference (IGC 2007) manifested its commitment to fair play and its adherence to the existing aims of the European Union to take the decisions “as openly as possible and as closely as possible to the citizen” (Article 1 TEU).
We start with the end product of the IGC 2007, the Treaty of Lisbon (OJ 17.12.2007 C 306), to look at the next Article waiting to be consolidated, i.e. rendered readable:
“An Article 15b shall be inserted, with the text of Article 23, with the following amendments:
(a) in paragraph 1, the first subparagraph shall be replaced by the following: "Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded." and the last sentence in the second subparagraph shall be replaced by the following: "If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.";
(b) paragraph 2 shall be amended as follows:
(i) the first indent shall be replaced by the following two indents:
"– when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 10 B(1),
– when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,";
(ii) in the second indent, which shall become the third indent, the words "a joint action or a common position," shall be replaced by "a decision defining a Union action or position,";
(iii) in the second subparagraph, first sentence, the word "important" shall be replaced by "vital"; the last sentence shall be replaced by the following: "The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity.";
(iv) the third subparagraph shall be replaced by the following new paragraph 3, the last subparagraph shall become paragraph 4 and paragraph 3 shall be renumbered 5:
"3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.";
(c) in the paragraph now numbered 4, the words "This paragraph shall not apply" shall be replaced by "Paragraphs 2 and 3 shall not apply".”
***
Next, we go to the existing Treaty on European Union (TEU) Article 23 (latest consolidated version OJ 29.12.2006 C 321 E):
“Article 23
1. Decisions under this title shall be taken by the Council acting unanimously. Abstentions by members present in person or represented shall not prevent the adoption of such decisions.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent more than one third of the votes weighted in accordance with Article 205(2) of the Treaty establishing the European Community, the decision shall not be adopted.
2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:
- when adopting joint actions, common positions or taking any other decision on the basis of a common strategy,
- when adopting any decision implementing a joint action or a common position,
- when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.
The votes of the members of the Council shall be weighted in accordance with Article 205(2) of the Treaty establishing the European Community. For their adoption, decisions shall require at least 232 votes in favour cast by at least two thirds of the members. When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.
This paragraph shall not apply to decisions having military or defence implications.
3. For procedural questions, the Council shall act by a majority of its members.”
***
To arrive at the new, consolidated wording of Article 15b TEU, we insert the IGC 2007 amendments into the existing Article 23 TEU:
“Article 15b
1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.
2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:
- when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union’s strategic interests and objectives, as referred to in Article 10 B(1),
- when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,
- when adopting any decision implementing a decision defining a Union action or position,
- when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.
3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.
4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.
5. For procedural questions, the Council shall act by a majority of its members.”
***
The broadly based Convention was unable to reach a consensus on the general application of qualified majority voting (QMV) in questions pertaining to the common foreign and security policy (CFSP). See Article III-201 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
The text taken over by the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-300 thus marked only limited progress towards more effective CFSP decision making by the EU.
In essence, the IGC 2007 took over the contents of the Constitutional Treaty; the modifications in Article 15b TEU are mainly technical.
Unanimity is still the norm in CFSP decision making, but follow-up decisions to unanimous decisions by the European Council offer some scope for more effective decision making by the Council, except in questions having military or defence implications.
***
Next time we look at information and consultation within the Council.
Ralf Grahn
We start with the end product of the IGC 2007, the Treaty of Lisbon (OJ 17.12.2007 C 306), to look at the next Article waiting to be consolidated, i.e. rendered readable:
“An Article 15b shall be inserted, with the text of Article 23, with the following amendments:
(a) in paragraph 1, the first subparagraph shall be replaced by the following: "Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded." and the last sentence in the second subparagraph shall be replaced by the following: "If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.";
(b) paragraph 2 shall be amended as follows:
(i) the first indent shall be replaced by the following two indents:
"– when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union's strategic interests and objectives, as referred to in Article 10 B(1),
– when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,";
(ii) in the second indent, which shall become the third indent, the words "a joint action or a common position," shall be replaced by "a decision defining a Union action or position,";
(iii) in the second subparagraph, first sentence, the word "important" shall be replaced by "vital"; the last sentence shall be replaced by the following: "The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for a decision by unanimity.";
(iv) the third subparagraph shall be replaced by the following new paragraph 3, the last subparagraph shall become paragraph 4 and paragraph 3 shall be renumbered 5:
"3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.";
(c) in the paragraph now numbered 4, the words "This paragraph shall not apply" shall be replaced by "Paragraphs 2 and 3 shall not apply".”
***
Next, we go to the existing Treaty on European Union (TEU) Article 23 (latest consolidated version OJ 29.12.2006 C 321 E):
“Article 23
1. Decisions under this title shall be taken by the Council acting unanimously. Abstentions by members present in person or represented shall not prevent the adoption of such decisions.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent more than one third of the votes weighted in accordance with Article 205(2) of the Treaty establishing the European Community, the decision shall not be adopted.
2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:
- when adopting joint actions, common positions or taking any other decision on the basis of a common strategy,
- when adopting any decision implementing a joint action or a common position,
- when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for important and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.
The votes of the members of the Council shall be weighted in accordance with Article 205(2) of the Treaty establishing the European Community. For their adoption, decisions shall require at least 232 votes in favour cast by at least two thirds of the members. When a decision is to be adopted by the Council by a qualified majority, a member of the Council may request verification that the Member States constituting the qualified majority represent at least 62% of the total population of the Union. If that condition is shown not to have been met, the decision in question shall not be adopted.
This paragraph shall not apply to decisions having military or defence implications.
3. For procedural questions, the Council shall act by a majority of its members.”
***
To arrive at the new, consolidated wording of Article 15b TEU, we insert the IGC 2007 amendments into the existing Article 23 TEU:
“Article 15b
1. Decisions under this Chapter shall be taken by the European Council and the Council acting unanimously, except where this Chapter provides otherwise. The adoption of legislative acts shall be excluded.
When abstaining in a vote, any member of the Council may qualify its abstention by making a formal declaration under the present subparagraph. In that case, it shall not be obliged to apply the decision, but shall accept that the decision commits the Union. In a spirit of mutual solidarity, the Member State concerned shall refrain from any action likely to conflict with or impede Union action based on that decision and the other Member States shall respect its position. If the members of the Council qualifying their abstention in this way represent at least one third of the Member States comprising at least one third of the population of the Union, the decision shall not be adopted.
2. By derogation from the provisions of paragraph 1, the Council shall act by qualified majority:
- when adopting a decision defining a Union action or position on the basis of a decision of the European Council relating to the Union’s strategic interests and objectives, as referred to in Article 10 B(1),
- when adopting a decision defining a Union action or position, on a proposal which the High Representative of the Union for Foreign Affairs and Security Policy has presented following a specific request from the European Council, made on its own initiative or that of the High Representative,
- when adopting any decision implementing a decision defining a Union action or position,
- when appointing a special representative in accordance with Article 18(5).
If a member of the Council declares that, for vital and stated reasons of national policy, it intends to oppose the adoption of a decision to be taken by qualified majority, a vote shall not be taken. The High Representative will, in close consultation with the Member State involved, search for a solution acceptable to it. If he does not succeed, the Council may, acting by a qualified majority, request that the matter be referred to the European Council for decision by unanimity.
3. The European Council may unanimously adopt a decision stipulating that the Council shall act by a qualified majority in cases other than those referred to in paragraph 2.
4. Paragraphs 2 and 3 shall not apply to decisions having military or defence implications.
5. For procedural questions, the Council shall act by a majority of its members.”
***
The broadly based Convention was unable to reach a consensus on the general application of qualified majority voting (QMV) in questions pertaining to the common foreign and security policy (CFSP). See Article III-201 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169).
The text taken over by the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-300 thus marked only limited progress towards more effective CFSP decision making by the EU.
In essence, the IGC 2007 took over the contents of the Constitutional Treaty; the modifications in Article 15b TEU are mainly technical.
Unanimity is still the norm in CFSP decision making, but follow-up decisions to unanimous decisions by the European Council offer some scope for more effective decision making by the Council, except in questions having military or defence implications.
***
Next time we look at information and consultation within the Council.
Ralf Grahn
Wednesday, 16 January 2008
EU Treaty of Lisbon: CFSP proposals
Mankind has always tried to find answers to the seemingly inexplicable mysteries of life. Was the Treaty of Lisbon, this masterpiece of readable legal drafting, a stroke of genius by the intergovernmental conference (IGC 2007), a combined answer to different challenges for the European Union? Perhaps
the Member States,
Recognising that the inner workings of the European Union need streamlining,
Desiring to engage its citizens,
Anxious that Europe has an ageing population,
Have decided to engage these ageing persons in stimulating puzzles and to this end have drafted the Treaty of Lisbon.
***
Having instilled a sense of meaning into the seemingly meaningless, we look forward to today’s small mental exercise, brought to us on line, courtesy of the Council.
We turn to the clues offered by the IGC 2007:
33) An Article 15a shall be inserted, with the text of Article 22, with the following amendments:
(a) in paragraph 1, the words "Any Member State or the Commission may refer to the Council any question relating to the common foreign and security policy" shall be replaced by "Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council" and the words "submit proposals to the Council" shall be replaced by "submit to it initiatives or proposals as appropriate";
(b) in paragraph 2, the words "the Presidency, of its own motion," shall be replaced by "the High Representative, of his own motion" and the words ", or at the request of the Commission or a Member State," shall be replaced by ", or at the request of a Member State,”
***
This should not be too hard. First we have to find the existing Treaty on European Union (TEU). We go straight to the latest consolidated version, published in the Official Journal 29.12.2006 C 321 E. Well, here we have the present
“Article 22
1. Any Member State of the Commission may refer to the Council any question relating to the common foreign and security policy and may submit proposals to the Council.
2. In cases requiring a rapid decision, the Presidency, of its own motion, or at the request of the Commission or a Member State, shall convene an extraordinary Council meeting within 48 hours or, in an emergency, within a shorter period.”
***
And now to the do-it-yourself part: At this beginner’s level of the game, we just have to delete and add according to the instructions given. After a few moments of happy tinkering, we brim with satisfaction and our brains feel activated and stimulated, having solved the puzzle of the amended and consolidated Article 15a TEU:
Article 15a
1. Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.
2. In cases requiring a rapid decision, the High Representative, of his own motion, or at the request of a Member State, shall convene an extraordinary Council meeting within 48 hours or, in an emergency, within a shorter period.
***
We can now clearly see that initiatives and proposals can come from both a Member State and from the High Representative. Because the High Representative chairs the Foreign Affairs Council, he convenes the extraordinary meetings instead of the rotating Presidency.
***
For the sake of comparison, let us take a look at what the Convention proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169):
Article III-200
1. Any Member State, the Union Minister for Foreign Affairs, or that Minister with the Commission’s support, may refer to the Council of Ministers any question relating to the common foreign and security policy and may submit proposals to it.
2. In cases requiring a rapid decision, the Union Minister for Foreign Affairs, of the Minister’s own motion or at the request of a Member State, shall convene an extraordinary meeting of the Council of Ministers within forty-eight hours or, in an emergency, within a shorter period.
***
The Treaty establishing a Constitution for Europe, signed by all the Member States (OJ 16.12.2004 C 310), had the following wording in
Article III-299
1. Any Member State, the Union Minister for Foreign Affairs, or that Minister with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.
2. In cases requiring a rapid decision, the Union Minister for Foreign Affairs, of the Minister’s own motion or at the request of a Member State, shall convene an extraordinary meeting of the Council within forty-eight hours or, in an emergency, within a shorter period.
***
As we see, the Constitutional Treaty changed the word order and the ‘Council of Ministers’ became the ‘Council’. The novelty was ‘initiatives or proposals’ instead of ‘proposals’.
***
We can draw the conclusion that the IGC 2007 has fulfilled its mandate (point 1) to “introduce into the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC, as set out below in a detailed fashion”. One of the details (point 3) was that the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy (Council document 11218/07).
With a negligible amount of deciphering, this has proven to be the case in Article 15a TEU.
***
‘Initiatives’ may mean that less than fully evolved proposals are allowed.
Crisis situations may lead to extraordinary Council meetings, which take rapid decisions.
***
I pray for the (European) Council to find the humility and wisdom to reconsider, and to publish a consolidated version of the Treaty of Lisbon, in every official language of the EU.
Ralf Grahn
the Member States,
Recognising that the inner workings of the European Union need streamlining,
Desiring to engage its citizens,
Anxious that Europe has an ageing population,
Have decided to engage these ageing persons in stimulating puzzles and to this end have drafted the Treaty of Lisbon.
***
Having instilled a sense of meaning into the seemingly meaningless, we look forward to today’s small mental exercise, brought to us on line, courtesy of the Council.
We turn to the clues offered by the IGC 2007:
33) An Article 15a shall be inserted, with the text of Article 22, with the following amendments:
(a) in paragraph 1, the words "Any Member State or the Commission may refer to the Council any question relating to the common foreign and security policy" shall be replaced by "Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission's support, may refer any question relating to the common foreign and security policy to the Council" and the words "submit proposals to the Council" shall be replaced by "submit to it initiatives or proposals as appropriate";
(b) in paragraph 2, the words "the Presidency, of its own motion," shall be replaced by "the High Representative, of his own motion" and the words ", or at the request of the Commission or a Member State," shall be replaced by ", or at the request of a Member State,”
***
This should not be too hard. First we have to find the existing Treaty on European Union (TEU). We go straight to the latest consolidated version, published in the Official Journal 29.12.2006 C 321 E. Well, here we have the present
“Article 22
1. Any Member State of the Commission may refer to the Council any question relating to the common foreign and security policy and may submit proposals to the Council.
2. In cases requiring a rapid decision, the Presidency, of its own motion, or at the request of the Commission or a Member State, shall convene an extraordinary Council meeting within 48 hours or, in an emergency, within a shorter period.”
***
And now to the do-it-yourself part: At this beginner’s level of the game, we just have to delete and add according to the instructions given. After a few moments of happy tinkering, we brim with satisfaction and our brains feel activated and stimulated, having solved the puzzle of the amended and consolidated Article 15a TEU:
Article 15a
1. Any Member State, the High Representative of the Union for Foreign Affairs and Security Policy, or the High Representative with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.
2. In cases requiring a rapid decision, the High Representative, of his own motion, or at the request of a Member State, shall convene an extraordinary Council meeting within 48 hours or, in an emergency, within a shorter period.
***
We can now clearly see that initiatives and proposals can come from both a Member State and from the High Representative. Because the High Representative chairs the Foreign Affairs Council, he convenes the extraordinary meetings instead of the rotating Presidency.
***
For the sake of comparison, let us take a look at what the Convention proposed in the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169):
Article III-200
1. Any Member State, the Union Minister for Foreign Affairs, or that Minister with the Commission’s support, may refer to the Council of Ministers any question relating to the common foreign and security policy and may submit proposals to it.
2. In cases requiring a rapid decision, the Union Minister for Foreign Affairs, of the Minister’s own motion or at the request of a Member State, shall convene an extraordinary meeting of the Council of Ministers within forty-eight hours or, in an emergency, within a shorter period.
***
The Treaty establishing a Constitution for Europe, signed by all the Member States (OJ 16.12.2004 C 310), had the following wording in
Article III-299
1. Any Member State, the Union Minister for Foreign Affairs, or that Minister with the Commission’s support, may refer any question relating to the common foreign and security policy to the Council and may submit to it initiatives or proposals as appropriate.
2. In cases requiring a rapid decision, the Union Minister for Foreign Affairs, of the Minister’s own motion or at the request of a Member State, shall convene an extraordinary meeting of the Council within forty-eight hours or, in an emergency, within a shorter period.
***
As we see, the Constitutional Treaty changed the word order and the ‘Council of Ministers’ became the ‘Council’. The novelty was ‘initiatives or proposals’ instead of ‘proposals’.
***
We can draw the conclusion that the IGC 2007 has fulfilled its mandate (point 1) to “introduce into the existing Treaties, which remain in force, the innovations resulting from the 2004 IGC, as set out below in a detailed fashion”. One of the details (point 3) was that the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy (Council document 11218/07).
With a negligible amount of deciphering, this has proven to be the case in Article 15a TEU.
***
‘Initiatives’ may mean that less than fully evolved proposals are allowed.
Crisis situations may lead to extraordinary Council meetings, which take rapid decisions.
***
I pray for the (European) Council to find the humility and wisdom to reconsider, and to publish a consolidated version of the Treaty of Lisbon, in every official language of the EU.
Ralf Grahn
Tuesday, 15 January 2008
EU citizens and leaders: Democratic choice?
The European Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles which are common to the Member States; Article 6(1) TEU. These principles are supposed to guide the Union’s internal as well as its external action.
Let us take a look at democracy, when the Treaty of Lisbon is about to create two important posts: the President of the European Council and the High Representative/Vice-President. How are the holders of these public offices going to reflect the choices of the citizens of the European Union?
***
First, we take a look at the procedural basics under the amended Treaty on European Union (TEU).
Here is what the Lisbon Treaty says about the President (OJ 17.12.2007 C 306). According to Article 9b(5) TEU: The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once.
Then, we recall what the Reform Treaty has to say about the High Representative. Article 9e(1) TEU states: The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
Finally, we are reminded that the High Representative is also going to be one of the Vice-Presidents of the European Commission. Pursuant to Article 9d(7) TEU, third subparagraph, the President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
***
If the essence of representative democracy is the power of the people to elect and to change their leaders, the Treaty of Lisbon does not reach that standard.
So much for those who think that there is no further need for institutional EU reform.
***
In the meantime, there are different shades of grey. Democratic practice can evolve, even without a written Constitution.
The Lisbon Treaty already admits that the election results should influence the choice of Commission President, and it gives the European Parliament a say. Article 9d(7) TEU states: Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members.
***
The President of the European Council and the High Representative/Vice-President are as important to the citizens of the Union as the President of the Commission.
Instead of following in the footsteps of Vatican Conclaves, which leave the public waiting for white smoke after the fact, the European Council could, within the established rules, do something real to re-engage at least some of the citizens it undeniably has alienated, both during the treaty negotiations and after the signing of the Reform Treaty.
Let there be open nominations as well as public hearings and campaigns for these offices. This would lead to a real European debate on common issues.
Peter Sain ley Berry said, quite correctly: For Europe’s President to emerge from some closed European Council meeting without any prior attempt to test the democratic will and without any requirement for the candidates to lay their credentials before the European public will be wrong, short-sighted, bad government and a disgrace.
***
President Nicolas Sarkozy, who will preside over the European Council later this year, has understood the power of political initiative. Some of his ideas seem half-baked, some are outright disastrous and part of them can be brilliant, but he is constantly on the move.
This week, Sarkozy more or less launched Tony Blair as a candidate for the office of President of the European Council. Initial reactions, especially in Great Britain, seemed to come from ingrained sympathies or antipathies concerning Blair as a person.
Few paused to think about the wider picture.
With one candidate (almost) in the open, could Sarkozy have stumbled on a winning formula, beyond the choice of persons. It would not take much to make the choice of leaders a European public affair.
Open nominations, televised debates and public discussion could bring Europe a step closer to a democracy worthy of the schoolmaster for the rest of the world.
Ralf Grahn
See:
Peter Sain ley Berry: Let EU citizens choose their president too; EUobserver 11.01.2008;
http://euobserver.com/7/25428
Let us take a look at democracy, when the Treaty of Lisbon is about to create two important posts: the President of the European Council and the High Representative/Vice-President. How are the holders of these public offices going to reflect the choices of the citizens of the European Union?
***
First, we take a look at the procedural basics under the amended Treaty on European Union (TEU).
Here is what the Lisbon Treaty says about the President (OJ 17.12.2007 C 306). According to Article 9b(5) TEU: The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once.
Then, we recall what the Reform Treaty has to say about the High Representative. Article 9e(1) TEU states: The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
Finally, we are reminded that the High Representative is also going to be one of the Vice-Presidents of the European Commission. Pursuant to Article 9d(7) TEU, third subparagraph, the President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
***
If the essence of representative democracy is the power of the people to elect and to change their leaders, the Treaty of Lisbon does not reach that standard.
So much for those who think that there is no further need for institutional EU reform.
***
In the meantime, there are different shades of grey. Democratic practice can evolve, even without a written Constitution.
The Lisbon Treaty already admits that the election results should influence the choice of Commission President, and it gives the European Parliament a say. Article 9d(7) TEU states: Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members.
***
The President of the European Council and the High Representative/Vice-President are as important to the citizens of the Union as the President of the Commission.
Instead of following in the footsteps of Vatican Conclaves, which leave the public waiting for white smoke after the fact, the European Council could, within the established rules, do something real to re-engage at least some of the citizens it undeniably has alienated, both during the treaty negotiations and after the signing of the Reform Treaty.
Let there be open nominations as well as public hearings and campaigns for these offices. This would lead to a real European debate on common issues.
Peter Sain ley Berry said, quite correctly: For Europe’s President to emerge from some closed European Council meeting without any prior attempt to test the democratic will and without any requirement for the candidates to lay their credentials before the European public will be wrong, short-sighted, bad government and a disgrace.
***
President Nicolas Sarkozy, who will preside over the European Council later this year, has understood the power of political initiative. Some of his ideas seem half-baked, some are outright disastrous and part of them can be brilliant, but he is constantly on the move.
This week, Sarkozy more or less launched Tony Blair as a candidate for the office of President of the European Council. Initial reactions, especially in Great Britain, seemed to come from ingrained sympathies or antipathies concerning Blair as a person.
Few paused to think about the wider picture.
With one candidate (almost) in the open, could Sarkozy have stumbled on a winning formula, beyond the choice of persons. It would not take much to make the choice of leaders a European public affair.
Open nominations, televised debates and public discussion could bring Europe a step closer to a democracy worthy of the schoolmaster for the rest of the world.
Ralf Grahn
See:
Peter Sain ley Berry: Let EU citizens choose their president too; EUobserver 11.01.2008;
http://euobserver.com/7/25428
Gordon Brown on Global Europe
Until now, the only thing that has maintained Prime Minister Gordon Brown’s credentials as a European statesman, has been the Conservative Party’s complete lack of constructive EU policy.
Yesterday, Brown did much to cast off his crown as curmudgeon of the year among EU leaders. Speaking to a business audience Brown finally outlined a programme for Britain in Europe, laying the background for future success, coming out strongly in favour of British EU membership and pointing towards the needed economic reforms within the Union.
***
What is needed for future success? Brown clearly placed himself in the economic reform camp:
“The countries and continents that will succeed in the new era of globalisation will be those that are open rather than closed, for free trade rather than protectionism, are flexible rather than rigid, and invest in high skills and the potential of their people.”
***
The future of the United Kingdom lies in the European Union, was the message of Brown:
“But what is clear is that at this time of global economic uncertainty, we should not be throwing into question -as some would - the stability of our relationship with Europe and even our future membership of the European Union --- risking trade, business and jobs. Indeed, I strongly believe that rather than retreating to the sidelines we must remain fully engaged in Europe so we can push forward the reforms that are essential for Europe's, and Britain's, economic future.
The EU is key to the success of business in the UK:
Europe accounts for nearly 60 per cent of our trade;
700,000 British companies have trading ties to Europe;
And 3.5 million British jobs depend upon Europe.
And even in the face of rapid globalisation, our trade with Europe continues to rise, meaning Europe is as important to the future of Britain than ever.”
***
Economic reform is key to the European Union’s future and relevance, according to Brown:
“At the heart of a more competitive Europe in the 21st century must be a long-term commitment to a more outward looking relationship with the rest of the world. This is what I mean in practice by 'global Europe' - a Europe that knows it must face outwards if it is to be open for business.”
***
A few comments:
Great Britain has a lot to give its continental European partners and the EU when it comes to a dynamic business climate, although the Nordic countries may have succeeded at least as well while excelling at public services and social security. Brown’s programme on economic stability, growth, competitiveness and jobs reads like a roadmap to a more prosperous future for European citizens.
On more foreign policy oriented themes, Brown made the case for European climate change and environmental policy and reforming international institutions.
So far, so good. But what did Gordon Brown leave uncovered, at least in this speech?
More than twenty years have passed since the European Community (formerly the EEC) began its transformation into a political union, with efforts to forge common foreign policy as well as new internal policies.
The future security and prosperity of EU citizens is going to depend on how successfully the European Union manages to pool the resources of its member states in the areas of common foreign, security and defence policies, including a common defence.
When are we going to hear this speech?
Ralf Grahn
Gordon Brown: Beyond The Reform Treaty: Business Priorities For A ‘Global Europe’; 14 January 2008;
http://www.number10.gov.uk/output/Page14251.asp
Yesterday, Brown did much to cast off his crown as curmudgeon of the year among EU leaders. Speaking to a business audience Brown finally outlined a programme for Britain in Europe, laying the background for future success, coming out strongly in favour of British EU membership and pointing towards the needed economic reforms within the Union.
***
What is needed for future success? Brown clearly placed himself in the economic reform camp:
“The countries and continents that will succeed in the new era of globalisation will be those that are open rather than closed, for free trade rather than protectionism, are flexible rather than rigid, and invest in high skills and the potential of their people.”
***
The future of the United Kingdom lies in the European Union, was the message of Brown:
“But what is clear is that at this time of global economic uncertainty, we should not be throwing into question -as some would - the stability of our relationship with Europe and even our future membership of the European Union --- risking trade, business and jobs. Indeed, I strongly believe that rather than retreating to the sidelines we must remain fully engaged in Europe so we can push forward the reforms that are essential for Europe's, and Britain's, economic future.
The EU is key to the success of business in the UK:
Europe accounts for nearly 60 per cent of our trade;
700,000 British companies have trading ties to Europe;
And 3.5 million British jobs depend upon Europe.
And even in the face of rapid globalisation, our trade with Europe continues to rise, meaning Europe is as important to the future of Britain than ever.”
***
Economic reform is key to the European Union’s future and relevance, according to Brown:
“At the heart of a more competitive Europe in the 21st century must be a long-term commitment to a more outward looking relationship with the rest of the world. This is what I mean in practice by 'global Europe' - a Europe that knows it must face outwards if it is to be open for business.”
***
A few comments:
Great Britain has a lot to give its continental European partners and the EU when it comes to a dynamic business climate, although the Nordic countries may have succeeded at least as well while excelling at public services and social security. Brown’s programme on economic stability, growth, competitiveness and jobs reads like a roadmap to a more prosperous future for European citizens.
On more foreign policy oriented themes, Brown made the case for European climate change and environmental policy and reforming international institutions.
So far, so good. But what did Gordon Brown leave uncovered, at least in this speech?
More than twenty years have passed since the European Community (formerly the EEC) began its transformation into a political union, with efforts to forge common foreign policy as well as new internal policies.
The future security and prosperity of EU citizens is going to depend on how successfully the European Union manages to pool the resources of its member states in the areas of common foreign, security and defence policies, including a common defence.
When are we going to hear this speech?
Ralf Grahn
Gordon Brown: Beyond The Reform Treaty: Business Priorities For A ‘Global Europe’; 14 January 2008;
http://www.number10.gov.uk/output/Page14251.asp
EU Treaty of Lisbon: Geographical or thematic CFSP decisions
EU sanctions against terrorists, rogue states and their leaders can be laid down in Council common positions. The Lisbon Treaty retains this instrument in effect, but uses the term decisions.
Presently, the Council of the European Union can adopt common positions within the common foreign and security policy (CFSP). The common positions define the Union’s approach to a particular matter of a geographical or thematic nature. The Member States shall conduct their own policies in conformity with the common positions.
The Lisbon Treaty amends the existing Treaty on European Union (TEU) slightly, but the end result looks a lot like the Constitutional Treaty, even if you have to compare the different texts to find out.
***
The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.C 321) Article 15 states:
“Article 15
The Council shall adopt common positions. Common positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions.”
***
The Convention made the ‘common positions’ into ‘European decisions’, but did not substantially alter the text in what became Article III-199 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169). The Constitutional Treaty took over this text, in Article III-298 (OJ 16.12.2004 C 310):
“Article III-298
The Council shall adopt European decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union.”
***
The Treaty of Lisbon amends the text of the existing Article 15 TEU by abolishing the ‘common positions’ in favour of ‘decisions’. The wording of Article 15 TEU, after do-it-yourself consolidation, follows:
Article 15
The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.”
***
The different stages are fairly identical. Goodbye, ‘common positions’ and goodbye, putative ‘European decisions’; the Lisbon Treaty mentions only ‘decisions’. But because ‘decision’ is such a general term, there will be a practical need to distinguish these decisions from others.
***
And now to the terrorists, rogue states and their leaders; a few practical examples of fresh common positions:
Council Common Position 2007/871/CFSP of 20 December 2007 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2007/448/CFSP
Council Common Position 2007/750/CFSP of 19 November 2007 amending Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar
Council Common Position 2007/762/CFSP of 22 November 2007 on participation by the European Union in the Korean Peninsula Energy Development Organisation (KEDO)
Council Common Position 2007/761/CFSP of 22 November 2007 renewing the restrictive measures imposed against the Côte d’Ivoire
***
It is certainly beyond the powers of the European Union to create saints out of dictators and tyrants, but the pooled resources of the EU countries give Europe some clout to limit the worst excesses against humans unlucky enough to live under oppression.
***
Next time we are going to look at CFSP proposals.
Ralf Grahn
Presently, the Council of the European Union can adopt common positions within the common foreign and security policy (CFSP). The common positions define the Union’s approach to a particular matter of a geographical or thematic nature. The Member States shall conduct their own policies in conformity with the common positions.
The Lisbon Treaty amends the existing Treaty on European Union (TEU) slightly, but the end result looks a lot like the Constitutional Treaty, even if you have to compare the different texts to find out.
***
The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.C 321) Article 15 states:
“Article 15
The Council shall adopt common positions. Common positions shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the common positions.”
***
The Convention made the ‘common positions’ into ‘European decisions’, but did not substantially alter the text in what became Article III-199 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169). The Constitutional Treaty took over this text, in Article III-298 (OJ 16.12.2004 C 310):
“Article III-298
The Council shall adopt European decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the positions of the Union.”
***
The Treaty of Lisbon amends the text of the existing Article 15 TEU by abolishing the ‘common positions’ in favour of ‘decisions’. The wording of Article 15 TEU, after do-it-yourself consolidation, follows:
Article 15
The Council shall adopt decisions which shall define the approach of the Union to a particular matter of a geographical or thematic nature. Member States shall ensure that their national policies conform to the Union positions.”
***
The different stages are fairly identical. Goodbye, ‘common positions’ and goodbye, putative ‘European decisions’; the Lisbon Treaty mentions only ‘decisions’. But because ‘decision’ is such a general term, there will be a practical need to distinguish these decisions from others.
***
And now to the terrorists, rogue states and their leaders; a few practical examples of fresh common positions:
Council Common Position 2007/871/CFSP of 20 December 2007 updating Common Position 2001/931/CFSP on the application of specific measures to combat terrorism and repealing Common Position 2007/448/CFSP
Council Common Position 2007/750/CFSP of 19 November 2007 amending Common Position 2006/318/CFSP renewing restrictive measures against Burma/Myanmar
Council Common Position 2007/762/CFSP of 22 November 2007 on participation by the European Union in the Korean Peninsula Energy Development Organisation (KEDO)
Council Common Position 2007/761/CFSP of 22 November 2007 renewing the restrictive measures imposed against the Côte d’Ivoire
***
It is certainly beyond the powers of the European Union to create saints out of dictators and tyrants, but the pooled resources of the EU countries give Europe some clout to limit the worst excesses against humans unlucky enough to live under oppression.
***
Next time we are going to look at CFSP proposals.
Ralf Grahn
Monday, 14 January 2008
Consolidated Lisbon Treaty: Update
Some additional information on the available unofficial but convenient consolidated versions of the Treaty of Lisbon, which I presented in my 10 January 2008 posting ‘Consolidated Treaty of Lisbon’.
The Wikipedia article on the Lisbon Treaty (to be recommended in itself) had noticed that there is a new English consolidation:
Markus Walther, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without tables of content, annexes, protocols or declarations). See:
http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Until now we have had the reader-friendly English consolidations offered by Statewatch and the Irish Institute of European Affairs.
A commentator mentioned that a Hungarian user-friendly consolidated version exists, and offered me a link (which did not work). Not knowing Hungarian, I was not able to locate the consolidation on my own, but I suppose that those who know the language would be able to find this language version of the consolidated Reform Treaty on the government web pages.
There would now seem be seven readable language versions out of 23 official languages.
***
No deeds contradict Jens-Peter Bonde MEP when he says (19 December 2007, http://www.bonde.com/):
“The intergovernmental conference decided that no institution should be allowed to publish a consolidated version before the treaty had been finally ratified by all 27 member states.”
Therefore, it is up to national governments, NGOs, think-tanks and individuals to make readable treaties available to the citizens of the Union and to spread the word.
I am, as ever, grateful for information on consolidations of the Lisbon Treaty, the ratification processes and literature on the subject.
Ralf Grahn
The Wikipedia article on the Lisbon Treaty (to be recommended in itself) had noticed that there is a new English consolidation:
Markus Walther, who produced and published a German consolidated version of the EU Treaty of Lisbon on his web site, has posted an English readable consolidated version as well (a preliminary document without tables of content, annexes, protocols or declarations). See:
http://www.mwalther.net/europa/eulaw-lisbon-mwalther.pdf
Until now we have had the reader-friendly English consolidations offered by Statewatch and the Irish Institute of European Affairs.
A commentator mentioned that a Hungarian user-friendly consolidated version exists, and offered me a link (which did not work). Not knowing Hungarian, I was not able to locate the consolidation on my own, but I suppose that those who know the language would be able to find this language version of the consolidated Reform Treaty on the government web pages.
There would now seem be seven readable language versions out of 23 official languages.
***
No deeds contradict Jens-Peter Bonde MEP when he says (19 December 2007, http://www.bonde.com/):
“The intergovernmental conference decided that no institution should be allowed to publish a consolidated version before the treaty had been finally ratified by all 27 member states.”
Therefore, it is up to national governments, NGOs, think-tanks and individuals to make readable treaties available to the citizens of the Union and to spread the word.
I am, as ever, grateful for information on consolidations of the Lisbon Treaty, the ratification processes and literature on the subject.
Ralf Grahn
Sack the spin doctor!
Someone must have given the European leaders bad advice on how to present the Treaty of Lisbon to the public.
The drafting technique is a deliberate choice. Therefore, I will quote one example of the amendments made by the Reform Treaty to the existing EU Treaty:
31)”Article 14 shall be amended as follows:
(a) in paragraph 1, the first two sentences shall be replaced by the following sentence: "Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions.";
(b) paragraph 2 shall become the second subparagraph of paragraph 1, and the other paragraphs shall be renumbered accordingly. In the first sentence, the words "to joint action," shall be replaced by "to such a decision," and the words "that action" shall be replaced by "that decision". The last sentence shall be deleted;
(c) in paragraph 3, renumbered 2, the words "Joint actions" shall be replaced by "Decisions referred to in paragraph 1";
(d) the current paragraph 4 shall be deleted and the remaining paragraphs shall be renumbered accordingly;
(e) in the first sentence of paragraph 5, renumbered 3, the words "pursuant to a joint action, information shall be provided in time to allow," shall be replaced by "pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow,";
(f) in the first sentence of paragraph 6, renumbered 4, the words "failing a Council decision," shall be replaced by "failing a review of the Council decision as referred to in paragraph 1," and the words "of the joint action" shall be replaced by "of that decision";
(g) in paragraph 7, renumbered 5, the words "joint action" in the first sentence shall be replaced by "decision as referred to in this Article" and in the second sentence by "decision referred to in paragraph 1".”
***
In spite of the fairly insignificant amendments, the drafting technique leads to time consuming comparison for anyone trying to fix the exact wording of the Article. Even after checks, mistakes are probable. Clear amendments could have been written once, centrally by the Council, instead of the unnecessary multiplication of work all around Europe caused by the reader-unfriendly drafting.
With even a token of regard for readers, Article 14 TEU and many others like it could have been written ‘in extenso’. The end result in Article 14 EUT, does not differ much from the present Article 14 TEU, but it looks a lot like the Constitutional Treaty. Surprised, anybody?
It is as if everyone interested in European affairs should be punished for wanting to read, understand or use the Reform Treaty.
***
The drafting technique would not have caused major problems, if the Council had published reader-friendly consolidated versions at the same time, in every official language of the EU. But the real disaster became clear by the Council’s deliberate refusal to produce timely consolidated versions of the Lisbon Treaty, the Union’s most important document in 2007 and 2008 and, perhaps, beyond that.
Has the presentational technique eliminated the phantasmagorical allegations against the contents of the Lisbon Treaty? Not as far as I know, but a lot of ordinary citizens have been alienated by the antics of the Council.
There is a lot more re-engaging to do, now.
If anybody wants a schoolbook example of how not to communicate with the public, it is here. I hope it finds extensive use in time for the needed replacements, namely:
Somebody’s spin doctor should be sacked!
Ralf Grahn
The drafting technique is a deliberate choice. Therefore, I will quote one example of the amendments made by the Reform Treaty to the existing EU Treaty:
31)”Article 14 shall be amended as follows:
(a) in paragraph 1, the first two sentences shall be replaced by the following sentence: "Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions.";
(b) paragraph 2 shall become the second subparagraph of paragraph 1, and the other paragraphs shall be renumbered accordingly. In the first sentence, the words "to joint action," shall be replaced by "to such a decision," and the words "that action" shall be replaced by "that decision". The last sentence shall be deleted;
(c) in paragraph 3, renumbered 2, the words "Joint actions" shall be replaced by "Decisions referred to in paragraph 1";
(d) the current paragraph 4 shall be deleted and the remaining paragraphs shall be renumbered accordingly;
(e) in the first sentence of paragraph 5, renumbered 3, the words "pursuant to a joint action, information shall be provided in time to allow," shall be replaced by "pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow,";
(f) in the first sentence of paragraph 6, renumbered 4, the words "failing a Council decision," shall be replaced by "failing a review of the Council decision as referred to in paragraph 1," and the words "of the joint action" shall be replaced by "of that decision";
(g) in paragraph 7, renumbered 5, the words "joint action" in the first sentence shall be replaced by "decision as referred to in this Article" and in the second sentence by "decision referred to in paragraph 1".”
***
In spite of the fairly insignificant amendments, the drafting technique leads to time consuming comparison for anyone trying to fix the exact wording of the Article. Even after checks, mistakes are probable. Clear amendments could have been written once, centrally by the Council, instead of the unnecessary multiplication of work all around Europe caused by the reader-unfriendly drafting.
With even a token of regard for readers, Article 14 TEU and many others like it could have been written ‘in extenso’. The end result in Article 14 EUT, does not differ much from the present Article 14 TEU, but it looks a lot like the Constitutional Treaty. Surprised, anybody?
It is as if everyone interested in European affairs should be punished for wanting to read, understand or use the Reform Treaty.
***
The drafting technique would not have caused major problems, if the Council had published reader-friendly consolidated versions at the same time, in every official language of the EU. But the real disaster became clear by the Council’s deliberate refusal to produce timely consolidated versions of the Lisbon Treaty, the Union’s most important document in 2007 and 2008 and, perhaps, beyond that.
Has the presentational technique eliminated the phantasmagorical allegations against the contents of the Lisbon Treaty? Not as far as I know, but a lot of ordinary citizens have been alienated by the antics of the Council.
There is a lot more re-engaging to do, now.
If anybody wants a schoolbook example of how not to communicate with the public, it is here. I hope it finds extensive use in time for the needed replacements, namely:
Somebody’s spin doctor should be sacked!
Ralf Grahn
EU Treaty of Lisbon: Operational CFSP decisions
Well-meaning declarations are not enough, if the European Union wants to make this world a safer place. Concrete, operational action is needed. These decisions are presently known as joint actions. If the Lisbon Treaty enters into force, these decisions will be known as decisions.
***
The existing Article 14 Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 14
1. The Council shall adopt joint actions. Joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
2. If there is a change in circumstances having a substantial effect on a question subject to joint action, the Council shall review the principles and objectives of that action an take the necessary decisions. As long as the Council has not acted, the joint action shall stand.
3. Joint actions shall commit the Member States in the positions they adopt and in the conduct of their activity.
4. The Council may request the Commission to submit to it any appropriate proposals relating to the common foreign and security policy to ensure the implementation of a joint action.
5. Whenever there is any plan to adopt a national position or take national action pursuant to a joint action, information shall be provided in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.
6. In cases of imperative need arising from changes in the situation and failing a Council decision, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of the joint action. The Member State concerned shall inform the Council immediately of any such measures.
7. Should there be any major difficulties in implementing a joint action, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the joint action or impair its effectiveness.”
***
In Article III-198 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169) the Convention used the term ‘European decision’ instead of ‘joint action’, but there was little substantive change. This was taken over in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-297.
In the Reform Treaty there are no ‘European decisions’, nor are there ‘joint actions’, just ‘decisions referred to in paragraph 1'.
***
A few remarks by your glossator:
Formally, there may be reasons to have just ‘decisions’, but in practice there is a need for descriptive terms. If there are no ‘joint actions’ or ‘common positions’, these have to be described in another manner.
Well, what are these ‘joint actions’ or operational decisions?
Some examples: The Council has lately repealed its joint action on the EU civilian-military supporting action to the African Union missions in the Darfur region of Sudan and in Somalia, published an annual report on the joint action to combat the spread of small arms and light weapons, amended the joint action extending the mandate for the EU Special Representative for Sudan and amended its joint action on establishing an EU Border Assistance Mission for the Rafah Crossing Point.
Concrete action, on the ground; these terms give an indication of what is meant by operational decisions.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 14 TEU. The consolidated version of Article 14 TEU should read like this:
“Article 14
1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
If there is a change in circumstances having a substantial effect on a question subject to such a decision, the Council shall review the principles and objectives of that decision and take the necessary decisions.
2. Decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity.
3. Whenever there is any plan to adopt a national position or take national action pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.
4. In cases of imperative need arising from changes in the situation and failing a review of the Council decision as referred to in paragraph 1, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of that decision. The Member State concerned shall inform the Council immediately of any such measures.
5. Should there be any major difficulties in implementing a decision as referred to in this Article, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the decision referred to in paragraph 1 or impair its effectiveness.
***
Our next stop will be decisions of the kind until now called common positions.
Ralf Grahn
***
The existing Article 14 Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 14
1. The Council shall adopt joint actions. Joint actions shall address specific situations where operational action by the Union is deemed to be required. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
2. If there is a change in circumstances having a substantial effect on a question subject to joint action, the Council shall review the principles and objectives of that action an take the necessary decisions. As long as the Council has not acted, the joint action shall stand.
3. Joint actions shall commit the Member States in the positions they adopt and in the conduct of their activity.
4. The Council may request the Commission to submit to it any appropriate proposals relating to the common foreign and security policy to ensure the implementation of a joint action.
5. Whenever there is any plan to adopt a national position or take national action pursuant to a joint action, information shall be provided in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.
6. In cases of imperative need arising from changes in the situation and failing a Council decision, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of the joint action. The Member State concerned shall inform the Council immediately of any such measures.
7. Should there be any major difficulties in implementing a joint action, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the joint action or impair its effectiveness.”
***
In Article III-198 of the draft Treaty establishing a Constitution for Europe (OJ 18.7.2003 C 169) the Convention used the term ‘European decision’ instead of ‘joint action’, but there was little substantive change. This was taken over in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-297.
In the Reform Treaty there are no ‘European decisions’, nor are there ‘joint actions’, just ‘decisions referred to in paragraph 1'.
***
A few remarks by your glossator:
Formally, there may be reasons to have just ‘decisions’, but in practice there is a need for descriptive terms. If there are no ‘joint actions’ or ‘common positions’, these have to be described in another manner.
Well, what are these ‘joint actions’ or operational decisions?
Some examples: The Council has lately repealed its joint action on the EU civilian-military supporting action to the African Union missions in the Darfur region of Sudan and in Somalia, published an annual report on the joint action to combat the spread of small arms and light weapons, amended the joint action extending the mandate for the EU Special Representative for Sudan and amended its joint action on establishing an EU Border Assistance Mission for the Rafah Crossing Point.
Concrete action, on the ground; these terms give an indication of what is meant by operational decisions.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 14 TEU. The consolidated version of Article 14 TEU should read like this:
“Article 14
1. Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.
If there is a change in circumstances having a substantial effect on a question subject to such a decision, the Council shall review the principles and objectives of that decision and take the necessary decisions.
2. Decisions referred to in paragraph 1 shall commit the Member States in the positions they adopt and in the conduct of their activity.
3. Whenever there is any plan to adopt a national position or take national action pursuant to a decision as referred to in paragraph 1, information shall be provided by the Member State concerned in time to allow, if necessary, for prior consultations within the Council. The obligation to provide prior information shall not apply to measures which are merely a national transposition of Council decisions.
4. In cases of imperative need arising from changes in the situation and failing a review of the Council decision as referred to in paragraph 1, Member States may take the necessary measures as a matter of urgency having regard to the general objectives of that decision. The Member State concerned shall inform the Council immediately of any such measures.
5. Should there be any major difficulties in implementing a decision as referred to in this Article, a Member State shall refer them to the Council which shall discuss them and seek appropriate solutions. Such solutions shall not run counter to the objectives of the decision referred to in paragraph 1 or impair its effectiveness.
***
Our next stop will be decisions of the kind until now called common positions.
Ralf Grahn
Sunday, 13 January 2008
EU Treaty of Lisbon: CFSP implementation
Can the European Union speak with ‘one voice’ in the world? The Reform Treaty brings about considerable improvement, if the EU is able to make up its mind. Preparation, representation and implementation are all enhanced through the renewed office of the High Representative of the Union for Foreign Affairs and Security Policy and by the European External Action Service to be established.
The long overdue reforms of the common foreign and security policy (CFSP) and of the common security and defence policy (CSDP) can lead to improved security and prosperity for the citizens of the Union, but the institutional arrangements lack openness, transparency and democratic accountability.
***
The existing Article 18 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321) says:
“Article 18
1. The Presidency shall represent the Union in matters coming within the common foreign and security policy.
2. The Presidency shall be responsible for the implementation of decisions taken under this title; in that capacity it shall in principle express the position of the Union in international organisations and international conferences.
3. The Presidency shall be assisted by the Secretary-General of the Council who shall exercise the function of High Representative for the common foreign and security policy.
4. The Commission shall be fully associated in the tasks referred to in paragraphs 1 and 2. The Presidency shall be assisted in those tasks if need be by the next Member State to hold the Presidency.
5. The Council may, whenever it deems it necessary, appoint a special representative with a mandate in relation to particular policy issues.”
Article 26 TEU in force says:
“Article 26
The Secretary-General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
***
The broadly based Convention proposed a clear upgrading of the conduct foreign policy and the representation of the European Union by creating the office of a Union Minister for Foreign Affairs; draft Constitutional Treaty Article III-197 (OJ 18.7.2003 C 169):
“Article III-197
1. The Union Minister for Foreign Affairs, who shall chair the Council of Ministers for Foreign Affairs, shall contribute through his or her proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the European decisions adopted by the European Council and the Council of Ministers.
2. For matters relating to the common foreign and security policy, the Union shall be represented by the Union Minister for Foreign Affairs. He or she shall conduct political dialogue on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences.
3. In fulfilling his or her mandate, the Union Minister for Foreign Affairs shall be assisted by a European External Action Service. The service shall work in cooperation with the diplomatic services of the Member States.”
(Article III-197(3) referred to the Declaration on the creation of a European External Action Service.)
***
The Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-296 took over Article III-197(1), slightly altered the wording of paragraph 2 and added words on the European External Action Service (originating in the Declaration proposed by the Convention). The resulting Article III-296(3):
“Article III-296(3)
3. In fulfilling his or her mandate, the Union Minister for Foreign Affairs shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from the relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a European decision of the Council. The Council shall act on a proposal from the Union Minister for Foreign Affairs after consulting the European Parliament and after obtaining the consent of the Commission. “
***
The IGC 2007 Mandate (Council document 11218/07, point 1) abandoned the constitutional concept and (point 3) stated that the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy.
In addition to the reverting to the “High Representative”, there are only minor changes to the wording of the Constitutional Treaty in the Lisbon Treaty.
***
Some remarks by your glossator:
There is to be no Union Minister for Foreign Affairs, but the substance of the innovations proposed by the Convention is maintained in the renewed office of High Representative of the Union for Foreign Affairs and Security Policy.
The High Representative is going to chair the Foreign Affairs Council, to lead the external action of the European Commission and to lead the European External Action Service, which will combine resources of the Council Secretariat, the Commission and seconded officials from national diplomatic services.
The High Representative is going to prepare proposals for the Foreign Affairs Council and to implement its decisions. He is going to represent the EU in international organisations and at international conferences. EU accession to and representation in international organisations could do much to give the Union a stronger voice in world affairs.
One could say that the ‘double-hatted’ High Representative/Vice-President acts before, during and after. Internal coordination is improved and the chances for consistent policies enhanced. These innovations translate into more security and prosperity for citizens of the European Union.
Cumbersome decision making and the temptation for Member States to fly solo, including national representation in the Security Council of the United Nations, detract from the possibilities for concerted European action on the world stage.
Openness, transparency and democratic accountability at the EU level remain underdeveloped concerning the CFSP and the CSDP.
Our common challenges have moved ‘upstairs’, and the institutional arrangements mount a few steps, but the elected representatives of the citizens (EP) are left on the ground floor.
The Lisbon Treaty cannot remain the last word on institutional reform.
The selection processes for the President of the European Council and the High Representative/Vice-President are going to highly informative as to the ‘state of the Union’ concerning openness, transparency and accountability. Will we citizens know who the candidates are, will they campaign openly, and how are their merits going to be weighed and debated? Or are we supposed to stand by idly, waiting for white smoke to rise from the Conclave?
***
The Treaty of Lisbon (OJ 17.12.2006 C 306) inserts an Article 13a TEU.
Article 13a
1. The High Representative of the Union for Foreign Affairs and Security Policy, who shall chair the Foreign Affairs Council, shall contribute through his proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the decisions adopted by the European Council and the Council.
2. The High Representative shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union's behalf and shall express the Union's position in international organisations and at international conferences.
3. In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.
***
A long time has already passed since the proposals of the Convention. The Member States have agreed to start preparations for the European External Action Service. Declaration (number 15) on Article 13a of the Treaty on European Union states:
“The Conference declares that, as soon as the Treaty of Lisbon is signed, the Secretary-General of the Council, High Representative for the common foreign and security policy, the Commission and the Member States should begin preparatory work on the European External Action Service.”
(The Constitutional Treaty contained a corresponding declaration.)
***
If the entry into force of the Lisbon Treaty is delayed, the Member States have agreed on guidelines for the transition.
The intergovernmental conference (IGC 2007) approved a Declaration (number 8) on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and the Foreign Affairs Council:
“In the event that the Treaty of Lisbon enters into force later than 1 January 2009, the Conference requests the competent authorities of the Member State holding the six-monthly Presidency of the Council at that time, on the one hand, and the person elected President of the European Council and the person appointed High Representative of the Union for Foreign Affairs and Security Policy, on the other hand, to take the necessary specific measures, in consultation with the following six-monthly Presidency, to allow an efficient handover of the material and organisational aspects of the Presidency of the European Council and of the Foreign Affairs Council.”
***
Next time we look at CFSP decisions.
Ralf Grahn
The long overdue reforms of the common foreign and security policy (CFSP) and of the common security and defence policy (CSDP) can lead to improved security and prosperity for the citizens of the Union, but the institutional arrangements lack openness, transparency and democratic accountability.
***
The existing Article 18 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006 C 321) says:
“Article 18
1. The Presidency shall represent the Union in matters coming within the common foreign and security policy.
2. The Presidency shall be responsible for the implementation of decisions taken under this title; in that capacity it shall in principle express the position of the Union in international organisations and international conferences.
3. The Presidency shall be assisted by the Secretary-General of the Council who shall exercise the function of High Representative for the common foreign and security policy.
4. The Commission shall be fully associated in the tasks referred to in paragraphs 1 and 2. The Presidency shall be assisted in those tasks if need be by the next Member State to hold the Presidency.
5. The Council may, whenever it deems it necessary, appoint a special representative with a mandate in relation to particular policy issues.”
Article 26 TEU in force says:
“Article 26
The Secretary-General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
***
The broadly based Convention proposed a clear upgrading of the conduct foreign policy and the representation of the European Union by creating the office of a Union Minister for Foreign Affairs; draft Constitutional Treaty Article III-197 (OJ 18.7.2003 C 169):
“Article III-197
1. The Union Minister for Foreign Affairs, who shall chair the Council of Ministers for Foreign Affairs, shall contribute through his or her proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the European decisions adopted by the European Council and the Council of Ministers.
2. For matters relating to the common foreign and security policy, the Union shall be represented by the Union Minister for Foreign Affairs. He or she shall conduct political dialogue on the Union’s behalf and shall express the Union’s position in international organisations and at international conferences.
3. In fulfilling his or her mandate, the Union Minister for Foreign Affairs shall be assisted by a European External Action Service. The service shall work in cooperation with the diplomatic services of the Member States.”
(Article III-197(3) referred to the Declaration on the creation of a European External Action Service.)
***
The Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) Article III-296 took over Article III-197(1), slightly altered the wording of paragraph 2 and added words on the European External Action Service (originating in the Declaration proposed by the Convention). The resulting Article III-296(3):
“Article III-296(3)
3. In fulfilling his or her mandate, the Union Minister for Foreign Affairs shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from the relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a European decision of the Council. The Council shall act on a proposal from the Union Minister for Foreign Affairs after consulting the European Parliament and after obtaining the consent of the Commission. “
***
The IGC 2007 Mandate (Council document 11218/07, point 1) abandoned the constitutional concept and (point 3) stated that the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy.
In addition to the reverting to the “High Representative”, there are only minor changes to the wording of the Constitutional Treaty in the Lisbon Treaty.
***
Some remarks by your glossator:
There is to be no Union Minister for Foreign Affairs, but the substance of the innovations proposed by the Convention is maintained in the renewed office of High Representative of the Union for Foreign Affairs and Security Policy.
The High Representative is going to chair the Foreign Affairs Council, to lead the external action of the European Commission and to lead the European External Action Service, which will combine resources of the Council Secretariat, the Commission and seconded officials from national diplomatic services.
The High Representative is going to prepare proposals for the Foreign Affairs Council and to implement its decisions. He is going to represent the EU in international organisations and at international conferences. EU accession to and representation in international organisations could do much to give the Union a stronger voice in world affairs.
One could say that the ‘double-hatted’ High Representative/Vice-President acts before, during and after. Internal coordination is improved and the chances for consistent policies enhanced. These innovations translate into more security and prosperity for citizens of the European Union.
Cumbersome decision making and the temptation for Member States to fly solo, including national representation in the Security Council of the United Nations, detract from the possibilities for concerted European action on the world stage.
Openness, transparency and democratic accountability at the EU level remain underdeveloped concerning the CFSP and the CSDP.
Our common challenges have moved ‘upstairs’, and the institutional arrangements mount a few steps, but the elected representatives of the citizens (EP) are left on the ground floor.
The Lisbon Treaty cannot remain the last word on institutional reform.
The selection processes for the President of the European Council and the High Representative/Vice-President are going to highly informative as to the ‘state of the Union’ concerning openness, transparency and accountability. Will we citizens know who the candidates are, will they campaign openly, and how are their merits going to be weighed and debated? Or are we supposed to stand by idly, waiting for white smoke to rise from the Conclave?
***
The Treaty of Lisbon (OJ 17.12.2006 C 306) inserts an Article 13a TEU.
Article 13a
1. The High Representative of the Union for Foreign Affairs and Security Policy, who shall chair the Foreign Affairs Council, shall contribute through his proposals towards the preparation of the common foreign and security policy and shall ensure implementation of the decisions adopted by the European Council and the Council.
2. The High Representative shall represent the Union for matters relating to the common foreign and security policy. He shall conduct political dialogue with third parties on the Union's behalf and shall express the Union's position in international organisations and at international conferences.
3. In fulfilling his mandate, the High Representative shall be assisted by a European External Action Service. This service shall work in cooperation with the diplomatic services of the Member States and shall comprise officials from relevant departments of the General Secretariat of the Council and of the Commission as well as staff seconded from national diplomatic services of the Member States. The organisation and functioning of the European External Action Service shall be established by a decision of the Council. The Council shall act on a proposal from the High Representative after consulting the European Parliament and after obtaining the consent of the Commission.
***
A long time has already passed since the proposals of the Convention. The Member States have agreed to start preparations for the European External Action Service. Declaration (number 15) on Article 13a of the Treaty on European Union states:
“The Conference declares that, as soon as the Treaty of Lisbon is signed, the Secretary-General of the Council, High Representative for the common foreign and security policy, the Commission and the Member States should begin preparatory work on the European External Action Service.”
(The Constitutional Treaty contained a corresponding declaration.)
***
If the entry into force of the Lisbon Treaty is delayed, the Member States have agreed on guidelines for the transition.
The intergovernmental conference (IGC 2007) approved a Declaration (number 8) on practical measures to be taken upon the entry into force of the Treaty of Lisbon as regards the Presidency of the European Council and the Foreign Affairs Council:
“In the event that the Treaty of Lisbon enters into force later than 1 January 2009, the Conference requests the competent authorities of the Member State holding the six-monthly Presidency of the Council at that time, on the one hand, and the person elected President of the European Council and the person appointed High Representative of the Union for Foreign Affairs and Security Policy, on the other hand, to take the necessary specific measures, in consultation with the following six-monthly Presidency, to allow an efficient handover of the material and organisational aspects of the Presidency of the European Council and of the Foreign Affairs Council.”
***
Next time we look at CFSP decisions.
Ralf Grahn
Saturday, 12 January 2008
EU Treaty of Lisbon: CFSP decisions
Who does what in the common foreign and security policy (CFSP) of the European Union? The Lisbon Treaty builds on the existing Treaty on European Union (TEU), as well as the Convention and the Treaty establishing a Constitution for Europe to define at which level the European Council and the Council decide, and the High Representative and the Member States interact.
***
The existing Article 13 TEU (latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 13
1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action by the Union.”
***
The amending Reform Treaty draws in part on Article III-196 of the Convention, which corresponds with Article III-295 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310).
***
A few remarks by your glossator:
We see a hierarchy of decision makers and decisions.
The European Council, comprising the Heads of State or Government of the Member States, works at the strategic level. It identifies the strategic interests, determines the objectives and defines the general CFSP guidelines.
At the present time, one general reference document is the European Security Strategy, from December 2003. A new security strategy is being prepared.
In an international crisis, the President of the European Council can convene an extraordinary meeting at short notice.
The Council (Ministers for Foreign Affairs) works on the basis of the general guidelines defined by the European Council to frame the CFSP and to define and to implement it.
The High Representative, who chairs the Foreign Affairs Council, is the main operative. He prepares proposals for the Council, heads the External Action Service and implements the decisions together with the Member States. The Council and the High Representative try to ensure the unity, consistency and effectiveness of Union action.
As far as the strictures of decision making procedures and divergent national interests allow, the European Union is served by a logical ‘pyramid’ of decision makers and decisions.
The CFSP structures are intergovernmental, leaving little scope for democratic scrutiny at the EU level. In spite of the abolishment of the ‘pillar structure’ and the merger of the EC into the EU, the CFSP provisions are found in the TEU, not in the TFEU like the ‘normal’ policy areas.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 13 TEU. The consolidated version of the Article looks like this:
Article 13
1. The European Council shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.
If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union’s policy in the face of such developments.
2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.
The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.
3. The common foreign and security policy shall be put into effect by the High Representative and by the Member States, using national and Union resources.
***
Next time we are going to take a closer look at the High Representative.
Ralf Grahn
***
The existing Article 13 TEU (latest consolidated version OJ 29.12.2006 C 321 E) says:
“Article 13
1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action by the Union.”
***
The amending Reform Treaty draws in part on Article III-196 of the Convention, which corresponds with Article III-295 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310).
***
A few remarks by your glossator:
We see a hierarchy of decision makers and decisions.
The European Council, comprising the Heads of State or Government of the Member States, works at the strategic level. It identifies the strategic interests, determines the objectives and defines the general CFSP guidelines.
At the present time, one general reference document is the European Security Strategy, from December 2003. A new security strategy is being prepared.
In an international crisis, the President of the European Council can convene an extraordinary meeting at short notice.
The Council (Ministers for Foreign Affairs) works on the basis of the general guidelines defined by the European Council to frame the CFSP and to define and to implement it.
The High Representative, who chairs the Foreign Affairs Council, is the main operative. He prepares proposals for the Council, heads the External Action Service and implements the decisions together with the Member States. The Council and the High Representative try to ensure the unity, consistency and effectiveness of Union action.
As far as the strictures of decision making procedures and divergent national interests allow, the European Union is served by a logical ‘pyramid’ of decision makers and decisions.
The CFSP structures are intergovernmental, leaving little scope for democratic scrutiny at the EU level. In spite of the abolishment of the ‘pillar structure’ and the merger of the EC into the EU, the CFSP provisions are found in the TEU, not in the TFEU like the ‘normal’ policy areas.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) amends Article 13 TEU. The consolidated version of the Article looks like this:
Article 13
1. The European Council shall identify the Union’s strategic interests, determine the objectives of and define general guidelines for the common foreign and security policy, including for matters with defence implications. It shall adopt the necessary decisions.
If international developments so require, the President of the European Council shall convene an extraordinary meeting of the European Council in order to define the strategic lines of the Union’s policy in the face of such developments.
2. The Council shall frame the common foreign and security policy and take the decisions necessary for defining and implementing it on the basis of the general guidelines and strategic lines defined by the European Council.
The Council and the High Representative of the Union for Foreign Affairs and Security Policy shall ensure the unity, consistency and effectiveness of action by the Union.
3. The common foreign and security policy shall be put into effect by the High Representative and by the Member States, using national and Union resources.
***
Next time we are going to take a closer look at the High Representative.
Ralf Grahn
Friday, 11 January 2008
EU Treaty of Lisbon: Ratification processes
The European Policy Centre is doing us Europeans a good turn. The EPC has posted a list on the ratification processes in all the Member States of the European Union. The list is updated as of 9 January 2008, but by the look of it, the EPC is going to monitor events on an ongoing basis.
The list gives you information on the country, if it has ratified the Lisbon Treaty, the expected timetable, possible referendum, needed parliamentary votes, position of main parties, additional comments and the outcome of the ratification process of the Constitutional Treaty.
Excellent!
Ralf Grahn
European Policy Centre: Treaty ratification: state of play;
http://www.epc.eu/
The list gives you information on the country, if it has ratified the Lisbon Treaty, the expected timetable, possible referendum, needed parliamentary votes, position of main parties, additional comments and the outcome of the ratification process of the Constitutional Treaty.
Excellent!
Ralf Grahn
European Policy Centre: Treaty ratification: state of play;
http://www.epc.eu/
EU Treaty of Lisbon: Foreign policy instruments
The common foreign and security policy CFSP) is subject to specific rules and procedures, and the adoption of legislative acts is excluded, according to the amended Treaty on European Union (TEU; Article 11). Thus, there is a need for specific instruments for this area.
***
The existing Article 12 of the Treaty on European Union (TEU; latest consolidated version 29.12.2006 C 321 E) looks like this:
“Article 12
The Union shall pursue the objectives set out in Article 11 by:
- defining the principles of and general guidelines for the common foreign and security policy;
- deciding on common strategies;
- adopting joint actions;
- adopting common positions;
- strengthening systematic cooperation between Member States in the conduct of policy.”
The proposal of the Convention Article III-195(3) and Article III-294(3) of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) brought only minor changes. The Treaty of Lisbon reverts to a wording even closer to the existing TEU, since the “European decisions” have become mere “decisions” in the amending Treaty.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) replaces the existing Article 12 TEU with a new Article 12.
Article 12
The Union shall conduct the common foreign and security policy by:
(a) defining the general guidelines;
(b) adopting decisions defining:
(i) actions to be undertaken by the Union;
(ii) positions to be taken by the Union;
(iii) arrangements for the implementation of the decisions referred to in points (i) and (ii);
and by
(c) strengthening systematic cooperation between Member States in the conduct of policy.
***
The different instruments are explained in the following Articles.
Ralf Grahn
***
The existing Article 12 of the Treaty on European Union (TEU; latest consolidated version 29.12.2006 C 321 E) looks like this:
“Article 12
The Union shall pursue the objectives set out in Article 11 by:
- defining the principles of and general guidelines for the common foreign and security policy;
- deciding on common strategies;
- adopting joint actions;
- adopting common positions;
- strengthening systematic cooperation between Member States in the conduct of policy.”
The proposal of the Convention Article III-195(3) and Article III-294(3) of the Treaty establishing a Constitution for Europe (OJ 16.12.2004 C 310) brought only minor changes. The Treaty of Lisbon reverts to a wording even closer to the existing TEU, since the “European decisions” have become mere “decisions” in the amending Treaty.
***
The Treaty of Lisbon (OJ 17.12.2007 C 306) replaces the existing Article 12 TEU with a new Article 12.
Article 12
The Union shall conduct the common foreign and security policy by:
(a) defining the general guidelines;
(b) adopting decisions defining:
(i) actions to be undertaken by the Union;
(ii) positions to be taken by the Union;
(iii) arrangements for the implementation of the decisions referred to in points (i) and (ii);
and by
(c) strengthening systematic cooperation between Member States in the conduct of policy.
***
The different instruments are explained in the following Articles.
Ralf Grahn
EU leaders left work undone
Although representative democracy and parliamentary ratification of international treaties are the norm, not an aberration, the members of the European Council have paid too little attention to openness, transparency and equality before and after the signing of the Reform Treaty.
The present structures of the European Union left the leaders with little choice but to negotiate initially on an intergovernmental basis to break the institutional deadlock. Let us say that necessity dictated the choices until the agreement on the IGC 2007 Mandate. But after that, how did our leaders explain their reasons and argue their case for institutional reform?
In my opinion, the leaders of the EU member states were somewhat hasty in wanting to leave the seven year period (since Nice) of institutional wrangling behind them, without enough discussion with the citizens at the national or the EU level about our common challenges or the contents of the Lisbon Treaty.
Our future security and prosperity demand joint action, the pooling resources in a European context. The European Union, as a means to our ends, is with us every day. Communicating Europe requires consistent effort, not a few token appearances a year.
Our leaders’ refusal to publish consolidated versions of the Lisbon Treaty in every official language of the Union, has only worsened the situation, giving free rein to ‘hallucinatory’ interpretations of the proposed amendments.
You don’t have to look very hard in the blogosphere to see staggering examples of disinformation. Then, look at the quality and the quantity of factual counter-information. The efforts of most of our governments seem derisory in comparison. Lacking communication is a failure of leadership.
Readable, consolidated Treaties as well as assessments and commentaries are needed, among other things, because I believe that at least some citizens are enlightened enough to want to base their opinions on facts and reason, given the chance.
***
In the longer term, the national leaders have to cross their Rubicon. If our main challenges have moved ‘upstairs’, being global or transborder in character, democracy has to follow. In the end, only a European Parliament with full powers can erase the democratic deficit, which the Lisbon Treaty alleviates in some respects while aggravating it in other fields.
***
Personally, I am grateful for information on consolidations and literature on the Treaty of Lisbon, in order to share it with my fellow EU citizens.
Ralf Grahn
P.S. We European citizens do not need nitpicking detail. We need the same kind of effective protection by our Union that I quoted yesterday concerning another, highly successful Union. The main purposes of the United States of America and the US Constitution were succinctly put by Alexander Hamilton in the Federalist, number XXIII:
“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.
The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”
The present structures of the European Union left the leaders with little choice but to negotiate initially on an intergovernmental basis to break the institutional deadlock. Let us say that necessity dictated the choices until the agreement on the IGC 2007 Mandate. But after that, how did our leaders explain their reasons and argue their case for institutional reform?
In my opinion, the leaders of the EU member states were somewhat hasty in wanting to leave the seven year period (since Nice) of institutional wrangling behind them, without enough discussion with the citizens at the national or the EU level about our common challenges or the contents of the Lisbon Treaty.
Our future security and prosperity demand joint action, the pooling resources in a European context. The European Union, as a means to our ends, is with us every day. Communicating Europe requires consistent effort, not a few token appearances a year.
Our leaders’ refusal to publish consolidated versions of the Lisbon Treaty in every official language of the Union, has only worsened the situation, giving free rein to ‘hallucinatory’ interpretations of the proposed amendments.
You don’t have to look very hard in the blogosphere to see staggering examples of disinformation. Then, look at the quality and the quantity of factual counter-information. The efforts of most of our governments seem derisory in comparison. Lacking communication is a failure of leadership.
Readable, consolidated Treaties as well as assessments and commentaries are needed, among other things, because I believe that at least some citizens are enlightened enough to want to base their opinions on facts and reason, given the chance.
***
In the longer term, the national leaders have to cross their Rubicon. If our main challenges have moved ‘upstairs’, being global or transborder in character, democracy has to follow. In the end, only a European Parliament with full powers can erase the democratic deficit, which the Lisbon Treaty alleviates in some respects while aggravating it in other fields.
***
Personally, I am grateful for information on consolidations and literature on the Treaty of Lisbon, in order to share it with my fellow EU citizens.
Ralf Grahn
P.S. We European citizens do not need nitpicking detail. We need the same kind of effective protection by our Union that I quoted yesterday concerning another, highly successful Union. The main purposes of the United States of America and the US Constitution were succinctly put by Alexander Hamilton in the Federalist, number XXIII:
“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.
The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”
Thursday, 10 January 2008
Books on the EU Treaty of Lisbon
In addition to reader-friendly consolidated versions of the EU Treaty of Lisbon, there is a demand for secondary literature.
TEPSA, the Trans European Policy Studies Association, has published a list, prepared by the team of Wolfgang Wessels at the University of Cologne, dated 18 December 2007: Overview of publications on the Lisbon Treaty
http://www.tepsa.be/Collection_Secondary_Resources_Lisbon_Treaty.doc
***
In addition, the following could be mentioned:
Andrew Duff’s True Guide to the Treaty of Lisbon (pdf); posted among others on the ALDE web site under Key Documents;
http://www.alde.eu/
Estudio Preliminar de José Martín y Pérex de Nanclares (pdf); posted on the Real Instituto Elcano web pages dedicated to the consolidated Treaty of Lisbon;
http://www.realinstitutoelcano.org/wps/portal/rielcano/FuturoEuropa/TratadodeLisboa2007
***
The first signs of traditional commentaries, books, on the Reform Treaty are appearing. The following information is from internet bookshops and publishers (not my own perusal of the contents):
Jean-Luc Sauron: Comprendre le Traité de Lisbonne : Texte consolidé intégrale des traités, explications et commentaires ; Gualino éditeur, 2007 ; 352 pages, € 19
Jacques Ziller : Il nuovo Trattato europeo ; Il Mulino, 2007 ; € 12
Klemens H. Fischer: Der Vertrag von Lissabon. Text und Kommentar zum Europäischen Reformvertrag; Nomos; to be published in January 2008; 550 pages, € 79
Marianne Dony: Après la réforme de Lisbonne. Les nouveaux traités européens ; Editions Université de Bruxelles ; to be published in January 2008 ; 342 pages, € 12
Carl-Otto Lenz & Klaus-Dieter Borchardt: Der Vertrag von Lissabon. Einführung, Vertragstexte (EUV und AEUV), Protokolle und Erklärungen; under preparation; Bundesanzeiger Verlag; about 400 pages, € 34.80
***
Dear Reader,
Do not hesitate to add information on forthcoming titles.
Gratefully,
Ralf Grahn
TEPSA, the Trans European Policy Studies Association, has published a list, prepared by the team of Wolfgang Wessels at the University of Cologne, dated 18 December 2007: Overview of publications on the Lisbon Treaty
http://www.tepsa.be/Collection_Secondary_Resources_Lisbon_Treaty.doc
***
In addition, the following could be mentioned:
Andrew Duff’s True Guide to the Treaty of Lisbon (pdf); posted among others on the ALDE web site under Key Documents;
http://www.alde.eu/
Estudio Preliminar de José Martín y Pérex de Nanclares (pdf); posted on the Real Instituto Elcano web pages dedicated to the consolidated Treaty of Lisbon;
http://www.realinstitutoelcano.org/wps/portal/rielcano/FuturoEuropa/TratadodeLisboa2007
***
The first signs of traditional commentaries, books, on the Reform Treaty are appearing. The following information is from internet bookshops and publishers (not my own perusal of the contents):
Jean-Luc Sauron: Comprendre le Traité de Lisbonne : Texte consolidé intégrale des traités, explications et commentaires ; Gualino éditeur, 2007 ; 352 pages, € 19
Jacques Ziller : Il nuovo Trattato europeo ; Il Mulino, 2007 ; € 12
Klemens H. Fischer: Der Vertrag von Lissabon. Text und Kommentar zum Europäischen Reformvertrag; Nomos; to be published in January 2008; 550 pages, € 79
Marianne Dony: Après la réforme de Lisbonne. Les nouveaux traités européens ; Editions Université de Bruxelles ; to be published in January 2008 ; 342 pages, € 12
Carl-Otto Lenz & Klaus-Dieter Borchardt: Der Vertrag von Lissabon. Einführung, Vertragstexte (EUV und AEUV), Protokolle und Erklärungen; under preparation; Bundesanzeiger Verlag; about 400 pages, € 34.80
***
Dear Reader,
Do not hesitate to add information on forthcoming titles.
Gratefully,
Ralf Grahn
Consolidated Treaty of Lisbon
Consolidated versions of the EU Treaty of Lisbon are in constant demand. This I have seen daily from the visitors on my blog. These searches come from every corner of Europe, as well as from North America and Asia.
The discussion on Commission Vice-President Margot Wallström’s blog showed that:
“Ralf - We also get a large number of requests from citizens via our Europe Direct service but I’m afraid it’s not for the Commission to produce a consolidated text of the Treaty, it is for the Council.”
“It’s easy enough to find versions of the Treaty on the web, Ralf has references in his blog. They also exist in Danish and Hungarian to my knowledge.”
***
I have been trying to find consolidated versions of the Reform Treaty, and posted my findings on different occasions, but you may have to wade through a number of postings to find them. For your convenience, I am going to make a fresh posting here, collecting the versions I have found:
Danish
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
English
Institute of European Affairs (Ireland) http://www.iiea.com
Statewatch (professor Steve Peers) http://www.statewatch.org
French
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
German
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Spanish
Real Instituto Elcano (updated after signing)
http://www.realinstitutoelcano.org
Swedish
Sieps – Svenska institutet för europapolitiska studier: Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf); http://www.sieps.se
***
These versions, in Danish, English, French, German, Spanish and Swedish, are the ones I have been able to find.
This makes a total of six languages out of the 23 official languages of the European Union. The Council’s refusal to publish consolidated versions is not only contrary to openness and transparency; EU citizens are not given equal access to readable new Treaties.
I know that Hungary was the first member state to ratify the Treaty of Lisbon, but does anyone have more exact information on the Hungarian consolidated Treaty mentioned by the Administrator on Commissioner Wallström’s blog?
In addition, the Finnish government promised belated consolidations (presumably in Finnish and Swedish) during this spring.
If no other consolidations are found or produced (by actors outside the EU institutions), the rest of the EU citizens have to wait for reader-friendly, consolidated Treaties until the ratification processes are over and the Treaty of Lisbon has entered into force.
***
Dear reader,
If you have additional information, please share it. In addition to consolidated versions, my wish concerns new books on the Lisbon Treaty.
Ralf Grahn
See:
Margot Wallström’s blog: http://blogs.ec.europa.eu/wallstrom/
The discussion on Commission Vice-President Margot Wallström’s blog showed that:
“Ralf - We also get a large number of requests from citizens via our Europe Direct service but I’m afraid it’s not for the Commission to produce a consolidated text of the Treaty, it is for the Council.”
“It’s easy enough to find versions of the Treaty on the web, Ralf has references in his blog. They also exist in Danish and Hungarian to my knowledge.”
***
I have been trying to find consolidated versions of the Reform Treaty, and posted my findings on different occasions, but you may have to wade through a number of postings to find them. For your convenience, I am going to make a fresh posting here, collecting the versions I have found:
Danish
Folketingets EU-Oplysning: Sammenskrevet udgave af udkastet til Lissabon-traktaten og det gaeldande traktatunderlag; Bind 1 Traktater, Bind 2 Protokoller og erklaeringer;
http://www.eu-oplysningen.dk/emner/reformtraktat/reform/sammenskrevet/
English
Institute of European Affairs (Ireland) http://www.iiea.com
Statewatch (professor Steve Peers) http://www.statewatch.org
French
Assemblée nationale : Rapport d’information sur les modifications apportées par le traité de Lisbonne au traité sur l’Union européenne et au traité instituant la Communauté européenne, par M. Axel Poniatowski ; No 439, 28 novembre 2007 ;
http://www.assemblee-nationale.fr/13/pdf/rap-info/i0439.pdf
German
Markus Walther: Das Primärrecht der Europäischen Union; Endfassung, Stand 18. Dezember 2007; (updated after signing)
http://www.mwalther.net/union.html
Spanish
Real Instituto Elcano (updated after signing)
http://www.realinstitutoelcano.org
Swedish
Sieps – Svenska institutet för europapolitiska studier: Ladda ned Lissabonfördraget - Konsoliderad version av EU:s fördrag (pdf); http://www.sieps.se
***
These versions, in Danish, English, French, German, Spanish and Swedish, are the ones I have been able to find.
This makes a total of six languages out of the 23 official languages of the European Union. The Council’s refusal to publish consolidated versions is not only contrary to openness and transparency; EU citizens are not given equal access to readable new Treaties.
I know that Hungary was the first member state to ratify the Treaty of Lisbon, but does anyone have more exact information on the Hungarian consolidated Treaty mentioned by the Administrator on Commissioner Wallström’s blog?
In addition, the Finnish government promised belated consolidations (presumably in Finnish and Swedish) during this spring.
If no other consolidations are found or produced (by actors outside the EU institutions), the rest of the EU citizens have to wait for reader-friendly, consolidated Treaties until the ratification processes are over and the Treaty of Lisbon has entered into force.
***
Dear reader,
If you have additional information, please share it. In addition to consolidated versions, my wish concerns new books on the Lisbon Treaty.
Ralf Grahn
See:
Margot Wallström’s blog: http://blogs.ec.europa.eu/wallstrom/
EU Treaty of Lisbon: CFSP competence
Strong or brittle? Feet of iron or feet of clay? The US Constitution or the Articles of Confederation? These questions deserve some thought when we look at the common foreign and security policy (CFSP) of the European Union as laid out in the Treaty of Lisbon.
***
Basically, you can approach the European Union from two different angles. You can try to ponder what the Union could do for its citizens: external and internal security as well as enhancing prosperity. Or you can reason from a domestic perspective.
A sincere form of ‘special relationship’ would be to emulate the success of the United States of America. The main purposes of that Union were succinctly put by Alexander Hamilton in the Federalist, number XXIII:
“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.
The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”
***
According to the Reform Treaty, the scope of EU competence covers all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.
We have to bear in mind the joint declarations 13 (see previous posting) and 14 (see below), which emphasize the continued freedom of Member States to pursue their national foreign and security policies, regardless of the common interest.
The common foreign and security policy (CFSP) is almost exclusively in the hands of the Member States. The European Council and the Council rule, if they can reach unanimous decisions (as a rule).
The intergovernmental nature of the CFSP means that democratic scrutiny by the European Parliament and judicial review by the Court of Justice are nearly completely excluded. (The external action of the Commission is placed under intergovernmental tutelage.)
If not overridden by national policies or paralysed by dissenting views and vetoes, the Union conducts, defines and implements the CFSP, meant to lead to increasing convergence of Member States’ actions in the long run. The loyalty, solidarity and compliance of Member States are keys to effective common action on the world stage.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) amends Article 11 TEU. In the consolidated version paragraphs 1 and 2 have replaced the existing paragraph 1, and the present paragraph 2 has been renumbered paragraph 3 and amended slightly.
Article 11
1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.
The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 25b of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 240a of the Treaty on the Functioning of the European Union.
2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.
3. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council and the High Representative shall ensure compliance with these principles.
***
Joint Declaration (number 14) concerning the common foreign and security policy continues in the same vein as Declaration 13 to subtract from the consistency of common policy by underlining the independent policies of the Member States, especially the Members of the UN Security Council, and the intergovernmental nature of the policies the Member States happen to agree on, as well as the “specific nature” of the Member States’ security and defence policy:
“In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union, the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the United Nations.
The Conference also notes that the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.”
***
Next time we look at the foreign policy instruments of the EU.
Ralf Grahn
***
Basically, you can approach the European Union from two different angles. You can try to ponder what the Union could do for its citizens: external and internal security as well as enhancing prosperity. Or you can reason from a domestic perspective.
A sincere form of ‘special relationship’ would be to emulate the success of the United States of America. The main purposes of that Union were succinctly put by Alexander Hamilton in the Federalist, number XXIII:
“The necessity of a Constitution, at least equally energetic with the one proposed, to the preservation of the Union is the point at the examination of which we are now arrived.
The principal purposes to be answered by the union are these – the common defense of the members; the preservation of the public peace, as well against internal convulsions as external attacks; the regulation of commerce with other nations and between the States; the superintendence of our intercourse, political and commercial, with foreign countries.”
***
According to the Reform Treaty, the scope of EU competence covers all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy that might lead to a common defence.
We have to bear in mind the joint declarations 13 (see previous posting) and 14 (see below), which emphasize the continued freedom of Member States to pursue their national foreign and security policies, regardless of the common interest.
The common foreign and security policy (CFSP) is almost exclusively in the hands of the Member States. The European Council and the Council rule, if they can reach unanimous decisions (as a rule).
The intergovernmental nature of the CFSP means that democratic scrutiny by the European Parliament and judicial review by the Court of Justice are nearly completely excluded. (The external action of the Commission is placed under intergovernmental tutelage.)
If not overridden by national policies or paralysed by dissenting views and vetoes, the Union conducts, defines and implements the CFSP, meant to lead to increasing convergence of Member States’ actions in the long run. The loyalty, solidarity and compliance of Member States are keys to effective common action on the world stage.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) amends Article 11 TEU. In the consolidated version paragraphs 1 and 2 have replaced the existing paragraph 1, and the present paragraph 2 has been renumbered paragraph 3 and amended slightly.
Article 11
1. The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.
The common foreign and security policy is subject to specific rules and procedures. It shall be defined and implemented by the European Council and the Council acting unanimously, except where the Treaties provide otherwise. The adoption of legislative acts shall be excluded. The common foreign and security policy shall be put into effect by the High Representative of the Union for Foreign Affairs and Security Policy and by Member States, in accordance with the Treaties. The specific role of the European Parliament and of the Commission in this area is defined by the Treaties. The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 25b of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 240a of the Treaty on the Functioning of the European Union.
2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States' actions.
3. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council and the High Representative shall ensure compliance with these principles.
***
Joint Declaration (number 14) concerning the common foreign and security policy continues in the same vein as Declaration 13 to subtract from the consistency of common policy by underlining the independent policies of the Member States, especially the Members of the UN Security Council, and the intergovernmental nature of the policies the Member States happen to agree on, as well as the “specific nature” of the Member States’ security and defence policy:
“In addition to the specific rules and procedures referred to in paragraph 1 of Article 11 of the Treaty on European Union, the Conference underlines that the provisions covering the Common Foreign and Security Policy including in relation to the High Representative of the Union for Foreign Affairs and Security Policy and the External Action Service will not affect the existing legal basis, responsibilities, and powers of each Member State in relation to the formulation and conduct of its foreign policy, its national diplomatic service, relations with third countries and participation in international organisations, including a Member State’s membership of the Security Council of the United Nations.
The Conference also notes that the provisions covering the Common Foreign and Security Policy do not give new powers to the Commission to initiate decisions nor do they increase the role of the European Parliament.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.”
***
Next time we look at the foreign policy instruments of the EU.
Ralf Grahn
Wednesday, 9 January 2008
EU Treaty of Lisbon: Foreign and security policy
One the one hand, the governments of the Member States of the European Union find it necessary to join their forces by creating a common foreign and security policy (CFSP), including a common security and defence policy (CSDP). On the other hand, these same governments are loath to give up their formal sovereignty. Therefore, in addition to the amended Treaty provisions, including requirements for unanimous decisions, they agree on a joint declaration, which says, in effect, that they can continue to do what they very well please.
The amended Treaty on European Union (TEU) has to be read in conjunction with Declaration (number 13) concerning the common foreign and security policy:
“The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the Establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.”
***
Your glossator is caught thinking that such inconsistencies translate into weaknesses. Dealing with the great and rising powers of the world will continue to be based on the eventual good will of the Member States of the EU.
The declaration seems to be unclear enough to offer an escape route for almost any occasion, should a Member State choose to distance itself from the common efforts to achieve a consistent EU policy. Every Member State would seem to be able to release itself from responsibility concerning the formulation and conduct of its foreign policy in general and its national representation in third countries and international organisations, as well as in all questions pertaining to the “specific character” (whatever that is) of its security and defence policy. A special escape clause seems to be on offer for the members of the Security Council of the United Nations, especially the permanent members France and the United Kingdom.
On this basis, is the Reform Treaty going to create a “superstate”, a “superpower”, a “great power” or a “great regional power”?
What do the coming arrangements resemble more, the Constitution of the United States of America (1787) or the Articles of Confederation (1778) and the Continental Congress, which nearly lost the colonies the war for independence?
***
The IGC 2007 Mandate (Council document 11218/07, point 15) said: The second Chapter contains the provisions of Title V of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. (Footnote 6 contained the text of the declaration mentioned above.)
After Chapter 1 General provisions on the Union’s external action, follows Chapter 2 Specific provisions on the common foreign and security policy. The new first Article (10c TEU) in Chapter 2 refers to the provisions in Chapter 1, and it forms a bridge between the two chapters. .
***
The Treaty of Lisbon (OJ 17.12.2007, C 306), Chapter 2 Specific provisions on the common foreign and security policy, Section 1 Common provisions, inserts an Article 10c TEU.
Article 10c
The Union’s action on the international scene, pursuant to this Chapter, shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions laid down in Chapter 1.
***
Next time we turn to the CFSP competence of the European Union.
Ralf Grahn
The amended Treaty on European Union (TEU) has to be read in conjunction with Declaration (number 13) concerning the common foreign and security policy:
“The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of High Representative of the Union for Foreign Affairs and Security Policy and the Establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the European Union and its Member States will remain bound by the provisions of the Charter of the United Nations and, in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.”
***
Your glossator is caught thinking that such inconsistencies translate into weaknesses. Dealing with the great and rising powers of the world will continue to be based on the eventual good will of the Member States of the EU.
The declaration seems to be unclear enough to offer an escape route for almost any occasion, should a Member State choose to distance itself from the common efforts to achieve a consistent EU policy. Every Member State would seem to be able to release itself from responsibility concerning the formulation and conduct of its foreign policy in general and its national representation in third countries and international organisations, as well as in all questions pertaining to the “specific character” (whatever that is) of its security and defence policy. A special escape clause seems to be on offer for the members of the Security Council of the United Nations, especially the permanent members France and the United Kingdom.
On this basis, is the Reform Treaty going to create a “superstate”, a “superpower”, a “great power” or a “great regional power”?
What do the coming arrangements resemble more, the Constitution of the United States of America (1787) or the Articles of Confederation (1778) and the Continental Congress, which nearly lost the colonies the war for independence?
***
The IGC 2007 Mandate (Council document 11218/07, point 15) said: The second Chapter contains the provisions of Title V of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. (Footnote 6 contained the text of the declaration mentioned above.)
After Chapter 1 General provisions on the Union’s external action, follows Chapter 2 Specific provisions on the common foreign and security policy. The new first Article (10c TEU) in Chapter 2 refers to the provisions in Chapter 1, and it forms a bridge between the two chapters. .
***
The Treaty of Lisbon (OJ 17.12.2007, C 306), Chapter 2 Specific provisions on the common foreign and security policy, Section 1 Common provisions, inserts an Article 10c TEU.
Article 10c
The Union’s action on the international scene, pursuant to this Chapter, shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with, the general provisions laid down in Chapter 1.
***
Next time we turn to the CFSP competence of the European Union.
Ralf Grahn
Tuesday, 8 January 2008
EU Treaty of Lisbon: Foreign policy strategies
When the Heads of State or Government convene in the European Council, they have the option to make strategic decisions for the citizens of the European Union, but every one of the leaders bears a lock which can lead to paralysis: veto power.
The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).
In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.
***
The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:
“1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action of the Union.”
***
The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).
The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.
***
A few remarks by your glossator:
Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.
Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).
They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.
The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.
Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.
The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.
According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.
Article 10b
1. On the basis of the principles and objectives set out in Article 10 A, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Next, we are going to look at the specific provisions on the common foreign and security policy.
Ralf Grahn
The Reform Treaty formally makes the European Council an institution of the EU (Article 9 TEU), arguably the most important one, which shall “provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof” in general (Article 9b TEU).
In the fields of foreign and security policy, including all external action, the Lisbon Treaty proposes to further underline the decisive role of the European Council.
***
The existing Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) Article 13 TEU says:
“1. The European Council shall define the principles of and general guidelines for the common foreign and security policy, including for matters with defence implications.
2. The European Council shall decide on common strategies to be implemented by the Union in areas where the Member States have important interests in common.
Common strategies shall set out their objectives, duration and the means to be made available by the Union and the Member States.
3. The Council shall take the decisions necessary for defining and implementing the common foreign and security policy on the basis of the general guidelines defined by the European Council.
The Council shall recommend common strategies to the European Council and shall implement them, in particular by adopting joint actions and common positions.
The Council shall ensure the unity, consistency and effectiveness of action of the Union.”
***
The Convention proposed an Article III-194 underlining the strategic importance of the European Council. This was taken over as Article III-293 in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310).
The Lisbon Treaty takes over the substance of this provision. The differences are caused by the terminology of the Reform Treaty: “Article III-292” has become “Article 10 A”, “European decisions” have become “Decisions” and the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”.
***
A few remarks by your glossator:
Potentially, 490 million inhabitants, who form the world’s largest trading block and greatest giver of development aid, and with the guiding principles mentioned in the new Article 10a TEU, could have a decisive impact on the world stage. The EU could enhance the security and prosperity of EU citizens as well as contribute to a better world.
Although the EU Member States themselves are democratic, they have not been able to agree to base their common external relations on democratic governance at the Union level. On the contrary, in the field of foreign and security policy (CFSP) they have chosen to strengthen the intergovernmental character of policy making, and to take over the external relations of the Commission (‘Community’).
They have felt the need for more effective decision making and implementation, but have been unwilling to cross the threshold. Even if the individual Member States are increasingly unable to deal with global challenges on their own, they continue to cherish their formal sovereignty.
The Lisbon Treaty is a result of these conflicting pressures. The European Council becomes the supreme foreign policy ‘government’ of the European Union, but it can act effectively only if every one of its members joins in a unanimous decision. Conversely, every Member State government can decide to let its perceived national interest override the common good. Even if compromises are patched together, suboptimal decisions are likely to result.
Dealing with the world’s unitary powers, the EU is at a disadvantage. More or less lacking “hard power” and with “soft power” often just a fig leaf for lack of consistent policy, the EU continues to be a yacht for fair weather sailing. ‘Liberum veto’ is an invitation to ‘divide et impera’ by other great powers.
The leaders of the Member States have designated their own institution, the European Council, as the prime mover, especially in all the fields of foreign policy. Consequently, the responsibility is theirs. When Europe fails, the failure is theirs.
According to the Treaty of Lisbon, it is up to the European Council to identify the strategic interests and objectives of the Union and to reach unanimous decisions based on the principles in Article 10a. The need for independent foreign policy analysis is going to be great.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 10b TEU.
Article 10b
1. On the basis of the principles and objectives set out in Article 10 A, the European Council shall identify the strategic interests and objectives of the Union.
Decisions of the European Council on the strategic interests and objectives of the Union shall relate to the common foreign and security policy and to other areas of the external action of the Union. Such decisions may concern the relations of the Union with a specific country or region or may be thematic in approach. They shall define their duration, and the means to be made available by the Union and the Member States.
The European Council shall act unanimously on a recommendation from the Council, adopted by the latter under the arrangements laid down for each area. Decisions of the European Council shall be implemented in accordance with the procedures provided for in the Treaties.
2. The High Representative of the Union for Foreign Affairs and Security Policy, for the area of common foreign and security policy, and the Commission, for other areas of external action, may submit joint proposals to the Council.
***
Next, we are going to look at the specific provisions on the common foreign and security policy.
Ralf Grahn
Monday, 7 January 2008
EU Treaty of Lisbon: External action
The external action of the European Union and the European Community aims to strengthen the security and to enhance the prosperity of the citizens of the EU. The Reform Treaty merges the European Union into the European Union, abolishing the pillar structure but not the intergovernmental decision making procedures specific to the common foreign and security policy or the common security and defence policy.
In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.
The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.
Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.
***
The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
The present Article 11 TEU says:
“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council shall ensure that these principles are complied with.”
***
The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)
This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:
“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).
---
(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.
(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”
***
Your glossator’s remarks:
The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.
Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.
The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.
Article 10a
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
***
Next time we turn to the strategic role of the European Council.
Ralf Grahn
In addition to the common foreign and security policy (CFSP) and the common security and defence policy (CSDP), the external action of the European Union encompasses the now EC areas of competence: the common commercial policy and development cooperation as well as economic, financial and technical cooperation with third countries. The external aspects of the area of freedom, security and justice (e.g. external border control, migration, terrorism, transborder crime) are becoming increasingly important.
The scale of the challenges is growing, but the ability of individual European countries to deal effectively with the threats and opportunities of globalisation is decreasing. This includes the former European great powers. The United Nations and its agencies are important global forums, but too weak to deal decisively with global issues.
Ideally, the European Union could strengthen peace, stability and progress in the Union and the world.
***
The existing Article 3(2) TEU states (latest consolidated version OJ 29.12.2006 C 321 E): The Union shall in particular ensure the consistency of its external activities as a whole in the context of its external relations, security, economic and development policies. The Council and the Commission shall be responsible for ensuring such consistency and shall cooperate to this end. They shall ensure the implementation of these policies, each in accordance with its respective powers.
The present Article 11 TEU says:
“1. The Union shall define and implement a common foreign and security policy covering all areas of foreign and security policy, the objectives of which shall be:
- to safeguard the common values, fundamental interests, independence and integrity of the Union in conformity with the principles of the United Nations Charter,
- to strengthen the security of the Union in all ways,
- to preserve peace and strengthen international security, in accordance with the principles of the United Nations Charter, as well as the principles of the Helsinki Final Act and the objectives of the Paris Charter, including those on external borders,
- to promote international cooperation,
- to develop and consolidate democracy and the rule of law, and respect for human rights and fundamental freedoms.
2. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity.
The Member States shall work together to enhance and develop their mutual political solidarity. They shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations.
The Council shall ensure that these principles are complied with.”
***
The Convention proposed some steps towards a more coherent foreign policy for the EU, starting with the general principles named in Article III-193. The contents were taken over, first in Article III-292 of the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) and then in the Treaty of Lisbon, as Article 10a TEU. (Only the “Union Minister for Foreign Affairs” became the “High Representative of the Union for Foreign Affairs and Security Policy” in Article 10a(3) second subparagraph.)
This was in accordance with the IGC 2007 Mandate (Council document 11218/07, point 15), which gives an overview of what was to become the Reform Treaty:
“15. In Title V of the existing TEU, a first new Chapter on the general provisions on the Union’s external action will be inserted containing two Articles, as agreed in the 2004 IGC, on the principles and objectives of the Union’s external action and on the role of the European Council in setting the strategic interests and objectives of this action. The second Chapter contains the provisions of Title V (6) of the existing TEU, as amended in the 2004 IGC (including the European External Action Service and the permanent structured cooperation in the field of defence). In this Chapter, a new first Article will be inserted stating that the Union’s action on the international scene will be guided by the principles, will pursue the objectives and will be conducted in accordance with the general provisions on the Union’s external action which are laid down in Chapter 1. It will be clearly specified in this Chapter that the CFSP is subject to specific procedures and rules. There will also be a specific legal base on personal data protection in the CFSP area (7).
---
(6) The IGC will agree on the following Declaration: The Conference underlines that the provisions in the Treaty on European Union covering the Common Foreign and Security Policy, including the creation of the office of the High Representative of the Union for Foreign Affairs and Security Policy and the establishment of an External Action Service, do not affect the responsibilities of the Member States, as they currently exist, for the formulation and conduct of their foreign policy nor of their national representation in third countries and international organisations.
The Conference also recalls that the provisions governing the Common Security and Defence Policy do not prejudice the specific character of the security and defence policy of the Member States.
It stresses that the EU and its Member States will remain bound by the provisions of the Charter of the United Nations and in particular, by the primary responsibility of the Security Council and of its Members for the maintenance of international peace and security.
(7) With regard to the processing of such data by the Member States when carrying out activities which fall within the CFSP and ESDP and the movement of such data.”
***
Your glossator’s remarks:
The principles to guide the external action of the European Union seem to be balanced and uncontested. The problems start with the means to reach the desired aims, as shown by later Treaty provisions and Declarations annexed to the Reform Treaty.
Opposing views have been presented on if the Lisbon Treaty is going to create a European Union which is a “superstate” or “superpower”. On the whole, my answer would be that better internal coordination of preparation and implementation of foreign policy does contribute to more consistent policy actions in the future, but fundamentally the EU remains at the mercy of the individual Member States and their ‘liberum veto’.
The EU will continue to punch below its weight, but perhaps a little bit less so than presently. With the common foreign and security policy of the EU continuing within the sphere of intergovernmental cooperation, democratic scrutiny and accountability of the external action are going to be weak.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306), TEU Title V is called General provisions on the Union’s external action and specific provisions on the common foreign and security policy. A Chapter 1 General provisions on the Union’s external action is inserted, starting with an Article 10a.
Article 10a
1. The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law.
The Union shall seek to develop relations and build partnerships with third countries, and international, regional or global organisations which share the principles referred to in the first subparagraph. It shall promote multilateral solutions to common problems, in particular in the framework of the United Nations.
2. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to:
(a) safeguard its values, fundamental interests, security, independence and integrity;
(b) consolidate and support democracy, the rule of law, human rights and the principles of international law;
(c) preserve peace, prevent conflicts and strengthen international security, in accordance with the purposes and principles of the United Nations Charter, with the principles of the Helsinki Final Act and with the aims of the Charter of Paris, including those relating to external borders;
(d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty;
(e) encourage the integration of all countries into the world economy, including through the progressive abolition of restrictions on international trade;
(f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development;
(g) assist populations, countries and regions confronting natural or man-made disasters; and
(h) promote an international system based on stronger multilateral cooperation and good global governance.
3. The Union shall respect the principles and pursue the objectives set out in paragraphs 1 and 2 in the development and implementation of the different areas of the Union's external action covered by this Title and by Part Five of the Treaty on the Functioning of the European Union, and of the external aspects of its other policies.
The Union shall ensure consistency between the different areas of its external action and between these and its other policies. The Council and the Commission, assisted by the High Representative of the Union for Foreign Affairs and Security Policy, shall ensure that consistency and shall cooperate to that effect.
***
Next time we turn to the strategic role of the European Council.
Ralf Grahn
Sunday, 6 January 2008
EU Treaty of Lisbon: Enhanced cooperation
How can Member States advance without being held back by less integrationist countries? Articles 43 to 45 of the Treaty on European Union (TEU; latest consolidation OJ 29.12.2006, C 321 E) offer the possibility for a group of states to establish enhanced cooperation between themselves within the institutional framework of the EU (EC).
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
Despite Treaty adjustments, the provisions on enhanced cooperation have not been used until now. Although the final stage of Economic and Monetary Union (EMU) leading to the introduction of the euro currency has taken place between an expanding group of countries, it is based on Treaty provisions. (From the beginning of 2008 fifteen Member States share the common currency.)
The Schengen and Prüm Treaties originated between Member States, but outside the institutional framework of the EU.
The conditions for enhanced cooperation have been seen as too restrictive.
Article I-43 of the Convention was modified to become Article I-44 Enhanced cooperation in the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310). Article 10 TEU of the Treaty of Lisbon (OJ 17.12.2007, C 306) takes on the core contents, with modifications caused by the new Treaty terminology and detailed voting provisions moved to the Treaty on the functioning of the European Union (TFEU). The most concrete change was, in accordance with the IGC 2007 Mandate (document 11218/07, point 14), to fix the minimum number of participating states at nine, regardless of further enlargement of the Union.
***
Today’s remarks by your glossator:
Enhanced cooperation is a tool of last resort for more effective cooperation within the scope of the Treaties and within the institutional framework of the European Union. It starts between a group of countries, but other Member States, willing and able, can join later. The decisions are made by the participating states, but they do not form part of the ‘acquis communautaire’, the common body of EU law.
For an overview of the innovations in the Lisbon Treaty, I quote “Enhanced cooperation: From theory to practice” (page 101):
“Three innovations are meant to facilitate the triggering of enhanced cooperation.
* Firstly, the last resort condition has been clarified and downgraded: a deadlock in the decision-making process can now be established by the Council in the initial decision authorizing enhanced cooperation.
* Secondly, the initial authorizing decision shall be enacted by qualified majority without further qualifications (except CFSP).
* Thirdly, the authorizing decision may lay down conditions for participation, to test the capacity, or the good will, of the initial participating Member States. This aims at preventing the participation of unwilling Member States, only interested in keeping some influence on the development of enhanced cooperation, or even impeding it.”
On potential areas of enhanced cooperation, I quote the same publication (page 113):
“Potential areas of application can be identified. In spite of the existing forms of flexibility, enhanced cooperation is not ruled out in the area of freedom, security and justice, nor in the EMU, notably to strengthen economic coordination between the Euro States. Other areas include Community policies governed by unanimity like taxation, social policy, but also European citizenship. Conversely, enhanced cooperation would seem to be of little use in the field of CFSP and Defence.”
The comparison between cooperation outside and within the institutional framework merits a third quote from the publication mentioned (page 114):
“Compared to intergovernmental cooperation outside the Union, the enhanced cooperation mechanism is advantageous: it maintains the community method, parliamentary and judicial control, and guarantees for the non-participants. Compared to predefined systems of flexibility (Euro, Schengen): it can create functioning subsystem without needing an IGC, it is more general and coherent a system, and through the “passerelle” clause it can modify its internal decision making system.”
Politically, it is going to be interesting to see if further core groups of Member States are going to be formed, and if this is going to make minimalist countries to be perceived as even more marginal than they are today from a dynamic point of view.
***
In the Treaty of Lisbon (OJ 17.12.2007, C 306) Title IV becomes Provisions on enhanced cooperation with an Article 10.
Article 10
1. Member States which wish to establish enhanced cooperation between themselves within the framework of the Union's non-exclusive competences may make use of its institutions and exercise those competences by applying the relevant provisions of the Treaties, subject to the limits and in accordance with the detailed arrangements laid down in this Article and in Articles 280 A to 280 I of the Treaty on the Functioning of the European Union.
Enhanced cooperation shall aim to further the objectives of the Union, protect its interests and reinforce its integration process. Such cooperation shall be open at any time to all Member States, in accordance with Article 280 C of the Treaty on the Functioning of the European Union.
2. The decision authorising enhanced cooperation shall be adopted by the Council as a last resort, when it has established that the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and provided that at least nine Member States participate in it. The Council shall act in accordance with the procedure laid down in Article 280 D of the Treaty on the Functioning of the European Union.
3. All members of the Council may participate in its deliberations, but only members of the Council representing the Member States participating in enhanced cooperation shall take part in the vote. The voting rules are set out in Article 280 E of the Treaty on the Functioning of the European Union.
4. Acts adopted in the framework of enhanced cooperation shall bind only participating Member States. They shall not be regarded as part of the acquis which has to be accepted by candidate States for accession to the Union.
***
A presentation of the Union’s external action will follow.
Ralf Grahn
Source:
Enhanced cooperation: From theory to practice (p. 97-119), in EPC, Egmont & CEPS: The Treaty of Lisbon: Implementing the Institutional Innovations; November 2007
Saturday, 5 January 2008
EU Treaty of Lisbon: Court of Justice
The Court of Justice has existed since the beginning of the European Coal and Steel Community. Article 220 of the Treaty establishing the European Community (TEC) sets out: The Court of Justice and the Court of First Instance, each within its jurisdiction, shall ensure that in the interpretation and application of this Treaty the law is observed. – Articles 220 to 245 TEC contain detailed provisions.
The Convention dedicated Article I-28 to the Court of Justice. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) included an Article I-29 The Court of Justice of the European Union.
***
Comments by your glossator:
Legal order or wish-list? If government bodies and courts in the Member States were free to apply or disregard European Community acts, the ‘acquis communautaire’ would be just a collection of political declarations. Therefore, it is a logical necessity that Community legislation takes precedence over incompatible national legislation. Only thus can natural persons and firms get the legal protection guaranteed by Community law.
Naturally, primacy concerns only areas where the Community has powers to legislate (e.g. internal market); powers not conferred upon the EC rest with the Member States.
The Constitutional Treaty would have admitted this frankly. Article I-6 Union law said:
“The Constitution and law adopted by the institutions of the Union in exercising competences conferred upon it shall have primacy over the law of the Member States.”
It can therefore be seen as a test of the maturity of public opinion and government in some Member States that the intergovernmental conference (IGC 2007) struck the provision on primacy from the Lisbon Treaty.
Instead, the IGC 2007 tucked away this corner stone of the EU edifice in a Declaration (number 17) concerning primacy, supplemented by an Opinion of the Council Legal Service:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
---
(1) It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
***
Should a citizen of the European Union thank the voters in France and the Netherlands who, in effect, landed us with the contortionist act called the Reform Treaty?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9f TEU on the Court of Justice of the European Union.
Article 9f
1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The judges and the Advocates-General of the Court of Justice and the judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 223 and 224 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring judges and Advocates-General may be reappointed.
3. The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
***
Ralf Grahn
The Convention dedicated Article I-28 to the Court of Justice. The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) included an Article I-29 The Court of Justice of the European Union.
***
Comments by your glossator:
Legal order or wish-list? If government bodies and courts in the Member States were free to apply or disregard European Community acts, the ‘acquis communautaire’ would be just a collection of political declarations. Therefore, it is a logical necessity that Community legislation takes precedence over incompatible national legislation. Only thus can natural persons and firms get the legal protection guaranteed by Community law.
Naturally, primacy concerns only areas where the Community has powers to legislate (e.g. internal market); powers not conferred upon the EC rest with the Member States.
The Constitutional Treaty would have admitted this frankly. Article I-6 Union law said:
“The Constitution and law adopted by the institutions of the Union in exercising competences conferred upon it shall have primacy over the law of the Member States.”
It can therefore be seen as a test of the maturity of public opinion and government in some Member States that the intergovernmental conference (IGC 2007) struck the provision on primacy from the Lisbon Treaty.
Instead, the IGC 2007 tucked away this corner stone of the EU edifice in a Declaration (number 17) concerning primacy, supplemented by an Opinion of the Council Legal Service:
“The Conference recalls that, in accordance with well settled case law of the Court of Justice of the European Union, the Treaties and the law adopted by the Union on the basis of the Treaties have primacy over the law of Member States, under the conditions laid down by said case law.
The Conference has also decided to attach as an Annex to this Final Act the Opinion of the Council Legal Service on the primacy of EC law as set out in 11197/07 (JUR 260):
Opinion of the Council Legal Service of 22 June 2007
It results from the case-law of the Court of Justice that primacy of EC law is a cornerstone principle of Community law. According to the Court, this principle is inherent to the specific nature of the European Community. At the time of the first judgment of this established case law (Costa/ENEL, 15 July 1964, Case 6/641 (1) there was no mention of primacy in the treaty. It is still the case today. The fact that the principle of primacy will not be included in the future treaty shall not in any way change the existence of the principle and the existing case-law of the Court of Justice.
---
(1) It follows (…) that the law stemming from the treaty, an independent source of law, could not, because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as Community law and without the legal basis of the Community itself being called into question.”
***
Should a citizen of the European Union thank the voters in France and the Netherlands who, in effect, landed us with the contortionist act called the Reform Treaty?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9f TEU on the Court of Justice of the European Union.
Article 9f
1. The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts. It shall ensure that in the interpretation and application of the Treaties the law is observed.
Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law.
2. The Court of Justice shall consist of one judge from each Member State. It shall be assisted by Advocates-General.
The General Court shall include at least one judge per Member State.
The judges and the Advocates-General of the Court of Justice and the judges of the General Court shall be chosen from persons whose independence is beyond doubt and who satisfy the conditions set out in Articles 223 and 224 of the Treaty on the Functioning of the European Union. They shall be appointed by common accord of the governments of the Member States for six years. Retiring judges and Advocates-General may be reappointed.
3. The Court of Justice of the European Union shall, in accordance with the Treaties:
(a) rule on actions brought by a Member State, an institution or a natural or legal person;
(b) give preliminary rulings, at the request of courts or tribunals of the Member States, on the interpretation of Union law or the validity of acts adopted by the institutions;
(c) rule in other cases provided for in the Treaties.
***
Ralf Grahn
Friday, 4 January 2008
EU Treaty of Lisbon: High Representative
Is the European Union entering the Facebook era? Perhaps not, but the Lisbon Treaty would go some way towards giving the EU recognisable leading personalities. The new President of the European Council is the clearest example, since this is a new post. If the candidate of the largest political party emerging from the European Parliament elections becomes Commission President, he or she will at the outset be much more of a European figure than the Presidents who until now have been sifted out by the European leaders behind closed doors. The High Representative already exists (presently Javier Solana), but the new High Representative of the Union for Foreign Affairs and Security Policy is going to take over the external action of the European Commission, as Vice-President, and lead the External action service of the EU.
***
Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:
“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.
The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:
“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”
Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.
***
A few comments from your glossator:
The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.
With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.
Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.
The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.
The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.
Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.
Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).
Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.
Article 9e
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.
3. The High Representative shall preside over the Foreign Affairs Council.
4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.
***
The renamed Court of Justice of the European Union is going to be next.
Ralf Grahn
***
Presently the Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) sets out the tasks of the High Representative in the following way in Article 26 TEU:
“The Secretary General of the Council, High Representative for the common foreign and security policy, shall assist the Council in matters coming within the scope of the common foreign and security policy, in particular through contributing to the formulation, preparation, and implementation of policy decisions, and, when appropriate and acting on behalf of the Council at the request of the Presidency, through conducting political dialogue with third parties.”
The Convention proposed a Minister for Foreign Affairs, in Article I-27, one of its most important institutional innovations. The new Foreign Minister would unite the beginnings of a common foreign, security and defence policy of the Council with the external action, including the resources, of the Commission under a “double hat”, as High Representative and Vice-President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) all the Member States signed up to the Treaty, including Article I-28 The Union Minister for Foreign Affairs. Article I-28(3) added the following provision: The Union Minister for Foreign Affairs shall preside over the Foreign Affairs Council.
The mandate for the intergovernmental conference (IGC 2007; Council document 11218/07) gives a picture of the differences and likenesses between the constitutional setting and the amending Reform Treaty, including the fate of the Minister for Foreign Affairs:
“3. The TEU and the Treaty on the Functioning of the Union will not have a constitutional character. The terminology used throughout the Treaties will reflect this change: the term “Constitution” will not be used, the “Union Minister for Foreign Affairs” will be called High Representative of the Union for Foreign Affairs and Security Policy and the denominations “law” and “framework law” will be abandoned, the existing denominations “regulations”, “directives” and “decisions” being retained. Likewise, there will be no article in the amended Treaties mentioning the symbols of the EU such as the flag, the anthem or the motto. Concerning the primacy of EU law, the IGC will adopt a Declaration recalling the existing case law of the EU Court of Justice.”
Reneging on its signature, the United Kingdom had thus created, among other things, the word monster High Representative of the Union for Foreign Affairs and Security Policy and Vice-President of the Commission.
***
A few comments from your glossator:
The Lisbon Treaty devalues the rotating six month Presidency of the Council by creating a semi-permanent President for the European Council, who chairs the summits and represents the Union “at his level and in that capacity”, and by the High Representative/Vice-President, who chairs the Foreign Affairs Council and represents the EU externally.
With about 14 years between the Presidencies, it would be difficult for a Member State to keep up the proficiency to handle these questions. Within the very real constraints of decision making by consensus or unanimity, which mean that the European Union is bound to remain much less than a great power in foreign, security and defence policy, the new posts will give more coherence to Union policies if such have been defined.
Internally, the High Representative/Vice-President should be able, eventually, to coordinate the external action of the European Union better. At the same time, the Lisbon Treaty can be seen more as a takeover by the Member States of the ‘Community’ (Commission) external action and its resources than the other way around. Thus, the common foreign, security and defence policies are further entrenched as intergovernmental playing fields, outside the scope of effective democratic scrutiny by the European Parliament.
The High Representative is relieved of his functions as Secretary General of the Council, opening up a coveted position for a “grey eminence”. In the near future the governments of the Member States are going to be intensely occupied with the filling of these offices (President of the European Council, High Representative/Vice-President, Commission President, Secretary General). These processes tend to be less than transparent.
The citizens of the Union can do very little to influence the choices; voting for a political party in the June 2009 elections to the European Parliament may influence the political alignment and person of the next President of the European Commission.
Alongside the nominations, the drafting of a new European Security Strategy has commenced, to replace the ESS of December 2003. Developed guidelines to handle the various security threats of our era would be welcome, as well as clear advances towards common defence commitments.
Interestingly, the EU Treaties are denounced, from different quarters, as being emanations of “socialist plots” and “ultra-liberalistic projects” set in stone. Snappier basic documents in a democratic setting would leave the economic policy orientations to fought out at elections, but objectively the security interests are common to all citizens (despite substantial variations in perceptions and rhetoric).
Long term, the security interests of EU citizens call for effective decision making and democratic scrutiny. The need for institutional reforms is far from over.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9e.
Article 9e
1. The European Council, acting by a qualified majority, with the agreement of the President of the Commission, shall appoint the High Representative of the Union for Foreign Affairs and Security Policy. The European Council may end his term of office by the same procedure.
2. The High Representative shall conduct the Union's common foreign and security policy. He shall contribute by his proposals to the development of that policy, which he shall carry out as mandated by the Council. The same shall apply to the common security and defence policy.
3. The High Representative shall preside over the Foreign Affairs Council.
4. The High Representative shall be one of the Vice-Presidents of the Commission. He shall ensure the consistency of the Union's external action. He shall be responsible within the Commission for responsibilities incumbent on it in external relations and for coordinating other aspects of the Union's external action. In exercising these responsibilities within the Commission, and only for these responsibilities, the High Representative shall be bound by Commission procedures to the extent that this is consistent with paragraphs 2 and 3.
***
The renamed Court of Justice of the European Union is going to be next.
Ralf Grahn
Thursday, 3 January 2008
Daniel Hannan digs the US Constitution
The best things can always be briefly stated, were Daniel Hannan’s words about the US constitution:
“The Lisbon Treaty, say its advocates, is shorter than the old European Constitution. Where the previous draft ran to 349 pages, the new one is a mere 287. (As opposed to my copy of the US constitution which, with all 27 amendments, runs to a mere 18: the best things can always be briefly stated.)”
***
Briefly stated, perhaps the next European Constitution will start to propel the ‘Federal Republic of Europe’ towards the greatness achieved long ago by the United States of America.
Ralf Grahn
Source:
Daniel Hannan: Testing our intelligence with the Treaty; Telegraph blog, 2 January 2008;
http://blogs.telegraph.co.uk/politics/danielhannan/jan08/lisbontreaty.htm
“The Lisbon Treaty, say its advocates, is shorter than the old European Constitution. Where the previous draft ran to 349 pages, the new one is a mere 287. (As opposed to my copy of the US constitution which, with all 27 amendments, runs to a mere 18: the best things can always be briefly stated.)”
***
Briefly stated, perhaps the next European Constitution will start to propel the ‘Federal Republic of Europe’ towards the greatness achieved long ago by the United States of America.
Ralf Grahn
Source:
Daniel Hannan: Testing our intelligence with the Treaty; Telegraph blog, 2 January 2008;
http://blogs.telegraph.co.uk/politics/danielhannan/jan08/lisbontreaty.htm
EU Treaty of Lisbon: European Commission
The European Union has become a victim of its own success. Institutional arrangements designed for the original Communities with six Member States have had to accommodate 27 members and the prospect of more entrants. Successive Treaty reforms, including the Lisbon Treaty, have tried to address the needs of an enlarged Union.
The Member States have, reluctantly, agreed to limit the future size of the Commission, but they have not been able to renounce the principle of national representation. Consequently, the Treaty of Lisbon introduces a system of equal rotation from 2014, which means that the next Commission, from 2009, is going to have one representative from each Member State.
***
Articles 211 to 219 of the existing Treaty establishing the European Community (TEC; latest consolidated version OJ 29.12.2006, C 321 E) deal with the Commission.
The Convention proposed two Articles on the Commission, I-25 on the European Commission and I-26 on its President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) the Member States signed on to Article I-26 The European Commission and Article I-27 The President of the European Commission.
***
I decided not to compare the various stages from the existing Treaties to the Lisbon Treaty. A few general comments from an EU citizen:
The European Commission shall promote the general interest of the Union. Subject to democratic scrutiny by the European Parliament, the Commission’s mission is, or should be, near the interests of the citizens of the Union.
On the whole, the Commission’s powers to propose legislation and to act as guardian of the Treaties, is in the interests of the citizens of the EU.
The June 2009 elections to the European Parliament are going to become more interesting if the European political parties nominate their candidates for the office of President of the Commission. But the rest of the Commission is still going to consist of Member State appointees.
A long term view would be to create a democratically accountable executive based on the election results. This would call for further reforms making clearer distinctions between political leadership (norms, resources, objectives) and more apolitical regulatory and management functions (delegated to various bodies).
But would politically responsible members of the Commission be less conscious of the general interest or less independent than the present ones, who are more or less directly appointed by the Member States?
The new ‘Commission’ would shoulder the executive powers of the Union, including foreign, security and defence policy. Democratic scrutiny would be exercised by a European Parliament with a directly elected first chamber representing the citizens and a second chamber representing the Member States.
The Lisbon Treaty is a halfway house between democratic accountability and Member States’ representation concerning the European Commission.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9d into the Treaty on European Union (TEU).
Article 9d
1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.
2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
3. The Commission's term of office shall be five years.
The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 9 E(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.
4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014 shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 211a of the Treaty on the Functioning of the European Union.
6. The President of the Commission shall:
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 9 E(1), if the President so requests.
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 201 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties that he carries out in the Commission.
***
The High Representative of the Union for Foreign Affairs and Security Policy is next.
Ralf Grahn
The Member States have, reluctantly, agreed to limit the future size of the Commission, but they have not been able to renounce the principle of national representation. Consequently, the Treaty of Lisbon introduces a system of equal rotation from 2014, which means that the next Commission, from 2009, is going to have one representative from each Member State.
***
Articles 211 to 219 of the existing Treaty establishing the European Community (TEC; latest consolidated version OJ 29.12.2006, C 321 E) deal with the Commission.
The Convention proposed two Articles on the Commission, I-25 on the European Commission and I-26 on its President.
In the Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) the Member States signed on to Article I-26 The European Commission and Article I-27 The President of the European Commission.
***
I decided not to compare the various stages from the existing Treaties to the Lisbon Treaty. A few general comments from an EU citizen:
The European Commission shall promote the general interest of the Union. Subject to democratic scrutiny by the European Parliament, the Commission’s mission is, or should be, near the interests of the citizens of the Union.
On the whole, the Commission’s powers to propose legislation and to act as guardian of the Treaties, is in the interests of the citizens of the EU.
The June 2009 elections to the European Parliament are going to become more interesting if the European political parties nominate their candidates for the office of President of the Commission. But the rest of the Commission is still going to consist of Member State appointees.
A long term view would be to create a democratically accountable executive based on the election results. This would call for further reforms making clearer distinctions between political leadership (norms, resources, objectives) and more apolitical regulatory and management functions (delegated to various bodies).
But would politically responsible members of the Commission be less conscious of the general interest or less independent than the present ones, who are more or less directly appointed by the Member States?
The new ‘Commission’ would shoulder the executive powers of the Union, including foreign, security and defence policy. Democratic scrutiny would be exercised by a European Parliament with a directly elected first chamber representing the citizens and a second chamber representing the Member States.
The Lisbon Treaty is a halfway house between democratic accountability and Member States’ representation concerning the European Commission.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9d into the Treaty on European Union (TEU).
Article 9d
1. The Commission shall promote the general interest of the Union and take appropriate initiatives to that end. It shall ensure the application of the Treaties, and of measures adopted by the institutions pursuant to them. It shall oversee the application of Union law under the control of the Court of Justice of the European Union. It shall execute the budget and manage programmes. It shall exercise coordinating, executive and management functions, as laid down in the Treaties. With the exception of the common foreign and security policy, and other cases provided for in the Treaties, it shall ensure the Union's external representation. It shall initiate the Union's annual and multiannual programming with a view to achieving interinstitutional agreements.
2. Union legislative acts may only be adopted on the basis of a Commission proposal, except where the Treaties provide otherwise. Other acts shall be adopted on the basis of a Commission proposal where the Treaties so provide.
3. The Commission's term of office shall be five years.
The members of the Commission shall be chosen on the ground of their general competence and European commitment from persons whose independence is beyond doubt.
In carrying out its responsibilities, the Commission shall be completely independent. Without prejudice to Article 9 E(2), the members of the Commission shall neither seek nor take instructions from any Government or other institution, body, office or entity. They shall refrain from any action incompatible with their duties or the performance of their tasks.
4. The Commission appointed between the date of entry into force of the Treaty of Lisbon and 31 October 2014 shall consist of one national of each Member State, including its President and the High Representative of the Union for Foreign Affairs and Security Policy who shall be one of its Vice-Presidents.
5. As from 1 November 2014, the Commission shall consist of a number of members, including its President and the High Representative of the Union for Foreign Affairs and Security Policy, corresponding to two thirds of the number of Member States, unless the European Council, acting unanimously, decides to alter this number.
The members of the Commission shall be chosen from among the nationals of the Member States on the basis of a system of strictly equal rotation between the Member States, reflecting the demographic and geographical range of all the Member States. This system shall be established unanimously by the European Council in accordance with Article 211a of the Treaty on the Functioning of the European Union.
6. The President of the Commission shall:
(a) lay down guidelines within which the Commission is to work;
(b) decide on the internal organisation of the Commission, ensuring that it acts consistently, efficiently and as a collegiate body;
(c) appoint Vice-Presidents, other than the High Representative of the Union for Foreign Affairs and Security Policy, from among the members of the Commission.
A member of the Commission shall resign if the President so requests. The High Representative of the Union for Foreign Affairs and Security Policy shall resign, in accordance with the procedure set out in Article 9 E(1), if the President so requests.
7. Taking into account the elections to the European Parliament and after having held the appropriate consultations, the European Council, acting by a qualified majority, shall propose to the European Parliament a candidate for President of the Commission. This candidate shall be elected by the European Parliament by a majority of its component members. If he does not obtain the required majority, the European Council, acting by a qualified majority, shall within one month propose a new candidate who shall be elected by the European Parliament following the same procedure.
The Council, by common accord with the President-elect, shall adopt the list of the other persons whom it proposes for appointment as members of the Commission. They shall be selected, on the basis of the suggestions made by Member States, in accordance with the criteria set out in paragraph 3, second subparagraph, and paragraph 5, second subparagraph.
The President, the High Representative of the Union for Foreign Affairs and Security Policy and the other members of the Commission shall be subject as a body to a vote of consent by the European Parliament. On the basis of this consent the Commission shall be appointed by the European Council, acting by a qualified majority.
8. The Commission, as a body, shall be responsible to the European Parliament. In accordance with Article 201 of the Treaty on the Functioning of the European Union, the European Parliament may vote on a motion of censure of the Commission. If such a motion is carried, the members of the Commission shall resign as a body and the High Representative of the Union for Foreign Affairs and Security Policy shall resign from the duties that he carries out in the Commission.
***
The High Representative of the Union for Foreign Affairs and Security Policy is next.
Ralf Grahn
Wednesday, 2 January 2008
EU Treaty of Lisbon: Council
In a European Union of citizens and states, the latter have the upper hand. Not only is the EU based on international Treaties between the Member States, but the states are represented in the European Council and in the Council (of Ministers), the two most important institutions of the Union.
***
The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).
The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.
In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.
The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.
***
A few comments on the end result:
Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.
If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.
The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.
Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.
The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.
The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.
The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.
Article 9c
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.
3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 205(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 201b of the Treaty on the Functioning of the European Union.
The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council.
8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 201b of the Treaty on the Functioning of the European Union.
***
An overview of the Commission will follow.
Ralf Grahn
***
The main provisions on the Council are Articles 202 to 210 TEC (latest consolidated version OJ 29.12.2006, C 321 E).
The draft Constitution of the Convention consecrated three Articles to the Council, Article I-22 to Article I-24.
In the Treaty establishing a Constitution for Europe these became Article I-23 The Council of Ministers, Article I-24 Configurations of the Council of Ministers and Article I-25 Definition of qualified majority within the European Council and the Council.
The mandate of the intergovernmental conference (IGC 2007; document 11218/07), point 12, mentioned the institutional changes agreed in the 2004 IGC and set out the institutional modifications to the existing system, e.g. the Council (introduction of the double majority voting system and changes in the six-monthly Council presidency system, with the possibility of modifying it). Point 13 was dedicated to the double majority voting system, to take effect on 1 November 2014, but with a transitional period until 31 March 2017.
***
A few comments on the end result:
Article 9c(1) has to be read bearing in mind that the Council is much more than a co-legislator. In addition to joint areas of legislation and budgetary functions, the Council prepares and carries out the foreign, security and defence policy guidelines of the European Council with little effective scrutiny by the European Parliament. The executive powers of the Council should not be underestimated. “Policy making and coordinating functions” have to be examined issue by issue throughout the Treaties if we want to arrive at a realistic picture.
If we assume that the European Union has been established with worthwhile values and objectives, to enhance our security and prosperity in a globalising world, then the effectiveness of the Union becomes an issue from a citizen’s point of view. The rule of unanimity (liberum veto) can destroy any organisation. The Lisbon Treaty extends the areas with qualified majority voting (QMV), but the crucial questions remain subject to unanimous decision making among the Member States.
The foundations of the Union and foreign, security and defence policy plus the long term budget and resources of the EU as well as sensitive legislative fields like taxation remain subject to unanimity. At the same time, these areas offer the least in terms of democratic scrutiny by the directly elected representatives of the citizens, the European Parliament.
Intergovernmental bargaining in the Council lacks openness and transparency. More often than not, the governments act as agents for their own and other particular interests, in conflict with the common interests of the Union’s citizens.
The Lisbon Treaty does little to remedy these basic faults, although legislative acts are formally adopted in public.
The rotating Council Presidency is going to change, when the European Council elects a semi-permanent President and the High Representative chairs the Foreign Affairs Council. Potentially, the coordinating General Affairs Council configuration could become important.
The 18 month team Presidencies have been introduced ahead of the Treaty amendments. Germany, Portugal and Slovenia (from 1 January 2008) formed the first Presidency trio.
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an article 9c TEU on the Council.
Article 9c
1. The Council shall, jointly with the European Parliament, exercise legislative and budgetary functions. It shall carry out policy-making and coordinating functions as laid down in the Treaties.
2. The Council shall consist of a representative of each Member State at ministerial level, who may commit the government of the Member State in question and cast its vote.
3. The Council shall act by a qualified majority except where the Treaties provide otherwise.
4. As from 1 November 2014, a qualified majority shall be defined as at least 55 % of the members of the Council, comprising at least fifteen of them and representing Member States comprising at least 65 % of the population of the Union.
A blocking minority must include at least four Council members, failing which the qualified majority shall be deemed attained.
The other arrangements governing the qualified majority are laid down in Article 205(2) of the Treaty on the Functioning of the European Union.
5. The transitional provisions relating to the definition of the qualified majority which shall be applicable until 31 October 2014 and those which shall be applicable from 1 November 2014 to 31 March 2017 are laid down in the Protocol on transitional provisions.
6. The Council shall meet in different configurations, the list of which shall be adopted in accordance with Article 201b of the Treaty on the Functioning of the European Union.
The General Affairs Council shall ensure consistency in the work of the different Council configurations. It shall prepare and ensure the follow-up to meetings of the European Council, in liaison with the President of the European Council and the Commission.
The Foreign Affairs Council shall elaborate the Union's external action on the basis of strategic guidelines laid down by the European Council and ensure that the Union's action is consistent.
7. A Committee of Permanent Representatives of the Governments of the Member States shall be responsible for preparing the work of the Council.
8. The Council shall meet in public when it deliberates and votes on a draft legislative act. To this end, each Council meeting shall be divided into two parts, dealing respectively with deliberations on Union legislative acts and non-legislative activities.
9. The Presidency of Council configurations, other than that of Foreign Affairs, shall be held by Member State representatives in the Council on the basis of equal rotation, in accordance with the conditions established in accordance with Article 201b of the Treaty on the Functioning of the European Union.
***
An overview of the Commission will follow.
Ralf Grahn
Tuesday, 1 January 2008
EU Treaty of Lisbon: European Council
If the European Union is a ship, the European Council represents the shipowners. The existing Treaty on European Union (TEU; latest consolidated version OJ 29.12.2006, C 321 E) Article 4 presents the tasks, the membership and the reporting of the European Council, without formally making it one of the EU institutions:
“Article 4
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.”
***
The Convention included the European Council among the institutions and proposed two Articles. The first one, I-20, reiterated the present tasks of the European Council, but clarified that it does not exercise legislative functions. The basic membership (Heads of State or Government) was the same, but the new chairman (President) was mentioned. The Ministers for Foreign Affairs would have lost their membership; their participation would have become optional. This was intended to bring back something of the informal beginnings as “fireside chats” which were becoming impossible with more than fifty participants in an enlarged Union.
The European Council would have met every three months. Extraordinary meetings would have been possible. Decisions would have been made by consensus, if the Constitution did not provide otherwise. The difference between “consensus” and “unanimity” was not elaborated.
The second provision proposed by the Convention, Article I-21, concerned the new semi-permanent President of the European Council, elected for two and a half years (renewable once) and replacing the chairmanship of the current six month Presidency of the Council. This was a victory for those who wanted the European Council to steer a clearer course and to safeguard continuity in action. One of the innovations in this direction was that the President could not hold a national office at the same time. (On the other hand, uniting the offices of President of the European Council and of the Commission remained a possibility.)
The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) took on board most of the proposals made by the Convention, in Artcles I-21 and I-22. The national Ministers for Foreign Affairs, whose participation was becoming optional, lost their monopoly to participate if ministers were needed. For instance, the ministers representing the member states in the evolving General Affairs Council, or the Ministers for Finance or the Economy could have participated depending on the theme of the meeting. (The spring European Council, with the economic reforms and the Lisbon strategy on the agenda could offer an example, as well as future meetings dedicated to the area of freedom, security and justice.)
The intergovernmental conference (IGC 2007) decided to merge two Articles into one, Article 9b. There are minor differences. In Article 9b(2) the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”. In Article 9b(3) the quarterly meetings have become somewhat more flexible: meetings twice every six months. Otherwise, the changes are minimal compared to the Constitutional Treaty.
***
Like all institutions, the European Council is reminded of the “common good”: The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. Article 9(1) TEU.
The wording follows the structure of the amended TEU and advances more or less in the same order from values to objectives and further to the interests of the citizens of the Union and of its Member States.
Consistency, effectiveness and continuity are mentioned as essential guidelines for decision making.
Is this shocking? Every successful organisation needs a modicum of team play. Even if the members of the European Council represent the particular interests of the Member States all of the time, these national leaders have to make the effort to find the common interests that bind them together, at least for about eight days yearly.
Without the strategic direction given by the European Council, the European Union would come to nought.
***
The crucial reform of the Lisbon Treaty concerning the European Council, in addition to formal status as an institution, is the semi-permanent President.
He or she shall chair the meetings and drive forward the work of the European Council. The President ensures the preparation and continuity of its work and tries to facilitate cohesion and consensus. The President takes over the reporting to the European Parliament, as well. The President represents the Union “at his level and in that capacity” on issues concerning the foreign and security policy of the European Union.
Gone will be the days when an active President or Prime Minister of a Member State had to juggle his national obligations with the task to drive forward the European Council and to represent it both substantially and ceremonially.
***
The Treaty of Lisbon creates a demanding square between the new President of the European Council, the partly new “double-hatted” High Representative/Vice President of the Commission, the existing President of the European Commission and the somewhat devalued rotating Presidency of the Council, in charge of the General Affairs Council and the ‘ordinary’ Council formations (if separate persons head the European Council and the Commission).
On the whole, the Lisbon Treaty seems to strengthen the intergovernmental traits of the European Union. The President of the European Council is the potential new star, firmly embedded in an intergovernmental setting, and it looks more probable that the High Representative is going to extend the power of the Council into the Commission, than the other way around.
***
Much will depend on the choice of persons and their capacity to interact. Despite the bland wording of joint Declaration (number 6) on Article 9 B(5) and (6), Article 9 D (6) and (7) and Article 9 E of the Treaty on European Union, the jockeying for positions can be expected to be intense. The Protocol says:
“In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.”
Taken at face value, the “geographical and demographic diversity” of the EU and its Member States refer to the map and population size, but in reality the political aspects are preponderant. Should the persons to be chosen represent the values of the integrationist core or halfway houses outside the Eurozone, the Schengen area, the Charter of Fundamental Rights and readiness to promote a common defence based on dual EU and NATO membership?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9b.
Article 9b
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
In my next instalment I turn to the Council.
Ralf Grahn
“Article 4
The European Council shall provide the Union with the necessary impetus for its development and shall define the general political guidelines thereof.
The European Council shall bring together the Heads of State or Government of the Member States and the President of the Commission. They shall be assisted by the Ministers for Foreign Affairs of the Member States and by a Member of the Commission. The European Council shall meet at least twice a year, under the chairmanship of the Head of State or Government of the Member State which holds the Presidency of the Council.
The European Council shall submit to the European Parliament a report after each of its meetings and a yearly written report on the progress achieved by the Union.”
***
The Convention included the European Council among the institutions and proposed two Articles. The first one, I-20, reiterated the present tasks of the European Council, but clarified that it does not exercise legislative functions. The basic membership (Heads of State or Government) was the same, but the new chairman (President) was mentioned. The Ministers for Foreign Affairs would have lost their membership; their participation would have become optional. This was intended to bring back something of the informal beginnings as “fireside chats” which were becoming impossible with more than fifty participants in an enlarged Union.
The European Council would have met every three months. Extraordinary meetings would have been possible. Decisions would have been made by consensus, if the Constitution did not provide otherwise. The difference between “consensus” and “unanimity” was not elaborated.
The second provision proposed by the Convention, Article I-21, concerned the new semi-permanent President of the European Council, elected for two and a half years (renewable once) and replacing the chairmanship of the current six month Presidency of the Council. This was a victory for those who wanted the European Council to steer a clearer course and to safeguard continuity in action. One of the innovations in this direction was that the President could not hold a national office at the same time. (On the other hand, uniting the offices of President of the European Council and of the Commission remained a possibility.)
The Treaty establishing a Constitution for Europe (OJ 16.12.2004, C 310) took on board most of the proposals made by the Convention, in Artcles I-21 and I-22. The national Ministers for Foreign Affairs, whose participation was becoming optional, lost their monopoly to participate if ministers were needed. For instance, the ministers representing the member states in the evolving General Affairs Council, or the Ministers for Finance or the Economy could have participated depending on the theme of the meeting. (The spring European Council, with the economic reforms and the Lisbon strategy on the agenda could offer an example, as well as future meetings dedicated to the area of freedom, security and justice.)
The intergovernmental conference (IGC 2007) decided to merge two Articles into one, Article 9b. There are minor differences. In Article 9b(2) the “Union Minister for Foreign Affairs” has become the “High Representative of the Union for Foreign Affairs and Security Policy”. In Article 9b(3) the quarterly meetings have become somewhat more flexible: meetings twice every six months. Otherwise, the changes are minimal compared to the Constitutional Treaty.
***
Like all institutions, the European Council is reminded of the “common good”: The Union shall have an institutional framework which shall aim to promote its values, advance its objectives, serve its interests, those of its citizens and those of the Member States, and ensure the consistency, effectiveness and continuity of its policies and actions. Article 9(1) TEU.
The wording follows the structure of the amended TEU and advances more or less in the same order from values to objectives and further to the interests of the citizens of the Union and of its Member States.
Consistency, effectiveness and continuity are mentioned as essential guidelines for decision making.
Is this shocking? Every successful organisation needs a modicum of team play. Even if the members of the European Council represent the particular interests of the Member States all of the time, these national leaders have to make the effort to find the common interests that bind them together, at least for about eight days yearly.
Without the strategic direction given by the European Council, the European Union would come to nought.
***
The crucial reform of the Lisbon Treaty concerning the European Council, in addition to formal status as an institution, is the semi-permanent President.
He or she shall chair the meetings and drive forward the work of the European Council. The President ensures the preparation and continuity of its work and tries to facilitate cohesion and consensus. The President takes over the reporting to the European Parliament, as well. The President represents the Union “at his level and in that capacity” on issues concerning the foreign and security policy of the European Union.
Gone will be the days when an active President or Prime Minister of a Member State had to juggle his national obligations with the task to drive forward the European Council and to represent it both substantially and ceremonially.
***
The Treaty of Lisbon creates a demanding square between the new President of the European Council, the partly new “double-hatted” High Representative/Vice President of the Commission, the existing President of the European Commission and the somewhat devalued rotating Presidency of the Council, in charge of the General Affairs Council and the ‘ordinary’ Council formations (if separate persons head the European Council and the Commission).
On the whole, the Lisbon Treaty seems to strengthen the intergovernmental traits of the European Union. The President of the European Council is the potential new star, firmly embedded in an intergovernmental setting, and it looks more probable that the High Representative is going to extend the power of the Council into the Commission, than the other way around.
***
Much will depend on the choice of persons and their capacity to interact. Despite the bland wording of joint Declaration (number 6) on Article 9 B(5) and (6), Article 9 D (6) and (7) and Article 9 E of the Treaty on European Union, the jockeying for positions can be expected to be intense. The Protocol says:
“In choosing the persons called upon to hold the offices of President of the European Council, President of the Commission and High Representative of the Union for Foreign Affairs and Security Policy, due account is to be taken of the need to respect the geographical and demographic diversity of the Union and its Member States.”
Taken at face value, the “geographical and demographic diversity” of the EU and its Member States refer to the map and population size, but in reality the political aspects are preponderant. Should the persons to be chosen represent the values of the integrationist core or halfway houses outside the Eurozone, the Schengen area, the Charter of Fundamental Rights and readiness to promote a common defence based on dual EU and NATO membership?
***
The Treaty of Lisbon (OJ 17.12.2007, C 306) inserts an Article 9b.
Article 9b
1. The European Council shall provide the Union with the necessary impetus for its development and shall define the general political directions and priorities thereof. It shall not exercise legislative functions.
2. The European Council shall consist of the Heads of State or Government of the Member States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy shall take part in its work.
3. The European Council shall meet twice every six months, convened by its President. When the agenda so requires, the members of the European Council may decide each to be assisted by a minister and, in the case of the President of the Commission, by a member of the Commission. When the situation so requires, the President shall convene a special meeting of the European Council.
4. Except where the Treaties provide otherwise, decisions of the European Council shall be taken by consensus.
5. The European Council shall elect its President, by a qualified majority, for a term of two and a half years, renewable once. In the event of an impediment or serious misconduct, the European Council can end the President's term of office in accordance with the same procedure.
6. The President of the European Council:
(a) shall chair it and drive forward its work;
(b) shall ensure the preparation and continuity of the work of the European Council in cooperation with the President of the Commission, and on the basis of the work of the General Affairs Council;
(c) shall endeavour to facilitate cohesion and consensus within the European Council;
(d) shall present a report to the European Parliament after each of the meetings of the European Council.
The President of the European Council shall, at his level and in that capacity, ensure the external representation of the Union on issues concerning its common foreign and security policy, without prejudice to the powers of the High Representative of the Union for Foreign Affairs and Security Policy.
The President of the European Council shall not hold a national office.
***
In my next instalment I turn to the Council.
Ralf Grahn
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